DocketNumber: Civ. A. No. 88-46-1-MAC (WDO)
Citation Numbers: 687 F. Supp. 594
Judges: Owens
Filed Date: 6/14/1988
Status: Precedential
Modified Date: 11/27/2022
ORDER
Petitioner Jimmy Lee Horton, having been tried, convicted and sentenced to die in Bibb Superior Court in February, 1981, for the murder of Don Thompson, and having exhausted
Petitioner, throughout his trial and appeals to the Georgia and United States Supreme Courts, was represented by appointed counsel herein referred to as trial counsel. In his state habeas and all subsequent proceedings petitioner has been represented by new pro bono counsel herein referred to as habeas counsel.
Habeas counsel in Section M of the petition and brief contends that the prosecuting attorney engaged in a systematic practice of using peremptory challenges to strike blacks from petitioner’s jury (without objection from petitioner’s counsel all nine blacks on the jury panel were struck, H.C.R. 72-76) and from other jury panels in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). Petitioner asked the state habeas court for funds to pay an investigator to develop facts to prove his Swain claim; this request was denied, so petitioner produced no evidence on this is
Respondent contends both that the state habeas court was not constitutionally required to pay an investigator to assist habeas counsel and that petitioner was afforded a full and fair hearing in the state habeas court on this and all other issues. Respondent further contends that “petitioner has not shown [in this United States district court that] (a) material facts were not adequately developed in the state courts and (b) that any failure to develop any material fact was not due to his inexcusable neglect or deliberate bypass, especially where the prosecutor was present and petitioner could have examined the prosecutor regarding his use of peremptory strikes but petitioner failed to do so.” Thomas v. Zant, 697 F.2d 977 (11th Cir.1983). Respondent contends that habeas counsel deliberately bypassed the opportunity to cross-examine the prosecutor and cannot now assert that counsel has been unable to factually develop this claim. An evidentiary hearing, respondent suggests, is therefore not required in this court.
Thomas v. Zant, 697 F.2d at 986, requires at the least an evidentiary hearing to permit petitioner to show that the failure to develop material facts in support of his Swain claim “was not attributable to petitioner's inexcusable neglect or deliberate bypass.” For such a hearing to be meaningful this court must receive evidence of the material facts that were not, but could have been, developed and presented and of how petitioner’s pro bono counsel during the state habeas proceeding could have done so. It is, therefore, this court’s considered judgment that, pursuant to Rule 6 of the section 2254 Rules, discovery should first be engaged in to permit petitioner’s counsel to ascertain the facts, and having done so, to suggest to the court whether or not counsel is prepared to prove a Swain claim. If not, no evidentiary hearing will then be held. If so, the court will hold an evidentiary hearing to allow petitioner to attempt to prove his Swain claim in light of Thomas v. Zant and to allow respondent to assert his contentions.
As discussed by conference telephone call, counsel are invited to cooperatively arrive at the least expensive, most convenient, and most expeditious discovery procedures that will give petitioner a fair opportunity to develop his Swain claim and to then seek leave of court to engage in such specific procedures pursuant to Rule 6 of the § 2254 Rules.
. Conviction and sentence affirmed by Supreme Court of Georgia on September 8, 1982, 249 Ga. 871, 295 S.E.2d 281; certiorari denied by United States Supreme Court on January 24, 1983, 459 U.S. 1188; rehearing denied on March 21, 1983, 460 U.S. 1048, 103 S.Ct. 1451, 75 L.Ed.2d 805; habeas petition denied by Bibb Superior Court on November 7, 1986; certificate of probable cause denied by Supreme Court of Georgia on April 14, 1987; certiorari denied by United States Supreme Court on October 13, 1987, — U.S. —, 108 S.Ct. 248, 98 L.Ed.2d 206.