Hugh H. Tennon, III v. Dr. James Ricketts, Warden

574 F.2d 1243, 1978 U.S. App. LEXIS 10736

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 1978
• Docket: 77-2356
• Status: Published

Opinions

COLEMAN, Circuit Judge.

A police officer in Cordele, Georgia, was shot and killed more than seven years ago. The habeas corpus appellee, Hugh H. Tennon, III, was convicted of murdering the officer and sentenced to imprisonment for life. On a 5-2 vote, the Supreme Court of Georgia affirmed, Tennon v. State, 235 Ga. 594, 220 S.E.2d 914 (1975), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976).

The Supreme Court of Georgia wrote:

“On October 18, 1970, a policeman was shot in his police car in Cordele, Georgia, by a man he was taking to the station for selling newspapers without a permit. The police officer died later that day from multiple bullet wounds. A black man was seen leaving the police car after it stopped. At trial, appellant stated that the officer slapped him and drew his pistol, that they struggled and that the gun went off.” 220 S.E.2d 915.

As to Tennon’s failure to challenge the composition of the grand jury which indicted him, the Court said:

“The appellant was indicted by the grand jury on October 28, 1970. However, he was not arrested until he was found in Wisconsin almost two years later. In September 1972 he was returned to Georgia. The motion to quash the indictment and the challenge to the array of grand and traverse jurors was filed November 7, 1972. The appellant was arraigned March 19, 1973, after a hearing at which the motion and challenge were denied.

“A challenge to the array of grand jurors is waived unless timely filed. As stated in Sanders v. State, 235 Ga. 425, 219 S.E.2d 768(1); ‘In order for such a motion to be entertained by the trial court, it must be made prior to the return of the indictment or the defendant must show that he had no knowledge, either actual or constructive, of such alleged illegal composition of the grand jury pri- or to the time the indictment was returned; otherwise, the objection is deemed to be waived. Estes v. State, 232 Ga. 703, 708, 208 S.E.2d 806 (1974). Accord, McHan v. State, 232 Ga. 470, 471(2), 207 S.E.2d 457 (1974); Simmons v. State, 226 Ga. 110, 111(1a), 172 S.E.2d 680 (1970); Williams v. State, 210 Ga. 665, 667, 82 S.E.2d 217 (1954).’ ” 220 S.E.2d at 916.

Faced with this outcome, Tennon sought review in the United States Supreme Court. The petition for certiorari posed the following question:

“Question No. 1. Was petitioner denied due process and equal protection of the laws in violation of the Fourteenth Amendment by the exclusion of blacks and women from the grand and traverse juries that indicted and convicted him?”

Certiorari was denied June 1, 1976, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833.

Petitioner then turned for relief to the ancient and ever-available writ of habeas corpus. In the words of the petition, he “urged anew” the same grounds previously submitted to the highest Courts of both the State and the Nation, including the failure to quash the indictment because it was returned by an unconstitutionally composed grand jury.

Jury discrimination claims must be raised in a timely fashion, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Newman v. Henderson, 5 Cir., 1974, 496 F.2d 896, 897; Morris v. Sullivan, 5 Cir., 1974, 497 F.2d 544; Watkins v. Green, 5 Cir., 1977, 548 F.2d 1143.

Moreover, it is for the Georgia Supreme Court, not this Court, to expound the decisional rules of that jurisdiction, Morris v. Sullivan, 5 Cir., 1974, 497 F.2d 544; Watkins v. Green, 5 Cir., 1977, 548 F.2d 1143.

On collateral attack, the state is under no burden to show that the waiver of the right to file timely objections to the composition of a grand jury was knowingly and understandingly made. To the contrary, he who tardily brings the claim must make a showing of cause for the failure and must also make a showing of actual prejudice. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). This is not inconsistent with the Georgia rule that a challenge to the array of grand jurors may not be entertained by a trial court unless it is made prior to the return of the indictment or the defendant has shown that he had neither actual nor constructive knowledge of the alleged illegal composition of the grand jury prior to the time the indictment was returned, page 1245 ante.

On the other hand, it is a denial of due process to deny a defendant an opportunity to comply with rules of timeliness, Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955).

Reece, a black man, was arrested for the alleged rape of a white woman and held in jail until indicted three days later. Counsel was appointed the next day after indictment. Before arraignment, it was moved that the indictment be quashed on the ground that Negroes had been systematically excluded from service on the grand jury. The Georgia Supreme Court held that the motion was properly denied because by Georgia practice objections to the grand jury had to be made before the indictment is returned. The conviction, however, was reversed on other grounds. On remand, the motion to quash was renewed, asserting that the defendant had neither knowledge of the grand jury nor the benefit of counsel before his indictment. The state’s demurrer to this effort was sustained. Reece was again tried, convicted, and sentenced to be electrocuted. The conviction was affirmed. The United States Supreme Court reversed, noting that the grand jury was impaneled and sworn before Reece had been arrested and that it would be utterly unrealistic to say that Reece had an opportunity to challenge the grand jury when no counsel had been provided for him until the day after he was indicted. The Court held that the right to object to a grand jury presupposes an opportunity to exercise that right, but did not invalidate the rule.

Relying, in the main, on Reece, the District Court reasoned that the petitioner

“was indicted at a time when he did not have counsel and, indeed, when he was not even in the state. As soon as practicable after his arrest and retention of counsel, however, he moved to quash the indictment. As in Reece, therefore, the application of Georgia’s waiver rule in these circumstances denied petitioner an adequate opportunity to assert his right to be indicted by a constitutional tribunal and, as such, cannot be applied to bar consideration of his grand jury claim on the merits by this court [footnotes omitted].”

We are of the opinion that the District Court failed appropriately to consider the teachings of Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

In his appearance before the federal ha-beas corpus court, Tennon testified that after the officer was killed, he fled to Milwaukee, where he was apprehended about the middle of May, 1971. Represented by counsel, he contested extradition and was not returned to Georgia until September, 1972.

After the death of the police officer, in his police car, from multiple wounds inflicted by bullets from his own gun, while Ten-non was under arrest, with no one else involved, it is inconceivable that Tennon could have been unaware that Georgia would be searching for him and might likely indict him. Indeed, in the federal district court, he testified that during his absence from the state he did not know whether any criminal proceedings were pending against him but he had so presumed (Record, II, 14).

Tennon was indicted on October 28, 1970, at a time when he was absent from the state as one fleeing from the scene of a homicide.

In Michel, Louisiana had a statutory rule that objections to a grand jury had to be made within three judicial days after the term or before trial, whichever came the earlier. Poret, a co-defendant in the case, was convicted of rape and sentenced to death. Shortly after the crime was committed, he had eluded police officers and fled the state. He was indicted December 11, 1950, but was not arrested and nothing was known of his whereabouts until late 1951, when it was discovered that he was in prison in Tennessee. He had been at large for five months before going to that prison. He was returned to Louisiana, October 3, 1952. At arraignment he was represented by privately retained counsel. On November 7 he moved to quash the indictment. The trial court held that Poret had been a fugitive from justice, therefore the rule of timeliness for grand jury challenges would not be suspended or nullified for his benefit. In a direct, rather than a collateral attack, Poret argued that he had had no opportunity to comply with the rule. The Supreme Court construed Poret’s contention to be a claim that flight in violation of federal law [18 U.S.C. § 1073] is converted into a federal immunity from the operation of a valid state rule. Poret had been without an attorney but there had been no showing that he could not have filed his objections had he not elected to flee. The Supreme Court concluded that by his own action Poret had failed to avail himself of an adequate state remedy.¹ Moreover, the Supreme Court pointed out that Poret had not filed his motion to quash at the earliest available opportunity. The denial of his motion to quash was not a denial of due process.

In a footnote, the District Court expressed the view that the Michel decision did not apply to Tennon’s situation because the Louisiana rule prescribed a time limit after indictment, whereas Georgia requires that the challenge be filed prior to indictment. We do not perceive the basis for this distinction. Both rules specify a limitation on the time for filing of challenges. The shooting took place on October 18, 1970. The indictment was returned ten days later. There is no showing in the record that had Tennon remained in the state there would have been no arrest or no counsel or no opportunity to challenge the composition of the grand jury before the return of the indictment.

In Reece, the grand jury had been chosen before the defendant had so much as been arrested. He had not fled the state. There was no showing that before the grand jury was chosen he should have anticipated indictment and been prepared for that eventuality. In short, there had been no opportunity to comply with the rule. In the present case, however, it was Tennon, not Georgia, who caused his inability to comply. We think the principles enunciated in Po-ret’s case [Michel v. Louisiana:] foreclose Tennon’s claims.

In a somewhat similar case (Georgia ha-beas corpus) the Fifth Circuit recently had occasion to comment on the consequences of fleeing state jurisdiction, Strickland v. Hopper, 5 Cir., 1978, 571 F.2d 275. After conviction and pending the disposition of a motion for a new trial, Strickland escaped. The trial court denied the new trial motion on the ground that Strickland was a fugitive from justice. We held that the escape amounted to a deliberate by-pass, that “in a very practical sense petitioner knowingly abandoned the privilege of seeking in state court to vindicate his federal claims”.

We have great deference for Judge Tut-tle’s dissenting view of what he believes to be (or should be) the applicable Georgia law. The difficulty is that we are not in position to re-examine what the Georgia Supreme Court has held on that subject. As discussed ante, that Court enunciated the applicable Georgia law when it considered and decided Tennon’s direct appeal.

The Supreme Court of the United States has told us “We usually walk on treacherous ground when we explore state law [footnote omitted], for state courts, state agencies, and state legislatures are its final expositors under our federal regime”, Brady v. State of Maryland, 373 U.S. 83, 90, 83 S.Ct. 1194, 1198, 10 L.Ed.2d 215 (1963).

The Fifth Circuit has held that “the authoritative legislative and judicial tribunals of the states are the ultimate instructors of the federal courts on matters of state law”, Steele v. G. D. Searle & Co., 5 Cir. 1973, 483 F.2d 339, 343 (per Goldberg, J.).

Consequently, the majority feels that it may not second guess the Georgia Supreme Court; that it may not revise, modify, or overrule what that court held with reference to the Georgia law here involved. That law being what it is, the undisputed fact is that Tennon fled the state immediately after the homicide. Although he presumed that the state would wish to arrest him, he deliberately denied himself the opportunity to “notice before indictment”. He was indicted while he was yet an unlocated fugitive in a distant state. After apprehension, he says that the federal Constitution guarantees him the right to proceed as if he had not fled; that is, he should be treated more advantageously than those who remain within the jurisdiction and submit in an orderly manner to prescribed procedures.

We are not convinced that the Constitution mandates such special treatment for fugitives.

The Judgment of the District Court setting aside Tennon’s conviction is reversed. The cause is remanded for consideration of claims which the District Court did not reach or decide.

REVERSED and REMANDED.

1 . “We do not believe that the mere fugitive status existing here excuses a failure to resort to Louisiana’s established statutory procedure available to all who wish to assert claimed constitutional rights. This is not to say that the act of fleeing and becoming a fugitive deprives one of federal rights. We hold only that due regard for the fair as well as effective administration of criminal justice gives the State a legitimate interest in requiring reasonable attacks on its inquisitorial process and that the present case is not one in which this interest must bow to essential considerations of fairness to individual defendants.” Michel v. Louisiana, supra, 350 U.S. at 98, 76 S.Ct. at 162-163 (footnote omitted).