Georgia - March 20,
the night of December 7, 1974, six elderly persons were attacked,
severely beaten, kicked, and stomped in their homes in the City of
Macon, Bibb County, Georgia.
lived in the same neighborhood. Three of those people pieced
together a description of their assailant. The other three,
Coleman Brice, Gladys Brice, and Katie Davis,
died as a result of attacks upon them.
Young was connected to the crimes by watches and jewelry taken
during the commission of the crimes, a fingerprint, and statements
to his friends that he did it. When asked if he was the one who had
jumped on those people, he replied: "Yeah, man and I'm going to get
me some more." When asked if they were white or black, he responded:
"White." When asked: "Why, John?" he replied: "I don't know. The
only thing that I am sorry is that they caught me before I got
filed a special plea of insanity before trial, and on June 30, 1975,
a jury returned a verdict against the special plea of insanity. The
court granted a new trial on such issue, and on October 21, 1975, a
second jury returned a verdict against the plea.
Murderer electrocuted in Georgia
said his race "was against him"
John Young, saying ''being born
black'' was against him, was
executed in Georgia's electric chair
early today for killing three
elderly people in a drug-induced
robbery rampage in 1974.
Mr. Young was put to death at
Georgia's Diagnostic and
Classification Center with a 2,080-volt
jolt of electricity and was
pronounced dead at 12:26 A.M.
Staring intently at the 12 witnesses,
none there at his request, the 28-year-
old murderer spoke in a barely
audible voice, saying, '''Being born
black in America was against me.''
John C. Young was electrocuted in
1985 for killing three elderly
people who were beaten and kicked to
death in Macon, Ga. Young's
appellate lawyers presented a sworn
statement from his court-appointed
trial lawyer stating that he had "spent
hardly any time" preparing for the
case because he was using drugs
heavily and going through a crisis
after deciding to stop hiding his
A few weeks after Young was
sentenced, he met his trial lawyer
in the yard of the county jail,
where the attorney had been sent
after pleading guilty to state and
federal drug charges. Still, the
court of appeals had looked at the
lawyer's performance in the trial
itself and found it "quite adequate."
The case of John Young
John Young, black, was executed in
Georgia on 20 March 1985 for the murder of three elderly white
people during a robbery at their home on 7 December 1974, when he
was 18 years old.
At Youngs trial, in Macon, Georgia, in
January 1976, his case was assigned to a state-appointed attorney,
Charles Marchman Jr who, by his own admission (in an affidavit dated
16 March 1985) "spent hardly any time preparing for the John Young
He also admits that he "never at any
time obtained any social history from [John Young] to determine
anything of his background nor did I interview any family members or
other friends of Mr Young".
Marchman further states in his
affidavit that he was emotionally and physically exhausted during
the period of Young's trial because his marriage had broken down; he
was having a homosexual love affair, and his father's illness had
obliged him to take over the family business in addition to running
his own legal practice. To alleviate the stress caused by this "myriad
of problems", he was taking drugs (marijuana and amphetamines) prior
to and during Young's trial.
Only one defence witness was called
during the trial. Dr Miguel Bosch, a psychologist who examined Young
and led Marchman to believe that he would testify that Young was
severely unstable and anti-social, with a drug history, but that he
could be rehabilitated. In the event, Bosch testified that Young
could not be rehabilitated under any circumstances. The jury
sentenced Young to death.
Afterwards the foreman of the jury
told Mr Marchman that Dr Bosch's testimony had been the decisive
factor in persuading the jury to return a death sentence, and that "if
that evidence had not been presented to them the jury - in all
likelihood - would have returned a sentence of life imprisonment".
In fact, strong mitigating evidence
was available, which might well have persuaded the jury to spare
John Young's life. John Young's mother was shot dead by her lover
whilst John, aged three, and his brother lay in bed with her. Young
was then placed in the care of an alcoholic relative who turned him
out on the streets at an early age where he became involved in petty
crime, child prostitution and drug abuse.
Marchman admits he did not present
this mitigating evidence: "I did not know how to handle that
particular fact, so I basically did nothing and took no further
action and let the evidence simply drop at that time".
Marchman was arrested on 2 February
1976, just after Young's trial, and convicted of possession of
marijuana with intent to distribute it. He was sentenced to 30 days
in prison and five years' probation and was also debarred from legal
On his release from prison Marchman
moved to Atlanta and avoided all contact with attorneys and
colleagues in Macon. He came forward to discuss his handling of
Young's case, and to offer his affidavit, only four days before
Young's scheduled execution, claiming that he was unaware that the
execution was about to take place.
John Young appealed to the Georgia
Board of Pardons and Paroles for clemency. The clemency submission
offered information on Young's character and background that had not
been made known to the jury that sentenced him to death. This
included a statement from a child psychologist describing the
traumatic response that is likely in a child who witnesses his
mother's brutal killing at the age of three.
The clemency submission based its
request on three main points: firstly, that the jury knew very
little about Young when they made their decision and instead of
hearing from long-term friends and acquaintances, the jury heard
only from a state psychiatrist who had met Young only briefly and
had incomplete and erroneous information upon which to base his
testimony; secondly, although the jury were aware that Young's
mother had died when he was a small child, they were unaware of the
circumstances; thirdly, the jury never knew that Young's trial
attorney had a serious drug dependency which, along with other
traumatic problems in his life, prevented him from adequately
Subsequent legal appeals failed to
address the problem of Young's inadequate defence. The Georgia Board
of Pardons and Paroles rejected the clemency appeal.
239 Ga. 53, 236 S.E.2.d 1
YOUNG v. THE STATE
Docket number: 31932
Court of Georgia
February 15, 1977
James, Shipp & Wilcox, Tommy Day Wilcox, for
John Young was tried by a jury in the Superior
Court of Bibb County and convicted of three counts of murder. As to
each murder conviction, the jury found as aggravating circumstances
(1) the offense of murder was committed while the offender was
engaged in the commission of burglary or arson in the first degree;
and (2) the offense of murder was outrageously or wantonly vile,
horrible or inhuman in that it involved torture, depravity of mind,
or an aggravated battery to the victim. He was sentenced to death on
each count. He is before this court on appeal and for mandatory
review of the death sentence imposed. Summary of the Evidence
The state presented evidence from which the jury
was entitled to find the following:
On the night of December 7, 1974, six elderly
persons were attacked, severely beaten, kicked, and stomped in their
homes in the City of Macon, Bibb County, Georgia. All lived in the
same neighborhood. Three of those people pieced together a
description of their assailant. The other three victims died as a
result of attacks upon them.
The appellant was connected to the crimes by
watches and jewelry taken during the commission of the crimes, a
fingerprint, and statements to his friends that he did it. When
asked if he was the one who had jumped on those people, he replied:
"Yeah, man and I'm going to get me some more." When asked if they
were white or black, he responded: "White." When asked: "Why, John?"
he replied: "I don't know. The only thing that I am sorry is that
they caught me before I got through."
The evidence will be examined in more detail as
necessary in addressing the enumerations of error.
The appellant filed a special plea of insanity
before trial, and on June 30, 1975, a jury returned a verdict
against the special plea of insanity. The court granted a new trial
on such issue, and on October 21, 1975, a second jury returned a
verdict against the plea. During the sentencing phase of the trial,
the appellant again presented the testimony of the psychiatrist who
had performed the psychiatric examination. Enumerations of Error
1. The appellant was arrested December 9, 1974,
indicted December 19, 1974 and counsel was not appointed until
December 23, 1974. Accordingly, the challenge to the array of the
grand jury filed after indictment was properly considered by the
trial court where the allegations therein to the effect that the
defendant had no knowledge, either actual or constructive, of the
alleged illegal composition of the grand jury prior to the time the
indictment was returned. See Estes v. State,
232 Ga. 703, 708 (208
SE2d 806) (1974): Wooten v. State,
224 Ga. 106 (1) (160 SE2d 403) (1968).
While the original challenge to the composition
of the grand jury included attacks based upon the exclusion of youth
as well as racial discrimination, neither of these attacks has been
argued in this court and are considered abandoned. If these
contentions had not been abandoned, they would be without merit.
Compare White v. State,
230 Ga. 327 (196 SE2d 849) (1973) cert.
den., 414 U. S. 886 (94 SC 222, 38 LE2d 134); State v. Gould,
232 Ga. 844 (209 SE2d 312) (1974).
In support of the contention that the grand jury,
which indicted him, was unconstitutionally constituted as a result
of an underrepresentation of women, the defendant relies upon the
decision of the United States Supreme Court in Taylor v. Louisiana,
419 U. S. 522 (95 SC 692, 42 LE2d 690) (1975), and Sanders v. State,
237 Ga. 858 (230 SE2d 29) (1976). The
defendant's reliance upon these cases is misplaced. The defendant
here was indicted in December, 1974. The Taylor decision was not
rendered until January, 1975, and in the later decision of Daniel v.
Louisiana, 420 U. S. 31 (95 SC 704, 42 LE2d 790) (1975), the United
States Supreme Court held: "The decision in Taylor v. Louisiana, 419
U. S. 522, wherein it was held that the Sixth and Fourteenth
Amendments require petit jurors to be selected from a source fairly
representative of the community and that such requirement is
violated by the systematic exclusion of women from jury panels, is
not to be applied retroactively, as a matter of federal law, to
convictions obtained by juries impaneled prior to the date of that
decision. De Stefano v. Woods, 392 U. S. 631."
Nor does the decision of this court in Sanders v.
237 Ga. 858, supra, wherein this court
applied the decision in Taylor, supra, to grand jurors selected in
Georgia, aid the defendant. A review of the record in Sanders
discloses that the grand jury indicting the defendant there was
impaneled after the decision in Taylor, supra.
The decision of the Court of Appeals in Gould v.
131 Ga. App. 811 (207 SE2d 519) (1974),
affirmed in part and reversed in part ( State v. Gould,
232 Ga. 844 (209 SE2d 312) (1974))
does not support the defendant's contention that his challenge to
the grand jury should be sustained. In that case, unlike White v.
State, supra, and the present case, there was evidence introduced
showing a pattern of exclusion of persons from significantly
identifiable groups. Thus, the evidence, relating to the make-up of
the particular grand jury box from which the panel which indicted
the defendant was drawn, would not support such contention.
As to the traverse jury which actually convicted
the defendant, such jury was composed of seven men and five women.
Under these circumstances it cannot be said that the appellant has
been harmed by the exclusion of women at any stage of the jury
selection process. The first enumeration of error is without merit.
2. The second enumeration of error complains that
the trial court erred in failing to grant a pre-trial motion for
change of venue because of unfavorable pre-trial publicity.
In Coleman v. State,
237 Ga. 84,87,91 (226
SE2d 911) (1976), this court held: "In considering this
question this court fully recognizes the well established principle
that a trial before a fair and impartial jury is a basic requirement
of due process. We also recognize the right of the news media to
report the factual happenings surrounding a crime and to report
accurately a trial based thereon. To restrict the right of the press
in this regard would be inconsistent with the First Amendment and
with the right of the public to a free flow of information. This
right of the media, however, must not be allowed to interfere with
the judicial calm which must surround a trial free from emotionalism
and sensationalism. The courts have attempted to balance these
equities. It was stated in United States v. McNally, 485 F2d 398,
403 (8th Cir., 1973), 'Just because, however, there has been
widespread or even adverse publicity is not in itself grounds to
grant a change of venue. As stated in Irvin v. Dowd, 366 U. S. 717,
722, 81 SC 1639, 1642, 6 LE2d 751 (1961), an important case draws
public attention through "swift, widespread and diverse means of
communication" and hardly any prospective juror "will not have
formed some impression or opinion as to the merits of the case." The
proper test is whether the prospective juror "can lay aside his
impression or opinion and render a verdict based on the evidence
presented in court." Irvin v. Dowd, supra, at 723.' . . . 'The test
as to whether unfavorable newspaper publicity had so prejudiced a
case against one accused of a crime that a fair trial cannot be had
is whether the jurors summoned to try the case have formed fixed
opinions as to the guilt or innocence of the accused from reading
such unfavorable newspaper publicity . . .' Krist v. Caldwell,
230 Ga. 536 (198 SE2d 161) (1973)."
The trial transcript clearly shows that there
were no such preconceived opinions as to the guilt or innocence of
the appellant here. Ten of the twelve jurors stated at the trial on
voir dire (either) that they had not read or heard any pre-trial
publicity or, if they had, they were not influenced by it. Of the
two remaining jurors, one stated that he would require the state to
prove the defendant's guilt beyond a reasonable doubt. Questioning
of the other remaining juror on voir dire fails to show that she had
any fixed opinion as to the guilt or innocence of the appellant. In
addition, the entire panel of prospective jurors was asked the
following questions on voir dire: (1) "[H]ave you any prejudice or
bias resting on your mind either for or against this defendant?" (2)
"Is your mind perfectly impartial between the State and the accused?"
Only one prospective juror answered the first question in the
affirmative, and he was excused for cause. There was no negative
response to the second question.
Most of the media coverage surrounding this case
was during the month of December, 1974. The trial was not begun
until January 5, 1976, almost 13 months later. At trial, the
appellant's counsel conceded to the trial court, during the hearing
of a different motion, that after extensive research, he did not
feel that there was sufficient ground for a change of venue under
legal precedent in this state, but that he was going to file a
change of venue motion only because appellant had requested him to
3. The third enumeration of error alleges: "The
trial court erred in failing to dismiss the indictment against the
appellant and declare the death penalty unconstitutional under the
Constitution of the State of Georgia and the Constitution of the
United States of America."
Both this court and the Supreme Court of the
United States have considered this contention and upheld the
constitutionality of the Georgia statute. Nothing presented here
persuades us to change that opinion. Coley v. State,
231 Ga. 829 (204 SE2d 612) (1974);
Gregg v. Georgia, 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976).
This enumeration of error is without merit.
4. The fourth enumeration of error alleges that:
"The trial court erred in charging the jury on flight in that there
was not sufficient evidence in the case to require the giving of
The evidence presented at the trial indicated
that shortly before leaving the neighborhood where the crimes were
committed, the appellant was confronted with the fact that the
crimes had been discovered. His friends, after connecting his bloody
clothes with disturbances down the street, asked him if he had done
it and he conceded he had. Within a matter of hours, the appellant
left the city, went to the neighboring town of Milledgeville, and
upon arrival there, told a relative that he had robbed someone, that
the police would probably be there that night and, because of this,
he planned to arise early and go to Atlanta.
The transcript contains ample evidence to
authorize the charge on flight. The trial judge was careful to couch
the language of the charge so as to instruct the jury that it must
first determine whether any sort of flight had, in fact, occurred.
He then instructed the jury that it must determine whether or not
any inference of guilt should be drawn. Finally, the jury was
charged that if the flight, if any, was for some reason other than a
sense of guilt, then no inference harmful to the defendant should be
5. The fifth enumeration of error alleges: "The
trial court erred in failing and refusing to give appellant's
request to charge on intoxication."
At the conclusion of the trial judge's charge to
the jury and after the jury had retired, trial counsel for the
appellant prepared a charge on intoxication and requested the court
to bring the jury back and recharge the jury on that particular
subject as follows: "I further charge you that while voluntary
intoxication is not a defense to a crime, that you, the jury, should
consider the evidence as to whether the defendant was intoxicated at
the time the alleged crimes occurred in determining if the defendant
had the necessary intent to commit the crimes alleged."
The appellant's contention must fail for a number
First, Code Ann. 70-207 (b) provides that: "In
all cases, at the close of the evidence or at such earlier time
during the trial as the court reasonably directs, any party may
present to the court written requests that it instruct the jury on
the law as set forth therein . . . The court shall inform counsel of
its proposed action upon the requests prior to their arguments to
the jury . . ." Appellant's request to charge was not presented to
the trial court until after the jury had retired. To have given the
requested charge at that time would have denied appellee an
opportunity to argue the point in closing arguments, which is
clearly contrary to the purpose of the requirements of Code Ann.
70-207 (b) that the court inform counsel of its proposed action upon
the requests before closing arguments are given.
Second, if the request had been timely, it is
without merit under the law because "Voluntary intoxication shall
not be an excuse for any criminal act or omission." Code Ann. 26-704
(Ga. L. 1968, pp. 1249, 1270). "The law presumes every homicide to
be malicious until the contrary appears from facts or circumstances
showing excuse or justification." Wiggins v. State,
221 Ga. 609 (146 SE2d 294) (1965);
Meadows v. State,
230 Ga. 471, 472 (197
SE2d 698) (1973).
6. The sixth enumeration of error alleges: "The
trial court erred in failing to command the jury to return to the
jury room and render a unanimous verdict following the sentencing
phase of the appellant's trial."
The occurrence on which the appellant bases this
enumeration of error occurred during a jury poll after the jury had
recommended the death penalty on all three counts. The juror was
asked: "Q. Are these your verdicts? A. Yes. Q. Were they freely and
voluntarily entered? A. They were voluntarily, but with reservations.
Q. Are they still your verdicts? A. They are still my verdicts."
The indication of "reservations" does not prevent
the verdict from being unanimous. The requirement is that a juror
agree to a verdict. In this case, the juror on two occasions
answered affirmatively that the verdict was his in the jury room and
still his upon being polled.
Person v. State,
235 Ga. 814 (221 SE2d 587) (1976);
Parker v. State,
227 Ga. 68 (179 SE2d 76) (1970); Pass
227 Ga. 730 (182 SE2d 779) (1971);
Watson v. State,
229 Ga. 787 (194 SE2d 407) (1972);
Callahan v. State,
229 Ga. 737 (194 SE2d 431) (1972);
Sirmans v. State,
229 Ga. 743 (194 SE2d 476) (1972);
Scott v. State,
230 Ga. 413 (197 SE2d 338) (1973);
Whitlock v. State,
230 Ga. 700 (198 SE2d 865) (1973);
Kramer v. State,
230 Ga. 855 (199 SE2d 805) (1973);
Bennett v. State,
231 Ga. 458 (202 SE2d 99) (1973);
Howard v. State,
231 Ga. 186 (200 SE2d 755) (1973);
Hunter v. State,
231 Ga. 494 (202 SE2d 441) (1973);
Morgan v. State,
231 Ga. 280 (201 SE2d 468) (1973);
House v. State,
232 Ga. 140 (205 SE2d 217) (1974);
Gregg v. State,
233 Ga. 117 (210 SE2d 659) (1974);
Floyd v. State,
233 Ga. 280 (210 SE2d 810) (1974);
Chenault v. State,
234 Ga. 216 (215 SE2d 223) (1975);
Smith v. State,
236 Ga. 12 (222 SE2d 308) (1976);
Mason v. State,
236 Ga. 46 (222 SE2d 339) (1976);
Coleman v. State,
237 Ga. 84 (226 SE2d 911) (1976); Birt
236 Ga. 815 (225 SE2d 248) (1976);
Isaacs v. State,
237 Ga. 105 (226 SE2d 922) (1976);
Banks v. State,
237 Ga. 325 (227 SE2d 380) (1976);
Dungee v. State,
237 Ga. 218 (227 SE2d 746) (1976).
727 F.2d 1489
Walter D. Zant, Warden, Georgia Diagnostic and Classification Center,
Docket number: 83-8557
March 8, 1984
Appeal from the United States District Court for
the Middle District of Georgia.
Before GODBOLD, Chief Judge, RONEY and KRAVITCH,
RONEY, Circuit Judge:
Convicted of murder and sentenced to death in
Georgia, John Young appeals the denial of habeas corpus relief on
the following grounds: (1) he was indicted by an unconstitutionally
composed grand jury; (2) he received ineffective assistance of
counsel and was wrongfully denied an evidentiary hearing on the
ineffective assistance issue; and (3) mitigation evidence was
improperly excluded from the sentencing portion of his trial. We
The evidence upon which petitioner was convicted
and sentenced showed that he brutally beat three elderly persons to
death in the course of burglarizing their homes. Petitioner was
connected to the murders by the victims' watches and jewelry which
were found in his possession, a fingerprint, and his own
Petitioner's conviction and death sentence in the
Superior Court of Bibb County, Georgia, were affirmed by the Supreme
Court of Georgia. Young v. State, 239 Ga. 53, 236 S.E.2d 1, cert.
434 U.S. 1002 , 98 S.Ct. 648, 54 L.Ed.2d 499 (1977).
After exhausting state collateral remedies, petitioner filed this
application of habeas corpus relief in federal district court.
Unconstitutionally Composed Grand Jury
Georgia's "opt-out" law for women rendered its
juries unconstitutional under Taylor v. Louisiana, 419 U.S. 522, 95
S.Ct. 692, 42 L.Ed.2d 690 (1975). Machetti v. Linahan, 679 F.2d 236
(11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 763, 74 L.Ed.2d
978 (1983) (involving Bibb County jury selection system). The
critical issue here as to petitioner's contention that his grand
jury was unconstitutionally composed is the effect of Daniel v.
Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), which
held that Taylor should not be retroactively applied.
The timing of this case and those cases is
important. Petitioner was indicted on December 19, 1974, a little
over a month prior to the Taylor decision. Daniel came down six days
after Taylor. Petitioner first moved to dismiss the indictment
because of an illegal grand jury array on January 16, 1975, five
days before Taylor was decided. This motion was renewed on February
26, 1975. The trial court denied these motions on July 25, 1975.
Subsequently, the Georgia Supreme Court held that petitioner's
challenge to the grand jury array had been timely even though it
came after the indictment because petitioner alleged he had no
knowledge of the asserted illegal composition of the array prior to
his indictment. Young v. State, 239 Ga. 53, 236 S.E.2d 1, cert.
434 U.S. 1002 , 98 S.Ct. 648, 54 L.Ed.2d 499 (1977).
Although the Georgia Supreme Court did not acknowledge that
petitioner challenged the grand jury on two different dates, we
assume for purposes of this appeal that the court considered both
Reading one sentence in Daniel would indicate
that since a timely objection was made after Taylor, petitioner's
claim was not foreclosed.
The question is whether our decision in Taylor v.
Louisiana is to be applied retroactively to other defendants whose
opportunity to raise a timely objection to the jury-selection
procedures had passed as of the date of our decision in Taylor.
420 U.S. at 32, 95 S.Ct. at 705. In our judgment,
however, applying the spirit of the decision of Daniel, as reflected
by later language in the case, it was not intended that a state have
to redo something that had already been completed at the time the
Taylor objection was made. Daniel had made the precise objection
that Taylor had made, and his case was on direct review in the
Supreme Court at the same time as Taylor's. The Court could have
granted Daniel relief without opening prior convictions to
collateral attack. But it did not. Only the luck of getting there
slightly before Daniel, gave Taylor the benefit of the decision.
Daniel was foreclosed, largely on the judgment of the Supreme Court
that, although unconstitutional, the juries thus drawn did not
necessarily render the state proceedings unfair. By its refusal to
give Daniel the benefit of the Taylor decision, it is quite apparent
that the Court did not intend that the states would have to
reconstitute grand juries and reindict prisoners who had been
indicted by a grand jury drawn, and whose work in this case had been
completed, prior to Taylor. The Daniel Court reasoned:
In Taylor, as in Duncan [v. Louisiana, 391 U.S.
145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) ], we were concerned
generally with the function played by the jury in our system of
criminal justice, more specifically the function of preventing
arbitrariness and repression. In Taylor, as in Duncan, our decision
did not rest on the premise that every criminal trial, or any
particular trial, was necessarily unfair because it was not
conducted in accordance with what we determined to be the
requirements of the Sixth Amendment. In Taylor, as in Duncan, the
reliance of law enforcement officials and state legislatures on
prior decisions of this Court, such as Hoyt v. Florida, 368 U.S. 57
[82 S.Ct. 159, 7 L.Ed.2d 118] (1961), in structuring their criminal
justice systems is clear. Here, as in Duncan, the requirement of
retrying a significant number of persons were Taylor to be held
retroactive would do little, if anything, to vindicate the Sixth
Amendment interest at stake and would have substantial impact on the
administration of criminal justice in Louisiana and in other States
whose past procedures have not produced jury venires that comport
with the requirement enunciated in Taylor.
420 U.S. at 32-33, 95 S.Ct. at 705-706. In our
judgment, the requirement of reindicting all prisoners untried when
Taylor and Daniel were decided, would have a sufficiently "substantial
impact on the administration of justice" in Georgia to dictate that
Taylor should not be applied to this case, under the teachings of
Daniel. There is also no contention here that underrepresentation of
women on Young's grand jury rendered that jury unfair to him in this
case.Ineffectiveness of Counsel
Petitioner's argument that he was denied
effective assistance of counsel at his trial has three prongs: first,
he asserts he was denied a full and fair hearing in his state court
habeas corpus proceeding because the state would not provide him
funds to find and bring his trial attorney to testify; second,
because of this failure in the state courts, the district court
should have funded an investigation to get the attorney to his
federal proceeding; and third, in any event, the record shows the
district court's finding against him on the merits of his claim was
We have previously noted that the failure of a
state court to provide financial assistance for investigation
purposes in habeas corpus cases does not present a constitutional
issue. Willis v. Zant, 720 F.2d 1212, 1215 n. 5 (11th Cir.1983). See
Brooks v. Francis, 716 F.2d 780, 795 (11th Cir.1983). Habeas corpus
petitioners are not even constitutionally entitled to state-paid
counsel. Norris v. Wainwright, 588 F.2d 130, 132 (5th Cir.), cert.
444 U.S. 846 , 100 S.Ct. 93, 62 L.Ed.2d 60 (1979);
Ardister v. Hopper, 500 F.2d 229, 233 (5th Cir.1974); see Ross v.
Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); but see
Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (either
access to a library or legal assistance must be provided state
In any event, the state court had before it
transcripts from judicial proceedings in which petitioner's trial
attorney, Charles Marchman, did address the two points asserted on
the merits of the ineffectiveness issue here. Petitioner's first
claim is that Marchman's use of drugs affected his ability to
present an effective defense for petitioner. Petitioner asserts that
Marchman's conviction for possession of marijuana shortly after
petitioner's trial ended substantiates his claim. Marchman testified
about his drug usage at an earlier state habeas corpus proceeding
involving a different capital defendant. As in the instant case, the
issue there was ineffective assistance of counsel. Marchman
testified that he had had a drug problem but that he felt it had
never interfered with his practice of law and that federal
investigators had reached the same conclusion. A transcript of this
hearing was presented to the state court.
Petitioner's second claim was that he gave
Marchman names of alibi witnesses but Marchman failed to investigate
this line of defense. At two pretrial hearings on petitioner's
sanity, however, Marchman testified that he was impeded in his
defense of petitioner because the petitioner claimed to have no
memory of the time period when the crimes he was accused of
committing occurred. Petitioner testified at those hearings that he
had no recall of the critical period. Transcripts of the hearings
were part of the trial record. Under these circumstances, the
district court did not err in holding that petitioner had a full and
fair hearing on this ineffectiveness claim in the state habeas
Petitioner has suggested no evidence that
indicates Marchman could add anything to the state record which
would be noncumulative. The district court was correct in ruling on
the basis of the record alone. Baldwin v. Blackburn, 653 F.2d 942,
946-47 (5th Cir.1981), cert. denied,
456 U.S. 950 , 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982).
This case is markedly different from Thomas v.
Zant, 697 F.2d 977 (11th Cir.1983) relied upon by petitioner, where
the Court held that the direct testimony of the trial attorney would
not be merely cumulative as to whether the lack of preparation was
the determining factor in handling the sentencing portion of
A federal district court, unlike a Georgia state
court, can provide funds for investigation to habeas corpus
petitioners. 18 U.S.C.A. Sec. 3006A(g); see Johnson v. Zant, 249 Ga.
812, 295 S.E.2d 63 (1982). The granting of funds, however, is
committed to the discretion of the trial judge. It is perfectly
appropriate for a district court to deny funds when the state court
has ruled on the basis of an adequate record.
Petitioner claims this record proves ineffective
assistance. Petitioner submitted a personal affidavit in the state
habeas corpus proceeding in which he claimed that Marchman took "huge
grey pills" during the trial and failed to investigate alibi
witnesses which he told him about. The court apparently disbelieved
petitioner's allegation concerning alibi witnesses. This conclusion
receives overwhelming support from the transcripts of petitioner's
pre-trial sanity hearings. In those hearings, both petitioner and
Marchman testified that petitioner had no memory of the period
during which the murders were committed. The record also fails to
support any claim that Marchman's handling of the trial was affected
by his drug usage. Marchman presented a vigorous and capable defense.
Petitioner has failed to carry his burden of establishing that
counsel's representation was defective to the point that he was
constitutionally ineffective. Jones v. Estelle, 632 F.2d 490, 492
(5th Cir.1980), cert. denied,
451 U.S. 916 , 101 S.Ct. 1992, 68 L.Ed.2d 307 (1981).
Exclusion of "Mitigating" Evidence
Petitioner contends that evidence alleged to be
mitigating was wrongfully excluded during the sentencing portion of
his trial. A psychiatrist who had examined petitioner testified he
thought petitioner could be rehabilitated. He was not allowed to
tell the jury what type of rehabilitative program he would recommend.
A defendant is entitled to submit as mitigating
for capital sentencing purposes evidence relevant to "any aspect of
a defendant's character or record...." Lockett v. Ohio, 438 U.S.
586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). The courts may
exclude evidence irrelevant to defendant's character. Id. at 604 n.
12, 98 S.Ct. at 2965 n. 12; e.g., Shriner v. Wainwright, 715 F.2d
1452, 1456 (11th Cir.1983) (description of electrocution not
relevant to character); Harris v. Pulley, 692 F.2d 1189, 1203-04
(9th Cir.1982), rev'd on other grounds, --- U.S. ----, 104 S.Ct.
871, 79 L.Ed.2d 29 (1984) (description of execution in gas chamber
not relevant to character). While a person's ability to be
rehabilitated may be relevant character evidence, testimony as to
the type of rehabilitative program is too attenuated to make its
exclusion constitutional error, especially in view of the broad
discretion given trial judges as to relevancy determinations. 1 C.
Torcia, Wharton's Criminal Evidence Sec. 151 at 277 (1972). There
was no attempt by the state to suggest that the sentence should turn
on defendant's possible future conduct, an issue that might possibly
make relevant the rehabilitative procedures that would seek to alter
that conduct. Wainwright v. Goode, --- U.S. ----, 104 S.Ct. 378, 78
L.Ed.2d 187 (1983).
758 F.2d 514
Ralph Kemp, Warden, Georgia Diagnostic and Classification Center,
Docket number: 85-8182
March 19, 1985
Appeal from the United States District Court for
the Middle District of Georgia.
Before TJOFLAT, HILL and ANDERSON, Circuit Judges.
Petitioner John Young is a Georgia Death Row
inmate. He is making his second habeas corpus appearance in this
court. In his first appearance, we affirmed the district court's
denial of habeas relief on the merits. Young v. Zant, 727 F.2d 1489
(11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1371, 84
L.Ed.2d 390 (1985). In his present petition, petitioner sets forth
three claims: first, that the state prosecutor's argument in the
sentencing phase of petitioner's trial was so inflammatory as to
deny petitioner rights guaranteed by the eighth and fourteenth
amendments; second, that petitioner was denied the effective
assistance of counsel guaranteed to him by the sixth and fourteenth
amendments at the sentencing phase of his trial because his lawyer "failed
to present evidence to the effect that petitioner at a very tender
age witnessed the shooting death of his mother;" and third, that
petitioner's jury at the guilt/innocent phase of his trial was
unconstitutionally composed because it consisted entirely of "death
The district court denied petitioner relief,
concluding that all of his claims had been raised and determined (adversely
to him) on the merits in his prior federal habeas proceeding and
that the "ends of justice" did not require that the court relitigate
these claims now. See Rule 9(b) of the Rules Governing Section 2254
Cases. The district court also denied petitioner's application for a
stay of his execution pending appeal and a certificate of probable
We have heard oral argument on petitioner's
application for a certificate of probable cause and a stay of his
execution and have considered the entire record in this case. We
deny petitioner's application for a certificate of probable cause
and a stay of his execution, concluding that the district court, for
the reasons stated in its memorandum opinion which is attached,
properly applied Rule 9(b) in rejecting petitioner's three claims,
with one exception. That exception is with respect to petitioner's
first claim, concerning the prosecutor's argument to the jury on the
death penalty. As to this claim, we conclude as a matter of law that
the claim constitutes an "abuse of the writ" within the meaning of
Petitioner's first claim is a brand new claim; he
has, a matter of strategy, delayed the presentation of this claim
until now. The records of the trial, appellate, and habeas
proceedings in the Georgia courts and the first federal habeas
proceeding make this clear.
Petitioner, in prosecuting his direct appeal from
his conviction to the Georgia Supreme Court, did not make the
transcript of the prosecutor's closing argument to the jury at the
sentencing phase of his trial a part of the record on appeal.
Moreover, he did not assign as error in that appeal prosecutorial
misconduct during that closing argument.
In his first state habeas petition, petitioner
alleged that his constitutional rights had been violated because the
Supreme Court of Georgia did not have before it, in deciding the
appeal from his conviction and sentence, the transcript of the
prosecutor's argument to the jury. He argued that the Supreme Court
had a constitutional obligation sua sponte to incorporate the
transcript of the prosecutor's closing argument to the jury in the
record on appeal, and that it had violated such constitutional duty
(to petitioner) by not doing so and by not considering such argument
in passing on the validity of petitioner's death sentence.
Petitioner requested the state habeas court to provide him funds to
enable him to prosecute his habeas petition, but he did not request
the court to give him funds to pay the court reporter for preparing
the transcript of the prosecutor's closing argument or, if a
transcript could not be produced, to reconstruct the record.
Petitioner did not proffer to the state court what prosecutorial
misconduct had allegedly occurred during oral argument to the jury.
In sum, petitioner's claim, reduced to its essentials, was that the
Georgia Supreme Court, by failing to have the prosecutor's argument
transcribed and considered on appeal, had denied petitioner his
rights under the eighth and fourteenth amendments.
Petitioner's claim was denied, and the Georgia
Supreme Court affirmed. Petitioner then raised this claim in his
first federal habeas petition. The district court rejected it, and,
in his appeal to us, petitioner did not question this disposition.
Petitioner, having failed to establish that the
state supreme court review without a transcript of closing arguments
to the jury was constitutionally defective, now presents a new claim:
that the prosecutor erred during his closing argument to the jury.
The Georgia courts have refused to entertain this claim, rejecting
it as successive. We reject it, as we indicate above, because it
constitutes an abuse of the writ as a matter of law. We add in
passing that the district court was correct in refusing to convene
an evidentiary hearing for the purpose of reconstructing, at this
late date--over ten years since petitioner's murder trial, the
record to reflect the prosecutor's closing argument in the
sentencing phase of petitioner's trial.
With respect to petitioner's third claim, based
on Grigsby v. Mabry, 758 F.2d 226, (8th Cir. 1985), we reiterate
what the district court held, that this circuit has on several
occasions rejected this claim on the merits.
For the foregoing reasons, we find without merit
petitioner's applications for a certificate of probable and for a
stay of his execution and the same are
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
JOHN YOUNG, Petitioner,
RALPH KEMP, Warden, Georgia Diagnostic and Classification Center,
CIVIL ACTION 85-98-2-MAC
OWENS, District Judge:
Petitioner John Young, sentenced to death for the
1974 murders of three elderly Macon residents,
is before this court on his second petition
for habeas corpus relief under 28 U.S.C.A. Sec. 2254 (West 1977). He
asserts three claims in support of his contention that his
conviction and sentence were obtained in violation of the
Constitution and laws of the United States:
1. That the state prosecutor used inflamatory
language--language identical to that ruled unconstitutional in
subsequent decisions by both the Georgia Supreme Court and the
United States Court of Appeals for the Eleventh Circuit--in his
closing argument to the jury at the sentencing phase of petitioner's
2. That petitioner received ineffective
assistance of counsel at the sentencing phase of his trial in that
his appointed counsel, who petitioner alleges was suffering from the
effects of drug abuse at the time of trial, failed to present
evidence to the effect that petitioner at a very tender age
witnessed the shooting death of his mother.
3. That petitioner's jury at the guilt-innocence
phase of trial was unconstitutionally composed in that it consisted
entirely of individuals who had been "death qualified."
As petitioner concedes, all of these claims have
been raised and rejected in prior proceedings. Nevertheless,
petitioner argues that the "ends of justice" demand that he be given
an opportunity to relitigate these issues in this successive federal
habeas corpus proceeding. The respondent has moved to dismiss,
arguing that all of petitioner's claims have been rejected on their
merits in prior proceedings, and that petitioner's effort to
supplement these claims with evidence that could have been presented
earlier constitutes an abuse of the writ under Rule 9(b), Rules
Governing Section 2254 Cases, 28 U.S.C.A. fol. Sec. 2254 (West
1977). As required by Potts v. Zant, 638 F.2d 727, 747 (5th Cir.),
454 U.S. 877 , 102 S.Ct. 357, 70 L.Ed.2d 187 (1981), an
evidentiary hearing on the issue of abuse of the writ was held on
March 18, 1985.
Standings Governing Dismissal for Abuse of the
Rule 9(b) of the Rules Governing Section 2254
A second or successive petition may be dismissed
if the judge finds that it fails to allege new or different grounds
for relief and the prior determination was on the merits or, if new
and different grounds are alleged, the judge finds that the failure
of the petitioner to assert those grounds in a prior petition
constituted an abuse of the writ.
With respect to claims which have been resolved
on their merits against a petitioner in a prior habeas action,
relitigation of those claims must be allowed when necessary to serve
the "ends of justice." Sanders v. United States, 373 U.S. 1, 15, 83
S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). Factors to be considered
under this standard include whether there was a full and fair
hearing in the prior proceedings, whether there has been an
intervening change in the law, or whether a "plain error" was
committed in the prior proceeding. Potts v. Zant, 638 F.2d at 740;
Bass v. Wainwright, 675 F.2d 1204, 1207 (11th Cir.1982). With
respect to new or different claims raised for the first time in a
successive petition, the abuse of the writ standard provides that a
court need not entertain such claims if they were deliberately
withheld from presentation in the first proceeding, or if they were
omitted for reasons which can be characterized only as "inexcusable
neglect." Potts v. Zant, 638 F.2d at 740-41; see also Sanders v.
United States, 373 U.S. at 18, 83 S.Ct. at 1078 (citing Fay v. Noia,
372 U.S. 391, 438-40, 83 S.Ct. 822, 848-50, 9 L.Ed.2d 837 (1963) and
Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d
Petitioner's claim concerning the prosecutor's
closing argument at the sentencing phase was raised in his first
federal habeas petition. See Young v. Zant, Civil Action No. 81-308-MAC
(Petitioner's Complaint, Claim "C" at 4). This court denied relief
after ruling that petitioner had failed to produce any evidence in
support of his claim--the closing argument was not transcribed.
Proposed Order of Magistrate at 6, Young v. Zant, Civil Action No.
81-308-MAC; adopted by district court by Order dated September 22,
1982. Petitioner apparently abandoned this issue on appeal as the
decision of the Eleventh Circuit Court of Appeals affirming the
denial of habeas relief is silent on this issue. See Young v. Zant,
727 F.2d 1489 (11th Cir.1984).
Petitioner's claim concerning the effectiveness
of counsel at the sentencing phase was also asserted in his first
federal habeas complaint. This court denied relief on that claim,
and the court of appeals affirmed. Young v. Zant, 727 F.2d at
1492-93. In doing so, the court of appeals specifically rejected the
contention that petitioner's trial counsel was ineffective because
of drug usage. Id. Finally, petitioner's claim concerning his death
qualified jury was asserted in his first federal habeas complaint.
Young v. Zant, Civil Action No. 81-308-MAC (Petitioner's Complaint,
Claim "P" at 16). This court, following controlling precedent on
this issue, denied relief upon this claim. Proposed Order of
Magistrate at 12, Young v. Zant, Civil Action No. 81-308-MAC;
adopted by district court by Order dated September 22, 1982.
Petitioner apparently also abandoned this claim on appeal since the
decision of the court of appeals does not discuss this issue. See
Young v. Zant, 727 F.2d 1489 (11th Cir.1984).
Petitioner asserts that the ends of justice
demand that he be allowed to relitigate these claims in this
successive petition. He argues that he now has evidence--a newspaper
quotes from the prosecutor's closing argument--proving that the
prosecutor made an unlawful argument at the sentencing phase of
trial. With respect to the effectiveness of counsel's argument, he
relies upon an affidavit of trial counsel which states that trial
counsel was unaware of petitioner's background and social history.
Marchman Affidavit p 9 at 4. As to his claim regarding the death
qualified jury, he asserts that the case of Grigsby v. Mabry, 758
F.2d 226 (8th Cir. 1985), constitutes "an intervening change in the
law," and that his
sentence should be stayed pending resolution of the "split among the
circuit courts" by the Supreme Court.
Conclusions of Law
Petitioner seeks to relitigate claims previously
considered and rejected by the federal courts, and he seeks to
supplement two of those claims with additional evidence.
Petitioner's claim concerning the death qualified
guilt-innocence phase jury presents only an "ends of justice"
argument based upon a so-called change in the law. However, the
decision of the Court of Appeals for the Eighth Circuit in Grigsby
does not constitute an intervening change in the law. Grigsby does
not state the law of this circuit. In its most recent consideration
of the issue, the Supreme Court of the United States reaffirmed the
death qualification rules set forth in Witherspoon. Wainwright v.
Witt, --- U.S. ----, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). This
court is without authority to ignore binding precedent on this issue.
Petitioner has failed to demonstrate that the ends of justice
require relitigation of this claim.
Petitioner's remaining claims involve an argument
that "new" evidence requires reconsideration of claims previously
found to be conclusory and factually unsupported. To this extent
they raise the issue of whether petitioner has abused the writ by
failing to assert this evidence in his prior habeas corpus
Petitioner asserts that, because the closing
arguments were not transcribed, he has heretofore been unable to
prove his claim concerning the prosecutor's "Eberhart " argument. He
alleges that the discovery of the newspaper article discussed in
note 4, supra, should entitle him to relitigate this claim today.
The Eberhart argument was condemned by the
Georgia Supreme Court in 1977. Hawes v. State, 240 Ga. 327, 336, 240
S.E.2d 833, 839-40 (1977). Petitioner's first federal habeas
complaint was filed in December of 1981. Petitioner therefore should
have known of this possible claim for almost four years prior to the
filing of his first federal habeas complaint. This was more than
ample time to discover the newspaper article published at the time
of petitioner's trial in 1976. Further, petitioner's trial counsel
by affidavit has stated:
To the best of my knowledge the final arguments
were recorded by the court reporter although I do not remember the
court reporter's name at this time. It was requested to be made a
part of the record, both orally following the trial of the case and
my motion for new trial, and in writing at the appropriate times.
Therefore it should be available.
Marchman Affidavit, p 13 at 6-7. Nevertheless,
petitioner has failed to provide any explanation as to why this
recording has not been produced, despite the fact that eight years
have elapsed since petitioner should have known that he had a
possible claim on this issue. Petitioner's failure to present
evidence on this claim in his prior habeas proceeding is
inexcusable, and he is not entitled in the interests of justice to
further delay in order that he might finally attempt to gather
evidence in support of his claim.
Finally, petitioner's claim regarding trial
counsel's failure to present allegedly mitigating evidence
concerning the death of petitioner's mother similarly should have
been presented in the first federal habeas action. Petitioner,
himself, certainly could have testified at the sentencing phase
regarding the circumstances of his mother's death and his deprived
childhood. Moreover, petitioner could have brought these facts to
the attention of counsel during the first federal habeas proceedings
so that this claim could have been timely presented. The evidence in
support of this claim is not "new"; there is no excuse for
petitioner failing to assert this evidence in the nine years which
have elapsed since petitioner's trial. This court concludes that it
would be an abuse of the writ of habeas corpus to allow petitioner
to assert this evidence in this successive petition. Moreover, to
the extent that petitioner seeks to relitigate the general
effectiveness of trial counsel, he has failed to demonstrate why the
ends of justice require re-examination of the court of appeals'
determination that "[t]he record also fails to support any claim
that Marchman's handling of the trial was affected by his drug usage.
Marchman presented a vigorous and capable defense." 727 F.2d at
Accordingly, the court hereby determines that the
ends of justice do not require relitigation of claims previously
considered on their merits, and that petitioner's failure to present
his "new" or "different" evidence in his prior habeas corpus
proceedings is inexcusable. Petitioner's successive habeas petition
is therefore DISMISSED. Rule 9(b), Rules Governing Section 2254
Cases, 28 U.S.C.A. Sec. 2254 (West 1977) and 28 U.S.C.A. Sec. 2244.
SO ORDERED, this 18th day of March, 1985.
/s/ Wilbur D. Owens, Jr.
Wilbur D. Owens, Jr., United States District