Samuel Gibson, III v. George L. Jackson, Individually and as Superior Court Judge of Jones County, Georgia

578 F.2d 1045, 1978 U.S. App. LEXIS 9393

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 1978
• Docket: 78-1113
• Status: Published

Opinions

ALVIN B. RUBIN, Circuit Judge:

Samuel Gibson, an indigent black male sentenced to death by the State of Georgia for the murder and rape of a white female, filed a state habeas corpus action alleging that his federal constitutional rights had been violated in his earlier criminal trial. A Georgia lawyer filed the petition, in which he alleged that the state court is required to appoint counsel to represent Gibson, and that the state of Georgia is required to provide funds to pay for investí-gative and witness expenses in his state habeas proceeding. The state court has never formally ruled on this issue. By agreement of the parties, the state habeas action was stayed while petitioner, again represented by the same unpaid counsel who had appeared on his behalf in the state habeas proceeding, filed this federal action pursuant to 42 U.S.C. § 1983, seeking a declaratory judgment that the state is required to afford him appointed counsel and reasonable monetary assistance as a matter of constitutional right.¹ The federal trial court concluded that petitioner had raised five substantial issues in his habeas petition that could not be fairly and fully presented without both the assistance of counsel and funds for investigative and litigation expenses,² and, extending the rationale of Bounds v. Smith, 1977, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72, granted the relief sought. Gibson v. Jackson, M.D.Ga.1977, 443 F.Supp. 239. The defendants appeal, contending, first, that the federal court should have abstained from resolving the issue pending completion of the state habe-as process, and, second, that there is no constitutional right to the relief sought. Because we agree that the trial court should have abstained, we do not at this time consider the second issue.

In Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, principles of “equity, comity and federalism”³ led the Supreme Court to fashion the doctrine of federal abstention,⁴ later broadened in Younger v. Harris,⁵1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its successors.⁶ Pullman .-type abstention⁷ is, in general, appropriate “in cases presenting a federal constitutional⁸ issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.”⁹ Colorado River Water Conservation Dist. v. United States, 1976, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483, quoting County of Allegheny v. Frank Mashuda Co., 1959, 360 U.S. 185, 189, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163.

The necessity for abstention is to be determined by principled discretion¹⁰ not doctrinaire adherence; its application must, therefore, be decided on a case-by-case basis.¹¹ The stay of federal decision is “an extraordinary and narrow exception to the duty of the District Court to adjudicate a controversy properly before it.” Colorado River Water Conservation Dist. v. United States, id.12Although federal courts should seek, whenever possible, to resolve a controversy without reaching the question of the constitutionality of federal or state action, this self-restraint “does not alone justify abstention.” Colorado River Water Conservation Dist. v. United States, supra, 424 U.S. at 815 n. 21, 96 S.Ct. at 1245. See Harman v. Forssenius, 1965, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50; Baggett v. Bullitt, 1964, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377. When declaratory relief is sought with respect to issues presented in a pending state civil proceeding, “a vigorous balancing test is contemplated, including the plaintiff’s cost of having to proceed through the state court system, and some judgment as to how intrusive or disruptive a federal decree is likely to be to the ongoing state civil proceeding.” Diaz v. Stathis, 576 F.2d 9, 1 Cir. 1978. The principle is not, however, limited to a single species of cases. Even when suit is brought for violation of federal civil rights, pursuant to Section 1983, a proceeding that does not require the exhaustion of state remedies as a prerequisite to federal action,¹³ federal courts may refrain from decision until a related state court proceeding is resolved.¹⁴

Federal courts usually await state court action only if a state court determination of state law may moot or reshape the federal constitutional issue. Although the record when counsel, appeared to seek a postponement of state proceedings indicates that the state court was not receptive to the request, it has not acted upon or even been presented with a specific demand for relief; it may yet rule favorably upon this plea. Because the state’s attorney informed us, in oral argument, that he would like to see petitioner represented by counsel, it is possible that the state attorney general may join in petitioner’s motion, a development that would enhance its prospects.¹⁵ Even if the trial court considers and denies such relief, the Georgia Supreme Court may rule in petitioner’s favor notwithstanding its pri- or jurisprudence rejecting the right to appointed counsel in habeas proceedings.¹⁶ The Georgia Supreme Court has never considered the issue with respect to a petitioner who faces the death penalty,¹⁷ nor has it considered the effect, if any, of Bounds v. Smith, supra, which the federal trial court found persuasive.¹⁸ Finally, the Georgia Supreme Court may, without a complete departure from its prior jurisprudence, decide that, under the circumstances of this case, involving both imposition of the death penalty and complex legal issues, due process requires counsel and state financial assistance. We note that, in less compelling cases,¹⁹ two justices of that court have stated the opinion that this approach should be adopted.

The state trial court or state supreme court may deny petitioner’s requests for assistance but nonetheless find his substantive claims meritorious, hence mooting the procedural issues. Moreover, the issue here raised may be moot in the literal sense: the petitioner is presently represented by counsel in the state court and that able lawyer, who appeared on petitioner’s behalf before us, may continue in the task he has assumed pro-bono. The likelihood that the issues now presented will remain for decision when the state proceeding is concluded is so uncertain at this moment that an immediate decision borders on being advisory in nature.²⁰

Petitioner asks this court to inform the state tribunal of the procedural requirements imposed upon it by the federal Constitution while that tribunal is in the process of charting its own course. “Proceedings in state courts should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately [the United States Supreme Court].” Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 1970, 398 U.S. 281, 287, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234. See Lamb Enterprises, Inc. v. Kiroff, 6 Cir. 1977, 549 F.2d 1052, 1058, cert. denied, 1977, 431 U.S. 968, 97 S.Ct. 2926, 53 L.Ed.2d 1064; Louisville Area Inter-Faith Committee v. Nottingham Liquors, Ltd., 6 Cir. 1976, 542 F.2d 652, 654. As we recently noted in Williams v. Rubiera, 5 Cir. 1976, 539 F.2d 470, cert. denied, 1977, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246, where petitioner sought a declaration of his right to appointed counsel in a state welfare prosecution, “If relief were granted ... it would have the effect of a federal court telling the state court how to run an ongoing criminal prosecution, i. e., whether it could constitutionally try the defendant without appointed counsel.” 539 F.2d at 473. Compare Cleaver v. Wilcox, 9 Cir. 1974, 499 F.2d 940. Abstention will avoid such a “continuous federal supervision of state functioning.” Friendly, Federal Jurisdiction, A General View, 95 (1973).

“[P]iecemeal results and delay” are usually considered attendant to abstention, Ross v. Houston Independent School Dist., 5 Cir. 1977, 559 F.2d 937, 942, but those problems would be exacerbated by the entertainment of claims like those presented here. We are conscious of the serious nature of this case, and we do not approach the issue by the traditional slippery slope argument. But to act here and now is to indicate to persons engaged in other death sentence cases that federal courts will, by the declaratory judgment device, monitor a myriad of state habeas claims presenting issues that apparently pose federal constitutional questions. If state trials are not stayed pending submission of such issues to federal courts, the possibilities of inconsistent judgments from both forums promises increased friction. If state trials are stayed, whether by stipulation or otherwise, while these issues are litigated over the course of several years through the tiers of the federal system, the possibilities of delay and piecemeal resolution are interminably expanded. Such an encroachment of the federal government into ongoing state proceedings would be unseasonable and obtrusive.²¹ The “delay and expense to which application of the abstention doctrine inevitably give rise,” Bellotti v. Baird, 1976, 428 U.S. 132, 150, 96 S.Ct. 2857, 2868, 49 L.Ed.2d 844, quoting England v. Medical Examiners, 1964, 375 U.S. 411, 418, 84 S.Ct. 461, 466, 11 L.Ed.2d ,²² would be even more acute if we did not abstain here.

Although this case does not present the orthodox abstention situation,²³ where a state court interpretation of a facially ambiguous state statute may obviate alleged constitutional infirmities in that statute, it is probable that our abstention at this time will eliminate the momentous and difficult federal constitutional question sought to be presented.²⁴ Conjoined with considerations of comity, of avoiding piecemeal litigation, and of avoiding a precedent for retarding pending state court litigation, that factor, not of itself sufficient, militates in favor of our staying our hand.

We are mindful that “[a]ny consideration of abstention . must take into primary account its effect on the rights sought to be protected in the court asked to stay its hand.” Ross v. Houston Independent School Dist, supra, 559 F.2d at 942. For the reasons we have indicated previously, it is possible that allowing the state proceeding to function uninterrupted will result either in the state’s compliance with petitioner’s requests or in the constitutional issue being moot for some other reason. If these do not occur and if petitioner is still aggrieved after completion of the state proceeding, he may then obtain the appropriate federal review.²⁵

Accordingly, we VACATE the judgment of the district court, and, as an appropriate procedure²⁶ in instances of abstention pursuant to Pullman and its progeny, we REMAND for the district court to retain jurisdiction pending completion of the state proceedings.

1 . Petitioner relies primarily upon the “constitutional right of access to the courts” delineated in Bounds v. Smith, 1977, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72. But resolution of the issues will likely require consideration of the Sixth Amendment and of the due process and equal protection clauses of the Fourteenth Amendment. With respect to the Sixth Amendment issue, compare Dorsey v. Gill, D.C. Cir.1945, 80 U.S.App.D.C. 9, 148 F.2d 857, cert. denied, 1945, 352 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003, with Smith v. Bennett, 1961, 365 U.S. 708, 712, 81 S.Ct. 895, 897, 6 L.Ed.2d 39; see Note, Discretionary Appointment of Counsel at Post-Conviction Proceedings: An Unconstitutional Barrier to Effective Post-Conviction Relief, 8 Ga.L.Rev. 434 (1974). With respect to due process and equal protection, see Gardner v. California, 1969, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601; Douglas v. California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v. Brown, 1963, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Smith v. Bennett, 1961, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39; Griffin v. Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. Compare Bounds v. Smith, supra, 430 U.S. at 827-828, 97 S.Ct. at 1497-1498, with Ross v. Moffitt, 1974, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341.

2 . These contentions are that: (1) petitioner was denied effective assistance of counsel at trial and on appeal, in part because his attorney was subsequently convicted of a drug abuse violation that occurred during his representation of petitioner; (2) the grand jury and petit jury master lists from which the grand and petit jury were selected were unconstitutionally composed, based upon statistical evidence that the district court found makes a prima facie case; (3) his victim was deceased at the time of the rape, and Georgia law defines rape as requiring a living victim; because rape is the aggravating circumstance requisite to imposition of the death penalty, it may not be imposed; (4) his trial, which began in the morning and lasted until several hours after midnight of that day, at which time the death penalty was imposed, denied him due process of law; and, (5) petitioner’s admissions (used as evidence against him) must be believed in their entirety under Georgia law because petitioner could not be convicted without such admissions, and these admissions may provide a defense to the charge of rape. Although the court did not list it with these contentions, petitioner has raised a Fourth Amendment claim. The reasons why experts are needed with respect to these contentions are set forth more fully in the district court opinion. 443 F.Supp. at 244-248.

3 . The state court construction may obviate or significantly modify the federal questions seemingly presented, thus avoiding “unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication.” Harman v. Forssenius, 1965, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50. See Juidice v. Vail, 1977, 430 U.S. 327, 347, 97 S.Ct. 1211, 1223, 51 L.Ed.2d 376 (Stewart, J., dissenting); BT Inv. Managers, Inc. v. Lewis, 5 Cir. 1977, 559 F.2d 950, 952.

4 . See generally P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler’s The Federal Courts and The Federal System, 985-987 (2d ed. 1973); D. Currie, Federal Courts: Cases and Materials, 647-692 (2d ed. 1975); G. Gunther, Constitutional Law, 1606-1609 (9th ed. 1975); C. Wright, Law of the Federal Courts, 218-229 (3d ed. 1976); Field, The Abstention Doctrine Today, 125 U.Pa.L.Rev. 590 (1977); Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071 (1974).

5 . The Supreme Court has specifically held open the question of whether Younger abstention is required when ordinary civil litigation between private parties is pending. Trainor v. Hernandez, 1977, 431 U.S. 434, 444 n. 8, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486; Juidice v. Vail, 1977, 430 U.S. 327, 336 n. 13, 97 S.Ct. 1211, 1218, 41 L.Ed.2d 376; Huffman v. Pursue, Ltd., 1975, 420 U.S. 592, 607, 95 S.Ct. 1200, 1209, 43 L.Ed.2d 482. See Duke v. Texas, 5 Cir. 1973, 477 F.2d 244, cert. denied, 1974, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874. As to the applicability of the “civil” label to habeas proceedings, see Smith v. Bennett, 1961, 365 U.S. 708, 712, 81 S.Ct. 895, 897, 6 L.Ed.2d 39. See also Trainor v. Hernandez, supra, 431 U.S. at 444, 97 S.Ct. at 1918. Because Pullman principles require abstention, we need not consider the problems involved in applying Younger. See Trainor v. Hernandez, supra, 431 U.S. at 469-470, 97 S.Ct. at 1931, and note 15 (Stevens, J., dissenting). However, because many of the considerations underlying the Younger doctrine are relevant here, we refer to Younger jurisprudence.

6 . For a thorough review of current Younger jurisprudence, see Laycock, Federal Interference with State Prosecutions: The Need for Prospective Relief, 1977 Supreme Court Review 193, passim.

7 . We are not concerned with the other variant of Pullman abstention: “where there have been presented difficult questions of state law bearing on policy problems of substantial public import . . Colorado River Water Conservation Dist., supra, 424 U.S. at 814, 96 S.Ct. at 1244. See, e. g., Louisiana Power & Light Co. v. City of Thibodaux, 1959, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; Alabama Pub. Serv. Comm’n v. Southern R. Co., 1951, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002; Burford v. Sun Oil Co., 1943, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; BT Inv. Managers, Inc. v. Lewis, 5 Cir. 1977, 559 F.2d 950, 954-955. Nor are we concerned with the pendency of a duplicative action in state court, see Will v. Calvert Fire Ins. Co., 1978, - U.S. -, 98 S.Ct. 2552, 57 L.Ed.2d 504; Colorado River Water Conservation Dist., supra, 424 U.S. at 817-818, 96 S.Ct. at 1246-1247. A federal habeas petition asserting the same substantive claims asserted in state court could not be heard until state remedies are exhausted. Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439.

8 . Our unwillingness to abstain where no constitutional claim is involved was shown in Southwest Airlines Co. v. Texas International Airlines, Inc., 5 Cir. 1977, 546 F.2d 84, 92, cert. denied, 1977, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93. See also Currie, supra note 4, 669-682.

9 . The doctrine has, of course, been the subject of varying formulations. See, e. g., Bellotti v. Baird, 1976, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844, quoting Harrison v. NAACP, 1959, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152; compare Canton v. Spokane School District, No. 81, 9 Cir. 1974, 498 F.2d 840, 845, with Ahrensfeld v. Stephens, 7 Cir. 1975, 528 F.2d 193, 196-197.

10 . Harman v. Forssenius, supra; Ross v. Houston Independent School District, 5 Cir. 1977, 559 F.2d 937, 942; Frederick L. v. Thomas, 3 Cir. 1977, 557 F.2d 373, 382; Ahrensfeld v. Stephens, 7 Cir. 1975, 528 F.2d 193, 196; Hill v. City of El Paso, Texas, 5 Cir. 1971, 437 F.2d 352.

11 . Baggett v. Bullitt, 1964, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377; Ahrensfeld, id.

12 . See also Propper v. Clark, 1949, 337 U.S. 472, 492, 69 S.Ct. 1333, 1344, 93 L.Ed. 1480 (“special circumstances”). See generally Pell, Abstention — A Primrose Path by Any Other Name, 21 DePaul L.Rev. 926 (1972).

13 . McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622; Monroe v. Pape, 1961, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492. But see Eisen v. Eastman, 2 Cir. 1969, 421 F.2d 560 (Friendly, J.), cert. denied, 1970, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75, and Currie, supra note 4, 688-690.

14 . See Boehning v. Indiana St. Employees Assoc., Inc., 1975, 423 U.S. 6, 8, 96 S.Ct. 168, 170, 46 L.Ed.2d 148. But see Trainor v. Hernandez, supra, 431 U.S. at 453-456, 97 S.Ct. at 1923-1925 (Brennan, J., dissenting).

15 . As we stated in Ardister v. Hopper, 5 Cir. 1974, 500 F.2d 229, 233, “[W]e feel confident that the State of Georgia will wish to appoint counsel to represent [petitioner] at any further habeas corpus proceedings the State may choose to conduct. Comity would surely be well served by every effort to secure a complete presentation and consideration of the remaining issues in that forum.”

16 . McCorquodale v. Stynchcombe, 1977, 239 Ga. 138, 236 S.E.2d 486, 488; Kramer v. Hopper, 1975, 234 Ga. 395, 216 S.E.2d 119; Hopkins v. Hopper, 1975, 234 Ga. 236, 215 S.E.2d 241; Moye v. Hopper, 1975, 234 Ga. 230, 214 S.E.2d 920; McClure v. Hopper, 1975, 234 Ga. 45, 214 S.E.2d 503; O’Neal v. Caldwell, 1974, 231 Ga. 608, 203 S.E.2d 191, and cases cited in Wilkes, A New Role for an Ancient Writ: Post-conviction Habeas Corpus Relief in Georgia (Part II), 9 Ga.L.Rev. 13, 76, n. 298 (1974).

17 . In McCorquodale, supra, the death penalty was imposed, but there was retained counsel. The court stated that although there was no requirement for appointment of counsel, here the denial of a continuance did not constitute a denial of effective assistance from the retained counsel. In Kramer v. Hopper, supra, and Jones v. Caldwell, 1973, 230 Ga. 775, 199 S.E.2d 248, the death penalty was imposed but was converted to life imprisonment before the court considered the appointment of counsel issue.

18 . See United States ex rel. Reis v. Wainwright, 5 Cir. 1976, 525 F.2d 1269, 1272; Glenn v. Askew, 5 Cir. 1975, 513 F.2d 61.

19 . See Sims v. Caldwell, 1973, 231 Ga. 377, 202 S.E.2d 70 (Gunter & Ingram, JJ., dissenting). See also Moye v. Hopper, supra; O’Neal v. Caldwell, supra ; Hinton v. Caldwell, 1974, 231 Ga. 584, 203 S.E.2d 185; Grace v. Caldwell, 1973, 231 Ga. 407, 202 S.E.2d 49.

20 . See Currie, supra note 4, 88-103.

21 . See Huffman v. Pursue, Ltd., supra, 420 U.S. at 608-610, 95 S.Ct. at 1210-1211.

22 . See also Lake Carriers’ Ass’n v. MacMullan, 1972, 406 U.S. 498, 509, 92 S.Ct. 1749, 1758, 32 L.Ed.2d 257; Kusper v. Pontikes, 1973, 414 U.S. 51, 54, 94 S.Ct. 303, 306, 38 L.Ed.2d 260.

23 . See Frederick L. v. Thomas, 3 Cir. 1977, 557 F.2d 373, 383.

24 . It has been suggested that abstention is appropriate only where the issue of state law is uncertain. Harman v. Forssenius, supra, 380 U.S. at 534, 85 S.Ct. at 1182; BT Inv. Managers, Inc. v. Lewis, supra, 559 F.2d at 954. Hence if the state statute is clear on its face, and the only basis for abstention is that it might violate the state constitution, there may be an insufficient basis for abstention. Wisconsin v. Constantineau, 1971, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515; BT Inv. Managers, Inc., id. Compare with Askew v. Hargrave, 1971. 401 U.S. 476. 91 S.Ct. 856. 28 L.Ed.2d 196 and Reetz v. Bozanich, 1969, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68. Here, however, there is a “realistic promise of avoiding constitutional issues,” Ross v. Houston Independent School District, supra, 559 F.2d at 942, for a number of reasons other than the state court providing relief on the basis of the state constitution. See also Currie, supra note 4, at 661, citing ALI approval of abstention when there is a “likelihood that the necessity for deciding a substantial question of federal constitutional law may thereby be avoided.....” if other factors are present. (Emphasis supplied).

25 . See, e. g., Boyd v. Dutton, 1972, 405 U.S. 1, 3, 92 S.Ct. 759, 760, 30 L.Ed.2d 755; Jennings v. Illinois, 1951, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119.

26 . See Reetz v. Bozanich, 1970, 397 U.S. 82, 85, 87. 90 S.Ct. 788, 789-790. 25 L.Ed.2d 68.