Ronnie ATWELL, Plaintiff-Appellant, v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, et al., Defendants-Appellees.
No. 85-3187.
United States Court of Appeals, Fifth Circuit.
Sept. 26, 1986.
Lawrence B. Fabacher, II, New Orleans, La. (Court appointed), for plaintiff-appellant.
Terry Boudreaux, Patricia E. Black, Asst. Dist. Attys., New Orleans, La., for defendants-appellees.
Before CLARK, Chief Judge, GOLDBERG and GARWOOD, Circuit Judges.
GARWOOD, Circuit Judge:
Rennie Gordon Atwell, who is serving a life sentence in the Louisiana state penitentiary, appeals from the district court’s denial of his petition for writ of habeas corpus. Atwell asserts two primary grounds for relief. First, he claims that he was indicted by a grand jury that did not represent a fair cross-section of the community as required by the United States Constitution. Second, he contends that the state’s failure to disclose prior arrest and conviction records of potential state witnesses and jurors and potential jurors’ voting records violated his due process rights. Finding that Atwell has failed to demonstrate a constitutional violation, we affirm.
Facts and Proceedings Below
In early 1975, the Orleans Parish Jury Commissioners ceased requiring process servers to serve jury duty summons in the New Orleans Desire Housing Project because of violence in that area. The service of jury duty summons was resumed by August or September of 1975. On March 1, 1975, during the time that summons were not being served in the heart of the Desire housing project, a grand jury was impaneled, which continued until August 31, 1975. On April 3, 1975, petitioner At-well was indicted by this grand jury for first degree murder. Atwell was convicted for first degree murder on February 18, 1976, by a petit jury selected after service of jury duty summons in the Desire project had been resumed. The Louisiana trial court sentenced Atwell to life imprisonment without benefit of pardon, parole, commutation, or suspension of sentence.
The Louisiana Supreme Court affirmed Atwell’s conviction and sentence on direct appeal, finding that the trial court had properly denied Atwell’s motion to quash his indictment, but remanded for a hearing to determine whether the state had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose prior arrest and conviction records of its potential witnesses. State v. Harvey, 358 So.2d 1224 (La.1978). After a hearing on remand, the trial court found that, at the time of Atwell’s trial, the state had no knowledge of any prior convictions of its witnesses and that there was no evidence that the state's witnesses had any prior arrests or convictions. On appeal, the Louisiana Supreme Court affirmed. State v. Harvey, 369 So.2d 134 (La.1979). Atwell was represented by counsel throughout his state trial, appeal, proceedings on remand, and subsequent appeal.
Atwell filed this habeas corpus petition in the district court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 2254. The state concedes that Atwell has exhausted his state remedies. The district court referred the case to a magistrate, but later revoked the order and, without a hearing, denied relief on all grounds.
Discussion
Cross-Section Claim
Atwell seeks federal habeas relief based on his claim that exclusion of the Desire housing project residents violated his constitutional right to a fair cross-section of the community on the panel from which his grand jury was drawn. See Eggleston v. Estelle, 513 F.2d 758, 760-61 (5th Cir.1975). In State v. Cage, 337 So.2d 1123 (La.1976), the Louisiana Supreme Court addressed a challenge by Harry Cage of the identical grand jury that indicted Atwell. See State v. Ferguson, 358 So.2d 1214, 1222 (La.1978) (Summers, J., concurring). The Louisiana Supreme Court held that the exclusion of Desire housing project residents from jury service, though not improperly motivated, nevertheless violated Cage’s federal and state constitutional rights “because the exclusion was deliberate and involved a sizeable and distinctive group in the community.” Cage, 337 So.2d at 1125. It sustained the trial judge’s quashing of Cage’s indictment. Atwell, prior to his trial, moved through his counsel to quash his indictment on the ground that residents of the Desire project were not being served with jury duty summonses when his grand jury was selected. A copy of the transcript of the testimony at Cage’s hearing on this subject was introduced in support of Atwell’s motion and considered by the trial court, which nevertheless overruled the motion. On direct appeal of Atwell’s conviction, the Louisiana Supreme Court sustained the trial court’s refusal to quash Atwell’s indictment because of its decision that same day in Ferguson, 358 So.2d at 1216-17, that Cage should be applied prospectively only to ve-nires selected after the date of the Cage decision. Harvey, 358 So.2d at 1229-30.
Because we are not bound by the Louisiana Supreme Court’s interpretation of the United States Constitution, we must determine whether Atwell established in the federal district court that he is entitled to habeas relief. Atwell, as habeas petitioner, bears the burden of proving, at the least, that a constitutionally distinctive group or identifiable segment of the community was purposefully excluded from his grand jury venire by the jury selection process. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court articulated the showing necessary to establish a violation of the Sixth Amendment fair cross-section requirement. The defendant must show:
“(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underre-presentation is due to systematic exclusion of the group in the jury-selection process.” Id. at 668.
In addressing the underrepresentation requirement, the Duren Court stated: “Initially, the defendant must demonstrate the percentage of the community made up of the group alleged to be underrepresented, for this is the conceptual benchmark for the Sixth Amendment fair-cross-section requirement.” Id. Furthermore, the defendant must show that the underrepresentation of the group at issue “generally and on his venire, was due to their systematic exclusion in the jury selection process.” Id. at 669 (emphasis added). Once the defendant has made a prima facie showing, the state may justify the infringement “by showing attainment of a fair cross section to be incompatible with a significant state interest.” Id. at 671.
Because Atwell has not established that the failure to serve jury duty summonses in the Desire housing project caused residents of that project to be underrepresented on his grand jury venire, we find that his claim in this connection must fail. At the state trial court hearing on Atwell’s motion to quash his indictment, the state and the defense entered into a stipulation concerning the testimony offered in the Cage case by the Chairman of the Orleans Parish Jury Commissioners. The trial court entered the transcript of the December 15, 1975 evidentiary hearing conducted on the motion to quash in the Cage case into Atwell’s trial court record. Atwell presented no additional evidence to the state court in support of his motion to quash. Atwell asserts that his evidence is the same as the Cage evidence and does not suggest that he sought to offer, either before the state trial court or the federal district court, any evidence other than the transcript of the testimony at the Cage hearing.
The transcript of the testimony at the Cage hearing on the grand jury selection reflects that, during the time the grand jury at issue was impaneled, service of jury duty summons was discontinued in the Desire housing project, or at least in “the heart” of the project. Also, a housing project statistician testified that in October 1975 there were 9,531 residents in the housing project and that the entire Desire population was black. In addition, the Chairman of the Orleans Parish Jury Commissioners testified that, in impaneling a grand jury, venires of seventy-five persons were drawn from the Register of Voters, and that the trial court judge selected the grand jury from the venire. There was no evidence that any Desire resident (or a resident from the heart of the project) was selected for Atwell’s venire. Nor was there any evidence as to the number of registered voters in the Desire project or the statistical likelihood that a Desire resident would have been chosen. Moreover, there was no evidence concerning the proportion in Orleans Parish of persons with demographic characteristics similar to those in the Desire project. The Jury Commission Chairman did testify that the seventy-five-person grand jury venires were usually forty-five to fifty-five percent black. There was no other evidence of the racial or socio-economic makeup of the particular venire or of Atwell’s grand jury which was chosen from it. Just as in Preston (where the record apparently contained all the same evidence as here, plus other evidence), we conclude that “no evidence was presented that in the selection process for” Atwell’s grand jury venire “names of any Desire residents were chosen for the wheel to be served in the first place,” id. at 101 (footnote omitted), and the Desire group “is so small that we may not infer, as a statistical matter, that some number of them must necessarily have been included in the venire chosen from the wheel.” Id. at 102. Accordingly, Atwell has tendered no prima fade showing that the practice of not serving within the Desire project affected the make-up of his grand jury venire. The district court correctly ruled that no constitutional defect was shown respecting the selection of the grand jury.
Due Process Brady v. Maryland Claim
Atwell also contends that the state failed to disclose to him prior arrest and conviction records of its potential witnesses in response to his pretrial request in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In ruling on Atwell’s direct appeal, the Louisiana Supreme Court, relying on United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), remanded for a hearing to determine whether there was suppression of material “for which there was a substantial basis for claiming that materiality existed,” 358 So.2d at 1233. After the remand hearing, the Louisiana Supreme Court affirmed the trial court’s finding that the state had not suppressed information requested by the defendants. 369 So.2d at 134.
Factual determinations made by a state court after a full and fair hearing on the merits are entitled to a presumption of correctness. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 767-69, 66 L.Ed.2d 722 (1981). Unless we determine that the state court’s factual finding is not “fairly supported by the record,” Atwell must establish by “convincing evidence” that the factual determination was erroneous. Id. at 771. We hold that the state court’s determination is supported by the record. Atwell’s claim that the state attorney who testified at the remand hearing was not familiar with the circumstances of Atwell’s trial is unsupported as the attorney demonstrated sufficient knowledge of the circumstances of Atwell’s trial. He denied any prosecution knowledge of any prior record of the witnesses. The defense counsel stated that he was not aware of any prior convictions of the state witnesses, although he said defendants (Atwell and Harvey) “do believe there was prior arrests, but not any prior convictions.” Atwell simply did not make out a Brady or Agurs violation at his state hearing. There was no evidence or tender of evidence that any of the witnesses had any convictions or arrests. So far as the record reflects, this was purely unsupported, general speculation on the part of the defense.
Atwell also challenges the trial court’s denial of his request for prior arrest and conviction records of potential jurors. The Louisiana Supreme Court, accepting as true Atwell’s allegations that the state had this information and intended to use it in jury selection, and that he could not obtain it from other sources, held that Atwell was entitled either to be given the information or to question the prospective jurors. Finding no indication that Atwell was demed the right to question prospective jurors, the Louisiana Supreme Court affirmed the trial court’s decision. 358 So.2d at 1230-32. We find that Atwell has failed to establish that this information would be material to his case. He does not assert that he was prevented from questioning the prospective jurors. In addition, he has failed to allege any facts supporting his claim that some prospective jurors had criminal records and that this information was suppressed by the state.
Finally, Atwell also asserts a due process violation in the trial court’s denial of his motion to examine the prior voting records of prospective jurors, which was affirmed by the Louisiana Supreme Court. 358 So.2d at 1231. Again, Atwell has not established that this information would be material to his case or that he was unable to obtain this information on the jury voir dire. Accordingly, we find that Atwell has not established a due process violation.
Conclusion
Finding that Atwell’s claims are without merit, we affirm the district court’s denial of the writ of habeas corpus.
AFFIRMED.
. Atwell and another conspired to rob Robert Alexander, committed armed robbery of him, during the course of which Alexander was murdered, and thereafter divided the robbery proceeds among themselves and Atwell’s co-defendant James Harvey.
. Atwell asserted a third (and final) ground for relief in his habeas petition, complaining of the fact that his sentence was “without benefit of probation or suspension of sentence." The jury verdict found Atwell "Guilty without Capital Punishment or Benefit of Parole, Probation, or Suspension of Sentence.” Atwell’s complaint, though rather confused, appears to have been that the Louisiana law which authorized a verdict as above set out did not become effective until July 1973, and hence could not constitutionally be applied to his offense which was committed January 2, 1973. However, Atwell’s chronology is mistaken, as the law authorizing this character of verdict came into effect July 12, 1972. Acts 1972, No. 502 (House Bill 97, amending article 817 of the Louisiana Code of Criminal Procedure). Although that law was itself amended in June 1973 (effective July 1973), this 1973 amendatory act specified that ”[t]his Act shall not apply to the prosecution and trial for any crime committed before the effective date of this Act. Qualification of verdicts for crimes committed before that time shall be governed by the law existing at the time the crime was committed.” Acts 1973, No. 125, section 2 (Senate Bill 90, amending article 817 of the Louisiana Code of Criminal Procedure). Hence, Atwell's case continued to be governed by the 1972 law, which authorized the sentence in question and was the law in effect when his crime was committed. Atwell’s third ground may also have included a complaint of the 1979 repeal of the law (La.R.S. 15:571.7) which was in effect when he was sentenced and allowed petition requesting commutation of a life sentence after serving ten years and six months confinement. We have held that this repeal did not violate the rights of those to whom the former statute had been applicable. Dunn v. Maggio, 712 F.2d 998 (5th Cir.1983), cert. denied, 465 U.S. 697, 104 S.Ct. 1297, 79 L.Ed.2d 697 (1984). Atwell’s counsel conceded at oral argument before us that his sentence was not illegal. This concession is well taken. The district court did not err in holding Atwell’s third ground was without merit.
. In a different procedural context, we addressed a challenge raised by another habeas petitioner to a petit jury selected from the same venire from which the grand jury that indicted Atwell was selected. In Preston v. Maggio, 741 F.2d 99 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2334, 85 L.Ed.2d 850 (1985), we upheld the denial of habeas relief to petitioner Preston, who challenged his Louisiana conviction on the same Desire housing project grounds asserted by Atwell. However, Preston had not challenged the composition of his jury at his trial or on direct appeal in the state court system. His state court habeas petitions were denied without comment. Because Preston had failed to comply with the Louisiana contemporaneous objection rule, we were compelled by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to determine whether he showed "cause and prejudice” respecting his failure to object. Declining to fully define "actual prejudice,” we observed that “Preston must, as a minimum, [have shown] that names of Desire residents were in fact chosen from the wheel to make up the venire out of which his jury panel was eventually chosen, and that they were not served." Id. at 101. Based on testimony offered at the district court’s evidentiary hearing and ”[t]he facts contained in the Cage opinion [stipulated by the parties],” we concluded that there was no evidence that the names of any Desire residents were chosen to be served. Id. at 101 and 102 n. 5. In addition, we determined that the excluded group was too small statistically for us to infer that some Desire residents must necessarily have been selected for the venire. Id. at 102.
. Cf. Vasquez v. Hillery, — U.S.-, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (systematic exclusion of blacks from grand jury in violation of equal protection clause is not subject to harmless error review).
. Atwell’s state record contains no transcript of a hearing on his motion to quash. The minute entries reflect that a copy of the transcript of the evidence at the Cage hearing was all that was offered or considered on Atwell’s motion, and this comports with the parties’ characterization of the Atwell proceedings. Atwell’s state record does include a copy of the complete transcript of the testimony at the Cage hearing on Cage’s motion to quash.
. The Chairman of the Orleans Parish Jury Commissioners testified that during the time in question "we weren’t serving the heart” of the project. He further testified that process servers were not required to serve within the project during this time: "I let them take it on their own. If they wanted to go in, they could. If not, I wouldn’t force them.” When asked "some of your process servers did go in there?” he replied, “It's possible, but I doubt it sincerely.” At another point he was asked "were your process servers not going into the Project area?” and he answered, "They were told they didn’t have to go if they didn’t want to. That’s correct. I don’t think anybody was going into the Desire Project.” He also testified that this had nothing to do with race, or other group characteristic, but “just fear of the man’s life.” There was no contrary evidence.
. The Louisiana Supreme Court’s opinion in Cage reflects that 2,695 of these residents were at least eighteen years of age. 337 So.2d 1123.
. No complaint has been made in this federal habeas proceeding respecting use of the list of registered voters as the sole source from which names for a venire were drawn.
. In his concurring opinion in Ferguson, Justice Summers of the Louisiana Supreme Court stated with respect to the Desire project service issue presented there (which he stated involved the same grand jury):
“[R]esidents on the outskirts of the project were served.
"Of those who lived within the project and whose names were drawn for inclusion on the jury venire from which the grand jury was drawn, the chairman of the jury commission guessed that less than fifty percent resided within the heart of the project. He was also of the opinion that much less than ten percent of the grand jury venire were residents of the project.
"The jury wheel from which the grand jury venire of 425 was drawn consisted of eighteen thousand names. These names were, in turn, taken from flies containing two hundred thousand names compiled from the voter registration list. The commissioner could not say how many residents of the Desire Project were included on the list from which the grand jury venire was selected.” Ferguson, 358 So.2d at 1222-23.
We note that none of this testimony or evidence is included in the transcript of the Cage hearing testimony introduced in Atwell’s case or is otherwise in this record or Atwell’s state record (apparently in Ferguson there was different evidence on this issue than in Cage; no reference to the Ferguson evidence was made below or in Atwell’s state record). Nor do we think that these recited "facts” establish that the grand jury venire in question here listed any Desire residents who were not served.
. Hence we pretermit all other questions in this respect, including whether Desire project residents are a constitutionally distinctive group and the legal sufficiency of the reasons for not requiring process to be served.
Atwell had an equal protection right to a grand jury selected under procedures free from racial discrimination. No invasion of such right is shown. We do not hold that Atwell also had a right (or one cognizable on habeas corpus) to a grand jury selected under cross-sectional procedures similar to those implicated by the Sixth Amendment, nor do we intimate any opinion on that issue; we merely assume, ar-guendo only, that he did have such a right, and hold that even if he did, a violation thereof is not shown.
In light of the comments in the dissenting opinion, we note that in Cage the Louisiana Supreme Court stated (337 So.2d at 1125):
‘We attribute no evil motive to the jury commission in its failure to cause subpoenas to be served on prospective jurors in the Desire housing project. On the contrary, it appears that service was discontinued for a period of time in this area out of a sincere concern for the safety of the process servers. Furthermore, we do not doubt that the jury commission itself lacked the wherewithal to provide the needed protection and that time was required to obtain assistance from other governmental agencies."
In Cage (and in this case), the state courts, trial and appellate, found no racial or other discriminatory animus to play any part in the decision temporarily not to require process service in the Desire project. The record in this case — including the transcript of the Cage hearing — contains no evidence of any such animus, and affirmatively reflects the contrary, namely, that the only concern was a bona fide, realistic one for the safety of the process servers. No claim to the contrary was made below or to us. Further, we do not approach the question before us from the point of view of “prejudice" in the sense of requiring Atwell to show that this indictment might have been less likely had not the service of process in the project been suspended; rather, we merely require him to show that at least some members of his grand jury venire were, or were likely, Desire residents, so that the challenged practice would at least have potential relevance to his case. But, as noted, there is no showing whatever of the racial or socio-eco-nomic composition of Atwell’s grand jury ve-nire, much less of his grand jury itself.
. No specific witness, or possible specific arrest or conviction, was ever mentioned by the defense. It was not shown that the defense ever questioned any witness at trial about prior arrests or convictions, or requested leave to do so out of the presence of the jury or otherwise. No relevance of possible prior arrests was suggested.