Potts v. Austin

492 F. Supp. 326, 1980 U.S. Dist. LEXIS 13783
CourtDistrict Court, N.D. Georgia
DecidedJune 13, 1980
DocketCiv. C80-964A, C80-46G
StatusPublished

This text of 492 F. Supp. 326 (Potts v. Austin) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Potts v. Austin, 492 F. Supp. 326, 1980 U.S. Dist. LEXIS 13783 (N.D. Ga. 1980).

Opinion

ORDER

O’KELLEY, District Judge.

This is the life or death saga of a convicted murderer on death row. Over the past week these actions have steered a bizarre course, and now as a result of petitioner’s actions, this pen writes of Jack Howard Potts probably for the last time.

Jack Howard Potts was arrested, tried, and convicted of heinous and despicable crimes against society. He was tried for separate crimes in Cobb and Forsyth Counties for what has been generally described as a “crime spree” which took place in 1975. Before he was apprehended, two persons were shot and one was killed, having been kidnapped and shot in the head at point blank range. Petitioner was tried and convicted in Cobb County, Georgia, for kidnapping, armed robbery, and aggravated assault. Approximately six months later he was convicted in Forsyth County, Georgia, of premeditated murder. He .was sentenced to death on the convictions for murder, kidnapping, and armed robbery. Petitioner’s trial attorneys appealed those convictions as a matter of right to the Supreme Court of Georgia, which affirmed each of the convictions and the sentences of death as imposed for the kidnapping and murder convictions. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978). The court reversed the sentence of death as to the armed robbery conviction. Id. at 88, 243 S.E.2d at 525. For reasons that are not entirely clear, petitioner’s attorneys did not petition for the issuance of a writ of certiorari to the Supreme Court of the United States. Having exhausted or otherwise foregone direct appellate review of his convictions, petitioner, through counsel, initiated a habeas corpus action in the state courts. A hearing was conducted on that action in the Superior Court of Tattnall County, and Mr. Potts was denied relief. That decision was then appealed to the Supreme Court of Georgia. While that appeal was pending before that court, Jack Potts, as he testified before this court, decided to dismiss his attorneys and withdraw his pending appeal. The petitioner testified that in November of 1979, December of 1979, and January of 1980, he requested by letter that the Supreme Court of Georgia dismiss his appeal. Apparently disregarding petitioner's request, the Supreme Court ruled on the application on January 8, 1980, denying petitioner’s application for a certificate of probable cause for habeas corpus appeal and granting a motion to discharge the attorneys. From petitioner’s testimony it was by his desire that the attorneys were dismissed, and, until June 4, 1980, petitioner insisted that sentence be imposed.

The story of Jack Howard Potts began to unfold in this court on Tuesday, June 3, 1980. Late in the afternoon of that day the clerk notified the court that separate habeas corpus actions had been filed by a “next friend” and that those actions had been assigned to this judge. 1 A review of the actions indicated that the petitioner was contending that Jack Howard Potts was incompetent to waive his right to federal *328 habeas corpus review. Also presented to the court in those actions were applications to stay execution pending full habeas corpus review. As Mr. Potts’ execution was scheduled for June 5, the court immediately summoned petitioner’s attorneys and representatives of the Georgia Attorney General’s office. After conferring with counsel, the court scheduled a hearing to commence at 7:30 a. m. on June 4, 1980, to determine whether the petitioner was an appropriate “next friend” and, if so, whether Jack Potts was competent to make a knowing and intelligent relinquishment of a known right. See Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). That hearing consumed most of the day of June 4. After hearing the testimony, including expert testimony of a psychologist, reviewing the documentary evidence, and viewing a videotape of a press conference held by Mr. Potts on June 2, 1980, the court determined that there was not a proper “next friend” before the court and that, even if there was, the evidence not only failed to raise an issue as to competence but showed beyond a reasonable doubt that Mr. Potts was competent. Pursuant to those determinations, the court denied the applications for a stay of execution and dismissed the actions as failing to state a claim. 2

The court’s ruling was made at approximately 6:15 p. m. 3 At approximately 7:15 p. m. on that same evening, some 15 hours before the scheduled execution, the court received notice by telephone that Jack Howard Potts had signed an authorization at the Georgia State Prison at Reidsville for Millard Farmer, Andrea Young, and Joe Nursey to act as his attorneys and to bring a federal habeas corpus action attacking the constitutionality of his state court convictions. Mr. Nursey was in Atlanta and had previously prepared separate actions and applications for a stay of execution with Mr. Potts as petitioner. After the office of the Attorney General contacted the warden at Reidsville and confirmed to the court that Mr. Potts had, indeed, authorized the actions, Mr. Nursey was allowed to file those pleadings with the deputy clerk in chambers. As Jack Howard Potts had not previously exercised his right to federal habeas corpus review, the court granted his application for a stay of execution and determined that the petitions should be submitted to the magistrate for a report and recommendation and proceed as any other habeas corpus petition in this court. 4 The stay was communicated to the state officials, and the sentence was not carried out as scheduled.

The court then returned to the trial of another criminal matter which had been interrupted by the emergency petitions on Mr. Potts’ behalf. That trial proceeded without incident on Thursday and Friday. After court had adjourned on Friday, one of the court’s law clerks received a telephone call from a person identifying herself as Carolyn Potts, the mother of Jack Howard Potts. She indicated that she had a letter *329 signed by her son on that day, witnessed by her, and addressed to the court, which indicated that her son did not wish to be represented by Millard Farmer and desired to withdraw his habeas corpus petitions. Because Mrs. Potts was several hours away from the courthouse, en route from the Georgia State Prison, the court made arrangements for someone to be present to receive the letter at the courthouse. The letter, was received at approximately 6:30 p. m., and the court was informed of its contents. The letter is attached as Appendix “A.” On Monday morning the court concluded the evidence in the other criminal matter and when the jury retired to deliberate, the court summoned Mr. Potts’ attorneys and representatives of the Attorney General’s office for a conference. 5

Neither the court nor counsel was aware of any precedent directly addressing the situation. For that reason the court proposed to counsel a procedure to determine whether or not Mr. Potts’ petitions would be withdrawn as his letter requested.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Potts v. State
243 S.E.2d 510 (Supreme Court of Georgia, 1978)
Gilmore v. Utah
429 U.S. 1012 (Supreme Court, 1976)
Whitlow v. Hodges
429 U.S. 1029 (Supreme Court, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
492 F. Supp. 326, 1980 U.S. Dist. LEXIS 13783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potts-v-austin-gand-1980.