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MISSISSIPPI CHEMICAL CORP. v. E.E.O.C.

1013

Cite as 786 F.2d 1013 (11th Cir. 1986)

That action by the high court, coupled
with the Court’s. recent order denying a
stay in a case raising another variation of
the Grigsby claim, Harich v. Wainwright,
— US. —, 106 S.Ct. 1392, 88 L.Ed.2d
—— (1986), should send us a clear mes-
sage. Harich presented a situation in

which petitioner did not allege that per-

sons on the venire were excluded during
voir dire for cause or through peremptory
challenge because of any objections to
capital punishment. Jones, in contrast,
raises a straightforward Grigsby claim—a
case in which a venireperson, Mrs. Sum-
merall, was excused for cause on voir dire
when she expressed reservations about
imposing a death sentence. (Mrs. Summe-
rall did not indicate that her views would
prevent her from fairly judging guilt or
innocence.) An affirmance of Grigsby by
the Supreme Court in Lockhart would
clearly favor petitioner’s claim.

Justice Powell’s concurrence to the
Court’s denial of stay in Harich, id. (Pow-
ell, J., concurring), indicates that this dis-
tinction is a crucial one. He writes:

The other capital case in which execu-
tion is scheduled for tomorrow is No.
A-710, James v. Wainwright. I voted to
grant a stay of execution in that case.
Both James and Harich profess to
present claims similar to that pending
before the Court in Lockhart v. McCree,
No. 84-1865.

This case, however, presents an issue
different from James and one without
merit. In James, the Lockhart issue
was at least arguably presented when
persons on the venire who expressed res-
ervations as to capital punishment were
removed by peremptory challenges. In
this case, petitioner “conced[ed] in this
petition [before the Supreme Court of
Florida] that at his trial ‘no veniremen
were excluded’ during voir dire, either
for cause or through peremptory chal-
lenge.” Opinion of Supreme Court of
Florida 2. Similarly, before this Court
petitioner makes no allegation that per-
sons on the venire were excluded during
voir dire because of any objections to
capital punishment.

‘does not control in this situation.

Accordingly, my vote is to deny the
application for a stay of execution.

In my judgment, the Court has indicated
clearly that Jones is precisely the sort of
case in which a stay of execution should be
forthcoming. I hold to this view not in
derogation of the law of this Circuit in
Bowden, but in the conviction that that law
When
the Supreme Court speaks, we are bound to
listen. .

Accordingly, I would grant a stay of
execution pending the Court’s decision in
Lockhart.

©. & KEY NUMBER SYSTEM

sums

MISSISSIPPI CHEMICAL CORPORA-
TION, Plaintiff-Appellant,

Vv.

EQUAL EMPLOYMENT OPPORTUNI-
TY COMMISSION,
Defendant-Appellee.

No. 84-7778.

United States Court of Appeals,
Eleventh Circuit. ‘

March 25, 1986.

Employer brought action seeking de-_
claratory judgment that Equal Employ-
ment Opportunity Commission’s Commis-
sioner’s charge was invalid on its face.
The United States District ‘Court for the
Northern District of Alabama, Robert B.
Propst, J., dismissed suit, and employer
appealed. The Court of Appeals, Hatchett,
Circuit Judge, held that issuance of Com-
missioner’s charge with Equal Employment
Opportunity Commission was not a “final
agency action” under Administrative Proce-
dure Act so that validity of charge alleging
that employer was engaged in pattern or

~— Mae ~—) JONES v. SMITH
Cite as 786 F.2d 1011 (11th Cir. 1986)

5 REE ee
Arthur Lee JONES, ~
Petitioner-Appellant, 7

Vv.

Fred SMITH, Commissioner, Alabama
Department of Corrections and W.E.
Johnson, Warden, Nolman Unit, Re-
spondents-Appellees.

No. 86-7194.

United States Court of Appeals,
Eleventh Circuit.

March 20, 1986.

Petitioner appealed from order of the
United States District Court for the South-
ern District of Alabama, William Brevard
Hand, Chief Judge, denying his petition for
certificate of probable cause and for stay
of execution pending appeal. The Court of
Appeals held that petitioner was not enti-
tled to stay of execution pending appeal on
basis of Grigsby issue.

Petition denied.

Johnson, Circuit Judge, filed dissenting
opinion.

Habeas Corpus <€-113(8)

Petitioner was not entitled to stay of
execution pending appeal on basis of Grigs-
by issue arising after venireperson was
struck for cause at petitioner’s trial. be-
cause she expressed reservations about
capital punishment and noted her reluc-
tance to consider imposing death penalty.

John Furman, Mobile, Ala., for petitioner-
appellant.

Ed Carnes, Asst. Atty. Gen., Montgom-
ery, Ala., for respondents-appellees.

Appeal from the United States District
Court for the Southern District of Ala-
bama.

Before RONEY, FAY and JOHNSON,
Circuit Judges.

C KE |
! Cote 1011

PER CURIAM: (WS

Petitioner Arthur Lee Jones is presently
scheduled for execution in Alabama on Fri-
day, March 21, 1986 at 12:01 A.M. He
appeals the district court’s denial of a peti-
tion for writ of habeas corpus. Presently
pending are his petition for certificate of
probable cause and for stay of execution
pending appeal, both denied wi the district
court.

Jones was previously before this Court
when denial of a prior petition for habeas
corpus relief was affirmed. Jones v.
Smith, 772 F.2d 668 (11th Cir.1985). The
United States Supreme Court denied certio-
rari on January 13, 1986.

Since then, the Circuit Court of Mobile
County has dismissed another coram nobis
petition, filed on January 14, 1986.’ On
March 13, 1986, the Alabama Supreme
Court denied petitioner’s motion for a stay
of execution. The federal district court
entered its denial of relief on this second
petition for writ of habeas corpus on March
18, 1986.

In his habeas corpus petition, Jones rais-
es two issues: first, the one involved in
Grigsby v. Mabry, 758 F.2d 226 (8th Cir.
1985), cert. granted, sub nom. Lockhart v.
McCree, — U.S. ——, 106 S.Ct. 59, 88
L.Ed.2d 48 (1985), concerning a death ori-
ented jury,.and second, that certain prose-
cutorial argument made during the. guilt
phase of the trial was improper.

As to the Grigsby issue, at petitioner’s
trial, a venireperson was struck for cause
because she expressed reservations about
capital punishment and noted her reluc-
tance to consider imposing the death penal-
ty. She did not indicate that her views
would prevent her from fairly judging guilt
or innocence.

This Court is in much the position it was
in Bowden v. Kemp, 774 F.2d 1494 (11th
Cir.1985). The Eleventh Circuit has con-
sistently rejected the contention accepted
by the Eighth Circuit in Grigsby. Martin
v. Wainwright, 770 F.2d 918, 938 (11th

1012

Cir.1985); Jenkins v. Wainwright, 763
F.2d 1390, 1393 (11th Cir.1985); Young v.
Kemp, 758 F.2d 514, 516 (11th Cir.1985);
and Smith v. Balkcom, 660 F.2d 573, 575-

84, modified, 671 F.2d 858 (5th Cir. Unit B

1982), cert. denied, 459 U.S. 882, 103 S.Ct.
181, 74 L.Ed.2d 148.

We have been unable to find any case in
which this Court has stayed an execution
pending appeal to this Court because of the
Grigsby issue since that issue has been
settled by our decisions.

We stated in Bowden:

Under the precedent binding us in this
Circuit, the District Judge’s dismissal of
the successive petition is correct and the
petitions for certificate of probable cause
and stay of execution are without merit.
Were we to grant CPC and reach the
merits of the proposed appeal on consid-
eration of the petition for stay of execu-
tion, see Barefoot v. Estelle, [463 US.
880, 103 S.Ct. 3383] 77 L.Ed.2d 1090
(1983), we should be bound to affirm the
district court. The grant of the writ of
certiorari in Grigsby is no authority to
the contrary; any implications to be

drawn therefrom may be discerned by

application to the Supreme Court.
7174 F.2d 1494 (11th Cir.1985).

We recognize that the Supreme Court of

the United States has granted a stay in

some cases involving the Grigsby issue.
See James v. Wainwright, — US. —,
106 S.Ct. 1398, 88 L.Ed.2d —— stay grant-
ed March 18, 1986; Adams v. Wainwright,

— US. —, 106 S.Ct. 1871, 88 L.Ed.2d
—— stay granted March 6, 1986; Bowden
v. Kemp, — U.S. —, 106 S.Ct. 218, 88

L.Ed.2d 182 stay granted October 14, 1985;
Moore v. Blackburn, 774 F.2d 97, stay
granted October 3, 1985; Celestine v.
Blackburn, —- U.S. ——, 106 S.Ct. 31, 87
L.Ed.2d 707 stay granted September 26,
1985. To our knowledge, however, in none

of those cases has certiorari been granted.

* See, e.g., James v. Wainwright, — U.S. —, 106
S.Ct. 1393, 88 L.Ed.2d —— (1985); Adams v.
Wainwright, — U.S. ——, 106 S.Ct. 1371, 88

L.Ed.2d —— (1986); Bowden v. Kemp, — US.

786 FEDERAL REPORTER, 2d SERIES

To date, the law in this Circuit, which has

not been modified by Supreme Court deci-
sion, mandates a denial of relief to petition-
er on this issue.

II.

We find no merit in the prosecutorial
argument claim. Aside from the abuse of
the writ and procedural default problems,
which appear to have been properly han-
dled by the district court, we are convinced
that it does not raise a substantial claim on
which relief may be granted.

The petition for a certificate of probable
cause and the petition for a stay of execu-
tion are DENIED.

JOHNSON, Circuit Judge, dissenting:

I am convinced that the Supreme Court’s
recent action on petitions for stay of execu-
tion in cases presenting Grigsby claims
gives us unmistakable direction—direction
that the majority declines to recognize—in
determining whether a stay is warranted in
Grigsby cases. I read that direction as
requiring the grant of a stay in the instant
ease. Accordingly, I dissent.

The panel opinion notes that the Supreme
Court has recently stayed executions in a
number of cases presenting Grigsby
claims.* Nevertheless, the majority hews
to the holding of Bowden v. Kemp, 774

F.2d 1494 (11th Cir.1985), in which we ob-

served that this Court does not know and
may not infer the basis of these stays, and
concludes again that we are thus bound by
the law of this Circuit to affirm the district
court on abuse of the writ grounds. This
was true enough at the time Bowden was
decided. However, what the majority does
not emphasize is that two days after this
Court on October 12; 1985, denied relief in
the Bowden case, which presented only the
Grigsby issue, the Supreme Court itself
stayed Bowden’s execution.

——, 106 S.Ct. 213, 88 L.Ed.2d 182 (1985); Moore
v. Blackburn, 774 F.2d 97 (1985); Celestine v.
Blackburn, — U.S. ——, 106 S.Ct. 31, 87 L.Ed.2d
707 (1985).

Peopie Ask
To Watch
Execution

By RICK HARMON

Advertiser Staff Writer

State Prison Commissioner Fred-
die Smith began receiving calls from
people wanting to watch the Friday
execution of convicted murderer
Arthur Lee Jones Jr. even before a
federal judge decided Tuesday not to

"| block the execution.

“A bunch of people have asked if
we will allow them in to watch,”
Smith said. “It’s strange. Everyone
wants to get a little closer to it.”

Jones, 47, was convicted and sen-
tenced to die for the 1981 murder of

71-year-old cab driver William Hosea .

Waymon.

The Clarke County native also was
sentenced to death for the 1981 mur-
der of 21-year-old Vaughn Thomp-
son, a Baldwin County storekeeper.

Jones is the only Alabama death
row inmate under two death sen-
tences for unrelated capital offenses.

Although Jones’ attorney filed an
appeal Tuesday to a federal appeals

court in Atlanta, Smith says ~it .

appears Jones is likely to die in Ala-

bama’s electric chair at 12:01 a.m...

Friday.

If Jones’ execution resembles the
1983 execution of John Louis Evans
III, the first person executed in Ala-
bama in 18 years, people might
regret being allowed to watch it,
Smith said.

In the 1983 execution it took three
jolts of 1,900 volts before doctors said

' Evans’ heart had stopped.

Although some news accounts
called it a botched execution in
which Evans was “literally fried,”

- Smith said studies of other execu-
' tions showed it wasn’t uncommon to

have to throw the switch several
times.

__ US. District Judge W. Brevard
Hand in Mobile, saying he didn’t
want to hear “‘a lot of garbage” about -

the case, denied Jones’ request for a

. Stay of execution. following a .one-

hour hearing Tuesday morning.
Jones’ attorney, John. Furman,

| filed an immediate notice of appeal

to the llth U.S. Circuit Court of
Appeals in Atlanta.

Furman argued that a juror
opposed .to the death penalty was
wrongly excluded from Jones’ trial i in.
Mobile County Circuit Court.”

eft

ALABAMA
DIGEST

Prison Officials
Prepare for
Jones Execution

MOBILE - State prison officials
have ‘begun preparations for the pos-
sible execution of double-murderer
Arthur Lee Jones while attorneys
head into court Tuesday on the
appeal that could halt the inmate’s
death in the electric chair.

Unless the courts intervene, Jones
is scheduled to be electrocuted at
12:01 a.m. Friday, for the 1981 mur-
der of a Prichard cab driver.

“There’s a fair chance he may not
get a stay,”’ prison spokesman John
Hale said Monday. ©
- Hale’s assistant, Margaret Griffin,
said a “est of the electric chair at
Holman Prison, near Atmore, had
been conducted a week prior to the

, scheduled execution as required by

| prison regulations.

She said that Jones would leave
prison and attend a hearing Tuesday
in U.S. District Court at Mobile when
his appeal goes before U.S. District
Judge W. Brevard Hand on Tuesday.

. Jones, 47, a Clarke County native,
was sentenced to death in two sepa-

Fate south Alabama killings — the
" “Aug. 17, 1981 shooting death of 70-
year-old William Hosea Waymon, a
“Prichard cab driver, and the Sept.
14, 1981
“Thompson, a Baldwin County store-

murder of Vaughn
‘. keeper.

: The cab driver’s widow, Sadie
« Waymon, said Monday she didn’t
‘want to comment on the crime or
Jones’ fate.

- Elma Thompson, mother of the

‘other slaying victim, said if Jones is —
executed Friday he will “be getting .

‘what he deserves.” “It’s been a long

time coming and we’ll be glad when
it’s all over with,” Mrs. Thompson
said. “He’s had several chances to

‘appeal, but my son didn’t have a
.. chance to appeal.”

——

wones

Waits for

Word from Couri

{
By GARRY MITCHELL
Associated Press Writer

The director of a prisoner advoca-
cy group said he expects a stay of ex-
ecution to be granted, based on
Jones’ claim that a juror opposed to
the death penalty was excluded from
Jones’ trial] in 1982.

“As far as Jones is concerned,
we're expecting a stay of execution
from the Supreme Court,” said Joe
Ingle, director of the Nashville-based
Southern Coalition on Jails and Pris-
-ons Inc.

John Furman, an attorney for
Jones, took the juror issue to the
1ith Circuit Court of Appeals in
Atlanta on Wednesday, but the
appeals court didn’t rule immedi-
ately. . tee

Unless the courts intervene, Jones
is scheduled for execution at 12:01
a.m. Friday at Holman Prison, near
Atmore. He was sentenced to die for
the 1981 murder of a cab driver, 71-

nearby Prichard. - ~ ‘

Jones Grants Interviews
Jones, 47, who granted several
‘death-row interviews recently, told

| reporters that “Friday is just anoth-

er day,” and he expected to be alive
on Friday. ' ,

» . On Tuesday, U.S. District Judge W.

Brevard Hand refused to halt the ex- |
ecution and said Jones’ appeal “lacks |

merit.” stone

year-old William Hosea Waymon, in -

On His Execution

; MOBILE — Convicted double-murderer Arthur Lee Jones Jr.,

| predicting his scheduled execution Friday would be ‘just another
day,” awaited word from a federal appeals court Wednesday on
whether his trip to Alabama’s electric c

hair would be halted.

Hand castigated Jones and nis
attorney in the ruling for bringing up
the jury issue “in bad faith for the
purpose of using it to secure delay
and a last-minute stay of execution
when it became necessary.”

But the Supreme Court granted a.
stay of execution Tuesday for a Flor- ’
ida death row inmate who argued the
same issue that Jones raised.
~ But the possibility of another exe-
cution in Alabama revived a debate
over the use of the electric chair.

- The last person executed in Alaba-
ma was John Louis Evans, killed by
three separate jolts of 1,900 volts of

- electricity, each about 30 seconds in

duration on April 22, 1983.

State officials cite court rulings on —

the constitutionality of the method of

execution when challenged about use

of the electric chair.
“T am-completely satisfied that

| Alabama’s electric chair works very

well, and it is not cruel and unusual
punishment,” said Attorney General

“Charles Graddick.

After Evans was put to death, de-
scriptions of the sparks flying in the
smoking death chamber resulted in a
lawsuit describing the chair as “cruel
and unusual punishment.”

But U.S. District Judge Sam Point-
er Jr. said testimony indicated Evans
didn’t feel anything during the three
jolts over a 14-minute span.

“The testimony is that Mr. Evans
would not have felt anything from
the second and third jolts and indeed
felt nothing from the first, there hav-
ing been an instantaneous rendering
of him unconscious,” the judge said.

State Prison Commissioner
Freddie Smith said it “may take one
jolt or it may take 10” to kill Jones,
but the law says it can be done “over

and over again” until he’s dead.

) J) /. oul gaurery Ade (see

oe —_

nearly full,
Smith says”

By RICK HARMON
Advertiser Staff Writer

The execution of convicted murderer
Arthur Lee Jones Jr. does not mean the
State has cleared constitutional hurdles
that will allow it to carry out death
sentences more rapidly, a spokesman for
the attorney general said Friday..

The 47-year-old inmate became only the
second person to be executed in Alabama
in the past 21 years when he was elec-
trocuted early Friday morning. = = = ——

The Clarke County native was sentenced
to die for killing William Hosea Waymon, a
71-year-old. Prichard cab driver and
Vaughn Thompson, a 21-year-old Baldwin

County storekeeper; in separate robberies

in 1981, s
“We don’t expect a sudden surge in
executions,”’ Janie Nobles said. ‘‘We have
cleared constitutional issues that have
blocked executions, but every year there
are new constitutional issues that are
raised to delay them.” 4:5 ea
There are now, so many inmates await-
ing execution that Prison ‘Commissioner
Freddie Smith says Alabama’s death row
is running out of room.
“Alabama law now calls for death row
to be at Holman Prison,’’ Smith said. “But
we are running out of cells on death row

' there. We will probably have to ask the
- Legislature to let us move death row to one

of the newer prisons where there is more

Sateé,

‘room.”’

There are 88 inmates, including two
women, awaiting death in the arms of

' “Yellow Mama,” Alabama’s electric

Ms. Nobles said there is “‘no way to
know” which inmate will be next.
“There’s no way to'predict who it will
be, when it will be or how many we are
going to have,’’ she said. “‘It all depends on

‘the courts.’’’

She did say that Jones’ execution might

“indicate the state is getting closer toa |
time when the court system will try to

curtail the number of delays it allows.
“Jones’ execution did. seem to move
through the appeals process fairly expe-
diently,”’ she said. “Hopefully, we are
coming to a point where sentences can be
carried out without each execution being
treated as an emergency by the courts.”’

~ But Smith said he did not mind the
lengthy appeals process.
“I favor a process like that,’’ he said.

“This is something where you can’t afford

a mistake and a lengthy appeals process
lets society feel confident that no mistake

, is‘being made.”

Smith said he has seen no evidence that

‘Capital punishment deters crime.

“You could follow someone down the
street. with an electric chair,- and it

Pi peeieece: Penne ees ‘SMITH,’ 15A

Fe Oe eee ©. a B

Aj 0: T 9p uy Jbl BOL

ig
E
e
é

a 4

Chair not deterrent, Smith says

continued from 1A

wouldn’t make any difference,” -

Smith said. _ m

Nevertheless, the prison com-
missioner said he remains in favor
of the death penalty.

“I feel there have to be execu-
tions, just so the victim’s relatives
can have the satisfaction of know-
ing there has been retribution and
So society can realize there is a
system set up to punish people for
crimes this terrible.”’

Attorney General Charles Grad- -

dick said that although it is difficult

to deter a hard-core murderer, he
believes fear of the death penalty
does prevent some murders.

“Saving even a few innocent lives
justifies executing all those
murderers who have forfeited their
right to life by transgressing our
laws,’’ he said.

Jones was the 53rd person to be
executed in the United States and
the second in Alabama since the .
Supreme Court allowed states to
restore the death penalty in 1976.

He was the first black -to be
executed in Alabama since 1962.

eth. Cet BS
ay CO

Space program

§
%

on ‘right course’

By Dennis Love

palates nes gets eee as * News staff writer sini’

i ~ Convicted double-murderer Arthur Lee Jones J tn a ab a he gh

the first black to die i lat ; ones Jr. could become ; Capt. W.M. “Wally” Sch se

epee before 12:01 am. tonight" en 24 Years, unless the si i flown in these’ different Prin hp mn! ft
Enear Atmore, The IGN US. Gren oe death cel at Holman Pris asked, he would Ty the ea gen he wee
f Mai ete ide but had began Jones’ : rater all the answers and the astronauts have wie
ch co murde jinput” FY GR owe SE ae uae eee

» © Jones came within 16 hours of execution Schirra, who retired from space flight in 1968,

a Stay of execution.

He was convicted of killing a black cab
| Waymon in Prichard, and a. white sloreheenes, a)

b The last black executed in the sta

electric chair is in working order.
{The only problem that have is that i’

Prison officials have replaced the chair’

made the remarks at &\news erence
Birmingham Airport. He was in ta or oebate
Birmingham Associa-

engagement with the Greater

aye Home Builders. a
Despite the recent Challenger’ disaster; Schira
‘said he believes the United Sta 2 progra
“is on the right course” 7. proeam

“ “Te heard some people say that (the presidential tt
commission studying the shuttle Se losion) isa
Meio iri he said. “But maybe NASA needed
ff ( 1 hap hy woRRy aga Sie # Ohba
i" The National Aeronautics and Space Administra.

rf debate over whether the electric chair, Po ait ‘Hon Will recover: and continue, ‘he said, once’ the

; Pepause . Af ta color, was still reliable... ai 5 ictal Led a 4” Arthur Lee Jones, facing execu tian, ide begins to find answers that are be fig

— wi Page 120. says Friday ‘just another day’) © | 8). m Se0 Sehira, Page 108
: VG} 82 %. Cle

~~ nramise swings votes [| R

-.., been an instantaneous rendering of him
|» » © hearing soon after the 1983 execution.

reer

a
, oy

“a juror opposed to the death penalty -
was excluded from his 1982 trial in. *
Mobile Coynty Circuit Court. That. ..«
‘claim has given death penalty oppo-’
nents hope that the execution will. be. ;
» postponed.
.“As far as Jones is concerned, we're ©
* expecting a stay of execution from the> * +
“Supreme Court,” said Joe Ingle, direc: |:
“tor of the Nashville-based Southern?”
Coalition on Jails and Prisons, Inc..°* *
4 The'Supreme Court granted a stay of . |
vyexeeution Tuesday for a Florida death’ ‘!
», row inmate who argued the same issue |.“
. that Jones raised. The high court has.
_also granted stays in at least a dozen; .;
other cases raising the issue of “death- -‘;
qualified juries.” ;
- “In the Florida case, the high court, .-;

» i From Page'1A.\.~ Ca:
’ An attorney ‘for Evans, -Russell ’
Canan of Atlanta, said Evans. was
““burned to death’ and described the
~ execution as “cruel and unusual punish-
. Ment.” — i : :

unconscious,” the judge said during a.
- Jones, 47, a native of Jackson, Ala., \

"+ seemed unmoved about the commotion. on a 5-4 vote Tuesday, granted a stay .-.

‘over his execution. He said he expects ° for Davidson Joel James. James’ attor-' ‘
© to be alive on Friday and described it,” neys had asked Justice Lewis Powell to .-*

«as “just another day.” °°” . block the execution until the court

./,-a, His appeal is based on the claim that... ruled on death-qualified juries.

- * Qn Men Bhan iad a

Wondering whether a federal judge ~ During the execution, inmates in»

Bey a a po : err tdi Ai Si ae sees. Cia LA ah a
Bhar Arthur Lee Jones
baer fe anyone ever deserved to die in Alabama’s electric chair, it was
“Arthur Lee Jones Jr. He had been convicted of killing two men in two
“Separate robbery episodes, one a 70-year-old taxi driver, another a 21-
eck “year-old Baldwin County storekeeper, Ste eR, SEM Rete

© He was given his day in court before two juries of Alabama citizens, i
and had almost five years to appeal his case in federal and state courts. | ©
_ {That was much more of a chance than he ever gave his two victims. |"

“« Still, we can’t go along with prem idife pew: fede his death.
3*There won't be much laughing, sin or ji among prisoners on |
© ~ “death row after the execution),” said Attorney General Charles Graddick. !
as The attitude on that place will be changed for a long period of time.” |

of But there shouldn’t be much “laughing, singing or jiving” over Jones’
“execution in other quarters of our state either. |
oe Tf Jones was a symbol of a heinous disregard for the value of human
‘life, he was also a symbol of failure in our state’s justice system. Jones:
-- sentered prison for the first time at age 17. He was executed by the state
‘30 years later. If our criminal justice system had worked the way we
; would like to see it work; the state should not have had to depend on the
ultimate recourse to protect its citizens from him, although it may be
impossible to devise such a perfect system. jes
: Too, the death penalty is supposed to be a deterrent, not merely a.
vehicle to satisfy a society's. understandable desire for vengeance. :
, Thursday night's execution will be'a deterrent. Arthur Lee Jones will

_ never kill another human being. One hopes it will also provide an exam-
-ple to others who would prey on the innocent people of our state; .°
Me But the state's taking of a man's life — even the life of a man who
deserved no less — is a cause for somber reflection, not celebration.

By i ar He ; : HR

wigs

Ss By Garry Mitchell
mi Associated Press

“Pm

bay
test i

n their cells, yelling, “Murder-

midnight and continued throughout
the execution. 3

Jones, who. claimed he was inno-
cent and framed by police, was put
to death for killing William Hosea
», Waymon, a 71-year-old cab driver in
» Prichard. He was under a separate

age 21 by Jones-in a 1981 robbery, -gled above the floors” 4
“*There will be no more long waits. J '
death sentence for the shooting

‘might give hima stay.” hae Holman Prison staged a noisy pro. "death of Thompson, a storekeeper in

Smith compared the Jones execu- ”

tion to the state’s last electrocution,
three years ago, in which it took

_ three 30-second surges of 1,900 volts
to kill John Louis Evans III. “My _

staff and the governor are more

pleased that it did only take one ‘

surge,” Smith said.

Jones’ body was taken to the Ala-
bama Department of Forensic Sci-

ences lab in Mobile for an autopsy. _

He will be buried in his hometown of
Jackson, in rural Clarke County, »

enna, aeetonont cena een

ito

Jones awaits |

‘on his fate
Ahen nas 32086 |
Appeal based on jury

makeup in.1982 trial

}

i
‘
‘
‘
3
’
‘
‘
'
'

Neos yo ‘Associated Press '
MOBILE — Convicted double-murderer
Arthur Lee Jones Jr. awaited word from a H
federal appeals court yesterday on whether :
his trip to Alabama’s electric chair would’
be halted. . i i ' tj

The director of a prisoner advocacy group
“Said he expects a stay of execution to b

granted, based on Jones’ claim that a juror |

opposed to the death penalty was excluded -
}--~from Jones’ trial in 1982. “a Headed

: “As far as Jones is concerned, we’ré
expecting ‘a stay of execution from :thé
Supreme Court,” said Joe Ingle, director of
the Nashville-based Southern Coalition Qn
4) (Jails andPrisons Ine"! ) ¢ )%) 056) BS

John Furman, an attorney for Jones, took
the juror issue to the 11th Circuit Court of
Appeals in Atlanta yesterday, but the
appeals court didn’t rule immediately.

Jones is scheduled for execution at Hol-
man Prison, near Atmore, at 12:01 a.m.
tomorrow. He was sentenced to die for the

*. 1981 murder of a cab driver, 71-year-old
William Hosea Waymon, in nearby Pri-

& chard.

On. Tuesday, US. District Judge W. Bre-
vard Hand refused to hait the execution and
said Jones’ appeal “lacks merit.” many

Hand castigated Jones and his attorney in
the ruling for bringing up the jury issue “in
~ bad faith for the purpose of using it to
secure delay and a last-minute Stay of exe-.
‘» eution when it became necessary,” % °").»1 >
he j

Achy SE oF

: at
} But the Supreme Court granted a stay 6}
/, execution Tuesday for a Florida death rdw.
inmate who argued the same issue that
Jones raised: The high court has -also
granted stays in at least a dozen other cases;
raising the issue of ‘‘death-qualified juries.”

In the Florida case, the high court, on a
5-4 vote Tuesday, granted a stay for David-
son Joe] James. James’ attorneys had asked
Justice Lewis Powell to block the execution
unti] the court ruled on death-qualified ,
Te ae haben pes eR a
! But the possibility of another execution i

, Alabama revived a debate over the use’ of’
the electric chair. oi sie

‘<

ERATE ee aes

“g

yw.

StS a ae

ss _ The last to be executed in Alabama was
(i, John Louis Evans, killed by three separaté
ii; jolts of 1,900 volts of electricity, each about, .
,), 30 seconds in duration, on April 22, 1983... :

i Jones, a native of: Jackson in Clarke |
» County, was sentenced to death in two sepa:
‘} rate south Alabama killings — the Aug. 17, '
») 1981, shooting death of the Prichard cab: :
i» driver, and the Sept. 14, 1981, murder :of
{21-year-old Vaughn Thompson, a Baldwin:
«County storekeeper; =. H A

»
hissed 4
¥ .

2 aS BEN ERR ROTI EF NOLO REP pinata 1 ASO eT ead emo a eo AO MPS

i Bs AE Ae I pg He ei

ee ones ee

Le ay agente ae een imp Ry ay tenn ga am ae 9 Rpm, Mei gg a ns

Unlike Evans! ‘death, J ones

eee ee ee ar a ee ee a Parte teeter J

.... EDITOR'S NOTE — Birmingham -
_ Tom Gordon ‘was one of three

ee aks as if it's in a tropical rain for- 2

ay = 8

os" Se ns ee

easier to see. It is then that I am glad to know that | am
heading back home, far to the north, to Birmingham.

The feeling comes because more: times than I remem-
ber, I have turned off at the Atmore exit to visit prisoners
at Holman, which houses some of the worst characters to --

come through Alabama’s criminal justice system... >...»

Twice in the last three years, I have gone south to
ema teen pei tl gest ee
electric chair.

Pa aie Firmioshan News ~ Sun. SMdarctt2aises Pon § eee

ae, or. Ce " ae Oc sae #= a ee eee ; Paes st : 53 ae

Pos Regios = iS ¥ i. fr be eRe site oS : ; P53 ae *
seem almo: st. ‘clinical

ross mehr sean seu SOK,

pens, notebooks, wal-.
» “lets, watches Sa areik fix: the lle preg Tintin
© badges that we had received earlier at press

headquarters. -
“Then we walked outside. Mitchell and I both remem- _

™bered the roaring thunderstorm that rolled across Holman
‘~- grounds on April 22, 1983, the night that convicted mur-
derer John Louis Evans II became the first Alabama

- inmate to die in the chair since 1965.

Mitchell had seen it in person. I had seen part of it on a
video monitor in the prison’s main visiting room. “

As someone said later, Alfred Hitchcock couldn't have
asked for a better night for an execution. And Evans him-
self, who many of us had interviewed and who, through his _
personality, had engaged many people in his life, was not
declared dead coed i bebe received iteer jolts from. the

chair.

Arthur Jones’ last night was a cool, cloudless one. While
a thunderstorm provided much of the background noise
during Evans’ death, the cell-rattling and shouting of some

execution

GR a SA

2 lace informed via telephone.

® Sai, he fn ak een 30 Wala
_ could hear. 2

seemed

Ppa a paews «

"F3cg a the prereeton reparations ule

‘ Smith, in a loud voice; was keeping Gov

Sarees

“Sir, they're the inmate now,” “Smith said as ~

“headgear was beng fastened to Jone head

Then he stopped and repeated himself: “SIR, WERE

. PREPARING THE INMATE NOW FOR THE EXECU-

TION, WITH HEADGEAR”

When it was over, we walked down a corridor, through
a doorway, and outside. As we walked out the door, I

noticed something sitting outside a few feet away, looking —

like discarded patio furniture. <

Tt was the aqua-green table at which I had talked to
Jones in December, in the very witness room from which
we had seen him die.

About five hours earlier, I had been riding around
Atmore with some other reporters, talking about Jones,

5 8 rl ast him, ‘and his
; dull quality ks log etbes pnder weir.

“¢ That's how I felt.”

i fare pues
stopped, F deere bbe 20 the ied ceed by Sw: bead?

est foe Ee ee rh os

the-ok ceaieknyreyy

As we drove west toward Main Street in downtown
Atmore, the distant sky in front of us was a fading orange-

pink, streaked with some blackish-gray clouds.

To a condemned prisoner, I thought, such a phenomenon
might not be routine, but something to be treasured,
clutched closely to the breast. 9) *

I, too, found myself treasuring the opportunity to see not
just this sunset, but — if I wanted to — to see many more;
to rise in the pre-dawn hours — if I wanted to — and
rare suuneehere Derond tne teaeh of city: Bpia. aad see
Halley’s Comet. = : :

T even treasured the knowledge that — if I wanted to —
I was free to go into the dingiest convenience store in
Alabama and buy the most sickeningly sweet, bad-as-it-
can-be piece of pastry that’s ever been produced.

To think that, while still in the full of life, one might not
ever have such opportunities again is bone-chilling. Arthur
Jones doesn’t have that anymore, but, then, neither do
Hosea Waymon and Vaughn Thompson, the men he was
convicted of killing.

It is that thought, among others, that will always be
with me whenever I drive by the Atmore exit on I-65 and

see in the distance, that blue-green water tower at Holman
Prison.

’

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Electric chair remains unmodified -

-
bec ootos.* By Thomas Hargrove g-4 nae
ui peng Post-Herald Reporter Pe RO
Alabama prison officials said yesterday the state's.
+ “museum plece” electric chair is ready for Friday's
\ scheduled execution of convicted double murderer .

t Arthur Lee Jones. ; ;
) No modifications have been made to the brightly

« death row inmates at Holman Prison in Atmore — since*
> the 1983 execution of John Louis Evans.°" ’
‘It took three 30-second jolts of 1,900 volts during a
+ 10-minute period before Evans’ heart stopped beating.
© Defense attorneys for other inmates have
called use of the 59-year-old device a cruel and unusual
— that should be barred under the U.S. Consti-
* tui % " Unt Me

yong

St ’

“No basic changes have been made to it,” prison

‘ spokesman John Hale said from Montgomery yesterday. ,
«Ht executed 153 people before John Louis Evans. The
experts agree that even though the equipment is old, it

+ {s functional and does do what. it is supposed to do,” .

day also defended the performance of the execution ;
machinery. a
“I am completely satisfied that Alabama’s electric
chair works very well, and it is not cruel and unusual
punishment,” Graddick said. “When the power is turned
on in the electric chair, it instantaneously causes
death.” ‘ ‘ .
Jones, a Clarke County native convicted of two 1981
murders in south Alabama, is scheduled to be electro-

' cuted at 12:01 a.m. Friday: He would become the second

Alabama inmate to die in the electric chair since

~ the U.S. Supreme Court reinstated the death penalty.

US. District Judges Sam C. Pointer Jr. of Birming-
ham and W. Brevard Hand of Mobile conducted a hear-
ing shortly after Evans’ execution in 1983 to hear com-
plaints about the chair. They concluded that even though
expert witnesses called the chair a “museum piece,”
that “doesn’t make it unconstitutional punishment.”

The judges ruled that there was no reason to believe
that Evans had any “sensation of pain.”
Please turn to ELFCTROCUTE, page A3

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Alabama Inmate Executed for 1981 Murder |:

ATMORE, Ala., March 21 (AP) — In-
mates shouted and clanged on prison
bars today as Arthur Lee Jones Jr. was
led to the electric chair and executed
for shooting a cab driver to death dur-
ing a robbery.

Mr. Jones, 47 years old, whose first
arrest occurred 30 years ago and who
came within 16 hours of execution in
1984, was pronounced dead at 12:15
A.M., seven minutes after receiving a
30-second surge of electricity.

His face was covered with a black
veil that hung from the front of a metal
skullcap containing electrodes, and his
feet did not reach the floor as he-sat in
the electric chair.

Mr. Jones ‘‘seemed to be thinking
and getting control of himself’’ as he
was led into the death chamber to the
sound of inmates yelling and clanging
on the bars in Holman Prison, said
Freddie Smith, the state prison com-
missioner.

Jones Was Under 2 Sentences '

Mr. Jones, a Muslim who argued that
those of his faith do not steal or kill and
that the police had framed him for the
1981 slaying of William Hosea Way-
mon, 71, was the 53d person executed
since the United States Supreme Court
reinstated the death penalty in 1976. He
was also under a death sentence for the
murder of Vaughn Thompson, 21, in an-

.| other robbery in 1981.

He was the first person executed in
Alabama since 1983, when an execution

| that took 14 minutes raised calls for

changing the method of imposing
death. ~-

Mr. Jones was executed after the Su-
preme Court refused late Thursday on
a 5-to-4 vote to delay it and Gov. George
C. Wallace declined to commute the
sentence to life in prison.

Governor Wallace ‘‘prayed exten-

= =

President Will Not Address
Harvard’s 350th Anniversary

CAMBRIDGE, Mass., March 21
‘| (AP) — President Reagan will not ad-
dress Harvard University’s 350th anni-
versary celebration in September be-
cause of a heavy fall schedule, the uni-
versity announced Thursday.

In January 1985 the university’s
president, Derek Bok, invited Mr. Rea-
gan to address the four-day celebra-
tion. When the invitation was disclosed
four months later, some faculty mem-
bers and students objected, citing re-
ports that the university would confer
an honorary degree on the President.

President Roosevelt addressed a
300th anniversary celebration in 1936
and was not awarded an honorary de-
gree.

Mr. Reagan’s decision was Hactieés
in a statement by Mr. Bok. ‘‘We are
disappointed,’’ Mr. Bok said, ‘“‘but we
certainly understand his reasons for
declining in view of the heavy demands
on his time.”

sively about it and read his record and
decided not to grant a stay,”’ said Mr.
Smith, who was on the telephone with
the Governor throughout the execution.

Willie Johnson, the prison warden,
threw the switch that killed Mr. Jones.
It was Mr. Johnson’s first execution.

‘‘When you’re poor and hired out, you
do what’s required of you,”’ he said.

John Furman, Mr. Jones’s lawyer, a
witness to the execution, said Mr.
Jones had lost contact with his rela-
tives but events leading up to the ex-
| ecution had brought some of them to-
gether.

Mr. Jones spent about eight hours
Thursday with two sisters and a cousin.
Mr. Smith said Mr. Jones spoke briefly
by telephone with his estranged wife,
whom he did not identify, about an hour
and a half before the execution. |

He ate a last meal of pink salmon,
cole slaw, .candied yams, chilled
peaches and a grape drink, officials
said.

- “T-believe the state of Alabama has
fulfilled a solemn,responsibility to its
citizens tonight by executing Arthur
Lee Jones,’’ Attorney General Charles
Graddick said. ‘‘Jones was a habitual

chance to reform.’’

lowa Governor Enters Race

DES MOINES, March 21 (AP) —
Gov. Terry E. Branstad announced to-
day that he would seek a second term.

offender who was given chance after | .

——

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oat ern ie ei sant eae me Kyte ne Bi ciex ¢ March #0,
t oo a

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*

Eady ‘ ¢ ave Hk “ B Renee Busby ° : 5
SSeS 8 py nance Baby) g Fk ae. per who was iio in Se; ember 1981. ‘ready to die te they’re going te carry on more
oda ATMORE.— Convicted murderer Arthur Lee oora?= Alt although & jury.in Mobile County’ and another in than T will. They'll make me sad. ;
‘ qretheduled to to die in Alabama’s-electric chair at 12:01 > “Baldwin ity found him’ guilty of two murders, the’ “This js something igh ‘got’ to face. 1 ‘don't
+> a.m, tomorrow unless a federal court intervenes, said he’ Jackson ‘native maintains he is” t, Jones claims’ want to burden nobody. fe'is too precious to.
{-¥c@oesn’t think capital punishment is a deterrent to crime.~;he was “set up” by police for. both: murders, he was ;.-waste on immaterial things.” 4
ert they, execute’ everybody on death row today, a *' convicted because evidence was withheld from his trials 1, When‘asked if he believes’ in life after death, Jones‘
Senet from now they'd have a‘death row! full of peo. “and he had insuffictent legal counsel. » PAYS A! “nodded ‘and. said, “Yes. There's got to be. All this suf-

or sbparate murdere.**2" Cae ESF } %>- “death, but he repeatedly shifted the conversation back to © Rag bed for the wrong done: af pertolely hope: there:
crate and clad in ate! ‘whites and high-top _ his claim he was framed for‘crimes he. did not commit. ,> 41s. Ifnot, it’s all over.” 9" +
white tennis shoes, Jones was escorted from his death” * “I feel OK.-I don’t, have, an ere he or problems; ° A Muslim who: also‘ goes by the name ‘Abdul ‘Sibar
ot gow cell by three Holman Prison guards to a snack room I'm comprehending” what's g gon.’ get*a. little Banque, Jones said theordained customs of the Muslims
Serene first floor of the facity, where te Anteryiew * uptight because things are ot going the way, be expect, are strict. “We're not allowed to drink, smoke, fornicate, '
4 took place this week, > to +3 qthem to go,” Jones said! “iv -« st (commit) adultery and especially steal or kill. It takes a -
PS pi tones’ raspy but q wales was sbinstioneh drowned” <. He sad death row. inmates do talk ‘about ‘death.’ very cold Muslim ta | kill a ‘person: that has hot invaded’
at But by the noise. of; Cell doors shutting and the*"Everyone back ‘there expects to be executed, They his privacy." 224d
< eefouts of prisoners.| He showed no emotion as he dis-:: don't know who's going :to be first: They know some;'s: "Jones waa first ednvicted af tt sev et 17 tor barglarys
‘ “-eubsed gchedyled execution jn Alabama's electric “weeks it could be Wayne Ritter. or Sorelle: (Singleton). and was sentenced to 15 months in prison. From 1957 to
weaned: § 445, pe] Se | te They got me now, but who knows who, it\will be next, ~ 1066, he was convi¢ted of six different crimes, both mis
ie oo “The only bint of emotion came when he was asked if° A To) Se aE SS ae eR OR a a "demeanors and felonies. + --
pony yar perp punishment is a deterrent tocrime. , | Sor) Ritter and Singleton were ‘both: convicted of ‘capital, ©°sIn 1968, he was sentenced to life’ in prison for the
le laughed and > ay vn AID nt does lit," murder in Mobile County and are awaiting death...) robbery of Bryant McDonald, who was a night watch-
ih ie more to deter mecaat homovest ~“You don't have a chance tb experience instant death." man at Smith Lumber Co.:in Clarké County. As a result
e ve ait eamrcgpiaroreetinn| 4 I don’t ‘know if-P'll ever get used to the idea that~: of his pleading guilty, he was never prosecuted on a.
% ‘are going to be sent to death re row because they ® someone's talking about killing me,” Jones said.;“I don’t © murder, charge in ~ death of his Lee oy Ken-
~-fean't afford attorneys. Some who might be guilty ae ‘think I'll ever understand why people would go alli! tucky.. © # ¥:: ,
«* mot even come to death row,” hesaid. ~ | } out of their way to snuff gut.a man when they know he’s. “I’m satisfied, ‘with: ‘my lle. There 8 nothing wrong
*.2Jones was sentenced to die for the Aug. ‘17, '1981, +not the rson who needs snuffing out,”.:* 4,. with my life. I don’t do the things most people do. . ‘
"3 < sSiniurder of Hosea Waymon,:a 70-year-old Mobile cab- if his family members will be with him before! Every time I turn around they've got some cooked-up ‘ .
-, p.Qriver. Jones has. also been sentenced to die for the » “the e cheduled execution takes, place, Jones replied, “I ‘> case with no facts to support them,” Jones said; Arthur Lee Jones talks about impending exe:

Fe tag ee ws > ota. mie ae ah flee eK

TN en ee ee Te

san Franasic Examiner
MIO te
Friday, March 21, 1986

Stop crime

Black Muslim

executed for ||

2 Slayings

. ATMORE, Ala. — Arthur Lee
Jones, who insisted the death penal-
ty does not stop crime, was execut-
ed early today in Alabama’s electric
chair for killing a young store clerk
and an elderly taxi driver. < -
| Jones wore a blue suit and white

Shirt to the death chamber at At-
more Prison. He made no last state-
_ Ment, but said earlier this week
that “capital punishment does little
more to deter crime than AIDS does
to homosexnality,”

“ute everyone on

‘rom -

ini en ae

: “If they exec... . me
death row today, a yeari ..now
death row would be full of people
again,” he said.

Jones, 47, was the first black exe-.

cuted in Alabama in 24 years and
the second convict put to death in
the state’s electric chair since capi-
tal punishment was reinstated in
1976.
. His face was covered with a
black veil that hung from the front
of a metal skullcap containing elec-
trodes, and his feet didn’t reach the
floor as he sat in the 59-year-electric
chair, known as “Yellow Mama” for
its garish color. _

; Jones “seemed to. be thinking
and getting control of himself” as
he was led into the death chamber
to the sound of inmates shouting
and clanging on the bars in Holman
Prison, said state Prison Commis-
sioner Freddie Smith.

“He was calm and collected,”
Smith said. “There were, as we pre-
dicted, no last remarks whatsoev-
er.”

-- Jones, a Black Muslim who ar-

gued that those of his faith don’t
Steal or kill, and that police had
framed him for the 1981 Slaying of

cabbie William Hosea Waymon, |

was the 53rd person executed since
the U.S. Supreme Court reinstated
the death penalty in 1976. He also
‘was under a death sentence for the
murder of Vaughn Thompson, 21,
during another robbery in 1981.
’ The high court also refused to
halt the execution of a Florida con-
’ vict whose attorneys raised the
“death-qualified juries” issue earli-
er this week, but the 11th US. Cir-
‘cuit Court of Appeals in Atlanta
intervened a short time later.

eS Boe. “ a a

Sil. Udi execution contrasts wit]

By Tom Gordon
News staff writer

\TMORE — John Furman watched his cli-

die in Alabama’s electric chair Friday
iuurming, and the experience did nothing but
' reinforce the 28-year-old attorney's opposition

the chair.

ber and reporters wh

Jones, was executed with one 30-second jolt of; ¢j
" 1,900 volts as he sat strapped in Holman
Prison’s electric chair. Mast ag! |

owner of a Baldwin Coun

Evans, a 33-year-old native Texan who was
convicted of killing a Mobile pawn broker in
1977, was declared dead af

Witnesses adjacent to the execution cham-

tors saw smoke curling out from the electrode-_.

mt:

re PAY
tional.”

By the time of his death, Evans, who had
been convicted in a highly publicized trial in
Mobile and who was nearly granted his wish to

. be executed in April 1979, had become almost
a household word in Atmore and around Ala-

ter three jolts from

0 watched on video moni-

to capital punishment. : bearing headgear on Evans’ head, and sparks © *° The name Arthur Lee Jones was not.
“T think that if anybody that thinks they're a flying from the electrode-bearing leather strap "In fact, many Atmore area residents weren't
. proponent of capital punishment was able to - which broke and swung loose from Evans’ leg... even aware until this week of his approaching
r, See what I saw last night, I think it would. At one point, Evans’ attorney demanded . © death date
change their minds,” Furman said Friday. _ that the whole procedure be stopped. =>." ©. “There wasn’t a whole lot said around here
Furman’s client, 47-year-old Arthur Lee

. about it,”"said Daulton Anderson, who runs a
~ local Radio Shack dealership. “Really, I didn’t
pay much attention to it. I didn’t realize we

ae , tem spokesman John -.. were to,have one (an execution) until
Jones went to the chair for the-August 1981 - Hale said those prison officials who carried —- Monday or” Tuesday.” 3
robbery-murder of a 70-year-old Mobile cab- out Evans’ execution “never felt it was impro: in 30... ree
driver, William Hosea Waymon. He also was * perly handled. 7" > By that time, Hale and others said, prison
under.a death sentence for the September 1981" °"="“Nobody who went into that experience Officials had not only had the Evans experi-
Slaying of Vaughn Thompson, the 21-year-old» knew what to expect.” Hale said. Seon of ‘ence behind them, but other execution

‘reporters who witnessed all or part of the exe” ‘Tuns”.-when other ‘inmates, including Jones,

_ Smoothness of the operation was and they were in an emotional state...» . - ‘Sioner Fred h-said the wooden, yellow
the 1983 execution of John Louis Evans TI, the... ,“It looked wrong,” Hale said, “and-a lot of _ electric chair was “in perfect condition.” _
first in Alabama since 1965. Sitio ft es reporting came out of yoo eR Pn sat SI > M See Execution, Page 8A

etl A ky

/MFromPage 1A”.
_ He added that a new strap for th
electrode on the left leg had been

io oe eae a
TERI ok tees diet tt 0, ae yes
" ‘ Barty ty Dhye e ian
ita oe ‘ sang? Ree ge a , .
Weve, eens « Se cae lt
oho 4 ot ee Ae oe ee
ee es
Bh ones Bids gle ay i
a. ~ 2 ere et

the shore than 4s executions nationwide
since his death had perhaps diminished

installed, and that the headpiece had a ~ ne gebemiory | be ee

av ae hold the ee pee w _ mene ceaaiane % last
inma | statement from the inmate. =< —

I ene il Bhat The only hitch seemed to be an

“ cuted would die alone. When Evans
* died, a correctional officer was in the
execution ' chamber. That would no
' Jonger be the case, Smith said, to spare
“the officer from any “psychological

+ carry it (the sentence) out until the per-

pay i A o Bice Ss
? 3h galas tbe -

-intractable equipment malfunction that »

prevented many reporters from seeing

the execution clearly on video monitors

set up in the Holman visiting area. ~ .

_ Warden Willie Johnson, who threw

the switch, was back at work on Fri-
y, and the atmosphere was basically

business as usual”

: ® sons pronounced dead,” Smith sad 2
en the 5-foot-2 Jones’ case, only one “Everybody was arse caged
Bis necessary. But Hale said each. smoothly as it did,” Hale said. "He did.
E rection is ditierentgh tte, 2? * a professional job: His peple dit & pro.
fel uae anor: ees es fessional job." 5 Zany ah
© “Next fim, it may take six jolts” be mings
epigenetic, don’t =. John Furman calls Friday | ee
Foon newer denen seventy “a ral one that the sate

Ie Sepohipe eterna ie ORES et in 2 ee a atae cme
a" 0 eae rermneees

Gray anu ww, ~

Death of One Diminish
(LETTERS -

As I sat enjoying the string quartet
at the Museum on Thursday night, I
became aware of a ghostly fifth chair
alongside those dinner-suited musi-
cians — a yellow, ugly chair, wherein
would soon be strapped one Arthur

Lee Jones, a murderer. . ad

The intricacy of the music caught °
and the musicians |

up my thoughts,
and Beethoven manipulated my
emotions as they did others present.

As we all left, delighting in such a
civilized and elegantly moving per-
formance, I was reminded that Mr.
Jones was but two hours from death,
and the bird of paradise flowers
adorning the stage then seemed sym-

bolic.

Surely a community so blessed
with the appreciation of the finer

have said, “The ling

RAT ay Cis
Ta oe ee ee es

concerning Arthur Lee

tance on

Jones was upsetting
My complaint? Our so-

general, Charles Graddick.

ecuted in Alabama’s elec-

ly @ man who thrives on

people. Why else would he

problem that I have is

ck’s's

Jones...and execution. ~

ious]

I noticed the article
is obv:

Jones Jr., who was ex

Graddi

tric chair. last. week.

called attorney

‘
nen stat ll a ci ec soa i.

things in life cannot accept or ignore
the barbaric practice of ritual kill-
ing. Of the developed societies of the
world, only Russia, South Africa and

the United States retain the death —

penalty.

**y mourn for Jones’ victims, and I *

regret the actions of the society
which killed Jones. I am grateful to
those few elected officials who dare
to oppose the death penalty because
they believe it to be wrong, and to
the clergy who recently wrote to this
newspaper, and to the ordinary citi-
zens who'stand up to be counted as a

es Us All —

hope that one day,
soon, we shall stop this state-insti-
tuted violence 7- even if we cannot
stop the violence of those who know
no better. 5

i The death of one of us diminishes
“us all. 4 i
ati -. BLIZABETH DUNCAN
Montgomery

minority in the

‘ £ fae ¢
jie

=. 8 8. ¥gS5G. e3 :
ba jis SS BEE. :

oe ges eigen Ffe 533 0 J
SoS 6: g2 8 G34 3p 8 bs ee ne
= agP PipesgEe? we
ayligae tate: rok. ‘i
Da as ete

: — i = * Sa 2S ret

Balstece: ebany taps) 2

2 Re SERS Ba es S552 Bed pepe
Getcsségeisageegcsee ge
ESS Oo gRiingghsaesig tng
y= ho} ae G > 2pB sw Bees deed Dae ,
E Bgureee os 5 [=f - ee te

20 Saturday, June 9, 1964 THE TUSCALOOSA NEWS

‘Alabama.

In the Tuskegee case, the justices unanimously upheld a lower
court ruling denying a new trial for Varnall Weeks, who was con-
victed of killing 24-year-old veterinary student Mark Batts. -
sailed : Weeks sought a new trial Claiming a witness, Jewel Martin, was
coerced by the state into testifying against him. ;

The state took Ms. Martin into Custody the night before she was to

1294 599 FEDERAL SUPPLEMENT

would have had a reasonable doubt respect-
ing guilt. U.S.C.A. Const.Amend. 6.

11. Habeas Corpus ¢85.1(2)

Whether effective assistance has been
afforded is a mixed question of law and
fact and, accordingly, a state court’s deter-
‘mination of constitutionally effective assist-
ance is not entitled to a presumption of
correctness. U.S.C.A. Const.Amend. 6; 28
U.S.C.A. § 2254(d).

12. Criminal Law €641.10(2)

State court, in appointing a second at-
torney to represent petitioner as cocounsel
with first attorney, whose motion to with-
draw was denied, did not thereby contrib-
ute to any ineffective assistance of counsel;
rather, state court’s actions were intelli-
gent, effective, and led to smoother, and
indeed good relationships between petition-
er and his trial counsel. U.S.C.A. Const.
Amend. 6.

13. Criminal Law <641.13(6) |
Trial counsel were not ineffective in

their investigation of petitioner’s murder
case. U.S.C.A. Const.Amend. 6.

14. Criminal Law €641.13(1)
Attorneys are not generally held to be

constitutionally ineffective because of tacti-
cal decisions. U.S.C.A. Const.Amend. 6.

15. Criminal Law ¢641.13(2)

Trial counsels’ decision to waive open-
ing argument was a well thought out tacti-
cal decision which did not constitute inef-

fective assistance: of counsel. U.S.C.A.
Const.Amend. 6.

16. Criminal Law ¢641.13(2)
There was no ineffective assistance of
counsel due to failure to request that open-

ing and closing statements be recorded.
U.S.C.A. Const.Amend. 6.

17. Criminal Law ¢641.13(6)

Where defense counsel made every
reasonable attempt to find certain potential
witnesses or were not informed by petition-
er about such witnesses, there was no inef-
fective assistance of counsel based upon
failure to produce the witnesses at trial.
U.S.C.A. Const.Amend. 6.

18. Criminal Law ¢641.13(2, 6)

Failure of deféhse counsel to call as a
witness a psychological expert who could
have testified as to notorious unreliability
of eyewitness testimony, and failure: to
move for funds for such an expert, did not
constitute ineffective assistance. U.S.C.A.
Const.Amend. 6

19. Habeas Corpus ¢85.5(1)

Habeas petitioner failed to establish by
convincing evidence that state court was

erroneous in determining that he was sane.
28 U.S.C.A. § 2254(d).

20. Homicide 235, 250

Evidence was sufficient to sustain peti-
tioner’s convictions for murder while com-

_mitting robbery with a dangerous instru-

ment and murder committed while he was
under sentence of life imprisonment. Ala.
Code 1975, § 18A-5-40(a)(2, 6).

21. Habeas Corpus €45.2(1)

Existence of newly discovered evidence
relevant to petitioner’s guilt but not bear-
ing upon constitutionality of petitioner’s:de-
tention was not a ground for relief on
federal habeas corpus. 28 U.S.C.A. § 2254.

22. Criminal Law €772(1)

Where eyewitness identification of pe-
titioner was positive and unequivocal, jury
charge on dangers of eyewitness identifica-
tion was not required under Alabama law.

23. Habeas Corpus ¢45.2(4)

Failure to give requested instruction
on dangers of eyewitness identification did
not rise to level of a constitutional violation

cognizable in federal habeas corpus pro-
ceeding. 28 U.S.C.A. § 2254.

24. Constitutional Law <266(3.2)

Lineup was not so suggestive as to
violate due process. U.S.C.A. Const.
Amends. 5, 14.

25. Criminal.Law ¢>339.10(7)

‘Any suggestiveness in pretrial lineup
was insufficient as a matter of fact to taint
in-court identification of defendant.

Parole board not liable
- for releasing murderer

/
/
ee dat ns eee ae tg re ea |

By Kendal Weaver
Associated Press

MONTGOMERY — State parole board mem-
bers may not be held liable for paroling an

inmate who later commits murder, even if the
“ poard fails to get the inmate’s psychiatric report

when granting parole, the Alabama Supreme

- Court ruled yesterday.

In a separate decision, the court also granted
death row inmate Thomas Whisenhant, accused of
three murders in Mobile, a third day in court to
challenge his death sentence.

_. -In the parole board case, the justices ruled
- unanimously in favor of Sara Sellers and John T.

Porter, who in 1978 granted parole to life-term

* inmate Arthur Jones. The court said the parole
was based on a review of his social, criminal ana

prison background but without a psychiatric
report on his mental condition.

Jones, accused in 1967 of assault with intent to
murder, robbery, arson and burglary, received a
life sentence for robbery in 1970 under a plea-
bargain agreement.

He was paroled when he became eligible in
1978, released from active supervision two years

: EPS GREED 1g ot ait ‘ &
PERE S Een eciarns: SIRE:

Birmingham Post-Herald ~
Saturday, May 12, 1984

later, and in 1981 he was charged with murdering
Spanish Fort food store clerk George V. Thomp-
son and Mobile taxi driver William H. Wey-
man. ss de Se i.

Jones was convicted and sentenced to death for —
Thompson's slaying, and the victim’s wife, Tony
Thompson, sued the parole board members for
negligence and exceeding their legal authority in..
granting Jones parole without a psychiatric
report.

‘A lower court ruled in favor of Mrs. Thompson,
saying the parole board members could be held
liable. But the Alabama Supreme Court reversed
that decision yesterday, striking down the suit
filed by Mrs. Thompson on grounds. that the
parole hozrd members had 'egai immunity from
such prosecution.

The court, in a critical part of its decision, said
the board did not exceed its legal authority when
it granted parole without getting a psychiatric

report on Jones.

“To hold otherwise would require the board to
have or procure a psychiatric report on all
inmates who could be considered for parole. We
do not think the Legislature intended this result,”
the justices said. :

Since et Ww

JONES, Arthur Lee, Jr. elec. Ala.(Mobile) March 21. 1986

1292 599 FEDERAL SUPPLEMENT

Mexican-Americans to ask if they are
aliens. Brignoni-Ponce at 422 U.S. 885-
887, 95 S.Ct. 2582-2583.

If we truly are a “melting pot” nation,
then are we not, in Michigan, in the middle
of the pot where the broth has most thor-
oughly combined? Has not most, if not all
the separate, adverse inference of illegal
alienage dissolved from Hispanic citizens
and residents? Should not the weight of
appearance lift from them, and should not
the immigration officers be required to
show, at this distance from the southern
border, a commensurately heavier weight
of factors other than appearance?

INJUNCTION ORDER

Pursuant to Rule 65 of the Federal Rules
of Civil Procedure, and pursuant to this
Court’s written Opinion containing findings
of fact and conclusions of law, attached
hereto and made a part hereof, a prelimi-
nary injunction will issue on this date with-
out security in accordance with the logic of
the Court in Bass v. Richardson, 338
F.Supp. 478 (SD N.Y.1971).

IT IS HEREBY ORDERED:

THAT: JACK E. WEBB AND GREGO-
RY KOWALSKI, BOTH INDIVIDUAL-
LY AND IN THEIR OFFICIAL CAPAC-
ITY AS AGENTS OF THE IMMIGRA-
TION AND NATURALIZATION SER-
VICE; PAUL E. McKINNON, BOTH
INDIVIDUALLY AND IN HIS OFFI-
CIAL CAPACITY AS DISTRICT DI-
RECTOR OF THE IMMIGRATION
AND NATURALIZATION SERVICE;
JERALD D. JONDALL, BOTH INDI-
VIDUALLY AND IN HIS OFFICIAL
CAPACITY AS DISTRICT DIRECTOR
OF THE UNITED STATES BORDER
PATROL; RONALD DOWDY AND ED-
WIN W. EARL, BOTH INDIVIDUALLY
AND IN THEIR OFFICIAL CAPACITY
AS AGENTS OF THE UNITED STATES
BORDER PATROL; JOHN DOES I
THROUGH 44, BOTH INDIVIDUALLY
AND IN THEIR OFFICIAL CAPACI-
TIES AS AGENTS OF THE IMMIGRA-
TION AND NATURALIZATION: SER-
VICE OF THE UNITED STATES BOR-
DER PATROL ARE RESTRAINED
FROM STOPPING AUTOMOBILES IN

THIS JUDICIAL DISTRICT CONTAIN-
ING PERSONS OF MEXICAN OR HIS-
PANIC ORIGIN OR APPEARANCE,
WITHOUT A VALID SEARCH OR AR-
REST WARRANT, OR WITHOUT
FIRST HAVING IDENTIFIED OBJEC-
TIVE ARTICULABLE FACTS AND
REASONABLE INFERENCES TO SUP-
PORT A KEASONABLE SUSPICION
THAT THE VEHICLE CONTAINS AN
ILLEGAL ALIEN. HISPANIC AP-
PEARANCE: ALONE IS NOT SUFFI-
CIENT FACT TO JUSTIFY A STOP.
THE SUBJECTIVE IMPRESSIONS OF
THE OFFICER(S) ARE NOT ALONE
SUFFICIENT TO JUSTIFY A STOP.
THE OFFICER MAKING THE STOP
SHALL IDENTIFY THE SPECIFIC AR-
TICULABLE FACTS LEADING TO
THE STOP TO THE PERSON(S)
STOPPED. THE DEFENDANTS
SHALL KEEP A RECORD OF THE
SPECIFIC ARTICULABLE FACTS RE-
LIED UPON FOR EACH VEHICLE

STOP, PENDING THE OUTCOME OF
THIS LAWSUIT. THE RECORDS OF
ALL AUTOMOBILE STOPS UNDER
THE CONDITIONS OF THIS INJUNC-
TIVE ORDER SHALL BE ACCUMU-
LATED AND MAINTAINED ACCU-
RATELY AND ADEQUATELY TO BE
PRODUCED UPON COURT ORDER.

O © KEY NUMBER SYSTEM

aums

| Arthur Lee JONES, Petitioner,
Vv.

Fred SMITH, Commissioner, Alabama
Department of Corrections and J.D.
White, Warden, Holman Unit, Respon-
dents.

Civ. A. No. 84-1421-H.

United States District Court,
S.D. Alabama, 8.D.

Dec. 18, 1984.

On petition for writ of habeas corpus
filed by petitioner who was convicted of

JONES vy. SMITH 1293

Cite as 599 F.Supp. 1292 (1984)

murder during first-degree robbery and of
murder committed whil@ he was under sen-
tence of life imprisonment, the District
Court, Hand, Chief Judge, held that: (1)
petitioner was not denied effective assist-
‘ance of counsel; (2) evidence supported
finding that petitioner was sane; (3) evi-
dence was sufficient to sustain petitioner’s
conviction; (4) trial court’s failure to give
instruction on dangers of eyewitness identi-
fication did not rise to level of a constitu-
tional violation; and (5) pretrial lineup was
not So suggestive as to violate due process.

Dismissed.

1. Habeas Corpus ¢45.3(7)

District court had jurisdiction over ha-
beas corpus proceeding where it was in-
formed by the state that petitioner would
not receive any relief from Alabama state
courts, that any attempts for collateral re-
lief would be futile, that the state waived

any exhaustion requirements and desired.

to proceed, and state waived any exhaus-
tion defenses in its answer and petitioner
concurred in that waiver. 28 U.S.C.A.
§ 2254.

2. Habeas Corpus <=59
Habeas corpus petitioner failed to
meet his burden of establishing necessity

of additional fact-finding to warrant eviden-
tiary hearing. 28 U.S.C.A. § 2254.

3. Criminal Law ©1213.8(8)

Manner of imposition of death by elec-
trocution as practiced by state of Alabama
did not constitute cruel and unusual pun-
ishment. U.S.C.A. Const.Amend. 8.

4. Criminal Law @641.13(1)

Ultimate focus of inquiry in evaluating
ineffective assistance of counsel claims ‘is
on fundamental fairness of proceeding
whose result is being challenged. U.S.C.A.
Const.Amend. 6.

5. Criminal Law ¢1166.11(5)

A defendant’s claim that counsel’s as-
sistance was so defective as to require re-
versal of his conviction has: two compo-
nents: first, defendant must show that
counsel’s performance was deficient and,

second, defendant must show that the defi-

cient performance of counsel prejudiced the
defense. U.S.C.A. Const.Amend. 6.

6. Criminal Law ¢641.13(1)

Proper standard for evaluating attor-
ney performance is objective standard of
reasonably effective assistance; a defense
attorney’s perforfhance must be within
range of competence demanded of attor-
neys in criminal cases, and defendant must
show that counsel’s representation fell be-
low objective standard of reasonableness
under prevailing professional norms. US.
C.A. Const.Amend. 6. :

7. Criminal Law ¢641.13(1)

In evaluating reasonableness of an at-
torney’s performance, court is to judge
counsel’s conduct on basis of all circum-
stances of the particular case, viewed as of
time of counsel’s conduct, with recognition
that counsel is strongly presumed to have
rendered adequate assistance and to have
made all significant decisions in exercise of
reasonable professional judgment. U.S.

‘C.A. Const.Amend. 6.

8. Criminal Law 641.13(1)

For a defendant to show that deficient
performance of counsel prejudiced defense,
defendant must show that counsel’s errors
were so serious as to deprive defendant of
a fair trial, a trial whose result is reliable.

U.S.C.A. Const.Amend. 6. .

9. Criminal Law €1166.11(5)

An error by counsel, even if profes-
sionally unreasonable, does not warrant
setting aside judgment in a criminal pro-
ceeding if the error had no effect on the
judgment. U.S.C.A. Const.Amend. 6.

10. Criminal Law ¢1166.11(5)

Appropriate test for sufficient preju-
dice warranting reversal is that a defend-
ant must show that there is a reasonable
probability that, but for counsel’s unprofes-
sional errors, result of the proceeding
would have been different; in other words,
test is whether there is a reasonable proba-
bility that, absent the errors, fact finder

JONES v. SMITH

1295

Cite as 599 F.Supp. 1292 (1984)

26. Criminal Law ¢339,9(1)

In evaluating in-court identification,
primary evil to be avoided is very substan-
tial likelihood of irreparable misidentifica-
tion.

John Furman, Mobile, Ala., for petition-
er.

Ed Carnes, Asst. Atty. Gen., State of
Ala., Montgomery, Ala., for respondents.

ORDER

HAND, Chief Judge.

This death penalty case is before the
Court on Arthur Jones’ petition for a writ
of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner was indicted for the
murder of Hosea Waymon, and subse-
quently found guilty and sentenced to
death by an Alabama State Court. For
reasons stated below this Court concludes
that the petitioner is not entitled to habeas
relief, that his petition is due to be dis-
missed with prejudice, and that his motion
for a stay of execution is due to be denied.
The Court will, however, enter a temporary
Stay in order to allow the petitioner time to
present his claims to the Court of Appeals.

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

Based upon the testimony at the hearing,
arguments of counsel, and the record as a
whole, the Court enters the following find-
ings of fact and conclusions of law:

ONE—JURISDICTION

Petitioner Arthur Jones was indicted by
a Mobile, Alabama Grand Jury in May,
1982 on two counts of capital murder. He
was accused of the intentional] killing of
Hosea Waymon, a Mobile cab driver.

Count One charged a violation of Code of

Alabama, 1975, § 13A-5-40(a)(2) (murder
by the defendant during a robbery in the
first degree). Count Two charged a viola-
tion of Code of Alabama, 1975, § 18A-5-
40(a)(6) (murder committed while the de-

1. The citations to the various exhibits are based

fendant was under sentence of life impris-
onment.) (Exh. A at 1)! Trial by jury was
held on November 15-16, 1982. Petitioner
was convicted on both counts on Tuesday,
November 16, 1982. (Exh. A at 14) That
same day, following a sentencing hearing,
the jury recommended that petitioner be
sentenced to death by electrocution. (Exh.
A at 15) On Novémber 23, 1982, the trial
court filed a written order in which it
weighed various aggravating and mitigat-
ing circumstances, and determined that the
defendant should be Sentenced to death.
(Exh. A at 32-87)

Jones’ conviction was affirmed on appeal
by the Alabama Court of Criminal] Appeals.
450 So.2d 165 (Ala.Crim.App.1988), reh.
den. The Alabama Supreme Court granted
certiorari, but affirmed the Court of Crim-
inal appeals decision. 450 So.2d 171 (Ala.
1984). On October 1, 1984, the United
States Supreme Court denied Jones’ peti-
tion for a writ of certiorari. Following
this denial, the Alabama Supreme Court on
November 5, 1984, set petitioner’s date of
execution for December 14, 1984, any time
after 12:01 A.M.

Petitioner then filed a petition for a writ
of error coram nobis in the Circuit Court
for Mobile County, Alabama. .Following an
evidentiary hearing held on December 10,
1984, the Circuit Court (per J. Kittrell, who
presided at Jones’ original trial) on Decem-
ber 11, 1984, entered lengthy and detailed
findings of fact and conclusions of law

_ denying the petition. Later that day, the

petitioner filed a notice of appeal from
Judge Kittrell’s order with the Alabama
Court of Criminal] Appeals and, at the same
time, applied for a Stay of execution to the
Alabama Supreme Court. That afternoon,
following oral argument, the Alabama Su-
preme Court refused to Stay the execution.

This petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 was filed this
morning, December 18, 1984, along with a
motion for leave to proceed in forma pau-
peris, and a motion for a stay of execution.
The habeas petition included several claims

upon the State’s Answer at 9-10.

JONES v. SMITH

(1297

Cite as 599 F.Supp. 1292 (1984)

ing” is with the habeas petitioner. Rauwler-
son, supra, at 813. A district court is not
to blindly accept “speculative and incon-
crete claims ‘as'the basis upon which a
hearing will be ordered,’ or additional time
be granted.” Jd. Because the petitioner
failed to meet his burden establishing the
necessity of additional fact finding, the
court concluded that an evidentiary was
unnecessary.

Finally, petitioner’s counsel was asked if
there were any other claims he wished to
advance on behalf of his client. He replied
that based upon a complete review of the
record there were no other meritorious
claims that ought to be presented. The
Court thereafter ruled that any other
claims have been waived. Habeas Rule
9(b).

THREE—CLAIMS

[3] I. Electrocution as Violative of
the Eighth Amendment. The petitioner’s
first claim (Para. 1-5) is that the manner of
imposition of death by electrocution as
practiced by the State of Alabama consti-
tutes cruel and unusual punishment in vio-
lation of the Eighth Amendment of the
United States Constitution. There is no
merit to that claim, and it is summarily
dismissed. In re Kemmler, 136 U.S. 436,
10 S.Ct. 980, 34 L.Ed. 519; Ritter v. Smith,
568 F.Supp. 1499, 1525-1526 (S.D.Ala.1983),
aff'd, 726 F.2d 1505, 1519 (11th Cir.1984)
(death by electrocution as imposed by the
State of Alabama is not in violation of the
Eighth Amendment.); Sullivan v. Dugger,
721 F.2d 719 (11th Cir.1983).

Il. Ineffective Assistance of Counsel.
In Claim Two (Para. 6-12) the petitioner
alleges ineffective assistance of counsel
during only the guilt phase of his trial.
More specifically he claims that trial coun-
sel were ineffective. in failing to properly
investigate the case, to call an expert on
‘eye witness identification, to request that
opening and closing statements of counsel
be reported, to call certain alibi witnesses,
and in failing to present an opening state-
ment to the jury during the guilt phase of
the trial.

A. Findings of Fact

Based upon the record as a whole, and in
particular petitioner’s State coram nobis
hearing, Judge Kittrell’s Findings of Fact
and Conclusions of Law entered following
that hearing and the transcript of that
hearing, the trial transcript, as well as oral
argument at the habeas hearing the Court
finds the following facts:

1. Following the evidentiary hearing on
petitioner’s State coram nobis petition, the
Honorable Braxton Kittrell entered de-
tailed written Findings of Fact and Conclu-
sions of Law on petitioner’s claims of inef-
fective assistance. of counsel. After re-
viewing his Findings and the transcript of
the hearing, the Court concludes, pursuant
to 28 U.S.C. § 2254(d) and Sumner v.
Mata, 449 U.S. 539, 101 S.Ct. 764, 66
L.Ed.2d 722 (1981), that the following his-
torical facts as found by Judge Kittrell are
fully supported by the record, presumptive-
ly correct, and binding upon this Court:
Those facts found by Judge Kittrell in
Paragraph 1-22 of his order on the Petition
for a Writ of Error Coram Nobis which are
fully incorporated in this opinion and are
found as Appendix I and attached hereto.

B. Conclusions of Law

[4] The Sixth Amendment right to coun-
sel is the “right to effective assistance of
counsel.” McMann v. Richardson, 397
U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, n.
14, 25 L.Ed.2d 763 (1970). The purpose of
the effective assistance requirement is to
insure a fair trial. ‘The benchmark for
judging any claim of ineffectiveness must
be whether counsel’s conduct so under-
mined proper functioning of the adversarial
process that the trial cannot be relied on as
having produced a just result.” Strick-
land v. Washington, — U.S..——, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).- Thus,
the “ultimate focus of inquiry” in evaluat-

. ing ineffective assistance of counsel claims

is on the fundamental fairness of the pro-

ceeding whose result is being challenged.
Id.

[5-7] In Strickland v. Washington, su-
pra, the Supreme Court articulated the

1298 599 FEDERAL SUPPLEMENT

general standards for judging ineffective
assistance of counsel claims. A defend-
ant’s claim that counsel’s assistance was so
defective as to require reversal of the con-
viction has two components. Jd. at ——,
104 S.Ct. at 2064. First, the defendant
must show that counsel’s performance was
deficient (“performance” component). /d.
The proper standard for evaluating attor-
ney performance is the objective standard
of “reasonably effective assistance.” Jd.
A defense attorney’s performance must be
“within the range of competence demanded
of attorney’s in criminal cases.” McMann
v. Richardson, supra, 397 U.S. at 770, 771,
90 S.Ct. at 1448, 1449. The defendant
must show that counsel’s representation
fell below the objective standard of reason-
ableness. under prevailing professional
norms. Strickland v. Washington, —
U.S. ——, 104 S.Ct. at 2065. In evaluating
the reasonableness of an attorney’s per-
formance, the Court is to judge counsel’s
conduct on the basis of all of the circum-
stances of the particular case, viewed as of
the time of counsel’s conduct, with the rec-
ognition “that counsel is strongly pre-
sumed to have rendered adequate assist-
ance and made all significant decisions in
the exercise of reasonable professional
judgment.” Jd. 104 S.Ct. at 2066. .

[8-10] Second, the defendant must
show that the deficient performance of
counsel prejudiced the defense (‘‘prejudice”’
component). This requires showing that
counsel’s errors were so serious as to de-
prive the defendant of a fair trial, a trial
whose result is reliable. Strickland v.
Washington, supra, at ——, 104 S.Ct. at
2067. An error by counsel, even if profes-
sionally unreasonable, does not warrant
setting aside the judgment of a criminal
proceeding if the error had no effect on the
judgment. Jd. at ——, 104 S.Ct. at 2068.
The appropriate test of sufficient prejudice
warranting reversal is that a defendant
must show that “there is a reasonable
probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding
would have been different. A reasonable
probability is a probability sufficient to un-
dermine confidence in the outcome.” IZd.

In other words, the test is whether there is
a reasonable probability that, absent the
errors, the factfinder would have had a
reasonable doubt respecting guilt. Jd.

[11] Whether effective assistance has
been afforded is a mixed question of law
and fact. Cuyler v. Sullivan, 446 U.S.
335, 341-42, 100 S.Ct. 1708, 1714-15, 64
L.Ed.2d 333 (1980); Harris v. Oliver, 645
F.2d 327, 3307n. 3 (5th Cir.1981) cert. de-
nied, 454 U.S. 1109, 102 S.Ct. 687, 70
L.Ed.2d 650. Accordingly, ‘a state court’s
determination of constitutionally effective
assistance is not entitled to a presumption
of correctness under 28 U.S.C. § 2254(d).”
King v. Strickland, 714 F.2d 1481, 1485
(11th Cir.1983). Nevertheless, any “histori-
calor primary facts found by the state
courts are entitled to a presumption of
correctness in a 28 U.S.C. § 2254 proceed-
ing in federal court.” Sumner v. Mata,
449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722
(1981); Mason v. Balcom, 531 F.2d 717,
721-22 (5th Cir.1976).

[12] As noted above, petitioner alleges
seven ways in which trial counsel were
guilty of ineffective assistance. The first
claim deals with the fact that petitioner’s
attorney Reynolds Alonzo did not want to
represent the petitioner, and even moved to
withdraw, but was forced to stay on by the
trial court. This is clearly refuted by Find-
ings of Fact (3) and (4) of Judge Kittrell’s
Order of December 11, 1984 in which he
denied petitioner’s motion for collateral re-
lief. (Exh. Q at 2-3) Judge Kittrell specif-
ically found that although there were prob-
lems between the petitioner and his attor-
ney, Mr. Alonzo, the State court deter-
mined that problems between petitioner
and his attorney were not irreconcilable
ones. Therefore, the State court judge ap-
pointed a second attorney, Mr. John W.
Coleman, to represent petitioner Jones as
co-counsel with Mr. Alonzo. As a direct
result of the appointment of Mr. Coleman,
there were no more problems between peti-
tioner and his attorneys. Said findings are
historical facts, fully supported by the
record, and entitled to presumptive correct-

1296

raised in the State coram nobis proceeding
which had not previously been raised at
trial or on direct appeal. Thus, the petition
is mixed, including both exhausted and
unexhausted claims. See Rose v. Lundy,
455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d
379.

[1] At the outset the State informed the
Court that the petitioner would not receive
any relief from the Alabama State Courts,
that any attempts for collateral relief at
this point would be futile, and that the
State waived any exhaustion requirements,
and desired to proceed. The State also
waived any exhaustion defenses in its an-
swer. Petitioner concurred in the waiver.
Based upon these representations,. as well
as considering the State’s interest in the
finality of these proceedings, the Court
agreed to accept the waiver. See general-
ly, Thompson v. Wainwright, 714 F.2d
1495 (11th Cir.1988).

Accordingly, this Court concludes it has
jurisdiction over this cause.

TWO—HABEAS PROCEEDINGS

On or about December 7, 1984, this Court
was telephonically contacted by Ed Carnes
of the Alabama Attorney General’s Office
and informed of the possibility that an
emergency petition for federal habeas re-
lief might be filed on the following week by
Arthur Jones, who was scheduled to be
executed on December 14, 1984. Mr.
Carnes informed the Court he would be
filing materials relevant to the case early
during the week of December 10, 1984. On
December 10, 1984, the Court received the
following documents from the Attorney
General: a trial transcript of State of Ala-
bama v. Arthur Jones, case no. CC82-
2983, Circuit Court of Mobile County, Ala-
bama; various briefs; a Petition for a Writ
of Certiorari to the United States Supreme
Court; a Respondent’s brief in opposition
to the petition for certiorari; copies of
Alabama appellate decisions pertaining to
petitioner’s case; an order of the U.S. Su-
preme Court denying certiorari, and a
copy of the petitioner’s petition for State
coram nobis (collateral) relief. The Court

599 FEDERAL SUPPLEMENT

subsequently received a copy of the State
Circuit Court’s decision denying collateral
relief, as well as a copy of the transcript of
the evidentiary hearing on petitioner’s re-
quest for collateral relief. Thus, prior to
the habeas hearing, held earlier this morn-
ing, the Court had the opportunity to fully
review the complete State Court record.

At the hearing the Court determined to
accept the State’s waiver of any unexhaust-
ed claims, which waiver was concurred in
by the petitioner’s attorney. The Court
further inquired into the claims of the peti-
tioner and was informed that the issues
upon which the petitioner requested a hear-
ing were claims One, Two and Three. A
review of the claims clearly indicated that
claim one could be dismissed summarily
under Habeas Rule 4. The Court deter-
mined no hearing was necessary on the
second claim (ineffective assistance of
counsel) due to the extensive historical fac-
tual findings made by Judge Braxton Kitt-
rell in petitioner’s State coram nobis pro-
ceedings. Finally, the Court concluded
that there was no evidence, whatsoever, to
establish petitioner was insane or other-
wise mentally incompetent and, therefore,
no hearing was necessary on that issue.
Finally, petitioner’s counsel stated he
wished to take testimony from one Bobbie
Vaughn, an alleged alibi witness. Both the
State and petitioner’s counsel informed the
Court that Vaughn’s testimony would be
that he had seen the petitioner the night of
the murder, but several hours before the
crime was committed. On that basis, and
also because the claim involving Vaughn
was really a request for habeas relief in
the form of a new trial based on newly

' discovered evidence, the Court concluded

no constitutional claim was involved.

[2] A district court “is required to
grant an evidentiary hearing where the
facts were-not sufficiently developed in the
state court. See Townsend v. Sain, 372
US. 293, 83 S.Ct. 745, 9 L.Ed.2d 770
(1963).” Raulerson v. Wainwright, 732
F.2d 808, 812 (11th Cir.1984). Further-
more, the burden of “demonstrating facts
sufficient to warrant an evidentiary hear-

JONES v. SMITH

1303

Cite as 599 F.Supp. 1292 (1984)

the light most favorable to the prosecu-
tion, we find that the evidence excluded
every reasonable hypothesis or explana-
tion but that of guilt.

Jones v. State, 450 So.2d at 167.

The Alabama Supreme Court reached the
same conclusion in the matter stating:

We have reviewed the evidence in this
case, and find that there was sufficient
evidence presented from which the jury
could exclude every reasonable hypothe-
sis except that of guilty. (Petitioner
claimed that he was not riding in the
victim’s cab at the time of the crime and
that someone could have entered the cab
after he exited. Dolvin v. State, 391
So.2d 1383, 187 (Ala.1979); Cumbo v.
State, 368 So.2d 871, 874 (Ala.Crim.App.
1978).

Ex Parte Jones, 450 So.2d at 172.

When reviewing a conviction for suffi-
ciency of the evidence in the context of a
habeas petition, the District Court is to
determine whether, “after reviewing the
evidence in the light most favorable to the
prosecution, any rational trier of fact could
have found the essential element: of the
crime beyond a reasonable doubt.” Jack-
son v. Virginia, 483 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979); Bu/ffo v.
Graddick, 742 F.2d 592, 595 (11th Cir.
1984). As a threshold matter the District
Court must determine the elements of the
offense. Buffo v. Graddick, 742 F.2d at
595. Defendant was convicted of violating
section 13A-5-40(a)(2). That section pro-
vides that whoever commits murder “dur-
ing a robbery in the first degree” is guilty
of a capital offense. Alabama law defines
murder in section 13A-6-2(a)(1) as follows:

(a) A person commits the crime of mur-

der if:

(1) With intent to cause the death of
another person, he causes the death of
that person or of another person ...

Robbery in the first degree is defined in
section 13A-8-41(a)(1) and (2) in relevant
part as follows:

(a) A person commits the crime of rob-

bery in the first degree is he violates
section 13A-8-43 and he:

(1) Is armed with a deadly weapon
or dangerous instrument; or
(2) Causes serious physical injury to
another.
Section 13A-8—43 states that a person com-
mits “robbery in the third degree if in the
course of committing a theft he: either
uses force or threatens to use force.

The petitioner was also convicted of vio-
lating section” 13A-5-40(a)(6), which pro-

vides that whoever has committed murder

“while ... under sentence of life imprison-
ment,” has committed a capital offense.
Thus, the State must prove the elements of
murder as previously stated under section
13A-6-2(a)(1), and the additional element
that the defendant was under sentence of
life imprisonment.

[20] A comparison of Alabama law and
federal constitutional law indicates that
Alabama law comports with federal consti-
tutional standards. This Court concludes
that the State’s evidence was sufficient to
prove the elements of the offenses charged
in the indictment. That is, a rational finder
of fact could have concluded from the evi-
dence that the petitioner. intentionally, mur-
dered the decedent while committing a rob-
bery with a dangerous instrument. There
was also evidence at trial establishing that
the petitioner, although on parole, was un-
der sentence of life imprisonment.

V. Further Investigation Claim. Peti-
tioner’s fifth claim (Para. 32-35) alleges
that due to evidence brought out at the
coram nobis hearing, he ought to be al-
lowed to undertake further. investigation in
order to shore up his alibi. In particular he
alleges that one Larry Shekar would testify
he and petitioner were together at the time
of the murder. Petitioner also alleges that
two prostitutes, Bobbie Preston and Bea-
trice Chestang (or Chestine) were present
at the same time, and could substantiate
that petitioner and Shekar were together.
There are no allegations of state suborned

perjury.
[21] There is no merit to this claim

which is really a request for habeas relief
in the form of a new trial based on newly

1304 a . 599 FEDERAL SUPPLEMENT

Week) LES h voy

discovered evidence.’ To be entitled ‘to ha-
beas relief on the grounds of newly. discov-
ered evidence, the ‘evidence must bear
upon the constitutionality of the.applicant’s
detention; the existence merely of newly
discovered evidence relevant to the guilt of
a state prisoner is not a ground for relief
on federal habeas corpus.” Townsend »v.
Sain, 372 U.S. 293, 317, 83 S.Ct. 745,759, 9
L.Ed.2d 770 (1963); Smith v. Wainwright,
741 F.2d 1248 (11th Cir.1984),
Petitioner’s fifth claim bears on guilt and
not on a constitutional violation. Under
Townsend v. Sain, and. Smith v.. Wain-
wright, the claim is due to. be DENIED.
For the same reasons, there is no need for

the Court to take the testimony of Bobby -

Vaughn. See discussion, supra, .
[22,23] VI. Jury Instruction Claim.

The petitioner's sixth claim (Para, 36-40) is

that the trial court’s refusal to give a re-
quested jury charge, upon the. affirmance
by the Alabama Supreme Court, rose to the
level of a constitutional violation. The re-
quested charge was a so-called “Telfaire”
charge, United States v. Telfaire, 469 F.2d
952 (1972), on the dangers of eyewitness
identification. While Alabama state law
allows such a charge, Brooks v. State, 380
So.2d 1012 (Ala.Crim.App.1980), it is. not
required when the eyewitness identification
was positive and unequivocal, as in this
case. Jones v. State, 450 So.2d 165 (Ala.
Crim:App.1983); Minnifield v. State, 392
So.Zd 1288 (Ala.Crim.App.1983). Federal
law, while encouraging courts to remain
aware of the dangers of mistaken eyewit-
ness identification, United States v. Wade,
388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149
(1967), has not yet required an absolute
instruction such as was requested herein,
In particular, neither the Fifth nor Elev-
enth Circuits have ever mandated the giv-
ing of a “Telfaire” instruction. In this
Circuit, if a jury charge “accurately re-
flects the law and facts, the [trial] judge is
vested with broad discretion in formulating
his charge.” United States v. Borders,
693 F.2d 1318 (11th Cir.1982). In this case
the trial judge accurately stated the law
and facts in compliance with Alabama law.

Ae. y PAS

Jones:'v, State, 450 So.2d:165 (Ala.Crim.
App.1983), aff'd, 450 So.2d 171 (Ala.1984).
Failure: to give. the requested instruction
does not rise to the level of a constitutional
violation. Even courts that are in favor of
this instruction have not gone so far. See
€.g., United States v. Dodge, 538 F.2d 770,
784 (8th Cir.1976). This Court sees no rea-
son for so holding. Accordingly, petition-
er’s sixth claim is DENIED.

VII. Tainting of In-Court Identifica-
tion. by Improper Lineup. Petitioner’s
seventh claim (Para. 41-49) is that he was
denied due process. by the admission of an —
in-court identification tainted -by an imper-
missibly . suggestive. out-of-court pre-trial]
identification. 6 ,

ne ‘A.” Findings of Fact

Based upon the trial transcript, and facts
found by the Alabama Court of Criminal
Appeals, Jones v, States, 450 So.2d at. 169-
170,, the Court enters the following find-
ings of fact as they relate to the issue of -
the lineup: -
‘1. The: pre-trial identification involved.
herein was a line up conducted within three
weeks of the crime. “i

2. Although the petitioner was shorter
than other participants in the lineup, the
difference in height was not so dramatic as
to be unnecessarily suggestive. The color
photograph of the lineup reveals that the
petitioner was placed on the middle of the
lineup containing five men. Each of the
five men was black, and each was of simi-
lar skin tones. The clothes were of differ-
ent varieties. Each man was dressed in
civilian clothes, not in prison garb or insti-_
tutional clothing. The manner in which
each man was dressed was different. That -
is, the petitioner’s clothes were not sloppily
arranged, while each of the other partici-
pants. was: neatly dressed. Each partici-
pant wore his hair differently. Petitioner,
whose hair is ‘very ‘short; was thus not
prejudiced by being placed among men all
of whom wore “afros” or long hair. The.
petitioner was not noticeably older or
younger than each other participant. The
lineup simply reveals no factors that would
cause an onlooker unacquainted with the

JONES v. SMITH

1305

Cite as 599 F.Supp. 1292 (1984)

petitioner to immediately fasten upon him
as the murder suspect. The ineluctable
conclusion is that the witness, Mr. Banks,
recognized the petitioner because he saw
him at the victim’s cab stand on the night
of the murder. :

3. The petitioner also contends, how-
ever, that the police made overt sugges-
tions to Mr. Banks, in effect pointing out
the petitioner as the suspect who should be
identified. The trial record of Mr. Banks’
testimony shows this is not so. When
asked by the Court what the police said
upon requesting him to view the lineup,
Mr. Banks stated, “They told me they had
a lineup. They wanted to know would I
identify the man if I see him again? I said,
yea. So they come got me. So when they
put him up in front of me I knowed him.”
(Exh. A at 51) Later the trial judge asked
Mr. Banks, ‘Did the police ever tell you
that the man they thought did it was in the
lineup?” Mr. Banks: “No.” The Court:
“You’re sure of that?” Mr. Banks: “I’m
sure.” (Exh. A at 56) On direct examina-
tion, Mr. Banks testified that the police
showed him photographs before the lineup,
but that none of them were of the petition-
er. (Exh. A at 58) There were thus no
overt suggestions by the police that would
have caused Mr. Banks to wrongly identify
the petitioner.

[24] 4. The petitioner also claims that
the lineup should be held suggestive be-
cause Mr. Banks paid no attention to the
other lineup participants. (Exh. A at 52-
53) It is clear from the record that Mr.
Banks recognized the petitioner from their
encounter the night of the murder, and
that, having so recognized him, Mr. Banks
saw no reason to look further. (Exh. A at
73-76) Moreover, the certainty with which
Mr. Banks identified the petitioner shows
that it was recognition of the petitioner and
not by lineup circumstances that riveted
Mr. Banks’ attention to the petitioner. Cf
Coleman v. Alabama, 399 U.S. 1, 90 S.Ct.
1999, 26 L.Ed.2d 387 (1970) (virtually spon-
taneous identification upon seeing defend-
ant indicative of trustworthiness). The cer-
tainty of Mr. Banks’ identification weighs

against a finding of suggestiveness. Upon
being asked why he picked petitioner out of
the lineup, Mr. Banks stated: “I picked him
out because I know what I was looking at.
I saw him before the lineup.” (Exh. A at
76) The Court thus finds that the lineup
was not so suggestive as to violate due
process.

5. Petitioner complains that Mr. Banks
verified the composite drawing by a police
artist as the fhan he saw, but changed his
description of the lineup. Composites are
only “rough” sketches. The composite is
similar to the photograph of petitioner in
the lineup in terms of facial structures and
overall appearances. Any differences be-
tween the drawing and the view of petition-
er at the lineup are not so significant as to
raise an inference that Mr. Banks’ in-court
identification of petitioner was based solely
on the lineup.

6. Petitioner likewise complains that
conflicting descriptions by Mr. Banks cre-
ates an inference of a suggestive lineup.
This contention is also without merit. The
alleged variations in the testimony con-
cerned height and facial hair. Mr. Banks’
description at the time was that the man
was five foot five or five foot six. Later at
trial his description was that the man was
about the same height as himself. In light
of the fact that Mr. Banks was seated on
the hood of a cab when he saw petitioner,
the night of the murder, it cannot be said
that there was a sufficient variance in the
description to warrant an inference that the
lineup was too suggestive. At trial Mr.
Banks testified that he and the petitioner
were “about as high as I am.”” (Exh. A at
60) Mr. Banks was five feet four inches
tall, and the petitioner is five feet three
inches tall. There was no remarkable vari-

_ance in the height of the five individuals in

the lineup.

7. Similarly; the composite drawing al-
ready referred to showed petitioner with a
thin mustache that Mr. Banks referred to
as “lip hair”. The confusion or conflict in
Mr. Banks’ testimony concerning facial
hair is more apparent than real. Mr.
Banks stated that the man he saw did not

1306

have a mustache “like me”. (Exh. A at 61)
It is obvious that Mr. Banks, a man of
apparent little education, (Exh. A at 67)
was trying .to describe the man as best he
could, and mentioned his lack of a mus-
tache because of his (Banks’) own pro-
nounced mustache. Petitioner’s counsel at-
tempted to dwell on the subject on cross-ex-
amination but failed to shake Mr. Banks’
recognition of petitioner. The way in
which Mr. Banks went about describing the
man does not give rise to an inference that
the lineup was the source of the in-court
identification.

Thus, from all the circumstances, the
most that can be gathered on petitioner’s
behalf is that Mr. Banks could not describe
the suspect’s height to the precise inch, and
that Mr. Banks’ description of petitioner’s
face was not described in perfect English.
As the lineup was arranged to allow the
witness to identify a suspect by his knowl-
edge of the man, and not to choose him for
artificial reasons, it cannot be said that the
minor discrepancies in Mr. Banks’ testimo-
ny lead to a conclusion of unfair sugges-
tiveness. The Court finds no violation of
due process in the context of the lineup.
No substantial likelihood of irreparable
misidentification appears to have been cre-
ated by the lineup.

[25] 8. In the alternative, the Court
finds that any suggestiveness in the lineup
was insufficient as a matter of fact to taint
the in-court identification. At trial Mr.
Banks stated very firmly that he could
recognize the petitioner even if no lineup
had been held. (Exh. A at 54) Mr. Banks
repeatedly identified petitioner at the trial,
and stated that he picked him out of the
lineup based on their prior meeting. The
Court finds that the evidence is overwhelm-
ing that Mr. Banks’ recognition was com-
pletely independent of the lineup, even if
the lineup had been suggestive.

9. The above findings of fact, made in-
dependently by this Court, establish that
the findings of fact made by the Alabama
Court of Criminal Appeals at 450 So.2d at
169-170, are entitled to a presumption of
correctness and are binding upon this

599 FEDERAL SUPPLEMENT

Court. 28 U.S.C. § 2254(d), and Sumner v.
Mata, supra.

B. Conclusions of Law

[26] The United States Supreme Court
has clearly stated that in evaluating in-
court identification the primary evil to be
avoided is “a very substantial likelihood of
irreparable misidentification.” Neil v. Big-
gers, 409 U.S. 188,198, 93 S.Ct. 375, 381, 34
L.Ed.2d 401 (1972), (“quoting” Simmons v.
United States, 390 U.S. 377, 384, 88 S.Ct.
967, 971, 19 L.Ed.2d 1247 (1968)). To this
end a suggestive pre-trial identification
must not have tainted the in-court identifi-
cation. This Court must therefore deter-
mine whether the pre-trial lineup was too
suggestive. The test for deciding whether
a lineup is overly suggestive was set forth
by the Supreme Court in Foster v. Califor-
nia, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d
402 (1969). Thus, this Court must deter-
mine by the “totality of the circumstanc-
es,” was the conduct of identification proce-
dures ... so unnecessarily suggestive and
conducive to irreparable mistake and identi-
fication as to be a denial of the process of
law?” Foster v. California, supra, 394
U.S. at 442, 89 S.Ct. at 1128 (“quoting”
Sovall v. Denno, 388 U.S. 2938, 302, 87 S.Ct.
1967, 1972, 18 L.Ed.2d 1199 (1967)).

The types of circumstances that make a
lineup overly suggestive are catalogued in
United States v. Wade, 388 U.S. 218, 232-
34, 87 S.Ct. 1926, 1935-36, 18 L.Ed.2d 1149
(1967): a lineup in which the suspect is the
only representative of his race, or in which
a black haired suspect is placed among a
group of entirely blond haired men, or if
the suspect is of remarkably different
height than the other members of the line-
up. Similarly, a lineup in which the sus-
pect is much younger, or older than the
other participants may be impermissible.
Differences in dress or hair style between
the suspect and other participants could
result in an improper lineup. In short, any
artificial circumstance that shouts out at
the viewer and distracts him from consider-
ation of the other participants would ren-
der. a lineup impermissibly suggestive.

1310 599 FEDERAL SUPPLEMENT

APPENDIX I—Continued
that is not the proper function of an open-
ing statement. Had the attorneys attempt-
ed to use the opening statement for that
purpose, the Court would have sustained
an objection to it. Nor was it unreasonable
for the attorneys to forego the use of the
opening statement to tell the jury about the
alibi witnesses and warn the jury about the
criminal record of those witnesses. As one
of the attorneys noted at the hearing, that
would foreclose the defense from not call-
ing those alibi witnesses. It was a reason-
able decision to leave open the possibility
that such witnesses might not be called,
depending upon how the case developed
and what Petitioner’s views on the subject
were at the end of the prosecution’ S case.

(13) At the sentence stage before the
jury, the defense waived an opening state-
ment. The decision to do so was a deliber-
ate strategic decision which was not unrea-
sonable under the circumstances. The Pe-
titioner had a terrible criminal record, a
bad reputation, and nothing in his history
which would suggest any reasonable miti-
gating circumstances. Accordingly, the de-
fense did not want to risk opening the door
to the prosecution offering evidence which
might not otherwise come in against Peti-
tioner. The defense did not call any life-
history or character witnesses simply be-
cause there were none, or at least there
were none who would not have done more
harm than good. The defense did not call

_Petitioner’s wife as a witness at the sen-

tence stage because she was a reluctant
witness at the guilt stage, and might have
made a bad witness for Petitioner at the
sentence stage. The overall defense strat-
egy at the sentence stage was to minimize
the damage the prosecution could do in
bringing out Petitioner’s prior criminal
record and life history and keep out as
much of that material as possible.

(14) Both defense attorneys tried to talk
Petitioner out of testifying or giving a
statement at the sentence stage because
they thought it would do more harm than
good. However, Petitioner insisted on tak-
ing the stand at the sentence stage and
making a statement. The defense attor-
neys properly allowed him to do so, even

though it was against their better judg-
ment and advice. Petitioner’s decision to
take the stand at the sentence stage was
one which he himself voluntarily made af-
ter being fully informed of the reasons he
should not do so.

(15) The defense waived closing argu-
ment at the sentence stage before the jury
for a reasonable strategic reason. The as-
sistant district attorney in the opening part
of his closing argument indicated that he
would have more to say to the jury about
why they should sentence the defendant to
death during the closing part of his closing
argument. However, by waiving their clos-
ing argument, the defense effectively pre-
vented Mr. Copeland from making his
strongest arguments in favor of the death
penalty. This is not an unusual nor an
unreasonable tactic. Indeed, one of the
defense attorneys had used it successfully
against the same prosecutor in an earlier
felony trial.

(16) Throughout the pre-trial and trial
and sentence proceedings, the defense at-
torneys were very careful to discuss every
tactical and strategic decision with Petition-
er. After discussing such decisions with
Petitioner, they either got his consent to
the course of action which they advised or
they followed Petitioner’s wishes, even
though it was against their advice. This

, Was a proper course of action for them to

follow, because the Petitioner is an intelli-
gent and articulate individual, and it was,
in fact, his life which was at stake. More
specifically, the Court finds that the de-
fense attorneys consulted Petitioner and
obtained his knowing and intelligent con-
sent to, among other things, waive the
opening statement at the guilt stage, waive
the opening and closing statements at the
sentence stage, and not present any charac-
ter or life-history witnesses at the sentence
stage of the proceeding.

(17) Contrary to the implication of some
parts of Petitioner’s testimony, the defense
attorneys did show Petitioner the presgen-
tence report prior to the sentencing deci-
sion by the Court. After reviewing the

JONES v. SMITH 1309
Cite as 599 F.Supp. 1292 (1984)

APPENDIX I—Continued
any event, this Court finds that Petitioner
did not tell either of his attorneys about
those two women, nor did he tell them
about a man named Larry Shakir, a report-
ed alibi witness who Petitioner had met
while Petitioner was in prison. In actual
fact, the two defense attorneys diligently
attempted to locate, interview, and subpoe-
na for trial every alibi witness whom Jones
mentioned to them.

(8) The attorneys advised Petitioner
against presenting an alibi defense at trial,
because all of his alibi witnesses, both

‘those who were located and those who

were not, were disreputable, unbelievable
witnesses. However, after being fully in-
formed and advised on the subject, Peti-
tioner willingly and voluntarily insisted
that the alibi witnesses be presented. The
defense attorneys properly acquiesced in
that insistence because Petitioner freely
chose that course of action despite their
advice to the contrary. The Court agrees
with the attorneys that it would probably
have been better strategy not to present
the alibi witnesses, but the Court also
agrees with the attorneys that Petitioner
had the right to insist on such a defense
and he exercised that right.

(9) Based on their thorough investigation
of the case, and after discussing the matter
with Petitioner, the defense attorneys set-
tled upon a clear strategy for defending
the case. Their strategy was to insist that
the State be held to its burden of proving
beyond a reasonable doubt the guilt of the
defendant, which would require that the
identification of Petitioner by witness John
Banks be believed. Accordingly, the princi-
pal strategy of the defense was to attack
by every means possible Banks’ identifica-
tion of Petitioner as the man who left with
the victim shortly before the victim was
killed. As Petitioner himself noted in a
November 29, 1982, letter to Attorney Cole-
man (State’s Exhibit No. 1), the defense
attorneys did a very good job of attacking
the identification of Petitioner by Banks.
The Court recognizes that Petitioner’s eval-
uation of the job that his counsel did is not
binding on the Court; nonetheless, the
Court does note its agreement with that

particular opinion of Petitioner. The de-
fense attorneys did the best job they could
in pointing out all available weaknesses
and inconsistencies in Banks’ identification
of Petitioner. Banks was a crucial witness
for the State, and it was reasonable to
adopt the principal strategy of undermin-
ing by all possible means his identification
of the Petitioner.

(10) In addftion, at Petitioner’s insis-
tence, the defense also put forward as part
of its strategy an alibi defense. The de-
fense did not put forward an insanity de-
fense, because there was no basis whatso-
ever for such a defense. Indeed, there was
no basis whatsoever for even requesting a
psychiatric exam of Petitioner for purposes
of the trial or sentence proceeding.

(11) The defense did not request that the
opening and closing arguments of the guilt
stage be transcribed, because the practice
in this Circuit is to record only comments
to which objections are made. While the
plain error rule does exist in capital cases,
and in some limited instances obviates the
necessity of an objection, it was reasonable
for the defense attorneys not to request
that the opening and the closing state-
ments at the guilt stage be transcribed.
Between them, they had approximately 40
years of experience in criminal defense
work, and it was not unreasonable for them
to be confident that they would recognize
and duly object to any erroneous state-
ments by the prosecutor.

(12) The defense decision to waive an
opening statement at the guilt stage was a
deliberate strategic one which was reason-
able under the circumstances. Both attor-
neys concurred in that strategy because
they did not want to pin themselves down
to what the evidence might or might not
show. That is not an unusual tactic of
criminal defense attorneys, nor is it an
unreasonable one, particularly in a case
such as this one. In regards to Petitioner’s
argument that the attorneys should have
used the opening statement to familiarize
the jury with principles of law and the
application of law to the facts in the case,

» °JONES'v. SMITH! © ©

1307

Cite as 599 F.Supp. 1292 (1984)

Applying the findings. of fact, supra, to
these principles of ‘law, ‘the Court ‘finds
nothing in the record which in. any. way

establishes that the lineup was violative of —

federal constitutional law or that it in any
way tainted the in-court identification. Ac-
cordingly, Claim VII is DENIED.: ) . .!!

CONCLUSION

For the reason stated above, the Court
concludes that there is no merit to the
petition, and will therefore enter this same
date a Judgment in favor of the State and
against the petitioner, dismissing this cause
with prejudice. — ,

APPENDIX I

IN THE CIRCUIT COURT OF MOBILE
COUNTY, ALABAMA. :

ARTHUR LEE JONES, Petitioner,
ve .

STATE OF ALABAMA, “Respondent
CASE NO.

DEC 12 1984:

ORDER

Based on all the evidence before the
Court, including the record of the trial and
sentence proceedings and all the evidence
presented at the hearing held.on December
10, 1984, this Court enters the following
findings of fact and conclusions of law:

(1) Petitioner Jones was represented at
trial by Attorney Reynolds Alonzo and At-
torney John W. Coleman. -Mr. Alonzo’and
Mr. Coleman are two of the most: experi-
enced and capable criminal defense attor-
neys in Mobile County. ‘Mr. Alonzo has 20

years experience in law, and 70 percent of |

his practice during that 20-year period has
been criminal defense work. He has repre-

‘sented thousands of criminal defendants in

the past 20 years and has personally tried
approximately 300 felony trials. His expe-
rience includes the trial of capital cases,
some of them occurring since the hyahuoee
decision in 1972.

(2) Mr. John W. Coleman has’ been prac-
ticing law in Mobile County for 21 years,
and approximately 70 percent of his’ prac-
tice has been criminal defense work: In
addition to having represented thousands
of criminal defendants, Mr. Coleman ‘has
personally tried: over a hundred felony tri-
als. He has been trial counsel or co-coun-
sel in at least one post-Furman capital
case before the present one.

(3) Mr. Alonzo was appointed to. repre-
sent the. Petitioner on January 29, 1982.
After the initial indictment was nol prossed
and the Petitioner was reindicted, Mr. Alon-
zO was reappointed on September 29, 1982.
Prior to Petitioner’s trial in November of
1982,'a problem developed between Peti- ~
tioner and Mr. Alonzo. The problem con-
cerned Petitioner’s dissatisfaction with the
manner iri which Mr. Alonzo was handling
certain issues in the case. More specifical-
ly, Petitioner was dissatisfied with the

“manner in which Mr. Alonzo was handling

the issues involving the preliminary hear-
ing, the line-up, and a civil suit which Peti-
tioner wanted: Mr. Alonzo to file against
the District Attorney, a police officer, and

others. Petitioner wrote a letter dated Oc-

tober 24, 1982, in which’ he expressed or
reiterated his dissatisfaction to Mr. Alonzo.
Thereafter, Mr. Alonzo filed a motion dated
October 29, 1982, in which he requested to
withdraw from the representation’ of Peti-’
tioner.’ After discussing the matter with
Mr. Alonzo, the Court determined’ that the
problem between Mr. Alonzo and Petitioner
was not an irreconcilable one, and that it
could conceivably be remedied by appoint-
ment of a co-counsel to assist Mr. Alonzo.

That was done when the Court, on Novem-
ber 9, 1982, appointed Attorney John ‘W.

Coleman to represent Jones as co-counsel
with Mr. Alonzo. ;

(4) After Mr. Coleman was appointed to
act as co-counsel with Mr. Alonzo, the prob-
lem between Petitioner and Mr. Alonzo was
solved. After the appointment of Mr. Cole-
man, both Mr. Alonzo and Mr. Coleman got
along well with the Petitioner, communicat-
ed adequately, and were not hindered in
their representation of. Petitioner by any
personality problem, conflicts, or dispute

1308

APPENDIX I—Continued

over legal strategy. The new relationship
between Mr. Alonzo and Petitioner is re-
flected in a November 12, 1982, motion
which Mr. Alonzo and Mr. Coleman filed to
dismiss the indictment on three grounds
which Jones had originally insisted that
Alonzo raise. Although that motion was
denied by the Court, it was filed to placate
Petitioner and apparently had the effect of
doing so. There were no difficulties be-
tween Petitioner on the one hand and Mr.
Alonzo and Mr. Coleman on the other hand
which affected in any way the quality of
the representation rendered by the attor-
neys.

(5) Both Mr. Alonzo and Mr. Coleman
investigated the case. This investigation
included talking with Petitioner on numer-
ous occasions. Mr. Alonzo discussed the

case, the facts, and strategy with Mr.

Jones on more than a half-dozen occasions,
and Mr. Coleman discussed the case, the
facts, and strategy with Petitioner at least
a half-dozen times himself. Mr. Coleman
has discussions with the Petitioner both in
the presence of Mr. Alonzo and outside the
presence of Mr. Alonzo. The communica-
tion between Petitioner and his attorneys
was open, free and uninhibited. The na-
ture of the investigation conducted by the
attorneys was influenced by the facts as
related to them by Petitioner. In addition,
both attorneys had completely free and
open access to the District Attorney’s file
in the case prior to trial. Included in that
file were witness statements, summaries of
evidence, forensic reports, and everything
that the State of Alabama knew about the
case. This open and free access to the file
resulted from a motion to produce filed by
Attorney Alonzo. It materially aided the
defense investigation of the case and en-
abled the attorney to develop the best pos-
sible strategy for defending the case.

(6) In addition to reviewing the evidence
which the State had, the attorneys’ investi-
gation included interviews of a number of
witnesses. One or both defense attorneys
interviewed before the trial prosecution-
witness Sgt. Boone and prosecution-witness
John “Shorty” Banks, who was the princi-
pal witness against the defendant. In addi-

599 FEDERAL SUPPLEMENT

tion, both attorneys spent considerable
time in diligently pursuing potential alibi
witnesses as named by the Petitioner. The
attorneys interviewed the following alibi
witnesses prior to trial: Johnny Dockery,
Hubert Brown, the Petitioner’s wife, and
Bobby Vaughn. The attorneys also made a
diligent, but unsuccessful, effort to locate
the following alibi witnesses: Johnny Clem-
mons and Johnny Lgne. They also tried to
find Priscilla Cunningham, but were unable
to do so. Dockery, Brown, and Mrs. Jones
were called as alibi witnesses at trial at the
insistence of Petitioner. Bobby Vaughn
was not called as an_alibi witness, because
he could not be located for purposes of the
service of a subpoena. Because of the
defense attorneys’ diligent efforts to locate
Vaughn, Vaughn heard that they were
looking for him and called them on two
occasions to discuss the case with them.
He promised them that he would be
present for trial, but he did not show up.
They attempted to have a subpoena served
on him but that subpoena was returned
because he could not be found.

(7) The Court finds that even if Bobby
Vaughn had shown up to testify at trial, it
would not have made any difference in the
result. That is true because Vaughn has a
long criminal record, a terrible reputation,
and is one of the biggest drug dealers in
this part of the state. There is simply no
reasonable likelihood that any jury would
have believed anything that Vaughn had
said. The same is true of Johnny Clem-
mons and Johnny Lane, additional alibi wit-
nesses whom the defense attorneys at-
tempted unsuccessfully to locate. Indeed,
all of the alibi witnesses, both those who
testified and those whom the attorneys
could not locate, either had bad criminal
records or terrible reputations and were, in
fact, not believable. The same is true of
the additional alibi witnesses whom Peti-
tioner claims he told the defense attorneys
about. Petitioner claims that he told the
defense attorneys about two women,
named Chastine and Preston, who would
testify to his alibi. Petitioner admits that
both these women were prostitutes. In

1312

APPENDIX I—Continued
1983), which the Court will assume to be

incorporated into § 15-16-23 for purposes
of deciding this case. The following facts
amply support the Court’s findings:

(a) Through Dr. Harry McClaren, Chief
of Psychology, Taylor Hardin Secure Medi-
cal Facility, the State introduced into evi-

dence Petitioner’s Forensic Evaluation Re-

port (State’s Exhibit No. 4). A copy of that
report is attached to and made a part of the
Court’s Order.

(b) Dr. McClaren, moreover, testified
that he (1) was a member of the Board
which evaluated the Petitioner and (2) per-
sonally interviewed the Petitioner on two
occasions. Based on his expert qualifica-
tions, his interviews with the Petitioner,
and his review of Petitioner’s psychological
test results, Dr. McClaren stated, and the
Court finds that:

(1) Petitioner possesses sufficient intelli-
gence to understand the. proceedings
against him;

(2) Petitioner knows he was tried for
capital murder;

(3) Petitioner knows he is to be executed
for committing that murder;

(4) Petitioner possesses sufficient under-
standing to know facts which would make
his punishment unjust or unlawful. In-
deed, Petitioner testified that there were
witnesses who could account for his where-
abouts at the time of the murder, and he
told Dr. McClaren that he was the victim of
a conspiracy between the District Attorney
and the Mobile Police Department.

(26) Petitioner contends that his evalua-
tion at the Taylor Hardin facility was done
in too short a period of time to be reliable.
The Court finds to the contrary, especially
since there is nothing in Petitioner’s past
history to indicate the presence of any type
of periodic or episodic mental disorder or
defect. Dr. McClaren testified that Peti-
tioner was at Taylor Hardin from Novem-
ber 30, 1984 to December 6, 1984. Dr.
McClaren stated, and the Court agrees,
that this is ample time to conduct a proper
psychiatric evaluation.

599 FEDERAL SUPPLEMENT

(27) Since the Petitioner testified in his
own behalf, the Court had opportunity to
observe the demeanor of the Petitioner and
his response to questions propounded by
opposing counsel. The Petitioner is not
only of at least average intelligence, but
also is at least as articulate as the average
person.

(28) Petitioner can, and does, recall de-
tails of his trial gn the instant charge. He
related the names of witnesses who were
and were not subpoenaed to testify in his
behalf. He referred to the testimony of
prosecution witness John “Shorty” Banks
as “perjured”. He expressly stated that he
knew he was charged with capital murder
and even testified that a superceding indict-
ment was returned against him on Septem-
ber 28, 1981.

(29) The Court, therefore, finds from its
observation of the Petitioner and due con-
sideration of his testimony that he is suffi-
ciently intelligent to, and does, understand
the proceeding against him, is capable of
understanding relevant facts and communi-
cating them to counsel, and, therefore,
was, and is, sane.

(30) The Court has not addressed the
merits of Petitioner’s claims that capital
punishment in general and electrocution in
particular are cruel and unusual punish-
ment violative of the Eighth and Four-
teenth Amendments. Such claims are
barred from review in the Coram Nobis
proceeding, because they could have been
but were not raised at trial or on appeal.
While Alabama does have a plain error rule
applicable to death-sentence cases, these
two claims are not within the scope of that
rule. Even if they were, the plain error
rule is relevant only on direct appeal and
does not operate to redeem for Coram No-
bis purposes a claim barred because it was
not raised at trial or on appeal.

(81) The Court also has not addressed
Petitioner’s claim that he is innocent. Cor-
am Nobis does not extend to such a claim,
except insofar as it is based on newly dis-
covered evidence which was not and could
not have been known through the exercise
of reasonable diligence at the time of trial.

CHRYSLER CREDIT CORP. v. BURTON 1313
, Cite as 599 F.Supp. 1313 (1984)

APPENDIX I—Continued
Petitioner has not proffered any such new-

ly discovered evidence. In addition, and in
the alternative, Petitioner is not innocent.
At trial, the State proved his guilt beyond a
reasonable doubt.

Based on the foregoing fact findings and
conclusions of law, the Petition for Writ of
Error Coram Nobis is denied.

The Motion for Stay of Execution is also
denied.

DONE this the 11th day of December,
1984.

ORIGINAL SIGNED BY:

/s/ Braxton L. Kittrell, Jr.
BRAXTON L. KITTRELL, JR.
Circuit Judge

Thirteenth Judicial Circuit

O | KEY NUMBER SYSTEM

sume

CHRYSLER CREDIT
CORPORATION, Plaintiff,

Vv.

Graydon Coleman BURTON, Janis
Wynne King Burton, NCNB National
Bank of North Carolina, and John M.
Brubaker, Trustee, Defendants.

No. C-83-791-WS.

United States District Court,
M.D. North Carolina,
Winston-Salem Division.

Dec. 17, 1984.

Creditor brought suit against debtor
and others seeking to set aside two convey-
ances of real estate as fraudulent. On
cross motions for summary judgment, the
District Court, Hiram H. Ward, Chief
Judge, held that: (1) bank which held deed
of trust from debtor and his wife was a
bona fide purchaser for value, and thus
deed of trust was valid and protected from
avoidance under fraudulent conveyance

law; (2) debtor’s conveyance of two tracts
of real estate to his then fiancee just prior
to consent judgment against him was
fraudulent, since transfer lacked considera-
tion and debtor did not retain sufficient
assets at time of transfer to pay debts then
existing; and (8) plaintiff’s judgment lien
arising from judgment in prior action
against debtor was junior to bank’s subse-
quent lien, since bank was a bona fide
purchaser for value which relied on records
before lending money, and to give judg-
ment lien priority would undermine record-
ing statute.

So ordered.

1. Federal Courts 372, 382, 390, 391

In a diversity case, district court en-
forcing state-enacted rights must apply law
of the state as declared by its legislature in
a statute or by its highest court in a deci-
sion; if there is no decision by highest
court of the state then court must apply

-what it finds to be the state law after

giving proper regard to relevant rulings of
other courts of the state; in absence of
state court authority, court must apply law
as it appears highest state court would
rule.

2. Statutes <=223.2

If two acts of a legislature are applica-
ble to same subject, their provisions are to
reconciled if this can be done by fair and
reasonable intendment; however, to extent
that they are necessarily repugnant, the
one last enacted shall prevail.

3. Fraudulent Conveyances e196

North Carolina fraudulent conveyance
law protects bona_fide purchasers from
creditors of the grantor; in order to be
protected, a grantee must first be a pur-
chaser for value.

4. Mortgages 153

In “North Carolina, a deed of trust to
secure a present loan constitutes the bene-
ficiary a purchaser for value.

JONES v. SMITH

1311

Cite as 599 F.Supp. 1292 (1984) :

APPENDIX I—Continued
presentence report, Petitioner indicated

that there were no inaccuracies in it, and
that indication was communicated to the
Court. Petitioner’s present statements
that his 1970 robbery conviction and life
sentence were nolle prossed and are no
longer valid are simply not true. The pre-
sentence report is accurate in its entirety.

(18) Petitioner testified that he was not
present during jury voir dire and selection.
The Court finds that not to be true. The
Court always insists upon the defendant
being present during the jury selection pro-
cess, and the Petitioner was present during
the jury selection process at his trial.

(19) Petitioner testified that Attorney
Coleman never met with him until the day
of the trial. The Court finds that that is
not true. Attorney Coleman was appointed
to act as co-counsel on November 9, 1981,
and he met with Petitioner on either that
day or on November 10, 1981. He also met
with Petitioner on other occasions prior to
trial.

(20) Attorney Coleman was not present
during the jury voir dire selection process;
however, Attorney Alonzo was. Attorney
Coleman was in another court during the
very early part of the prosecution’s case in
this trial. However, he appeared early in
the prosecution’s case. The record reflects
that he was present and conducted voir-dire
of prosecution witness John Banks. He
remained in the trial from at least that
early point through its conclusion. In addi-
tion, Attorney Alonzo was present at all
stages of the trial.

(21) Defense attorney Alonzo did testify
that he did not consider presenting an “‘ex-
pert” witness to testify about the fallibility
of eye witness testimony. However, there
is no indication that such testimony would
have been admissible under Alabama law
even if it had been presented. Moreover,
the defense attorneys did do a great deal to
demonstrate the fallibility of eye witness
' testimony through the cross-examination of
John Banks. The Court finds that their
failure to call an “expert” witness to give
his opinion about eye witness testimony did
not amount to ineffective assistance of

counsel. This Court has presided over the
trial of a number of cases in which the
State depended upon eye witness testimo-
ny, and no expert has ever been offered to
testify about the fallibility of eye witness
testimony. Nor has the Court been made
aware of any such expert being proffered
in any case in this Circuit or in the State of
Alabama.

(22) Based on the evidence before the
Court, which includes the trial and sentenc-
ing transcripts (Record on Appeal), the
Court file, the exhibits introduced at this
Coram Nobis hearing, and the testimony
and demeanor of all the witnesses who
testified at this hearing, the Court con-
cludes that the testimony of Petitioner at
this hearing was not credible. In making
this determination, the Court has con-
sidered both Petitioner’s demeanor at this
hearing and his long and sordid criminal
record. More specifically, the Court finds
that Petitioner was not truthful on those
points where his testimony conflicted with
that of the two defense attorneys.

(28) Based on all the evidence before it,
this Court concludes that Petitioner has
failed to establish that his counsel were
ineffective under the tests and standards
set down in Strickland v. Washington, —
U.S. ——, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). In addition, this Court also finds
that Petitioner was not convicted and sen-
tenced to death because of any shortcom-
ings or actions of his attorneys, but was
instead convicted and sentenced to death
because the State proved his guilt beyond a
reasonable doubt and also established that
death was the only proper and just sen-
tence given Petitioner’s record and the na-
ture of the crime which he committed.

(24) Petitioner alleges that he is present-
ly insane. After due consideration of the
evidence and applicable law, the Court
finds the Petitioner to be sane and, there-
fore, competent to be executed.

(25) Petitioner presented no evidence of —
present insanity. The State, moreover,
presented more than sufficient evidence to
satisfy the legal criteria enunciated in ©
Gray v. Lucas, 710 F.2d 1048 (5th Cir.

_ °° wee “oa - ~
ees e

’ Court for the Middl

jf
668 772 FEDERAL REPORTER, 2d SERIES JONES v. SMITH 669
Cite as 772 F.2d 668 (1985)
ORDER graphic arrays not including defendant’s ness’ attorney summarized his client’s testi-

Darden’s motion, filed: August 29, 1985,
to stay the mandate for 30 days and stay
his execution pending application for certio-
rari, is DENIED.

C==

Willie Jasper EN,
@titioner-Appellant, ‘

Vv.

L. WAI IGHT,
ndent-Appellee.

0. 85-3700.

United Sta Court of Appeals,
14 Eleventh ; Circuit.

5 Sept.\B; 1985.

Robert Augustus : arper, Tallahassee,
Fla., for petitioner-appeljant. .

Richard W. Prospeet, Sean Daly, Asst.
Attys. Gen., Daytona! Beakh, Fla., for re-
spondent-appellee. :

nited States District
District\ of Florida;
Wm. Terrell Hodges, Judge.

Appeal from the

Before FAY and CLARK, Circyit Judges,
and MORGAN, Senipr Circuit Judge.

BY THE COURT,

The emergency motion of appellant for
stay of execution.is DENIED. The motion
of appellant for certificate of probable
cause is DENIED. The motion of appel-
lant for leave to proceed on appeal in forma
pauperis is GRANTED.

Arthur Lee JONES,
Petitioner-Appellant,

Fred SMITH, Commissioner, Alabama
Department of Corrections and Willie
Johnson, Warden, Holman Unit, Re-
spondents- Appellees.

No. 84-7783.

United States Court of Appeals,
Eleventh Circuit.

Sept. 11, 1985.

State prisoner sentenced to death
sought writ of habeas corpus. The United
States District Court for the Southern Dis-
trict of Alabama, William Brevard Hand,
Chief Judge, 599 F.Supp. 1292 dismissed
writ, and petitioner appealed. The Court
of Appeals, Johnson, Circuit Judge, held
that: (1) lineup was not unduly suggestive;
(2) charge given to jury, when taken as
whole and considered along with manner in
which case was tried, clearly conveyed to
jury state’s burden of proving beyond rea-
sonable doubt that defendant, and not
someone else, committed crime charged;
and (3) defendant was not denied effective
assistance of counsel.

Affirmed.

1. Criminal Law ¢=339.8(3)

‘Pretrial lineup is impermissibly sug-
gestive if, under totality of circumstances,
procedure challenged created substantial
likelihood of misrepresentation.

2. Criminal Law ¢339.8(3)

Lineup, if suggestive at all, was not
impermissibly suggestive, where five-min-
ute period of witness’ observation was un-
der good lighting conditions, during this
period, witness’ attention was specifically
directed toward defendant, lineup occurred
only three weeks later, at which time wit-
ness immediately and unequivocally identi-
fied defendant, witness had previously re-
jected without hesitation separate photo-

picture, and three inch discrepancy in wit-
ness’ height estimation did not create sub-
stantial likelihood of misidentification.
3. Criminal Law €822(16)

Jury charge, when taken as whole and

considered along with manner in which
case was. tried, clearly conveyed to jury

_ state’s burden of proving beyond reason-
able doubt that defendant, and not some-.

one else, committed crime charged, where
court fully instructed jurors on require-
ment that they find every element of crime
beyond reasonable doubt before returning
guilty verdict, and court instruction on alibi
defense focused precisely on issue of
whether it was defendant or someone else
witness had seen at taxi stand before taxi

‘driver was murdered.

4. Criminal Law <641.10(2)

Appointing cocounsel rather than
granting defense attorney’s request to
withdraw from case did not deny defendant
effective assistance of counsel, where good
working relationship existed between de-
fendant and both of his. attorneys after
second lawyer was appointed to act as co-
counsel. U.S.C.A. Const.Amend. 6.

5. Criminal Law ¢—641.13(2, 6)

Neither investigation of attorneys nor
their failure to move for funds to hire
investigator to locate alibi witnesses denied
defendant effective assistance of counsel in
homicide case, where attorneys conducted
thorough investigation of case, including
diligent search for alibi withesses whose
names had been given to them, yet were
unable to locate alibi witnesses, and de-
fendant did not show that private investiga-
tor would have located witnesses, and that
they would even have testified. U.S.C.A.
Const.Amend. 6.

6. Criminal Law ¢—641.13(6)

Failure of defense attorneys to request
continuance when witness did not appear to
testify at trial as promised did not consti-
tute ineffective assistance of counsel,
where no reasonable probability existed
that outcome of trial would have been al-
tered by his testimony, inasmuch as wit-

mony as confirming that witness had been
with defendant on night before murder but
not at precise time murder occurred. U.S.
C.A. Const.Amend. 6.

7. Criminal Law €641.13(2)

Attorneys’ decision to waive opening
argument in guilty phase of murder prose-
cution was reasonable trial tactic and not
ineffective assistance of counsel, where it
left defense uncommitted to particular posi-
tion and thus free to develop any defense
that might materialize as state presented
its case. U.S.C.A. Const.Amend. 6.

8. Criminal Law €641.13(6)

Failure of defense attorneys to offer in
evidence opinion of qualified expert as to
unreliability of eyewitness testimony did
not constitute ineffective assistance of
counsel, where likelihood of mistaken iden-
tification by witness was brought to jury’s
full attention during cross-examination.
U.S.C.A. Const.Amend. 6.

9. Criminal Law ¢641.13(2)

Failure of defense attorneys to request |

that opening and closing arguments be re-
corded did not comprise unreasonable pro-
fessional conduct thereby denying defend-
ant effective assistance of counsel, where
attorneys did object to two remarks made
by state, and statements of counsel and
court with respect-to those objections were
recorded. U.S.C.A.Const.Amend. 6. -

John Furman, Mobile, Ala., for petition-
er-appellant.

Charles A. Graddick, Atty. Gen., Ed
Carnes, Martha Gail Ingram, Asst. Attys.
Gen., Montgomery, Ala., for respondents-
appellees.

Appeal from the United States District
Court for the Southern District of Ala-
bama.

Before RONEY, FAY and JOHNSON,
Circuit Judges. ;

OQ6T ‘Tz YoTeM (STTAOW)*eTY *oeTe car ‘eeT anuyayw “saor

Laeamipors Tewtes
3 fille fire WV Sinitiolens ~ Cae. F979 0 0-Migpe- gper|
Mile / "bad ca Cu. Matied Gov Hous

No upoeal, x

JONES, Syd, black, hanged at Birmingham, Alabama, on dune ?5, 1915,

"Birmingham, Ala., June 25, 1915-Syd Jones, a negro, hanged in the jail yard here today,
left a note in his cell in which he confessed responsibility for thirteen homicides, Iwo >
of his victims were white men, Jones was convicted of killing a fellow convict while he
was serving a life term for another homicide,
"Jones! note follows: 'I killed three convicts while in prison (evidently at Banner Mines,
Jefiterson County, I also killed Tommie Thompson and Charles Bennitt, and Deputy Sheriff
WwW. S. Moseley of Crawford, Neb.3 Shay ‘hite, Tom Spay, Sam Lee, a Chinaman, Monterey,
Calif,s; a Mobile « Ohio brakeman at Boydwell, Ky.3 Bessie Humphrey, Huntsville, Alass
Yattie Cuiergo, a Mexican, at Fort Wingate, Ne M.3 John Littlejohn, Indian, at Sheridan,
Wyo. I am sorry I missed setting Richard Moore, Sept. 13, 1912, Just one more would
have made the even number,'" NEWS, Galveston, Texas, June 25, 1915 (1-3.)

“THE 3

LE iS)

oe hs5 + ;

wk * eet

eeeea “some. jin

Ps é

3 "Use The Mastic
Si ‘Paint, “the kind that.lasts; Make |.
Son other as a Ss gives Per-

plastering, see me “in reference to
‘vory’? Pulp. Plaster, the best and
“'cheapest on the market. “Leading
contractors: all use the,* “Ivory,” :

: re “OF MURDER

. (enna sented

NEGROES ‘EXECUTED AT. “coum.

; Ren BIANA AND ANNISTON, pres gh
Se ES EG ee

oy Larkin “Johnson: Slew “white.

as “2 While Andrew Burton Killed

ata « va Member of His Own |

Resumbians. ‘Sept: - 9.—<(Special.)—At
$$°12:16 this afternoon, Larkin Johnson, a:
négro, was hanged in the jail yard. ©
“2 The crime‘ for. which, Johnston: was
~dyexecuted was the murder of John Law-
Syley, an. .ex-Confederate “soldier, |: in,
..March, 1903, near Montevallo,”* mes
“Johnson ° marched: toy the* ‘scaffold:
" talone. In’a‘statement ha‘said’ he did:
> the: killing in the heat of. passion. He
said h¢ had faith in Jesus: and: asked
all to, meet. him*in: heaven,’
“The: negro... was pronounced dead in.
- twelve minutes, and the: body was
“turned over
© taken to.” Montevallo © for, burial, Ber,
died. of fstrangulation: pe.

“to! relatives and it was
ose:

J ANDREW BURTON “HANGED. ane
A Negro Murderer Makes Speech Warning
‘His Hearers. From Evil..
Anniston, Sept.’ . 9.—(Spectial. pene ie
rew. Burton-with a cool nerve today
et death: onthe scaffold... He , was
anged at-11:50 o’clock a. m., for the
““\ fmurder of William ‘Richardson, a negro

jat' Francis Station, on the Seaboard Aly
Line ’Rallway..¢ cf-ty tei ba

Burton was. ‘tried. and eouvistea:. at
the last term of the City: Court. His
mother, wife and. sister. came from.
Birmingham. to witness. the .execution,
ant ko nand -to~ ‘take ,his -body ta the city.»

a BY -Burton’ talked ‘for -thirty minutes
“warning the .people, particularly the:
young, to turn from sin of all kinds.
* He -said: he: was ‘prepared’ to’ meet “his.
Maker and that he. was glad the time
>. had come for him to go'to heayen.

ee : and. wall us cS

Mf you. contemplate | ‘building’ a a?

“Man, Ae

Trible fate. ordained -. by the. law.

«| respite. .

pect 1. THE “JAIL

nt Ae

ae “@ ies

eggs FF

Protested: His’ Innocence to the “End,
pe : oto,

ies and” Was. Strangled. While.

, Soa overcome “With: fright, that. he had
tobe. supported ‘by ‘deputy ” ‘sheriffs,
-| Tony, Jones, a negro, who was hanged
for the murder of “Warren Jones, a ne-
gro, went ‘to’ ‘is death- “at 12 even
yesterday, protesting that he was inho-
Victeds Ae ie

Crying aloud- hon Goa. to Have: “mercy

on his soul,.
in’ the throat of the black man: as his

, body shot through*<the~steel trap door

a-distance'of fully eight feet, ‘just after

Within five. minutes attending physi-

and on the: gallows erected there some
time ago... Few persons were admitted
to the jail to:witness the hanging and
although. the streets adjacent.. to, the

of them from the rural districts, the
tragedy was absolutely, Gaypia. of spec-
tacular features. {00 cis aged

+. Last Appeal for ‘Cleinener. :

—was hopeful. to the last that some-
thing: would: happen to avert the ter-
. Hig.
mother and brother went to the Capitol
yesterday. morning ‘and.pleaded with

Governor Cunningham to grant him a
.The'Governor had carefully

reviewed ‘the case.on Wednesday and
had declined to interfere with the sent-
ence of the court. ‘He could do noth-
ing' but repeat to the negro mother his
inexorable decision. : a f

Jones’ spent his laat night in: life alone
in the steel cage adjacent to the gal-
lows. Through; the .bars. of .the cage
he could look': ‘out upon the adjusted
noose: hanging: over: the’ terrible” trap
door through. ‘which he was to travel to
eternity. -He was restless- throughout
the night” and slept very little. ’

‘Early “yesterday” morning. the ‘con-
demnei man was transferred to one of
the front*rooms ‘in“the’ ‘ving. quarters

| of the jail on the second floor and over-

looking Washington Street. .;-A com-

“A large crowd gathered about ‘the

Re CWE

eur:

niete outfit of ‘new clothing, including

cent of the erlme for bd ae he was hea

the words- were strangled

the clocks ‘had struck’ the ‘noon hour,-

cians-said:that -Tony,Jones-was dead.
..The execution. took place within the
walls“of the: Montgomery: County jail

prison were crowded with negroes, most

» The:negro boy—~he wag 20 years old

fs rope about his neck, drawn by. the’
welfght of hts body. ;

The suspended body writhed for a
minute or two and within-five minutes
Drv-J, Ne. Baker,» acting | as County
“Physician, announced - that ‘Tony., ipnes
‘was dead. ‘oe : “4 Cast
It required about: fifteen minutes for
the body to: bae:taken down, placed . in:
‘a rude coffin -and..made ready: to”
turned over:to:the mother and brother:
of the dead man who awaited outside
the jail... .The preparation for. burial

dertaker and’ the body was placed. in:
‘a wagon ‘for’ conveyance to the planta- .

‘tion ‘of 'Amos Jones, sixteen miles from
“Montgomery on: ‘the Woodley Road,

Where it will be interred alongsidé the
‘body of Warren- Jones, who was xiled.
by" Tony Jones, * ¥32°~-: aa

~The »physicians. who signed ‘the ‘death’
‘i certificate, -having | witnessed ‘the ,exXe-

ys . ‘cution; were Dr..J: ee Baker,. Dr. R. L.*
:|Milligan,; Dr. B..S.>Chapnian,-Dr:

Ww.
A. Sellers and Dr. Charles L.: Marks.
The.-certiticate: was .; also’ signed -, “by.

Deputy-Sheriffs B..C. Young.and S. S.'
Belser, E. J. Harris and). B. Clem-

ents, and‘ Justices of*the Peace ‘B.: C.°
Tarver, J. T;.Cone and _R.- H. Jones.:

Sheriff Waller. said that “Tony Jones’
was the ninth~ negro to,be hanged on.
the gallows in the jail and that his
body writhed: more than any man exe-.
cuted there before... The doctors, how-.
ever, expressed the opinion that the
contortions were ‘due; to contraction wi
the muscles and not to pain, onc erie,
ites A Christmas. Murder. -<'! eo

“Tony Jones’ shot and killed Warren
Jones on the plantation of Amog Jones,
@ prosperous: farmer. of : Montgomery
County, a few: nights ‘before: Christmas
in 1903. He was convicted at the Feb-
ruary term of the: City Court and. was
‘sentenced to ‘death. The :case: was ;ap-
pealed to the Supreme Court, which at-
firmed the lower .court in June, and
300% Beptember: e as Tne date, of execu-
tion,

The trouble. betieca Warren Sones
and Tony Jones was due to Elizabeth
Jones, the wife of Warren Janes. ‘The.
‘woman was convicted of being an ac-
complice of Tony ‘Jones and. is serving
a sentence of fifteen years in the pen:
itentiary.**:

Stok; the negro preacher eho: at-
tended Jonesson‘the scaffold, declared.
his belief in the innocence: of. the ne-
gro, Stokes.said'-he had’ ‘stood on:. the
Sallows ‘asa, minister. with. twenty me-
groes, and he’ never had as much faith’
in'any of them.as he had in’ ‘Jones. ‘Te:
said Jones protested ‘his. ifinocence’:to’

ed Warren Jones, but could’ not tell.”

HE WON! os ean aa
0. B. Waldo, Tec sce
of 14 N. McDonough, a: tyes
held the lucky ticket, in our Sunday

contest this week, so he is entitled to

a gallon @s cream Free of Charge. +.-

We will give, in our Sunday Contest
tomorrow, 10 Soda Waiter Tickets, ench
Rood for 6 five-cent drinks, nt Dowe’ 8,
to those holding Ice Cream Tickets, In
this way the-prize will be distributed
among more people, thee Siving all n
chance to win.: o deh te PL

Drink on us! Win a ‘tleket! \ “is :

Our new .cream: -

“Cherry Sherry,’ :

Is just being totem ek mite ot

It is the best cream ever made, com-
prising all.the good points - ‘of.’ other:
g00d crenms, and besides belng made
of pure Maraschino Cherries. . - ‘

To make you acquainted, we are g0-
ing to cut the price for just: this onee,

wiley HBS eS" Erin aes
¥ 1h ae aces

teeth

be:}

was done by Elijah Cook, a*negro un--

the last, saying that he ‘Knew - ‘who kills hy S

BELL: oe “LY

ib -¥ ee? yah i

Li WILL GO %

aay,

‘Sheri Diackw
‘ ‘able. An’ His
ie SAS en

Ay oi

aa Bee

Tie | ‘Bell ig
‘prought-beéfore
‘jury Monday, :
interest inthe

‘ed by the. citiz-

“| The three'sp:
‘Cherry: and St-
are now in jaii
the grand jury

’ The , State Wi
‘arts: ‘the’ negr::
iérime implicati:

stables. and: a

citizens~ of* th:
‘Sheriff Blackw:
‘turned to capt
and “his “cours:
by ‘the’ best ci:
The general be!
‘Blackwell has

dence'in*handad.
public. ‘The «

‘attention: throu:
the Northern

pared to devote

:: Funeral
_ The funeral «
Was conducted
o’clock from th
Lockhart, on C
Gross,'. pastor
church, ‘conduc
funeral: was 1:
many. friends
large,number .-
received... The
Oak cemetery,

we'd hee
ae

: 3 Jewi
‘ E goveicas wer
Mishkan :Israe}
noon, being’ th:
ish New Year «
were conductei:i
special musica!
by the choir.

largely. attende

-at -the temple

ding at°10.o’clo
is:invited.” Th

1 will extend ub

evening. Ne,

It’ ‘has develo

. tings ‘in’ a color

ed a rumor to }
Day Club” haa
negroes of Selr
a Masonic lod
the lodge wait
this afternoon
public be infor:
Selma have no’
a i eetore Day

p “a

oe) wen, Crux’

‘Cyrus Green.

ony euretieas .by

made an.effort
of a ‘caboose =
The wheel of :
foot crushing

manner:that ar
sary. The,neg:
and the: railros
an operation.

door through whieh be was to travel to
eternity. He was restless throughout
tho night and slept very Mttle,

Early yesterday"morning the con-
demned man was transferred to one of
the front-rooms ‘in ‘the living quarters
of the jail on the second floor and-over-
looking Washington Street. . A com-
plete outfit of ‘new clothing, including
shoes ‘and, underwear, ‘had been pro-
‘vided for“ Jones ‘and when they’ had
been donned—his burial.outft—he was
visited .by Rev. A. Je Stokes,’ negro:
‘pastor of the Columbus’ Street Baptist
Church, who has‘ visited’him dally since
he.was condemned’'to death; Rev. ‘D.
W.,Gayles and Rev. A.-H. Harris of
the. negro--Baptist Church -and’: -Rev,’
Johnson and Rev. Williams of the-negro
Methodist Church,’ The negro: preach-
ers' remained with him until the end an
walked with him, to the gallows,, }” %
SA few. minutes*before 12 o'clock Dep-
uty Sheriffs B.C. Young.and S.'S. Bel-
ser: announced that Jones's, time” had:
tome, and«walking’ on elther.. side of
him, accompanied. by ‘negro preachers, |
the deputies‘took the condemned ‘man
|down the ‘stairway. and into the ‘cage

pobre 4 .
made an.effort , |
of a caboose an
The wheel of th.
foot crushing th
manner:that amy:
sary. The negro

ht eT ee
fe Wiese Lam Oxncoution

4, send 0 take his body tm the city,
Burton talked ‘for thirty minutes

Wim te thebeeas
Oue new creams J 5 '
“Cherry Sherry,” * ete J
Ia just belag introduced. > +.
It is the best cream ever made, com-

prising gill. the good points of other

Bo00d crenms, ond besides being made

of pure Maraschino Cherries. Yee
To make you atquninted, we are ‘go-

ing to cut the price for just this once.
It sclis for $1.00 .per half-gallon, and
50c. per quart.) 0e%8 *t 24, ON aS
But tomorrow We. will tnke ‘orders
for delivery-nt 75.cents per half gallon
and 40 cents’ per quart. °°. Lae
It honestly costs us very nearly’ this

much (0 make and deliver It. 7" a

' Try some for desert tomorrow.

«We. will also have these. favors: * Sar |

+ Vanilla, Burnt ° Almond, | Caramel,

Chocointe and Cherry Sherry.) '\“))7 4
‘Also Orange Ice \. ¢° 5: 3-2" E:

‘|, and Pineapple Sherbet, | j *

Get your, crdérs_down ‘this morning,

aad thus guarantee prompt delivery to-

MOLTO. 5 ys Bhar Pe te
Insist on getting” my phone

- -Dowe. BP gE hes cae? Od

iwiwarning the people, particularly the
ooyay young, to. turn from sin of all kinds.
“vies He said he! was ‘prepared: to’ meet his
Maker and ‘that he was glad the time
ej had come for him.to go'to heaven.; "> *
“y ~Alarge. crowd gathered. about the
jail yard,as early as:'8 . o'clock this
«morning . and‘ on..the-outside «of. the
throng faces of several white women
tYeould be seenl+ Ft. 8% yay SAENA tod
vee After his talk,.whieh he made from
ijthe Second story .window~ of ..the jail,
those: who had ‘tickets to the. enclosure

Tay
a

“,

{where,the hanging took place where
.fidmitted. .. Burton;..was..; accompanied.
“by: M.~W. . Woodruff, the sheriff; one
“yx deputy and two; colored: minigters, * */“:
ait 2.His‘“neck ‘was broken by the fall,
and ‘there was litle or‘no struggle, ‘He’

‘without. a. single’ murmur

"and -as he’ stood on: the gallows”: he’

Al? nae

a =imet., death

Shien ’

fhr9pe with which. he was hanged was
and. distributed ‘as ‘souvenirs, .-~

BEES

pow ¢
. , [>

the’ * fORAX ASSESSMENTS, <>!
nty, Bei a a's ay wy

ceva t

bs A s a . . We ’ umelticres ts ps
< ; : — “department: ofthe jail onthe sround | Counties Continue to Report ‘Large In-'|.the+1,500-.mark,
anuel Estrada Cabrera, who..has floor, .where* the. gallows {s located at |. ont aD peg BOY cerennen, Petes daar tele Lg 205 SBA Pe
n re-elected for a term of six years |the extreme ‘northern end of the jail The tax’ assessment of: Jefferson| Mrs°’George R.
f Guatamala, ‘has {come’ e

Jones did not falter.:..His face was that
of the stolc.until-he reached the steel.

County with its large increase of oyer ‘the

“the Diaz lof his coun- six million dollars, has been: received |..-

ofvher 1
TAR

«to, 1898, when Cabrera’! stairway leading to.the trap door., Here |'in the’ office of the State Auditor. The|’-H.'S." Daniels,
;was first elected president, .Guatamala |his face was drawn and his body 'quiv- | Jefferson County valuution lacks . only: spending the ‘day
was ina continual turmoll ‘of revolu- ered. His legs were noticeably: weak | $39,000 of reaching $51,000,000. = 2% iv) gy rritRaa =
tions. But for six years there { PI (

has been

@ peace under Cabrera.’ :.:

&-| Quickly the deputies ‘tied. hands »-and

and the deputies supported him,» 3
. Reaching; the’ Platform.; Stokes ” of-.
fered a fervent invocation, Jones stand+
ing with scared face and nervdus-body,

feet and adjusted’a black cap over his

‘and Gorman were realized in the ab+

reports upon Jefferson County -filed by
Examiner of Public*Accounts Sedberry

Stract sent in to the Auditor's officé:
The ‘abstracti received. from Colbert
County‘shows the second decrease that

The predictions made a. week ago in

“Mrs.” Felix”.Woo
the mounta
CR Io Gerd te
“A. PyoLoveman,
@ Selma visitor to
b Mos sale tie ES

W.) He Lawrence

+a He

head, ‘shutting: outs the View forever
from<his eyes. 7 )° Arig. 4S om ner
: Tragic Moment. ~*

.has been-reported to the State Auditor.
The decrease'is not. larga, however.,

the day: in?

Pig. ‘oi, ‘ eee ' feo Fez Wis:
3) Se eftnnst ;»The negro preacher Stokes, standing Winston is'the other County in whicb Meridian.”
ATE eS PE ae RR ight . close-by, whispered, “Be brave.” Ther. a decrease was recorded... Ae Ln ark
“Ld. 1S a dangerous disease, but can’ be cured.’ is dha nee: ts so enh. Assessment abstracts havo been re- Ea
973 There is‘a romedy that never fails: It has..| the ‘emotion of the "condemned ‘negro celved by: the state Auditor during the|. Mrs.«Walter F:
Zs been used in nine epidemics of dysentery 2f | burst: forth, thy fe iq yg StS ‘sc | week. from Cherokee: Clarke Chott y.| ROME, (Lu e4P
‘4 With perfect success.. It iscalldd 3281] ""'Oh: Lord. oh God,,yhave mercy,”* he ‘Etowah, | Jefferson euderdais: Eig Fea emma
Chamberlain's Colic, Cholera~- shrieked as\-his.form .gave way in a Lowndes, Marshall and Randolph coun- A- BOON
. ».and Diarrhoea Remedy. | «7! collapse: | iM Rte Hater te ey \, | ties... Each of these counties show in-« mis
Tt is equally valuable for children and; .| ...““Have mercy, oh God; have — ”’ “| creased assessments...: ei" t- te
ned, | Sheriff. Waller, had ‘pulled the bolt ‘Pat il

cents..-*

: 1 r “Te St the: Priva,
which’ held’ the steel trap. and

. the: If.a man is.firm with his children,
words’ were strangled -in the'throat

i of their mother hates him for-it;-and de-, | nent physician, u.
Sa the ‘dying “negro by ‘the tightening of,! spises him if he isn't, 07.00 ej. -2 >| tensyears dna *win
7 : : “ : -* <}and sanitorium ‘pr

ing success, is nov
and guaranteed. by
a bottle. is?)
The mission of
up.robust, sexual hb
do this,;normal an
‘must be made to e
where Feminala
work. ere
Feminala does 1
the disease ®: itsel
cause. It corrects
menstruation:by ge:
moving the cause,
or whites by allayi
inflammation of the
cause of this»so-c.
ness.” And jthus
‘whole range of u!
common. to women
Feminala ‘)"work
heaith-producing «
action upon the‘ di
going right.to th
trouble and gettin
In so doing-—it re
uterine ‘tract* its
functions, strength
strong, healthful «
the: whole feminin
a recurrence of the
sonable care- and
improbable. *”’’

“* Do not continue t
.|. the diseases peculin
the wonderful ‘cur
Feminala—it “will
strong. eb
Note to Women.—
Feminala-.and a b.
eases peculiar to w:
in a plain, sealed p::
quest, if addressed
Drug ~’ Company,
Write for it today.

aie

“On the Square.”

BST Sot

eady to. show
Terre eae eames

Raa re

vening r

‘ “. Adent
Chicago News,

ae Tourlyt—You un
* . go to a quiet reso:
: “1: Agent—Thlis is
you... =
Tourist—No golf
Agent—I shoul.
even croquet is:c

‘
awe

» Hats, etc.

WORLD'S FAIR §S:
pe ger st)
On each Tuesday
tickets at special !
will be sold ‘via M-
road to St. Louis fr
other points in Son
to Mr, P.'S. Hay, :
LR. R., Montgomer,

bree ee
bas

reer

“TGOMERY. ADVERTISER, :“;

*. 4

ee Kh erg
x 4

—_—_—

~,ERDAY MORNING, APRIL. 5, 1913

te hanged Birmingham, Alabama, |1-l)1913.

oi acre
bs bee Sie

Wh \
Ht gugmi

<a “eat
i or th, BH

ee a

a Page. One.)

aay declared there
ce ‘Agreement with
11 contested points.
t unless the sugar
noted” “by. Senators
ies,.-the Finance

will act on its:

comply. with Pres-
iresscssrt 3 “
it’-has developed
'y igi.a consumma-
4 out by the Prest-
. and Senate lead-
eeutive depertment
vf Congress into
tariff revision be-
leayes the custody
uat has drawn it.
predicted today
important tatters
bill is introduced

.ique.-in tariff his-
rg, is expected to
. time required for
and*to reduce to
the. congressional
ment of the meas-
zement. on the
result in the
ny the Senate

hes that body. .
‘wood, . when the
vmmittee adjourned
-d-in a greatly re-
vind and‘ expressed
committee would
sident and the Sen-
sunday at the latest.
Ly ‘gaia Mr. Under-
r tariff is the only
ontroversy and our
reed. to do whatever
ls “us'to' do. | i
. get: word from the
fter:his conference
3 but the word did
iieve, ~—however, that
will be. determineé

-t cannot bring about
inis schedule, we are
‘ud the bill will go
committee bill.
as Were Few. :
has agreed thus far
se President suggest-
ii bill as ‘it reached
ions were few. Most
ith his heartiest ap-
imittee was of the
should. be presented
\Wilson,. might | veto
him... Having mado
-esgested, we are now
» the further recom-
ay, make.” Ni,
delay in settling the
.o committee may not
‘pill Monday.
assured the
all the time
£.an agree-
te vaders, :
i -Means:. Committeo
ad .every member of

-xg éo-operating with

bring about harmony.
the: points of serious
1 be- settled, by com-
‘ary before the bill {s
sislative mill, ;rather

CONVICT OFFICIALS BOUGHT

PERGONALLY AT WHOLESALE

— : ?
(Continued from Page ‘One.)

to the relations between his firm and
the State Convict Department. ;

‘ Dealings between this firm and the
department began January 15; :: 1913,
according to the testimony of the wit-
ness. Total sales made to the State
amounted to $251 and this amount hus
not yet been paid. This bill covered a
shipment of cheap ‘socks which was
sold ‘to the department. .

‘No inducement had been offered to

the department to obtain business said

the witness, and no rebates of any
kInd were offered. This firm has
never purchased anything from ‘the
State. ; biome 3

J. H. Bowman, localsmanager of the
Cudahy Packing Company, told of the
sales made by his company to the. de-
partment, These sales covered the
months of August, September, October
and November, 1912 and January and
february, 1913. The total amount of
the bills of this company was a little
more than $12,000 of which the State
still owes the company $3,776.

Mr, Bowman was asked to prepare a
Statement showing the exact amount
of the sales made to the department
and to what places they were shipped.
: Clayton Tullis Testifies.

Clayton Tullis, of the Tullis Hard-
ware. Company of Montgomery said
that his firm has sold goods to the
Convict Department and these sales
were sometimes.made without any
bids being requested... Mr. Tullis said
he sold goods to Theo Lacy, James
G.-'Oakley ‘and other officials of the
Convict Bureau at wholesale prices.
tHe was asked if this custom resulted
from.any agreement and replied in the
negative. The quotation of wholesale
prices to the individuals was a purely

voluntary act on the part of his firm

said the witness.
..Mr, Tullis was requested to prepare
a statement of all transactions taking
place between his firm and the de-
partment and to file it with Charles E.
McCall, Chief. Examiner of Public Ac-
counts. meet :
Purchases were made from the State
as well as sales to the department
by the Harvey Seed Company of Mont-

gomery according to P. O. Franson of,

that company. The purchases from
the State consisted largely of seed
corn and cow peas. .

Request was made of -Mr. Franson
to prepare a statement showing the
transactions passing between his com-
pany and the department. He said no
rebates or inducements had been of-
fered any Official to obtain the busi-
ness of the department. ' ‘

WALTER JONES IS HANGED

oe —o——
Jefferson County Man: Convicted
Crime in Bloody Beat 22 Pays
‘ Penalty.
Special to The Advertiser. ©
BIRMINGHAM, ALA.,: April 4.—Wal-
ter Jones, aged twenty-four years, was
hanged in-the county jail here for the
murder of Lawrence B. Evans, a min-
{ng contractor at Lewisburg, known as
Bloody Beat 22, Grctober 3, 1911.
young man went On the gallows soime-

Yor

1 demned man said that he did not be-

The |

tie —_—

thing after 11:30 o'clock. He spoke
for a few minutes on the gallows and
prayer was held. The trap was sprung
at 11:55 a. m. and he was pronounced
dead at 12:03, death following the
breaking of his neck in eight minutes.
While on the gallows Jones removed
his shoes, saying he did not want ta
die with his shoes on. Before the
black cap was adjusted the condemned
man.-said:° \

“It doesn’t hurt the man wiio 1s go-
ing to be hanged, but the people at
home.” . * nu ie ’
- While on the’ gallows he smiled at
times. “My advise to all. is to serve
God and do right,” he said, He took
occasion to criticize testimony offered
in his case by a minister. He said he
had put his trust in God. The con-

lieve in capital punishment,
In a letter which Jones left behind
he said that Bloody Beat 22 1s painted
worse than it really is. He denied
there was any such thing as a clan
in that section of the county. He also
said that other people knew of kill-
ings and who were responsible for
them if they would only tell of them.
The body of Jones was turned over
to Lige Loy: and has been prepared

Hote if

ait

It will pay you'to call and insp:

KLEIN?S

When purchasing a gift whethe
Glass, Silverware or some. Novel
_ tend giving something and you dG

~To Be Diff

sorted stock. Wi ots

a8 +

Jeweler and Diamond

—#

for. burial. The funeral will _ take
place Saturday afternoon at
o’clock in the Walker Chapel Cemex
tery,' the body to be laid at rest be-
side the father and brother. ' ;

The young man hanged today was a4
brother to Arthur Jones who was
hanged March 21.

aan: |

ee TWO NEGROES HANGED.

“ MOUNDSVILLE, W. VA., April 4,—
James Williams and John Marshall,
negroes, each convicted of murder in
MeDowell County, were hanged late
today in the State penitentiary here

LANDSLIDE IN TEXAS.
~ QVERTURNS FAST. TRAIN

: P —_—o—. :
MARSHALL, TEX., April 4.—A land-
slide ‘which buried the rails of the
Texas and Pacific Railroad four miles
each of Provencal, ‘La. just before
daylight: today..overturned part of the
train and killed Fireman Lance.
Two other train. employes were
slightly injured. y Mes raha Sa
The .engine,. mail and baggage cars
turned over. : ‘
lt ig reported that the Texas and
Pacific: tracks were washed out in
fifteen places by a heavy rainstorm

about twenty miles wide, which
swept over Northern Louisiana: early
today. Much damage to private

prop-
erty was reported. j

ered AD OSG tS vi ons “Walaa sa
: ay. PAS EC: ¥
th: .

nade,

1:30 }[

cold, gripp, or nervousness.
10c., 25c. and 6Oc.
GOLD AT WELL-STOCKED

SERA STAN
it orcstpeni cee 9

SEE IT!

‘f

Will buy an elegai

ET (gahtty “Use
- And 12 Rolls
- We have Only. One
3 Fi
_ TERMS ARRANGi

. ’

| Grafanolas, Victrola

B. E. : Forbes

L. O. PARSON:

: 26 Dexter Avenue —

oa. y ey ts AL

' Bulletin No, 80° |

JORDAN, George W., white, hanged Mobile, Mobile Co., August 19, 1859.

“Execution at Mobile.-G. W. Jordan, only 23 years of age, was hung for murder at Mobile
on the 19th inst. The Register says:

“When he left the prison door and walked out to the scaffold, he did so with a firm,
. intrepid step. He threw a glance around the circle of witnesses, of whom there was not exceeding
fifty, to see if he recognized any one, and then turned his attention to an examination of the
temporary framework which had been erected especially for him. There was no unnatural
expression in his eye, no comporessing of the lips, no blanching of the cheek, no outward
expression of any emotion which he may have felt within. His was an extraordinatry stoicism - if
acted, excellently acted - which was apparent to the last. After ascending the steps - down which
he would never again walk - to the platform, and one of the officers adjusted the rope raround his
neck, some one remarked that a fall of three feet would be too far for his height, he looked at the
quantity of slack, and remarked, ‘No, that’s so much the better.” These were the only words he
spoke upon the scaffold, except to bid one of the officers farewell.”-Sun, Baltimore, MDE,
August 25, 1859 (1/3). |

Mortality Schedule Of Persons Who Died During the Year Ending June 30, 1860, by
Marilyn Davis Barefield; Easley, SC: Southern Historical Press, 1987, under Mobile County lists
George W. Jordan, 40, a ‘lightboatman” annd says that he was hanged for the murder of a
Spaniard.

ExxccTion aT MosiLe.—G. W. Jordan, only ;
23 years of age, was hung for murder at Mobile
onivin insi. The Registé says:

When be left the prison door and walked dut to
the scaffold, he did so with a firm, intrepid step.
He threw a glance around the circle of witnesses,
of whom there was not exceeding fifty, to see if he
recognized any one, and then turaed attention
to au examination-of the ‘temporary framework,
which had beenerected especially for him. There
wes no urhatural expression in his eye,no Ccom-
pressing of the lips, no blanching of ‘the cheek,
no outward expression of any emotion which he
may have feltwithin. His was an extraordinary
stoicism—if acted, excellently. acted—which was
apparent to the last. After ascending the steps —
down which Le would never again walk—to the
platform, and one ef the officers adjusted the rope
around Lis neck, some one remarked that a fall of
three feet would be too far for bis hejght, he looked

at the quantity of slack, and remarked, ‘‘No,
that’s so much the better.” These were tae only

_‘words he spoke upon the scaffold, except to bid
one of the cflicers farewell. <
Dee

RAfarvrane wre 4-—-— ae

JULIUS, Arthur James, ‘black, 13, electrocuted Alabama sP (Montgomery
on K8¥SXX¥ 11/17/1989, j SE asate lapel

ADVERTISER,

Montgomery, Alabama,
: Nov. 17, 1898 (1:1)

es S a:

ees

* .#, £-kS

By SHELTON FOSS _ in y:
; Advertiser Staff Writer ” a ane
* ATMORE -—: Convicted mur-:
‘derer Arthur .James : Julius, 43,
"gave away his. television, tennis
shoes and postage stamps to
‘other death row inmates Thurs-.
“day” in the final hours before his °
‘scheduled execution for raping
‘and strangling his 29-year-old :
‘cousin nearly.a dozen years.ago...
, Convicted -twice.of the brutal.
‘murder, Julius was sentenced to:
* _ die at 12: 01 ‘am. today for’ the..
death of Susie’ Bell Sanders of
Montgomeryé: ‘Her father and 5-.|.
year-old» ‘daughter ‘found ‘Ms. |
Sanders’ nude.and, battered body. |
with her,.head on.the floor and:
her feet: on.:the couch.,.;She:had:
‘been sexually’ attacked repeated: a
ly, court records said.” Wi

When. the; attack. occurred, Ju- |.

lius, then 31, was on an: eight-

: hour: pass from’ the Draper Work .

; ; Release’ Center, where’ he was
| serving | a life sentence | for mur--

Please See KILLER, 6A.

i. “He’s been up going around i in

- She said that after she knew the

‘bers had declined to comment on

Victim
* Continued from 1B
for news of Julius’ execution.
* “When 12 o’clock came, we
thought. someone was going to
inform us, but they didn’t,” the
17-year-old said.
« Instead, Ms. Sanders had to”

wait about eight hours until she +
heard a radio news. broadcast

that confirmed Julius’ death. / i.

: “We were just wondering if it.
happened or not,” she explained. '
: Just after midnight, when Ms.
Sanders thought Julius’ execu-

tion had been carried out, she |

‘jumped for praise. I just hol- |

ea SR LEASE SORE SS

Electrocution pushes
state death rate up

’ ATMORE, Ala. (AP).— The
electrocution of Arthur James
Julius early Friday marked the
fourth death warrant carried out
in Alabama this year, putting the
state’s execution rate at a level
not seen in 35 years. —

- Following Julius’ execution for
the 1978 murder-rape of his 29-

year-old cousin, Susie Bell Sand-

ers of Montgomery, Prison Com-

missioner Morris Thigpen said |

lered and said, ‘Yes.’

* Ms. Sanders believes : justice |
was served early Friday, but she
was upset that Julius was allow-
ed to live for almost 12 years af-
ter her mother’s death. Julius
Was sentenced to death in 1982
for the rape and strangulation of

s. Sanders’ mother.

the prison system,” she said.
«Justice has been done at last.

1 am so thrilled.”

*. Ms. Sanders was in a bheerful:

mood Friday morning as she was

petting ready to leave for school.

execution had gone through, her
mother’s death and the execu-
tion became easier to discuss.

+» Earlier this week, family mem-

the execution.

is. Sanders had seen Julius
beta’ the execution, she. said
she would have asked him one
question and given him one mes-
Sage.
She would have asked him why
he killed her mother and told
him of the execution, “You de-
serve gd

the rate of executions might in-
crease even more. P

“T think it is obvious with the
number we have on death row,”
said Mr. Thigpen at a news con-

- ference following Julius’ execu-

tion. The state now ‘has 108
inmates under sentence of death. .

Julius, dressed in a white
sweatsuit and shower shoes, gave.
two thumbs-up signs and waved
both hands after his final words.

—T ¥ tn
Pts datheaey Ee hate eke
400 Y 4 FEDERAL REPORTER, 2d SERIES

/
\

Saal

was properly: admitted at trial. - On the
sécond appeal, the Alabama Court of Crimi-
nal Appeals reaffirmed its prior holding
that petitioner’s waiver was knowing, intel-
ligent ‘and voluntary. The court explained:
“The circumstances surrounding the peti-
* tioner’s confession indicate that he did in
fact understand and voluntarily waive
his rights.” ‘Moreover, a person function-
ing in the high mild range of mental
retardation, such as the petitioner, can
. intelligently: waiver their rights. It is
. the. opinion: of this court that petitioner
did in fact. voluntarily waive his rights
- and his confession was. properly admit-
teds: *
Dunkins v. State, 489 So.2d 603, 610 (Ala.
Crim.App.1985) (citations omitted).

both at the trial level and on direct appeal.
After reviewing the record, we believe: that
petitioner's counsel in’ the Alabama. state
court system performed admirably in for-
mulating and pursuing petitioner's. defense
strategy at trial and on. appeal. We there-
fore find that pétitioner has failed to satis-
fy both the performance and the prejudice
prongs of Strickland. v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). a at = oe

Ill.

We conclude that none of’ petitioner’s
contentions has merit. The ‘district court’s
denial of the petition for habeas corpus is
therefore ;

; ; - AFFIRMED. |

“Based on’ these facts and the totality of “
circumstances ‘surrounding’ the interroga- W
tion; see Burbine, 106 S.Ct. at 1141, we x se vent 4 Ur

agree with the courts below that despite
the ‘fact that petitioner’s IQ may have been
somewhat below normal, he understood his
Miranda ‘rights and knowingly waived
them.!? All-of the evidence supports the
state court’s findings, and petitioner has

arthur James JULIUS,
Petitioner-Appellant,

presented no new evidence of any mental : r Ve - .
impairment.'® _ W.J. JOHNSON, Warden, Holman Unit,
‘Petitioner therefore made a voluntary, Respondent-Appellee. !

knowing and intelligent waiver of his Mi-
randa rights. His subsequent confession
was properly admitted at trial.
eer tC.
[8,9] Petitioner argues ‘finally that he
was denied effective assistance of counsel

ineffective assistance of counsel. See infra Part
LE olmuer

12. .The ultimate question of the admissibility of
‘a confession is a legal issue requiring plenary
federal review. Miller v. Fenton, 474 US. 104,

..106.S.Ct. 445, 452, 88 L.Ed.2d 405 (1985); Lind-
sey v. Smith, 820 F.2d 1137, 1150 (11th Cir.

' 1987); ‘see Ballard v. Johnson, 821 F.2d 568, 571
(11th Cir.1987).

13.. Petitioner's reliance on Hines is misplaced.
In Hines,. the defendant had an IQ of 39, and
“there was extensive testimony that the defend-

ant could not have understood his Miranda

_-rights as they were read to him. See 384 So.2d
: at 1176-81. In this case, petitioner’s impair-
_-ment’is considerably. less severe, and there was
‘virtually no testimony at the coram nobis hear-

No. 86-7589.

United States Court of Appeals, |
Eleventh Circuit.

Aug. 19, 1988.

Thomas M. Goggans, Montgomery, Ala.,
for petitioner-appellant. as

ing that petitioner could not comprehend his
rights.

14. Petitioner also argues that the district court
abused its’ discretion: by failing to conduct'a
hearing on all aspects of the petition, particular-
ly on the ineffective assistance of counsel claim.
We disagree. The state court conducted an evi-
dentiary hearing, which included the ineffective
assistance claim. Petitioner identifies no partic-
ular need for another hearing except to make
sure that the district court “appreciate the mag-
nitude of the ineffective assistance issue.” This
is not enough to meet petitioner's burden of
establishing a need for an evidentiary hearing.
See Collins, 728 F.2d at 1344-46; Birt v. Mont-
gomery, 725 F.2d 587, 591 (11th Cir.) (in banc),
cert. denied, 469 U.S. 874,.105 S.Ct. 232, 83
L.Ed.2d 161 (1984).

EXECUTION ALERT

October 30, 1989 89-9
NATIONAL EXECUTION ALERT NETWORK
IS A PROJECT OF THE NATIONAL COALITION TO ABOLISH THE DEATH PENALTY
FOR MORE INFORMATION, CONTACT PAMELA RUTTER AT THE NCADP
1419 VST. NW, WASHINGTON DC 20009 (202) 797-7090

ALABAMA 17 NOVEMBER 1989 ELECTROCUTION

ARTHUR JULIUS (BLACK), age 44 has been on death row since January 1978. He was convicted
of the rape/murder of his 1/2 cousin, a black female. His cousin, the victim, Susie Bell Sanders
was strangled during a sexual assault at her home while Julius was free on an eight hour

furlough from a prison work release center. He was serving a life sentence for a 1972 murder.

This case has been one based totally on circumstantial evidence. There were never any
fingerprints found. At the time there was no evidence of body tissues or blood found on Julius.
There was a lot of emphasis placed on Julius' whereabouts during 4:00-6:30 pm the day of th
murder. He apparently had no alibi. The time of death estimated by the coroner's office is
somewhere around 5:15 pm.

TAKE ACTION, CONTACT: GO. NOR GUY HUNT
ALA®.\MA STATE HOUSE
11 SOUTH UNION ST.
MONTGOMERY , AL 36130
(205) 261-7100
FAX: (205) 240-3151

UPDATE: Alton Waye, Virginia, was executed August 30, 1989.
James E. Paster, Texas, was executed September 20, 1989.

EXECUTIONS SINCE 1977 -- 118
EXECUTI©C’'SIN1989 -14

KKKKKEKREKREKRERERRRRRERRRERERERERERRE KE EKRRKERRKRERERERERERERERRRKEERRKRKREKREREE

CLEMENCY LETTERS NEEDED!

Chuck Culhane, founder of the National Coalition to Abolish the Death Penalty FASTATHON, is
seeking letters of support for a parole hearing he is facing in the near future. Chuck has served

23 years of his sentence. Letters in your own words, supporting exec ynsideration by way
of clemency, commutation or pardon would be greatly appreciated.
Chuck during his prison term has not only been actively working «iin the NCADP but has

gained college credits, received lots of awards for poetry and drama that he has written and has
worked with prison inmates suffering from AIDS.

TAKE ACTION, SEND LETTERS OF SUPPORT TO: The Honorable Mario Cuomo
Executive Chambers
State Capitol
Albany, NY 12224

: sQiee oe:

land police captured Daniel J.
Hittle, 39, after a brief car chase
that ended in a gunfight. Police
exchanged gunfire for more than a
minute with Hittle before he ran
out of shotgun shells and surren- | §

dered, a police spokesman said. ;

- | Nati ews

MOM CHARGED: In Louisburg,
N.C., a mother was charged Thurs-
' day with stabbing to death her
three children, mutilating the bod-
ies with a steak knife and dumping
the remains, lashed together with a
. cord, on a neighbor’s doorstep. Ka-
trina McKay, 20, was taken into
custody after she burst into the
neighbor’s home, naked and inco-
herent, with self-inflicted, superfi-
cial stab wounds. Killed were
Shenika Chantel McKay, 2, Terrell
Quentin McKay, i, and Quincey

Matthew McKay, 2 months.

November 17, 1989

ALABAMA EXECUTION: A man
who raped and murdered his cous-

San Jose Mercury News @ Friday,

in while on an eight-hour pass from
A a NTL, a prison work-release center in
: . 1978 was executed in an electric
Rapist-killer executed __ peeing 7 Pagal ga
ASSOCIATED PRESS dead at 12:17 a.m. CST at Holman
Prison.
ATMORE, Ala. — A man who |
raped and murdered his cousin ‘
while on an eight-hour pass from a |
prison work-release center in 1978
paar mets Friday in Alabama’s
electric chair at Holman Prison. nee” > it et: ne
Arthur James Julius, 43, was Friday afternoon
condemned to die for raping and .
strangling 29-year-old Susie Bell NOVEMBER 17, 1989
@ | Sanders at her Montgomery home. |
; He was serving a life term for a : HOME |
1972 murder at the time. EDITION |
|

' isk TWENTY-FIVE CENTS

San Francisco Examiner

a a

eee

1540 840 FEDERAL REPORTER, 2d SERIES

during the Sentencing phase. The trial
court specifically instructed the jurors that
by their guilty verdict, they had alread
accepted these two facts as spurivating

circumstances for the penalty phase.4
ante “ue : ity phase.“ The the underlying eri
leged by the wate cone matics: ab narrowing function”), cere pew
a Pilar oe the enered Phase was U.S. 1013, 106 S.Ct 546, 88 Lee vi
. Specia. y einous atro- (19 : 7 e on . Je 5 5
cious and cruel. , 85); Wiley v. Mississippi, — U.8, —
107 S.Ct. 304, 306, 93 L.Ed.2d 278 (1986)
- ; ’ ; L.Ed.2d
as a aeemagontonds that the use of the (Marshall J. with Brennan J. yale
és dave twee aggravating circumstanc- from denial of certiorari). We are bound
mina py aealbel an ree: sen- 2 Adams to reject Julius’ argument that
on and, in fact, had the the double counti i :
off , : e ng of aggravat =
= a Figen. J death penalty manda- Stances violated his cbpditertanse ‘rights
rejected a similar ‘pk we have Turning to the charge that his cou ;
did splantae cen ne to Florida’s was ineffective, Julius argues that okey
wright, 109 F.2d ae i pried v. Wain- sion of the prior offense violated his right
denied, 464 US. 1063, 104 ir.1983), cert. to a fundamentally fair trial. We find th t
L.Ed.2d 203 (1984) Pe 2 : S.Ct. 745, 79 counsel was ineffective for not objecti :
vitiehent Sie 3 ; efendant was con- The issue had been raised in 1979 ? =e
urder. The defendant bama in Hubbard v. State, 382 So 2 os

see Collins v. Lockhart, 754 F.2d 258 261-
65 (8th Cir.) (“we see no escape from the
conclusion that an aggravating circum-
stance which merely repeats an element of

made the death ‘ F
piefersad a the automatically quent to that time and counsel should h
came. Kegsuma cae — felony murder raised the issue to lay the basis of a
vating- fantiiéeiée dics = rsa A aggra- constitutional challenge in a federal ane
during the course of the rie ora a mi hig potas courts
: : . at would h : eee
segue argument, which is the same ag ee
raised by Julius, was rejected
because the Supreme Court had upheld the However, in the interim, the issue has

F i 663 .
ral, nenane mec 86 onda eee sae Cae
Proffitt v, Wamu ie a in S.Ct. 843, 74 LEA24 646 (1964 a-Si
S.Ct. 2960, 49 L.Ed.2d 913 (1976), = Marshall had been force a Oa
Furth am court and give
tencing eroticy a that the sen- Ohio stetiits fesllcral yea eo =
termination becaune ma sarc de- gravated murder case to include on na
opportunity to present ne endant has the indictment a “specification” in which the
709 F.2d at 1447. This mi igating evidence. state could allege that the Nepondent ‘
wel hy the ith ic to deen er imal Ma Ban cowie of an “afm
Paar ‘ ; : whie i 172

Ser Woicae ba i wn raised in this case. of or eee ‘kill vr ” a mer
676 (Sth Cir.1986); Glass» Blackbur mo Rev Code Amn. § 2929.04(4)6) a5). In
F.2d 1165, 1173 (5th Cir.1986 urn, 791 the guilt/innocenee phase, the jury was
Wingo v. Blackburn te Fed - (dicta ); entitled to hear evidence of a Sell Char.
(5th Cir.1986) (“we fail rile si 1051 tion similar to the evidence under peril "

vating circumstances 1 ¢ why aggra- here. In note 6, the Court reaffi :
ing discretion ‘any saeapiiagl = _— Spencer v. Texas, 385 US. 554, 87 ‘ae
constituent element of the crime.”’), But Cem oD pe ana
4. Since Preparation of this opinion, the Su. Sa net
Sanne, na eld that unde Lousiana
, rent in some respects from the Ala-

ne overlapping does not constitute a
ns = of the Constitution. Lowenfield vy
elps, 42 Crim.L.Rep. 3029 (Jan. 13, 1988),

JULIUS v. JOHNSON 1541
- Cite as 840 F.2d 1533 (11th Cir. 1988)

violated by the introduction of his previous

professional competence, that counsel ob-

conviction in the guilt/innocence phase of ject to the introduction of the transcript.

the trial. Appellant had relied upon Spenc-
er in urging this claim. The opinion and
dissent in Spencer make clear that at the
present time the practice of using evidence
of a past conviction in the trial of Alabama:
death cases is permissible under the Consti-
tution.

[5] Marshall does support appellant’s
claim that counsel was ineffective for fail-
ing to request a cautionary instruction re-
specting the 1972 conviction. We hold that
counsel was ineffective. Justice Rehnquist
(now Chief Justice) writing for the majority
in Marshall relied on the fact that when
“evidence [of a prior conviction] was ac-
companied by instruction limiting the jury’s
use of the conviction to sentence enhance-
ment,” the defendant’s due process rights
were not violated. Consequently, the ab-
sence of an instruction may amount to a
constitutional violation.

We do not reach that question because
we fail to find that the defendant was
prejudiced in this case. Although the evi-
dence convicting Julius was all circumstan-
tial, it was overwhelming. We cannot con-
ceive that any retrial of Julius with the
cautionary instruction could reach a differ-

ent result.

[6,7] Respecting Julius’ sixth claim, we

. hold that counsel was not ineffective for
his failure to object when a transcript of

Julius’ testimony at the 1978 trial was read

into the record at the 1982 trial. Julius’

prior testimony consisted mostly of his at-
tempts to explain his whereabouts on the
day of the crime. These statements were
clearly relevant and admissible. The prose-
cutor’s fleeting reference to the facts of
the 1972 murder during the prior testimony
was not enough to mandate, as a matter of

5. Toward the end of his closing argument, de-
fense counsel stated:
And in closing, I want to thank the District
Attorney’s office in this case, because they
have made my job harder, much, much, hard-
er than it would have been had it been one of
these ranting and raving type District Attor-
neys that wants to do more hollering and
things like that than to try a lawsuit. I want

to thank them for being gentlemen, and yet

Furthermore, counsel’s failure to object
when the trial court told the jury to consid-
er the prior testimony “as if Julius was on
the stand testifying” does not constitute
ineffective assistance. The court’s re-
marks did not, as Julius suggests, draw
attention to Julius’ decision not to testify at
the second trial. Even if they did draw
attention to this fact, an objection by coun-
sel would have served only to draw addi-
tional attention to Julius’ failure to testify.
Given counsel’s strategy of objecting only
when necessary, we do not believe coun-
sel’s failure to object to the court’s re-
marks was unreasonable.

[8] Finally, counsel was not ineffective
for failing to object to Julius’ retrial under
a judicially rewritten death penalty statute.
The Supreme Court’s holding in Beck v.
Alabama did not bar the state from re-
prosecuting the defendant in that case.
See Beck v. State, 396 So.2d 645 (Ala.1980).
Cf Jordan v. Watkins, 681 F.2d 1067,
1077-80 (5th Cir.1982) (rejecting constitu-
tional challenges to retrial under Mississip-
pi’s judicially rewritten death penalty stat-
ute), clarified on reh’g sub nom. Jordan v.
Thigpen, 688 F.2d 395 (5th Cir.1982).
Counsel had no -basis to object to the re-
prosecution in this case, and therefore can-
not be faulted for his failure to object.

II. ALLEGED ERRORS OF COMMIS-
SION

[9,10] Julius contends counsel’s closing
argument during the guilt phase of the
trial was prejudicial to his defense. Specif-
ically, Julius points to counsel’s comments
praising the work of the two prosecuting
attorneys ® and counsel’s comment that he

difficult because it’s no trouble—anytime
you've got a lawyer that gets up here and goes
to hollering and stomping their feet and shak-
ing their fists, its easier to deal with them
than it is two of the finest young men that I
know of that know what they are doing and
know how to present cases and know how to
do it in a highly dignified manner. And even
though they might have worked me, they are
to be complimented for the job done, because

they have certainly made my job far more

1544 840 FEDERAL REPORTER, 2d SERIES

winnow out weaker arguments from his
appellate brief. See Smith v. Murray, 477
U.S. 527, 106 S.Ct. 2661, 2667, 91 L.Ed.2d
434 (1986); Jones v. Barnes, 463 U.S. 745,
751-52, 103 S.Ct. 3308, 3818, 77 L.Ed.2d
987 (1983). After reviewing the issues Jul-
ius claims should have been raised on di-

rect appeal, we hold that counsel's failure.

to raise these issues was not an unreason-
able tactical decision.

Julius also claims counsel should have
raised a claim under Caldwell v. Mississip-
pi, 472 U.S. 320, 105 S.Ct. 26338, 86 L.Ed.2d
231 (1985), because the prosecutor in-
formed the jury that the advisory verdict
was subject to review by the trial court.
Failure to raise this issue was not ineffec-
tive assistance, in part, because Caldwell
had not been decided at the time of Julius’
direct appeal. Moreover, we conclude that
the jury was not misled by the prosecutor’s
remarks. The jury was repeatedly made
aware of its responsibilities during the sen-
tencing phase, and we are satisfied that the
jurors understood the important role of the
advisory jury.

Finally, Julius alleges that the briefs
filed in the Alabama appellate courts con-
tained inadequate legal and factual analy-
sis of the two issues briefed. Julius claims
counsel should have argued that the trial
court’s instruction regarding lesser includ-
ed offenses violated the holding of Roberts
v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001,
49 L.Ed.2d 974 (1976). For reasons dis-
cussed in the next section, this contention
is frivolous.

IV. LESSER INCLUDED OFFENSE IN-
STRUCTIONS

During its guilt phase deliberations, the
jury requested the court to re-define the
elements of the crimes charged. In re-
sponse, the court first explained that, un-
der Alabama law, a murder is a capital
murder if the state proves one of the “ag-
gravating. factors” contained in the death
penalty statute. The court then listed the
elements of first degree murder, second

8. The instruction was correct regarding first
and second degree murder. If the jury found
the aggravating circumstance it was immaterial

degree murder (which is first degree mur-
der minus deliberateness and premedita-
tion), and manslaughter (which is second
degree murder minus malice). When ju-
rors expressed some confusion as to their
verdict options, the court attempted to ex-
plain the role of the aggravating factors (in
this case Julius’ prior conviction and life
sentence) in their deliberative process. The
court told the jury to decide initially wheth-
er the aggravating factors were present
and then to decide whether Julius was
guilty of first or-second degree murder,
manslaughter, or not guilty. Specifically,
the court told the jury:
It’s only if you don’t find any aggravat-
ing circumstances that you then have to
determine whether it’s murder in the
first degree, murder in the second de-
gree, manslaughter, or again, not guilty.
Trial Transcript Vol. II at 291. On direct
appeal, both Alabama appellate courts held
this instruction was erroneous in that it
placed a condition precedent on the jury’s
ability to find the lesser included offense of
manslaughter.’ Both courts, however, said
this error was harmless because there was
no evidence to support giving an instruc-
tion on manslaughter. The court of crimi-
nal appeals pointed out the evidence show-
ing the maliciousness of the killing and the
absence of justification. 455 So.2d at 981.
The Alabama Supreme Court relied on the
fact that Julius’ sole defense was alibi.
455 So.2d at 986.

Julius argues that the circumstances of
the crime, without any supporting testimo-
ny, could have warranted a manslaughter
verdict. He notes that the victim’s house
was found in disarray and that he received
a cut below his eye. The Alabama courts
disagreed, and held that Julius’ failure to
produce any evidence in support of a man-
slaughter verdict rendered the trial court’s
misstatement harmless.

The Alabama court’s construction of Ala-
bama law controls this issue unless that
construction offends federal constitutional
standards. See Hopper v. Evans, 456 U.S.

whether it was first or second degree murder.
In either case, there verdict would have been
that Julius was guilty of capital murder.

JULIUS v. JOHNSON 1545
Cite as 840 F.2d 1533 (11th Cir. 1988)

605, 611-612, 102 S.Ct. 2049, 2053, 72 L.Ed.
2d 367 (1982). In Hopper, the Court held
that a defendant who admits to intentional-
ly killing his victim is not entitled to a
lesser included offense instruction, the ele-
ments of which were negated by his testi-
mony. According to the Court, Beck v.
Alabama requires the giving of a lesser
included offense instruction only where
“there was evidence which, if believed,
could reasonably have led to a verdict of a
lesser offense.” Jd. at 610, 102 S.Ct. at
2052. This standard is consistent with the
Alabama Supreme Court’s holding in this
case that Julius’ failure to produce any
evidence warranting a charge of man-
slaughter in the first degree rendered the
trial court’s error harmless.

[15] Julius attempts to distinguish Hop-
per on the ground that Julius did not testi-
fy at his trial, whereas the defendant’s
testimony in Hopper negated the possibili-
ty of conviction on the lesser included of-
fense. Indeed, the Hopper court noted
that “{iJn another case with different facts,
a defendant might make a plausible claim
that he would have employed different trial
tactics—for example, that he would have
introduced certain evidence or requested
certain jury instructions, but for the [una-
vailability of a lesser included offense in-
struction].” Jd. at 613 n. **, 102 S.Ct. at
2054 n. **. Nothing in Hopper suggests,
however, that a defendant is entitled, as a
matter of federal constitutional law, to a
manslaughter charge when he has ad-
vanced no evidence in support of such a
charge. ‘“{D]ue process requires that a
lesser included offense instruction be given
only when the evidence warrants such an
instruction.” Jd. at 611, 102 S.Ct. at 2053
(emphasis in original). Julius did not
present any evidence suggesting that this
crime was a manslaughter; nor did he sug-
gest such a verdict during closing argu-
ments; nor does he now suggest how he
would have altered his defense if he had
known that the jury might consider a man-
slaughter verdict. Under these circum-
stances, we will not disturb the Alabama

9. These are: (1) prosecutorial misconduct dur-
ing closing arguments; (2) the use of the 1972

court’s conclusion that Julius was not enti-
tled to a manslaughter instruction. Since
Julius was not entitled to an instruction,
the trial court’s error in giving that instruc-
tion was harmless.

[16] Julius next contends that, if there
was no evidence suggesting a manslaugh-
ter verdict, the giving of a manslaughter
instruction violates the principles set forth
in Roberts v. Louisiana, 428 U.S. 325, 96
S.Ct. 3001, 49 L.Ed.2d 974 (1976). In Rob-
erts, the Court struck down Louisiana’s
mandatory death penalty statute. The
Court also criticized the Louisiana rule that
the jury must be instructed on all lesser
included offenses “even if there is not a
scintilla of evidence to support the lesser
verdicts.” Id. at 334, 96 S.Ct. at 3006.
Such a system “invites the jurors to dis-
regard their oaths and choose a verdict for
a lesser offense whenever they feel the
death penalty is inappropriate.” Jd. at 334,
96 S.Ct. at 3007. Although Roberts clearly
disapproved of such a statutory scheme, we
do not believe the court intended to extend
to defendants a right to challenge their
capital murder convictions on the ground
that the jury was allowed to consider too
many lesser included offenses. The jury’s
guilty verdict on the capital murder charge
renders harmless any error made in giving
the manslaughter charge.

Finally, Julius contends the challenged
instruction placed a condition precedent on
the jury’s ability to find him not guilty.
The Alabama Supreme Court found that,
although the instruction was technically in-
correct, the error was harmless because
the jury was repeatedly instructed that it
could find the defendant innocent. 455 So.
2d at 987. We are convinced, after review-
ing the remainder of the court’s instruc-
tions and the arguments of counsel, that
the jury understood that it had the option
of finding Julius not guilty even if the
aggravating circumstances were present.

V. PROCEDURAL DEFAULT

The district court concluded that Julius’
six remaining claims ® are barred from fed-

murder conviction, without a cautionary in-
struction, during the guilt phase; (3) the failure

1536 840 FEDERAL REPORTER, 2d SERIES

He was again found guilty and
ie guilty and sentenced

The evidence presented at trial indicated
that Susie Sanders was brutally raped and
murdered on January 29, 1978. Her body
was discovered in her home by her father
E.0. Sanders. Mr. Sanders testified that

_ when he and the victim’s daughter entered

the house, they saw Susie’s nude body ona
couch with her head on the floor and her
legs in the air. Trial Transcript Vol. I at
19-20. Furniture had been knocked over
and the telephone cord had been pulled
from the wall. Forensic examinations indi-
cated traces of semen in the victim’s vagi-
na, anus, and mouth. Jd. Vol. II at 205
Seminal fluid also covered the length of :
plastic banana found near the body. Id.
Vol. I at 147. Her body was covered with
bruises, abrasions, and “rub burns” indicat-
ing that she had been dragged across the
carpet. Jd. at 197-201, 208. Handfuls of
her head hair were found near the body.
Id. at 118. An autopsy revealed that the
cause of death was manual strangulation,

probably inflicted from behind. Jd. Vol. II
at 205.

The state presented circumstantial evi-
dence that this crime was committed by
Susie Sanders’ first cousin Arthur Julius
the appellant. Willie Clayton, another
cousin of Julius, checked Julius out of the
Draper Work Release Center at 11:40 a.m.
on January 29, 1978. As they drove to
Montgomery, Alabama, Julius asked Clay-
ton when he had last seen Susie Sanders.
Trial Transcript Vol. I at 49. Clayton
loaned Julius his car at 3:30 p.m. and did
not see Julius again until 6:30 p.m.

William Gray, the victim’s neighbor, tes-
tified that he saw Clayton’s car parked
outside the victim’s house at approximately
5:15 p.m. Trial Transcript Vol. I at 62.
Ruth Wheeler, the victim’s second cousin
testified that she called Susie on the tele-
phone at approximately 4:00 p.m. on Janu-
ary 29. Susie said she would have to call
Ms. Wheeler back because she was talking
to her cousin “Bobo.” Jd. Vol. II at 223.
Fanny Sanders, the victim’s mother, testi-
fied that Susie referred to her cousin Ar-
thur Julius as Bobo. Jd. Vol. I at 28.

At 6:30 p.m., Julius returned the car to
Clayton, who had been visiting his brother-
in-law, Orin Henderson. Henderson testi-
fied that Julius had a “fresh” cut under his
eye. Trial Transcript Vol. I at 57. Clayton
and Julius then drove back to the Draper
Work Release Center. After Julius was
checked in, he told Draper counselor Ever-
ett Rich that he was expecting an emergen-
cy telephone call: Jd. at 68. Later, Julius
told Rich he had received a call and learned
that his cousin had been robbed and killed.
Id. at 69. Julius said he had been at his
cousin’s house that day, but that she was
all right when he left. Jd.

Andrew Boykin, the victim’s fiance, testi-
fied that he gave Susie approximately $30
on the morning of January 28. Trial Tran-
script Vol. I at 78. Because Susie was ill
she did not leave the house all weekend.
Boykin, a bus driver, was called to work on
January 29, and his employer’s records in-
dicate he drove a bus from Montgomery to
Meridian, Mississippi and did not return
until the following morning. John Byers, a
former desk officer at Draper, testified
that Julius had a little over $30 and a
carton of cigarettes when he returned to
Draper at 7:40 p.m. on January 29. Id. at
81. According to Willie Clayton, Julius
stated at 11:40 that morning that he had
only eight cents in his pockets. Jd. at 49.

The state also relied on forensic eyi-
dence. A toxicologist testified that. hair
found in Julius’ underwear on J anuary 29
had the same characteristics as the victim’s
head hair and that the hair could not have
come from Julius. Trial Transcript Vol. I
at 151-54. The same witness testified that
various fibers found on Julius’ body and
clothing were the same as fibers found in
the victim’s house. Jd. at 175.

Finally, the state detailed inconsistencies
in Julius’ prior explanations of his activities
on January 29. When Julius returned to
Draper on January 29, he told Everett Rich
that he had been at his cousin’s house
earlier that day. In a statement made
shortly after his arrest, however, Julius
denied that he saw Susie Sanders on Janu-
ary 29. Julius said that after he borrowed
Clayton’s car at 3:00 p.m., he met a girl

—s

JULIUS v. JOHNSON 1537
Cite as 840 F.2d 1533 (11th Cir. 1988)

near his uncle’s house. After he had sex
with the girl, he said he brought her back
to where they had met. He then got some
gas for the car and went to the governor’s
mansion to see a friend who worked there.
He went back to his uncle’s house and then
went to pick up Clayton for the ride back to
Draper. Trial Transcript Vol. I at 100-01.
This statement differs somewhat from Jul-
ius’ testimony at his first trial. The tran-
script of this testimony was read into the
record at the second trial. Julius testified
that he drove to his uncle’s house at 3:30
p.m. and stayed there for approximately 30
minutes. He then left his uncle’s house
and headed for a nearby restaurant. On
the way, he said he stopped to call his aunt
(the victim’s mother) Fanny Sanders to ask
for money. She supposedly suggested that
they meet to have sex, as they allegedly
had done several times in the past, in a
nearby motel. She did not have time to go
to the motel, so they had sex in Clayton’s
car. Trial Transcript Vol. II at 246. Julius
claims Fanny Sanders scratched his eye
during their sexual encounter while at-
tempting to remove his glasses. Jd. at 252.
Julius testified that Fanny. Sanders gave
him a carton of cigarettes and $50 in cash,
some of which he spent on gasoline. Jd. at
257.

_ lard. He testified that he met Julius at the

victim’s home. Although he could not re-
call the exact nickname Susie used to de-
scribe Julius, he said “it was Jabbo, Bobo,
Lobo or something.” Jd. at 265.

The jury was persuaded by the circum-
stantial evidence and found Julius guilty

1. The Alabama death penalty statute has been
amended since Julius’ second trial. For the
sake of clarity, any refences to the statute in this
opinion are to the 1975 statute as it existed at
the time Julius was tried.

Under the statute, a murder could be pun-
ished by death only if it was accompanied by

of: (1) murder committed by a defendant
while under a sentence of life imprison-
ment, Ala.Code § 13-11-2(6); and (2) mur-
der by a defendant who has been convicted
of any other murder in the twenty years
preceding the crime, Ala.Code
§ 13-11-2(13).! The trial court, accepting
the jury’s recommendation for the death
sentence and after reviewing a presentenc-
ing report, found the following aggravat-
ing factors:
(1) The capital felony was committed by
the defendant while under a sentence of
imprisonment [Ala.Code § 18-11-6(1) J;
(2) The defendant was previously con-
victed of another felony involving the use
or threat of violence to the person [Ala.
Code § 13-11-6(2)]; and
(3) The capital felony was especially hei-
nous, atrocious, and cruel [Ala.Code
§ 13-11-€6(8) ].
The only mitigating circumstance was that
Julius was 32 years old at the time of the
crime. See Ala.Code § 13-11-7(7). The
Alabama Court of Criminal Appeals (455
So.2d 975 (1983)) and the Alabama Supreme
Court (455 So.2d 984 (1984)) affirmed.

Julius, proceeding pro se, came to the
district court seeking his release and mone-
tary damages on the ground that he was
deprived of his purported right to act as
co-counsel at trial. This claim was rejected
and we affirmed. Julius v. Johnson, 755
F.2d 1403 (11th Cir.1985). The state stipu-
lated it would not assert abuse of the writ
as a defense against a second habeas peti-
tion. Jd. at 1404.

Julius then obtained counsel and sought
collateral relief from his conviction and
sentence in a state coram nobis proceeding.
After an evidentiary hearing, the trial
court denied relief and issued a thorough
opinion. Several of Julius’ claims were re-
jected on their merits and several were
deemed to be barred by Julius’ failure to
raise them at trial or on direct appeal. On

one of the “aggravating” factors listed in Ala.
Code § 13-11-2. The state opened its case in
chief by. introducing evidence of Julius’ prior
murder conviction and the fact that Julius was
serving a life sentence when the crime was
allegedly committed. Trial Transcript, Vol. I at
9.

1542

zealously defends his clients regardless of
their character. At the state coram nobis
hearing, counsel testified that he praised
the prosecuting attorneys in order to as-
sure the jury that the trial was not a per-
sonal contest between the attorneys. The
coram nobis court noted that the prosecu-
tors were personable young lawyers and
counsel was merely attempting to neutral-
ize the effect of their personal appeal.
Coram Nobis Op. at 17. We see nothing
inappropriate in counsel’s comments and
further note that they did not prejudice
Julius’ defense. As to counsel’s comment
regarding his responsibility to defend his
clients, counsel was attempting to remind
the jury of its duty to be fair to the defend-
ant. Coram Nobis Transcript at 87. Coun-
sel testified that he was not attempting to

distance himself from his client. Jd. We

agree with the coram nobis court that coun-
sel’s comments did not prejudice Julius’
defense. Even if counsel’s arguments
were not particularly helpful, they certain-
ly were not harmful enough to undermine
our confidence in the correctness of the
jury’s verdict. ,

A. Penalty Phase

{11] Julius claims counsel failed to
present all the available mitigating evi-
dence during the sentence phase. The cor-
am nobis court made detailed factual find-
ings that counsel zealously tracked down
all leads to mitigating evidence. Counsel
simply made the informed decision that the
best way to save Julius’ life was to argue
to the jury that there was still some doubt
whether or not Julius committed the crime.
Given the brutal nature of the crime, we
conclude that such a decision was within
the range of professional competence.

they are assets to this county and assets to any
organization.

Supplemental Trial Transcript at 25.

6. During argument, counsel talked to the jury
about the day he received his license to practice
law and a promise he made to himself on that
day:

[JJust as long as I live and I walk into a
courtroom, I’m going to make myself a vow,
that I don’t care who it is, I don’t care if
they're a convict, I don’t care if they are the
biggest liar that ever walked under the sun, if
I, George Cameron, if I'm going to be thrown

840 FEDERAL REPORTER, 2d SERIES

Furthermore, we agree with the state cor-
am nobis court that the proposed testimony
of family members and friends would not
have affected the outcome. Accordingly,
Julius is not entitled to relief on this
ground.

[12] Second, Julius alleges counsel’s
closing argument was ineffective because
counsel distanced himself from his client
and because counsel failed to argue per-
suasively for Julius’ life. Specifically, Jul-
ius objects to the following comment made
by his counsel during closing argument:

May it please the Court, members of the
jury. I don’t know, to tell you the truth,
whether I am asking you to spare Arthur
Julius’ life, or whether I’m up here to
make sure that you know what you are
doing.
Supplemental Trial Transcript at 46. Jul-
ius’ argument is meritless because this
comment, in the context of the entire argu-
ment, did not prejudice his case. Counsel’s
argument was quite different from the ar-
gument we criticized in King v. Strick-
land, 714 F.2d 1481 (11th Cir.1983), vacat-
ed on other grounds, 467 U.S. 1211, 104
S.Ct. 2651, 81 L.Ed.2d 358 (1984), adhered
to on remand, 748 F.2d 1462 (11th Cir.
1984), cert. denied, 471 U.S. 1016, 105 S.Ct.
2020, 85 L.Ed.2d 301 (1985). In King,
“counsel separated himself from his client,
conveying to the jury that he had reluctant-
ly represented a defendant who had com-
mitted a reprehensible crime.” 714 F.2d at
1491. In this case, counsel in no way indi-
cated that he was being compelled to repre-
sent Julius. Moreover, counsel did not
needlessly stress the brutality of the crime
charged in the indictment. The remainder

into that courtroom with them, I’m going to
do everything that I possibly can within the
elements of my profession not to do anything
to make a shambles of the profession that has
been good to me, but at the same time, I am
going to do everything that I can for that
person. I don’t want anybody to ever back
off and say, well, that lawyer sold them down
the river; that lawyer wasn’t worth two cents; -
that lawyer just sat there; that lawyer hasn't
done his job. Not against me, I hope.
Supplemental Trial Transcript at 22-23.

JULIUS v. JOHNSON

1543

Cite as 840 F.2d 1533 (11th Cir. 1988)

of his closing argument was designed to
exploit weaknesses in the state’s proof dur-
ing the guilt phase, in an attempt to per-
suade the jury that any lingering doubts
about Julius’ guilt should result in their
vote for a life sentence. Given that the
verdict was based on circumstantial evi-
dence, and given Julius’ past problems with
the law, such a decision was not unreason-
able. We find that counsel adequately ful-
filled his role as an advocate.

[13] Julius also argues that one of
counsel’s attempts to remind the jury of its
duty during the penalty phase actually
made it more likely that the jury would
return a recommendation for the death
penalty. During his closing argument,
counsel stated:

Now, I’m not sure I’m asking for him
at all. But let me say this, please don’t
do what I call getting over buck fever.
They have an expression among deer
hunters, that they laugh at the young-
sters. They go out and the first cute,
little deer they see hopping through the
woods, they are so cute that they can’t
kill it. The next ve they go, they do
kill it. They they keep going and killing
and killing and killing because they’ve
done it one time. What I’m cautioning
this jury about is this, you were in there
six hours over that evidence. And I
don’t want to offend nobody [sic], but the
least. I can do is that in a hearing like
this, I can at least tell you—and I’m not
being critical—that that evidence was
rotten when it was weak.

Supplemental Trial Transcript at 47-48.
Julius complains that this anecdote actually
advised the jurors they should give Julius
the death penalty because, if they did not,
he would go out and kill again. Counsel
testified, however, that his intention was to
remind the jury that the guilt and sentenc-
ing phases were separate portions of the
trial, and that they should not feel com-
pelled by their verdict of guilty to return a
recommendation for the death penalty.
While counsel’s choice of anecdote might
have been ill-advised, we do not believe his
closing argument did “more harm than

7. Julius’ appellate counsel, George Cameron,

good” as did the argument in King. In
sum, Julius has failed to show that coun-
sel’s closing argument was sufficiently
unartful to undermine our confidence in
the outcome of the sentencing phase.

Finally, Julius claims counsel should
have objected to the prosecutor’s remarks
during closing argument. Again, counsel
testified that his strategy was to avoid
drawing attention to the prosecutor’s argu-
ments by objecting unless an egregious
error had been committed. We will rarely
second guess such a strategy. In any
event, we find nothing in the prosecutor’s
closing arguments so improper as to re-
quire an objection by counsel.

Ill. INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL

Julius maintains that the record before
the Alabama Courts of Appeals did not
contain a transcript of the juror selection
proceedings. He claims that appellate
counsel’s? failure to make sure that a
record of such proceedings was presented
to the Alabama courts consti‘uted ineffec-
tive assistance of appellate counsel. Since
Julius has not offered any facts that would
even suggest that the transcript might sup-
port a constitutional violation, he has failed
to prove that his attorney’s “failure” preju-
diced his defense. See Smith v. Wain-
wright, 741 F.2d 1248, 1260-61 (11th Cir.
1984), cert. denied, 470 U.S. 1088, 105 S.Ct.
1855, 85 L.Ed.2d 151 (1985).

{14] Next, Julius claims counsel should
have raised on direct appeal the issues he
raises in this petition. On direct appeal,
counsel raised two issues: (1) whether the
trial court erroneously instructed the jury
regarding the lesser included offense of
manslaughter; and (2) whether the death
sentence was unconstitutionally imposed
where the same aggravating factors used
during the guilt phase were used during
the sentencing phase of the trial. The cor-
am nobis court found that counsel made a
tactical decision to limit his.appellate brief
to what he believed were his two strongest
issues. Counsel is, of course, permitted to

was also his trial counsel.

JULIUS v. JOHNSON

1541

Cite as 840 F.2d 1533 (11th Cir. 1988)

violated by the introduction of his previous
conviction in the guilt/innocence phase of
the trial. Appellant had relied upon Spenc-
er in urging this claim. The opinion and
dissent in Spencer make clear that at the
present time the practice of using evidence
of a past conviction in the trial of Alabama
death cases is permissible under the Consti-
tution.

[6,7] Respecting Julius’ sixth claim, we
- hold that counsel was not ineffective for

his failure to object when a transcript of

Julius’ testimony at the 1978 trial was read
into the record at the 1982 trial. Julius’
prior testimony consisted mostly of his at-
tempts to explain his whereabouts on the
day of the crime. These statements were
clearly relevant and admissible. The prose-
cutor’s fleeting reference to the facts of
the 1972 murder during the prior testimony
was not enough to mandate, as a matter of

5. Toward the end of his closing argument, de-
fense counsel stated: _
And in closing, I want to thank the District
Attorney's office in this case, because they
have made my job harder, much, much, hard-
er than it would have been had it been one of
these ranting and raving type District Attor-
neys that wants to do more hollering and
things like that than to try a lawsuit. I want
to thank them for being gentlemen, and yet
they have certainly made my job far more

professional competence, that counsel ob-
ject to the introduction of the transcript.
Furthermore, counsel’s failure to object
when the trial court told the jury to consid-
er the prior testimony “as if Julius was on
the stand testifying” does not constitute
ineffective assistance. The court’s re-
marks did not, as Julius suggests, draw
attention to Julius’ decision not to testify at
the second trial. Even if they did draw
attention to this fact, an objection by coun-
sel would have served only to draw addi-
tional attention to Julius’ failure to testify.
Given counsel’s strategy of objecting only -
when necessary, we do not believe coun-
sel’s failure to object to the court’s re-
marks was unreasonable.

[8] Finally, counsel was not ineffective
for failing to object to Julius’ retrial under
a judicially rewritten death penalty statute.
The Supreme Court’s holding in Beck v.
Alabama did not bar the state from re-
prosecuting the defendant in that case.
See Beck v. State, 396 So.2d 645 (Ala.1980).
Cf. Jordan v. Watkins, 681 F.2d 1067,
1077-80 (5th Cir.1982) (rejecting constitu-
tional challenges to retrial under Mississip-
pi’s judicially rewritten death penalty stat-
ute), clarified on reh’g sub nom. Jordan v.
Thigpen, 688 F.2d 395 (5th Cir.1982).
Counsel had no basis to object to the re-
prosecution in this case, and therefore can-
not be faulted for his failure to object.

Il. ALLEGED ERRORS
SION

OF COMMIS-

1540

during the sentencing phase. The trial
court specifically instructed the jurors that
by their guilty verdict, they had already
accepted these two facts as aggravating
circumstances for the penalty phase.! The
only other aggravating circumstance al-
leged by the state in the penalty phase was
that the crime was especially heinous, atro-
cious and cruel.

[4] Julius contends that the use of the
two overlapping aggravating circumstanc-
es deprived him of an individualized sen-
tencing determination and, in fact, had the
effect of making the death penalty manda-
tory in this case. We disagree. We have
rejected a similar challenge to Florida’s
death penalty statute. In Adams v. Wain-
wright, 709 F.2d 1443 (11th Cir.1983), cert.
denied, 464 U.S. 1063, 104 S.Ct. 745, 79
L.Ed.2d 203 (1984), the defendant was con-
victed of felony murder. The defendant
argued that “Florida has impermissibly
made the death penalty the ‘automatically
preferred sentence’ in any felony murder
case because one of the statutory aggra-
vating factors is the murder taking place
during the course of the felony.” Jd. at
1447. This argument, which is the same
argument raised by Julius, was rejected
because the Supreme Court had upheld the
Florida statute, “including necessarily the
use of this statutory aggravating factor” in
Proffitt v. Wainwright, 428 U.S. 242, 96
S.Ct. 2960, 49 L.Ed.2d 913 (1976).

Furthermore, we indicated that the sen-
tencing phase remains an individualized de-
termination because the defendant has the
opportunity to present mitigating evidence.
709 F.2d at 1447. This argument has been
used by the Fifth Circuit to defeat chal-
lenges similar to the one raised in this case.
See Welcome v. Blackburn, 793 F.2d 672,
676 (5th Cir.1986); Glass v. Blackburn, 791
F.2d 1165, 1173 (5th Cir.1986) (dicta);
Wingo v. Blackburn, 783 F.2d 1046, 1051
(5th Cir.1986) (“we fail to see why aggra-
vating circumstances narrow the sentenc-
ing discretion any less by being made a
constituent element of the crime.”). But

4. Since preparation of this opinion, the Su-
preme Court has held that under a Louisiana
statute, different in some respects from the Ala-

840 FEDERAL REPORTER, 2d SERIES

see Collins v. Lockhart, 754 F.2d 258, 261-
65 (8th Cir.) (“we see no escape from the
conclusion that an aggravating circum-
stance which merely repeats an element of
the underlying crime cannot perform [the]
narrowing function’), cert. denied, 474
U.S. 1018, 106 S.Ct. 546, 88 L.Ed.2d 475
(1985); Wiley v. Mississippi, —- U.S. —,
107 S.Ct. 304, 306, 93 L.Ed.2d 278 (1986)
(Marshall J. with Brennan J. dissenting
from denial of certiorari). We are bound
by Adams to reject Julius’ argument that
the double counting of aggravating circum-
stances violated his constitutional rights.

Turning to the charge that his counsel
was ineffective, Julius argues that admis-
sion of the prior offense violated his. right
to a fundamentally fair trial. We find that
counsel was ineffective for not objecting.
The issue had been raised in 1979 in Ala-
bama in Hubbard v. State, 382 So.2d 577
(Ala.Cr.App.). Julius was retried subse-
quent to that time and counsel should have
raised the issue to lay the basis of a later
constitutional challenge in a federal pro-
ceeding, assuming that the Alabama courts
would have adhered to their position in
Hubbard.

However, in the interim, the issue has
been put to rest by the Supreme Court in
Marshall v. Lonberger, 459 U.S. 422, 103
S.Ct. 848, 74 L.Ed.2d 646 (1983). There,
Marshall had been convicted by an Ohio
court and given the death penalty. The
Ohio statute permitted the state in an ag-
gravated murder case to include in the
indictment a “specification” in which the
state could allege that the respondent pre-
viously had been convicted of an ‘offense
of which the gist was the purposeful killing
of or attempt to kill another.” See Ohio
Rev.Code Ann. § 2929.04(A)(5) (1975). In
the guilt/innocence phase, the jury was
entitled to hear evidence of a past convic-
tion similar to the evidence under attack
here. In note 6, the Court reaffirmed
Spencer v. Texas, 385 U.S. 554, 87 S.Ct.
648, 17 L.Ed.2d 606 (1967), holding that the
defendant’s due process rights were not

bama statute, overlapping does not constitute a
violation of the Constitution. Lowenfield v.

Phelps, 42 Crim.L.Rep. 3029 (Jan. 13, 1988).

1542

further note that they did not prejudice ©

Julius’ defense. As to counsel’s comment
regarding his responsibility to defend his
clients, counsel was attempting to remind
the jury of its duty to be fair to the defend-
ant. Coram Nobis Transcript at 87. Coun-
sel testified that he was not attempting to

distance himself from his client. Jd. We

A. Penalty Phase

[11] Julius claims counsel failed to
present all the available mitigating evi-
dence during the sentence phase. The cor-
am nobis court made detailed factual find-
ings that counsel zealously tracked down
all leads to mitigating evidence. Counsel
simply made the informed decision that the
best way to save Julius’ life was to argue
to the jury that there was still some doubt
whether or not Julius committed the crime.
Given the brutal nature of the crime, we
conclude that such a decision was within
the range of professional competence.

they are assets to this county and assets to any
organization.
Supplemental Trial Transcript at 25.

6. During argument, counsel talked to the jury
about the day he received his license to practice
law and a promise he made to himself on that
day:

[Jjust as long as I live and I walk into a
courtroom, I’m going to make myself a vow,
that I don’t care who it is, I don’t care if
they're a convict, I don’t care if they are the
biggest liar that ever walked under the sun, if
I, George Cameron, if I’m going to be thrown

840 FEDERAL REPORTER, 2d SERIES

ground.

Supplemental Trial Transcript at 46. Jul-
ius’ argument is meritless because this
comment, in the context of the entire argu-
ment, did not prejudice his case. Counsel’s
argument was quite different from the ar-
gument we criticized in King v. Strick-
land, 714 F.2d 1481 (11th Cir.1983), vacat-
ed on other grounds, 467 U.S. 1211, 104
S.Ct. 2651, 81 L.Ed.2d 358 (1984), adhered
to on remand, 748 F.2d 1462 (11th Cir.
1984), cert. denied, 471 U.S. 1016, 105 S.Ct.
2020, 85 L.Ed.2d 301 (1985). In King,
“counsel separated himself from his client,
conveying to the jury that he had reluctant-
ly represented a defendant who had com-
mitted a reprehensible crime.” 714 F.2d at
1491. In this case, counsel in no way indi-
cated that he was being compelled to repre-
sent Julius. Moreover, counsel did not
needlessly stress the brutality of the crime
charged in the indictment. The remainder

into that courtroom with them, I'm going to
do everything that I possibly can within the
elements of my profession not to do anything
to make a shambles of the profession that has
been good to me, but at the same time, I am
going to do everything that I can for that
person. I don’t want anybody to ever back
off and say, well, that lawyer sold them down
the river; that lawyer wasn’t worth two cents;
that lawyer just sat there; that lawyer hasn't
done his job. Not against me, I hope.
Supplemental Trial Transcript at 22-23.

JULIUS v. JOHNSON

1543

Cite as 840 F.2d 1533 (11th Cir. 1988)

Now, I’m not sure I’m asking for him
at all. But let me say this, please don’t
do what I call getting over buck fever.
They have an expression among deer
hunters, that they laugh at the young-
sters. They go out and the first cute,
little deer they see hopping through the
woods, they are so cute that they can’t
kill it. The next time they go, they do
kill it. They they keep going and killing
and killing and killing because they’ve
done it one time. What I’m cautioning
this jury about is this, you were in there
six hours over that evidence. And I
don’t want to offend nobody [sic], but the
least I can do is that in a hearing like
this, I can at least tell you—and I’m not
being critical—that that evidence was
rotten when it was weak.

7. Julius’ appellate counsel, George Cameron,

good” as did the argument in King. In
sum, Julius has failed to show that coun-
sel’s closing argument was _ sufficiently
unartful to undermine our confidence in
the outcome of the sentencing phase.

Ill. INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL

Julius maintains that the record before
the Alabama Courts of Appeals did not
contain a transcript of the juror selection
proceedings. He claims that appellate
counsel’s? failure to make sure that a
record of such proceedings was presented
to the Alabama courts constituted ineffec-
tive assistance of appellate counsel. Since
Julius has not offered any facts that would
even suggest that the transcript might sup-
port a constitutional violation, he has failed
to prove that his attorney’s “failure” preju-
diced his defense. See Smith v. Wain-
wright, 741 F.2d 1248, 1260-61 (11th Cir.
1984), cert. denied, 470 U.S. 1088, 105 S.Ct.
1855, 85 L.Ed.2d 151 (1985).

{14] Next, Julius claims counsel should
have raised on direct appeal the issues he
raises in this petition. On direct appeal,
counsel raised two issues: (1) whether the
trial court erroneously instructed the jury
regarding the lesser included offense of
manslaughter; and (2) whether the death
sentence was unconstitutionally imposed
where the same aggravating factors used
during the guilt phase were used during
the sentencing phase of the trial. The cor-
am nobis court found that counsel made a
tactical decision to limit his appellate brief
to what he believed were his two strongest
issues. Counsel is, of course, permitted to

was also his trial counsel.

1534

effective assistance of counsel during his
state murder prosecution.

Affirmed.

1. Criminal Law ¢>641.13(2)

Counsel’s failure to object to prosecu-
tor’s comments during closing argument
was deliberate tactical choice and did not
rise to level of ineffective assistance of
counsel; decision not to object was based
on belief that argument merely focuses
jury’s attention on damaging remarks, and
none of remarks were overwhelmingly prej-
udicial or persuasive. U.S.C.A. Const.
Amend. 6.

2. Criminal Law ¢641.13(6)

Trial counsel’s failure to object to use
of word “murder” by prosecutor and wit-
ness during trial did not constitute ineffec-
tive assistance of counsel, where sole de-
fense at trial was that defendant did not
commit crime, not that defendant commit-
ted crime but crime was something other
than murder. U.S.C.A. Const.Amend. 6.

3. Criminal Law ¢>641.13(2)

Trial counsel’s failure to assert defend-
ant’s request to act as cocounsel more
forcefully did net constitute ineffective as-
sistance; defendant did not have either fed-
eral or state protected right to act as co-
counsel in criminal trial. U.S.C.A. Const.
Amend. 6.

4. Homicide 354

State’s use of prior conviction in guilt-
innocence phase and again as aggravating
circumstance in sentencing phase of de-
fendant’s murder prosecution did not de-
prive defendant. of individualized sentenc-
ing determination or have effect of making
death penalty mandatory, where defendant
had opportunity to present mitigating evi-
dence.

5. Criminal Law ¢>641.13(2).

Defense counsel was ineffective for
failing to request cautionary instruction re-
specting defendant’s prior murder convic-
tion; however, defendant was not preju-
diced, where evidence convicting defendant
was overwhelming. U.S.C.A. Const.
Amend. 6.

840 FEDERAL REPORTER, 2d SERIES

6. Criminal Law ¢539(2)

of crime.

7. Criminal Law ¢641.13(2)

Defense counsel’s failure to object +
when trial court told jury to consider de ;
fendant’s prior testimony as if defendant 3
was on stand testifying did not constitute ;
ineffective assistance of counsel; court’s 4
remarks did not draw attention to defend- -
ant’s decision not to testify at second trial, -
and even if they did draw attention to fact, :
objection by counsel would have served 3
only to draw additional attention to defend- . #

ant’s failure to testify. U.S.C.A. ie
Amend. 6.

8. Courts €>100(1) 3
Retrial under judicially rewritten death 4
penalty statute did not violate defendant's, 4

constitutional rights.
9. Criminal Law ¢641.13(2)

Defense counsel’s closing arguments :
praising work of prosecuting attorneys did.
not’ constitute ineffective assistance ‘of -

counsel; counsel praised attorneys to as-

sure jury that trial was not personal con-' - ‘
test between attorneys, and prosecutors]
‘were personable young lawyers and coun- |
sel was merely attempting to neutralize ..

effect of their. personal appeal.
10. Criminal Law ¢641.13(2)

Trial counsel’s statement that he zeal‘

ously defended clients regardless of their

character did not constitute ineffective as-. 4
sistance of counsel; counsel was attempt- ;
ing to remind jury of its duty to be fair to

defendant and not to distance himself from
his client. U.S.C.A. Const.Amend. 6.

11. Criminal Law ¢641.13(7)

Trial counsel’s alleged failure to
present all available mitigating evidence
during sentencing phase did not constitute

ineffective assistance of counsel; counsel
made informed decision that best way to
save defendant’s life was to argue to jury

that there still was some doubt whether -

Defendant's testimony at his eat 4
murder prosecution was admissible at re’
trial; prior testimony consisted mostly. of 3
attempts to explain his whereabouts on. n das

Fee lenko in “buck fever,”
referring to a novice hunter’s inability to
+. ‘kill first deer; but once being able to kill
t+. and to kill again, did not constitute ineffec-

' JULIUS v. JOHNSON
@ Cite as 840 F.2d 1533 (11th Cir. 1988)
fe defendant committed crime.

mee Const.Amend. 6.

hie

12. Criminal Law 641. 13(7)
‘Defense counsel’s comment odatue

dosing argument of penalty phase of mur-

der prosecution that he did” not know
whether he * ‘was asking’ jury ‘to spare’ “‘de-
fendant’s life, or whether he was trying to
make sure that jury knew what it was
doing, ‘did not constitute ineffective assist:

*- ance of counsel; remainder of closing argu-

ment was designed to exploit weaknesses
in state’s proof during guilt phase, in at-

~ tempt to persuade jury that any lingering
-. @oubts of guilt should result in their vote

. for life sentence rather than death penalty.
| US.C.A. Const.Amend. 6.

3B Criminal Law €=641.13(2)

Defense counsel's closing © ‘argument
an expression

tive assistance of counsel, despite defend-

-ant’s contention that reference actually ad-
vised jurors that they should } ‘give defend-

ant death penalty because if he would go
out and kill again; counsel’s intention was

i: to remind jury that guilt and sentencing

phases were separate portions of trial, and
that they should not feel compelled by their

verdict of guilty to return a recommenda-

tion of death. U.S.C.A. Const. pret 6.

14. Criminal Law ¢>641.13(7)

Appellate counsel’s decision to ‘winnow
out weaker arguments from appellate brief

+ . does not constitute ineffective assistance of

counsel. U.S.C.A. Const.Amend. 6.

15. Homicide @309(3, 6) _

.. Defendant, who did not present any
evidence suggesting that crime. was man-

' slaughter, did not suggest such verdict dur-
. ing closing argument, and did not suggest

how he would have altered his defense if he
had: known that jury might consider man-
slaughter verdict, was not entitled to man-
slaughter instruction in capital murder
prosecution.

16. Homicide ¢>340(4) :-'
Guilty verdict on capital ‘murde:

1535

charge rendered harmless ‘any: error in giv ‘

ing manslaughter: charge: «:
17. ‘Habeas Corpus e465, 31. 30)

shes gt

ie Mere existence of plain error rule does

not preclude finding procedural default pre
cluding federal habeas Pars: review. 2
US.C.A. §. 2254.

18. Habeas Corpus @45, 3(4)
Assertion by Alabama’court that it dic
not find any errors on its’ ‘independent re
view of record did not constitute ruling or
merits of claims not raised SO as to allow
federal habeas review of issues.

Thomas: M. Goggais Montgomery, ole
for petitionei-appellant.

_ Charles. Graddick, Atty. "Gen. of Ala.
bama, John Gibbs, Ed Carnes, Asst. Attys
Gen., Montgomery, Ala, for respondentap
pelle.

Appeal a the United States District
Court for the Middle District of Alabama

- Before VANCE, -HATCHETT and
CLARK, Circuit Judges. -

PER CURIAM:

Arthur James Julius appeals from the
district court order denying his petition fo
a writ of habeas corpus. We affirm.

Julius pled guilty to a murder charge i in
1972 and was sentenced to life imprison:
ment. ‘In 1978, while on a Y one-day release
from prison, Julius allegedly raped anc
murdered his cousin Susie Sanders. He
was tried, found guilty, and sentenced tc
death. -His conviction was reversed, see
407 So.2d 152 (Ala.1981), pursuant to the
United States Supreme Court’s ruling that
Alabama’s death penalty statute was un
constitutional. « Beck v. Alabama, 447 U.S
625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)
After Beck, the Alabama Supreme Court
severed the unconstitutional portion of the
statute. Beck v. State, 396 So.2d 645 (Ala
1980). Julius was then retried for the 197!
murder under the modified statute in 1982

1548

the customs’ ruling would have no remedy.
Tariff Act of 1930, § 516, as amended, 19
U.S.C.A. § 1516; Tariff Schedules, GSP
Item 901.50.

6. Evidence <—48

Court would take judicial notice that
the practice of limiting retroactive effect of
changed customs rulings is very old in the
history of the United States revenue servic-
es and is at least respectable.

7. Customs Duties <-82

Filing and denial of protest as prereq-
uisites to commencement of civil action
challenging customs determination applies
to jurisdictional statute governing the
Court of International Trade. 28 U.S.C.A.
§ 1581.

8. Courts <96(1)

Court of International Trade decisions
are not binding on the Court of Appeals for
the Federal Circuit.

9. Customs Duties <—82

Failure to file protest to customs rul-
ing precluded Court of International Trade
from exercising jurisdiction over challenge
to the ruling. Tariff Act of 1930, § 516, as
amended, 19 U.S.C.A. § 1516; 28 U.S.C.A.

§ 1581(b).

10. Customs Duties <84(1)

Administrative Procedure Act does not
grant Court of International Trade jurisdic-
tion to review actions of customs service.
5 U.S.C.A. § 701 et seq.

11. Customs Duties <=84(9) |

Importation and dissemination of etha-
nol shipments pursuant to ruling from cus-
toms that they could enter at a rate below
60¢ per gallon because of reliance on prior
customs rulings anticipated a liquidation by
customs which was subject to 90-day time
period for finalization. Tariff Act of 1930,
§ 514, as amended, 19 U.S.C.A. § 1514;
Tariff Schedules, GSP Item 901.50.

Stephen L. Urbanczyk, of Williams &

Connolly, Washington, D.C., argued, for

appellee National. With him on the brief,
were Aubrey M. Daniel, III, Manley W.

840 FEDERAL REPORTER, 2d SERIES

Roberts, Robert W. Hamilton, and William
R. Murray, Jr.

David M. Cohen, Director, of the Com-
mercial Litigation Branch, Dept. of Justice,
New York City, argued, for defendant-ap-
pellant Baker. With him on the brief, were
Richard K. Willard, Asst. Atty. Gen., Jo-
seph I. Liebman, Attorney-in-Charge, In-
tern. Trade Field Office and Kenneth N.
Wolf.

A. Douglas Melamed, of Wilmer, Cutler
& Pickering, Washington, D.C., argued, for
defendant-appellant Citicorp. With him on
the brief, were Robert C. Cassidy, Jr. and
Deborah M. Levy.

Joseph A. Artabane, of Spriggs, Bode &
Hollingsworth, Washington, D.C., argued,
for defendant-appellant RAJ. With him on
the brief, were William H. Bode, Mark J.
Riedy and Joseph L. Nellis.

Robert J. Leo, New York City, was on
the brief, for amicus curiae, American
Ass’n of Exporters and Importers.

William F. Demarest, Jr., J. Peter
Luedtke, and Thomas C. Jones, Jr., of Hol-
land & Hart, Washington, D.C., were on
the brief, for amicus curiae Citgo Petrole-
um Corp.

Before BISSELL and MAYER,
Circuit Judges, and NICHOLS, Senior
Circuit Judge.

NICHOLS, Senior Circuit Judge.

Secretary of the Treasury James Baker
(in his official capacity on behalf of the
United States), Citicorp International Co.,
Inc. (Citicorp), and RAJ Chemicals, Inc.
(RAJ) appeal the decision of the Court of
International Trade, No. 85-08-01151, 9
CIT 571, 623 F.Supp. 1262 (1985), arguing
that the trial court lacked jurisdiction.
Upon examination of the complete record
and decisions below, this court holds that
the Court of International Trade indeed
lacked jurisdiction to entertain the suit.
We reverse and remand with instructions
to dismiss the _ plaintiffs-cross-appel-
lants/appellees’ suit with prejudice.

an |

e «

1532 840 FEDERAL REPORTER, 2d SERIES ' rots Wi seinen } ae
. Cite as 840 F.2d 1533 (11th Cir. 1988)

B2d 239, 242 (1986); Roberts v. Saylor, tance of Morris and Ula McKibben retained
ti ein 289, 687 P.2d 1175, 1179'(1981). to draft Ula’s will. On appeal, Fred
a Tit below found thet MeKib- McKibben cites no evidence to indicate that
nt led to ese the Heat thresh od re, Chubb conspired with Morris to cause Ula

lows the personal representative to recover claim of civil conspiracy. McKibben fai ite ement against either Chubb or Merrill cosmid Gent. oF. eee = bb, as ry:
damages accrued by the injured party be- to offer evidence to establish essential ell gach; their conduct was not extreme or ’s only response is that Chubb, as an

tween the date of injury and death for the ments of both claims. ‘TTjhe plain - ri i aera We agree. According to the “experienced attorney” “must have been

¥ - . of the scheme, B: Appell
benefit of the deceased’s estate.’ Mason guage of Rule 56(c) mandates the entry‘¢ pane Supreme Court, outrageous con- af 11-12. ney si sa et ee “! hay

». Gerin Corp., 231 Kan. 718, 647 P.2d summary judgment, after adequate tint FR ieroy 5: :

1340, 1348 sly McKibben is not the for discovery and upon motion, A nay be found only in those cases where will on saree Chubb 8 motion for summa:

administrator of his brother’s estate and Party who fails to make a showing s p oonduct has been so outrageous in “Y 0°8M ,

cannot sue in that capacity. Instead, he cient. to establish the existence of an | ieeracter, and so extreme in degree, ‘as The district court's decision is AF.
, amp.go beyond the bounds of decency, and FIRMED.

lies on Brothers v. Adams, 152 Kan. 675, set covet tas Sars es pip. z9 beyc
i age akg eis chin the K a ‘it which that party will bear the burden: ¢ aye be regarded as atrocious and utterly

the claim for fraudulent transfer of stock. V. a
This claim is brought as a survival action —_[g] The district court granted summary
and Merrill Lynch argues that McKibben judgment for Chubb and Merrill Lynch ea
has no standing to bring such a claim. McKibben’s claim for intentional ‘inflicticl
Under Kansas law, “{a] survival action al- of emotional distress and for Chubb on ti

allowed the decedent’s husband to maintain Prt ee ios tes See ae : eee ee eh ® civilized society.” 3. 6 Eran yan
an action to bring property back into dece- 2552-63; § srts, 637: P.2d at 1179. In this case, I ee
L.Ed.2d 265 (1986). When the party meq it‘ drafted a will and Merrill Lynch

dent’s estate even ‘though he was not ing for s judgment makes a show afer ‘dob purbicaat to's tettae-ap-

named executor in his wife’s will. In lan- ing that there is no evidence to establish.9 Fenty iene’ by the Genet, No Yawn:

gongs, Cinta applicable to Fred essential element of the claim, the burdg Ms fact finder could find this conduct to

McKibben’s claim, the Kansas court stated: then shifts to the party opposing the . ; B extreme or outrageous and Fred MéKib- i. ’ Arthur Ja ames ‘JULIUS,
“Certainly the heir at law is not to be left tion. That party must respond with ey } attempts to’ link these actions of — ' Petitioner-Appellant,
without a remedy just because the per- dence or citations to the record that dispy Mb ‘and “Merrill Lynch to the death of .

son who should on account of his position the motion for summary judgment. /d. 19
as executor bring the action is the same S.Ct. at 2557 (Grennan, J. dissenting).
‘person who should be sued.... [Heirs Note, The Movant's Burden in a Moty

& McKibben are unavailing. W.J. JOHNSON, Wardén, Holman Unit,-

; ie) aoe necessary elements for a civil Respondent-Appellee.
peri y claim in Kansas are: ‘“(1) two or vets

at law, next of kin and legateeg are al- a cemney Judgment, 1987 persons; ss ci Gh che No. 86-7589..

cee marae i — = oe ma j : me sm a ; (8) a meeting of the minds in the United States Court of Appeals, — :
own names when the Soe eae ea tac We ae es claims in i or course.of action; (4) one or more =~ ~° ‘Eleventh Cireuit. eee
... interests are.antagonistic to those o . wson v. Associates F lawful overt acts; and (5) damages as "

the heirs, where he is guilty of fraud or cial Serv. Co., 215 Kan. $14, 529 P.2d ce proximate . cause thereof. ” Stoldt v. ane MRS ees 9, 1988.

collusion with the party to be sued or 109 (1974), the a phi Court re Bh iy of Toronto, 234 Kan. 957, 678 P.2d
. . “a ognized. an action for tio: distress a4
where he is unwilling or refuses to act. ‘ a the F 4 B.361. (1984) (citation. omitted). State prisoner, who was tried, found

Id. 107 P.2d at 764-65. However, McKib- 7,4, § 46(1) (1963): “One who by extres fene district court found no meeting of guilty, and sentenced to death, for rape and
ben overlooks one critical fact that distin- and outrageous conduct intentionally ‘ ‘4 fe-minds between Chubb and Morris as to murder of his cousin, filed petition for fed-
guishes the claim in Brothers. Under the recklessly causes severe emotional dis til 7 course of | action, no wrongful act by eral habeas corpus. relief. The United:
terms of his wife’s will, Brothers was enti- to another is subject to liability for Sieg

| Db. and no proximate cause linking. States District Court for the Middle Dis-
tled to one-half of all his wife’s property. emotional distress.” Bi s ib to Ula’s death. The first finding i is trict of Alabama, No. 85-H-1042-N, Tru-
Id. at 764. Thus, he would share in any Poe 5 i ‘ive. “There is absolutely no evi- man'M. Hobbs, Chief Judge, denied peti-
property returned to the estate. In cor- has two th cid clement ht mat =i z q ‘in the record to suggest that Chubb tion, and appeal was taken.’ The Court of
trast, Fred McKibben’s bequest under his he determined by.the evurt:. (1) 1 # anything more than a casual acquain- Appeals held: that petitioner pon not denied

brother’s will is limited to specific savings the defendant’s conduct may reason It elso appears from the record that the 233 Kan. 267, 662 P.2d 1214 (1983) (defendants
bonds. He has no general interest in the regsrded as so extreme and outrageous’ Welaintiff failed to meet the second threshold incorrectly told plaintiffs that their daughter
estate. As we have said before, even if the to permit recovery; and (2) whether § tbe fguirement—severe emotional distress caused had died); Hanrahan v. Horn, 232 Kan. 531,657

: wy defendant's conduct—but there is no reason P.2d 561 nae
stock is returned to the estate, it belongs to emotional distress suffered by the pl _P.2d 561 (1983) (defendant told class that plain

‘ ty — that question here. tiff was a suspect in the disappearance and
Morris. Under these facts, McKibben has_ is in such extreme degree that no rea FP brief review of some cases where the Kan. - ™urder of his son); Roberts, 637 P:2d 1175

no standing to bring this claim against able person should be expected to ¢ rf Foe have refused, as a matter of law, to nme focangos! made a armen
= 12 4 # outrageous conduct demonstrates the diffi- plaintiff patient prior to surgery); Wiehe v. Ku-
Merrill Lynch. it. Burgess v. Perdue, 239 Kan. 18,4 yin pectin this standard. See Burgess, 721, Ral, 225 Kan. 478, 592 P.2d 860 (1979) (defend-
12. The district court granted summary judg- collateral estoppel. We prefer to dispice i 239 (after plaintiff's son died, defendant ant threatened plaintiff's husband with pitch-
ment for Merrill Lynch based on a theory of claim on the question of standing. _,,.4| betor informed her that he had the son's fork).
. ia 7 Hoard v. Shawnee Mission Medical Ctr.,

1536

He was again found guilty and sentenced
to death. .

The evidence presented at trial indicated
that Susie Sanders was brutally raped and
murdered on January 29, 1978. Her body
was discovered in her home by her father,
E.0. Sanders. Mr. Sanders testified that

_ when he and the victim’s daughter entered
the house, they saw Susie’s nude body on a
couch with her head on the floor and her
legs in the air. Trial Transcript Vol. I at
19-20. Furniture had been knocked over
and the telephone cord had been pulled
from the wall. Forensic examinations indi-
cated traces of semen in the victim's vagi-
na, anus, and mouth. Jd. Vol. II at 205.
Seminal fluid also covered the length of a
plastic banana found near the body. Jd.
Vol. I at 147. Her body was covered with
bruises, abrasions, and “rub burns” indicat-
ing that she had been dragged across the
carpet. /d. at 197-201, 208. Handfuls of
her head hair were found near the body.
Id. at 118. An autopsy revealed that the
cause of death was manual strangulation,

probably inflicted from behind. Id. Vol. TI
at 205.

The state presented circumstantial evi-
dence that this crime was committed by
Susie Sanders’ first. cousin ‘Arthur Julius,
the appellant. Willie Clayton, another
cousin of Julius, checked Julius out of the
Draper Work Release Center at 11:40 a.m.
on January 29, 1978. As they drove to
Montgomery, Alabama, Julius asked Clay-
ton when he had last seen Susie Sanders.
Trial Transcript Vol. I at 49. Clayton
loaned Julius his car at 3:30 p.m. and did.
not see Julius again until 6:30 p.m.

William Gray, the victim’s neighbor, tes-
tified that he saw Clayton’s car parked
outside the victim’s house at approximately
5:15 p.m. Trial Transcript Vol. I at 62.
Ruth Wheeler, the victim’s second cousin,
testified that she called Susie on the tele-
phone at approximately 4:00 p.m. on Janu-
ary 29. Susie said she would have to call
Ms. Wheeler back because she was talking
to her cousin “Bobo.” Id. Vol. II at 223.
Fanny Sanders, the victim’s mother, testi-
fied that Susie referred to her cousin Ar-
thur Julius as Bobo. Id. Vol. I at 28.

840 FEDERAL REPORTER, 2d SERIES

-At 6:30 p.m., Julius returned the car te:4
Clayton, who had been visiting his brother;
in-law, Orin Henderson. Henderson testi-.;
fied that Julius had a “fresh” cut under his.
eye.. Trial Transcript Vol. I at 57. Clayton"
and Julius then drove back to the Draper ”
Work Release Center. After Julius wag
checked in, he told Draper counselor Ever:
ett Rich that he was expecting an emergen- 4
cy telephone call. Id. at 68. Later, Julius.’
told Rich he had received a call and learned
that his cousin had been robbed and killed:
Id, at 69. Julius said he had been at his. 4
that day, but that she was. |

cousin’s house
all right when he left. Id.

Andrew Boykin, the victim’s fiance, testi:
fied that he gave Susie approximately $30.
on the morning of January 28. Trial Tran: ‘4

. Script Vol. I at 73. Because Susie was ill, *3
she did not leave the house al} weekend. *
Boykin, a bus driver, was called to work on «.
January 29, and his employer’s records in- '
dicate he drove a bus from Montgomery to.‘
Meridian, Mississippi and did not return <:
until the following morning. John Byers,.a .-
former desk officer at Draper, testified ;
that Julius had a little over $30 and a :
carton of cigarettes when he returned to ;
Draper at 7:40 p.m. on January 29. Id. at ©
81. According to Willie Clayton, Julius |

stated at 11:40 that morning that he had

only eight cents in his pockets. Jd. at 49, . ;

The state also relied on forensic evi- 4
dence. A toxicologist testified that. hair : 3
found in Julius’ underwear on January 29 -

had the same characteristics as the victim’s
head hair and that the hair could not have
come from Julius. Trial Transcript Vol. I

at 151-54. The same witness testified that .

various fibers found on Julius’ body and
clothing were the same as fibers found in
the victim’s house. Jd. at 175.

Finally, the state detailed inconsistencies
in Julius’ prior explanations of his activities
on January 29. When Julius returned to
Draper on January 29, he told Everett Rich
that he had been at his cousin’s house
earlier that day. In a statement made
shortly after his arrest,’ however, Julius
denied that he saw Susie Sanders on Janu-
ary 29. Julius said that after he borrowed
Clayton’s car at 3:00 p.m., he met a girl

weer his uncle’s house. After he had sex
Lwith the girl, he said he brought her back
: Where they had met. He then got some
§: gas for the car and went to the governor's
[- @ittision to see a friend who worked there.
f- He went back to his uncle’s house and then
f. went to pick up Clayton for the ride back to
f- Draper. Trial Transcript Vol. I at 100-01.
: This statement differs somewhat from Jul-
ias’:testimony at his first’ trial. The tran-
;. Mevipt of this testimony was read into the
» Necord.at the second trial.. Julius testified
}. that. he drove to his uncle’s house .at 3:30
;- pan. and stayed there for approximately. 30
|. Minutes. -He then left his uncle’s -house
f and headed for a nearby restaurant. On
|. the way, he said he stopped to call,his. aunt
| (the victim’s mother) Fanny. Sanders to.ask,
:. for money. She supposedly suggested that
| they meet. to: have sex, as: they. allegedly
, had done several times in the past, in a
j Nearby motel. She-did not have time to go
Eto. the motel, so they had sex,in Clayton’s.
, Car. Trial Transcript Vol. II at 246.. Julius.
. Qaims Fanny Sanders scratched his eye
¥ during their sexual encounter while at-
| tempting to remove his glasses. Jd. at 252.
t Julius testified that Fanny Sanders gave
; him a carton of cigarettes and $50 in cash,
t some of which he spent on gasoline. Jd. at
* O57. ae,
- Juilius’ only defense witness was Joanne
; Minnefield, who testified that she had nev-
_. ev heard Julius referred. to as Bobo. On
cross-examination, however, . Minnefield
conceded that she had only seen Julius and
Susie Sanders together twice. After
Minnefield testified, the state was permit-
f ted to call one more witness, Jessie Bul-
| _ lard. He testified that he met Julius at the
victim’s home. Although he could not re-
; call the exact nickname Susie used to de-
scribe Julius, he said “it was Jabbo, Bobo,
Lobo or something.” Jd. at 265.

The jury was persuaded by the circum-
. Stantial evidence and found Julius guilty

1. The Alabama death penalty statute has been

sake of clarity, any refences to the statute in this
opinion are to the 1975. statute as it existed at
the time Julius was tried. °

Under the statute, a murder could be pun-
ished by death only if it was accompanied bv

JULIUS v. JOHNSON
Cite as 840 F.2d 1533 (11th Cir. 1988)

amended since Julius’ second trial. For the -

1537

of: (1) murder ‘committed. by a defendant
while under a sentence of life imprison-
ment, Ala.Code § 13-11-2(6); and (2) mur
der by a defendant who has been convicted
of any other murder in the twenty years
preceding . the crime, Ala.Code
§.18-11-2(13).! The trial court, accepting
the jury’s recommendation for the death
sentence and after reviewing a presentenc-
ing report, found the following aggravat-
ing factors: _ Soe :
(1) The capital felony. was committed by

- the defendant while under a sentence of

imprisonment [Ala.Code § 13-11-6(1) }

(2), The defendant was, peqviously con-

_ Vieted of another felony involving the use

_ or threat of violence to the person [Ala.
Code § 18-11-62) and
(8) The capital felony was especially hei-
nous, atrocious, and cruel [Ala.Code

§ 13-11-6(8) }.

The only mitigating circumstance was that
Julius was 32 years old at the. time of the
crime. See Ala.Code § 13-11-7(7). . The
Alabama Court of Criminal. Appeals (455
So.2d.975 (1983)) and the Alabama Supreme
Court (455 So.2d 984 (1984)) affirmed.

Julius, proceeding pro. se, came to the
district court seeking his release and.mone-
tary damages on the ground that he was
deprived of his purported right to act as
co-counsel at trial. This claim. was rejected
and we affirmed. Julius v. Johnson, 755
F.2d 1403 (11th Cir.1985). The state stipu-
lated it would not assert abuse.of the writ
as a defense against a second habeas peti-
tion. Jd. at 1404.

Julius then obtained counsel and sought
collateral ‘relief from his conviction and
sentence in a state coram nobis proceeding.
After an evidentiary hearing, the trial
court denied relief and issued a thorough
opinion. Several of Julius’ claims were re-
jected on their merits and several were
deemed to be barred by Julius’ failure to
raise them at trial or on direct appeal. On

one of the “aggravating” factors. listed in Ala.
‘Code § 13-11-2.. The state opened its case in
chief by introducing evidence of Julius’ prior
murder conviction and the fact that Julius-was
serving ‘a life’-sentence’ when the crime was
allegedly committed. Trial Transcript, Vol. I at
9. % ra'8 : 5 ' ‘ - .

« 4
- 10A—The Birmingham News — sun., Dec. 29, 1985 eee:

Prison

@ From Page 1A

In 1980, Hubbard, 55, offered in vain to exchange
himself for one of the 43 Americans then being held
hostage in Iran. He stares as the visitors pass, later
offers to show them some woodwork he has done.

Two doors down is the cell of a relative newcomer,

~ 23-year-old David Ray Duren of Jefferson County.
Duren, a second-year row resident, was sentenced to
death in the 1983 abduction and shooting of two Huff-
man teenagers. The two were tied back-to-back and
shot. One of them, 16-year-old Kathy Bedsole, died of
a gunshot wound to the head.

Duren’s cell is empty right now, for under another
new prison policy Duren is with some other inmates
in the law library downstairs, doing research on his
case.

In the cell a stack of legal documents sits atop his
bunk. Along the far wall stand five plastic gallon
soft-drink bottles filled with water, which Duren uses
as exercise weights.

Leaning against the bars of his cell is a Six-foot-
long handle, fashioned largely from paper and tape,
with an old bottle cap at the top. The cap has a slit
big enough to fit the dials of Duren’s television out in
the cellblock corridor when he wants to change.
channels. a "8h" a

In an interview, Duren says the row routine is.
something to which anyone can become accustomed.
“It's like anything else — you adapt sooner or | F Str iel Sa Sica oBiaa
later,” he said. “For some it may take longer than :
. + others. It's no bowl of cherries, put I guess it could be_
worse.”
He recalls that after his murder trial, he had asked
to be put to death.
“I still feel that I deserve it,” he says, “but I’ve met
Someone that really means a lot to me and she thinks
I shouldn’t push so hard, and sit back and see what
happens. ;
. “And you can’t ever tell what might happen way
> On down the line.”
And if the chair beckons?
Duren still smiles as he replies.
“You may as well face it with whatever little dig-
_ hity you have left in you ... If it happens, it happens,

~ From his cell, Duren can look south across the
Holman complex toward the metal fabrication plant
where inmates make barbecue grills for state parks,

- West Jefferson and St. Clair prisons. ’
Neither Duren nor his fellow row inmates can :
work there, but Warden Johnson is considering set- down his house, and with a ‘ a
: . 3 assault with intent to murder in et Court of Criminal A Is upholds Jones’ icti id
ning up Some programs through which row inmates News staff writer another case, All of Chins ti death Baga secaek oe
; : . charges were dropped after his death sentence.
pei take trade school courses or earn high school aid e spe Ee i. guilty ‘lea and life sentence. ghee ‘ F ‘ied oe a pe ew ce i
eee. ; — The muscular, “2 man how ». At time of the Waymon and Thompson ones @ March 9, 1984: The bama_ preme Court upho
Johnson and other Officials have brought about | he felt to learn that his execution in Holman Prison’s Wires ont ta parole. : —— Conviction.
another policy change, but it won't take place until electric chair had been postponed, when that 3,000-volt fate @ Art 1 1094. Ma Tre &

one of the inmates has his head and ankles shaved was only eight hours awav =

; one of the inmates has his head and ankles sha

_ and is strapped into the chair. iy
When John Louis Evans was executed, Johnson

said, a guard stood nearby in the execution chamber.

a
bape

That won't be allowed at the next execution, for fear
that the officer could “pass out or fall into the chair
himself.”

The change assures that the next person executed
in Alabama will face his fate all by himself.

News staff photo by Bernard Troncale

For a death row inmate, there’s a lot of

, time — and often cuffs — on his hands.

Look at some inmates _
on Alabama’s death row

Here are the names and facts on i
Peet th some of the inmates on
_@ Arthur Lee Giles, 26, of Birmingham, on death row
since 1979 for the 1978 pre-dawn shooting and stabbing
prec’ save oe a Countian Carl Nelson, 61, and his
“year-old wife. Facing death in the sam i
— 33, also of Birmingham. ee
® Henry Francis Hays, 31, of Mobile, a Ku Klux Klansman
guilty of the 1981 murder of Michael Donaid, a black youth
who was beaten, Strangled and then hanged in a tree. Hays
has been at Holman since February 1984.
isin, hve prcn ines ae a death row inmate since June
Z S Convicted of fatally shooti
Sheriff Neil Grantham in 1979. JBC Ss ~ tage eatanine
@ Judith Ann Neelley, 21, of Murfreesboro, Tenn. On
’ ,2t, ; . One of
two Death Row inmates at Julia Tutwiler Prison for Women
near Wetumpka, Mrs. Neelley was sentenced to death in 1983
for the 1982 torture-murder of Lisa Ann Millican, a
13-year-old Georgia children's home resident whose body
was found in northeast Alabama's Little River Canyon.
@ Thomas W. Whisenhant, 38, of Mobile, convicted in the
1977 rape and mutilation death of 24-year-old Mobile
_ convenience store clerk Cheryl Lynn Payton.

Was only eight hours away.

The reply of Arthur Jones Jr. came in a steady, high voice

as he sat handcuffed at a table in the Holman witness
room next to the execution chamber. igeed

“Have you ever jogged for about three hours and when you
Stopped, it seemed like all the blood rushed to your head?
That’s how I felt.”

From where the 48-year-old Clarke County native was sit-
ting, he could look into the next room and see the top of
the yellow electric chair and some of its 11 leather straps.

Though he narrowly avoided the fatal embrace of “yellow
mama” about a year ago, the two-time convicted murderer
knows his time may be running out. In fact, if anyone on Ala-
bama’s Death Row goes to the chair next year, it probably
will be Arthur Jones, who goes by the Muslim name of
Abdul Sibar Baaque.

“Tm still on shaky ground,” said Jones, a balding man who
wears wire-rimmed glasses.

A few years ago, two juries agreed that because of Jones,
two men are dead.

The death of one, William Hosea Waymon of Mobile, is the
crime for which Jones eventually may be executed. But the
death of the other, Vaughn Thompson of Baldwin County,
helped produce the evidence that linked Jones to both mur-
ders.

ON JAN. 10, the U.S. Supreme Court is to decide

whether it will hear an appeal filed by Jones’ lawyer, John
Furman. If the high court declines, Alabama Assistant Attor-

ney General Ed Carnes immediately will ask the Alabama _

Supreme Court to set an execution date for Jones.

Legal time limits would bring a date sometime in mid-Feb-
ruary, at the earliest.

Furman, who took Jones’ case while it was on appeal, said
he may be hard-pressed to stop the mid-February date
from becoming his client’s last day on earth.

‘Tm about at the end of the road,” Furman said. “It’s not
fun. It almost ruined my Christmas last year, and I can't
escape it this year, because once again we're getting down to
the wire.”

Jones has been a Death Row inmate since 1982, but he is no
stranger to prisons or the state’s criminal courts.

At age 17, he was sentenced to 15 months in prison on a
Clarke County burglary charge. Other burglary convictions
followed in Alabama, Tennessee and Florida. In 1968, he was
tried on a robbery charge and sentenced to death. He got the
conviction reversed, and later pleaded guilty and was sen-
tenced to life.

Around the time of the robbery charge, Jones also was
accused of robbing an uncle, killing him and then burning

) 0 murs Aru une 1v0oL Mmurucr cases, pal ucuiariy ue way-
‘ mon murder, and how Jones’ case has moved through the

courts. The account is based on court documents and inter-
' Views with police and attorneys.

@ Aug. 17, 1981: At 1:10 am., a police officer patrolling in
north Mobile finds William Hosea Waymon, 70-year-old co-
owner of Mike’s Taxi Cab company, lying alongside his cab
with four bullet wounds in the head and neck. John “Shorty”
‘Banks, who was.at Waymon’s cab stand, tells police that at

: about 12:40 am., a man had come to Waymon’s cab stand and

{asked him for a ride. After Waymon and the man had
; off, the cab Company dispatcher never heard from
Waymon again ;

Waymon, who had been robbed on the job before and had
been asked by some family members not to drive his
cab anymore, is pronounced dead on arrival shortly before 4
a.m. at the University of South Alabama Medical Center.

When he is found, missing is the several hundred dollars he
was believed to be carrying.

@ Sept. 14, 1981: At 8:30 p.m., Vaughn Thompson, 21-year-
old owner of the Outdoorsman Store in neighboring Baldwin
County, is shot to death in an apparent robbery. A man is
spotted running from the store. Near the robbery scene,
investigators find a garbage bag with several check stubs
bearing the name Arthur Jones Jr. and an address in Pri-
chard.

| "@ Sept. 16, 1981: Jones is arrested at his garage apartment

‘and charged with the Baldwin County robbery-murder.
* Mobile officers say he seems to fit the description of the man

last seen in Hosea Waymon’s cab.

Later that day, Jones is identified in a line-up by Shorty
Banks.

@ Sept. 25, 1981: A Mobile County grand jury indicts Jones
on the Waymon robbery-murder charge.

@ Oct. 9, 1981: A Baldwin County grand jury indicts Jones
on the Vaughn Thompson robbery-murder charge. He is tried
Jan. 25-28, 1982, found guilty, and sentenced on Feb. 19 to die.

@ Feb. 3, 1982: Jones pleads not guilty in Mobile County
Circuit Court to the Waymon robbery-murder charge.

@ May 14, 1982: Due to some “defect” in the original
indictment, Jones is re-indicted on the Waymon robbery-mur-
der charge. He again pleads not guilty.

@ Nov. 15-16, 1982: Jones is found guilty of robbery-mur-
der. On Nov. 17, the jury recommends a death sentence. .

i. @ Nov. 23, 1982: Circuit Judge Braxton Kittrell sentences
Jones to death.

@ Nov. 5, 1984: The Alabama Supreme Court sets Jones’

execution for 12:01 a.m., Dec. 14.

@ Nov. 20, 1984: Jones’ attorney, Furman, claims in Mobile
County Circuit Court that Jones is insane and was not effec-
tively represented by other attorneys in his trial.

@ Dec. 10-11, 1984: After an examination, Judge Kittrell
declares that Jones had effective counsel and that he is sane.
On Dec. 12, the Alabama Supreme Court denies Jones’ request
to delay his execution.

@ Dec. 13, 1984: With Jones about eight hours away from
the electric chair, US. District Judge W.B. Hand denies his
appeal but grants him a delay of execution 16 hours, so
Furman can take the appeal to the 11th U.S. Circuit Court of
Appeals in Atlanta.

@ Dec. 14, 1984: A three-judge panel at the 11th Circuit
delays the execution, so a hearing can be held.

@ Sept. 11, 1985: Based on a June hearing, the 11th Circuit
rules that Judge Hand was correct to deny Jones’ appeal.

@ Nov. 1, 1985: Carnes asks the Alabama Supreme Court
to set an execution date.

@ Nov. 8, 1985: Furman asks the U.S. Supreme Court to
review the 11th Circuit’s decision.

@ Dec. 2: Justice Lewis Powell delays Jones’ execution.
The high court is scheduled to review the case at its
Jan. 10 conference.

«MEANWHILE, in Mobile, William Hosea Waymon’s widow
is living from day to day, four years having passed since
his murder.

Of Arthur Jones, 70-year-old Sadie Waymon says: “You
know, he needs to be punished. But I'd hate for him to get
the electric chair because the Bible says, ‘Thou saalt not
kill’”

On the other hand, Mobile Police Sgt. Wilbur Williams, who

_ helped build the case against Jones, says the inmcte strikes

him “as the type who has no remorse.

“It would not surprise me a bit if he hadn’t killed other
people,” Williams said.

Williams also said that he and his partner, Sgt. Johnny
Boone, want to be present when Jones is strapped into the
chair.

The man who's the center of all of this compares himself to
Bruno Richard Hauptmann, the man who some say was
wrongly convicted and executed in the 1932 kidnapping and
death of the infant son of aviator Charles Lindbergh.

“There is no reason why I should be on Death Row,” Jones
said. “There is no reason why I should have been arrested. . . .
I was outright framed.”

(OE: THL OL ‘SANL 8 ‘NONW—SAVaNn
; 9.0101 Ava

1014

practice of unlawful discrimination was not
ripe for review.

Affirmed.

1. Civil Rights <=36

Allegation that Equal Employment Op-
portunity Commission had not provided em-
ployer with sufficient information in its
charge did not state claim that EEOC
lacked statutory mandate to investigate. 5
U.S.C.A. §:704; Civil Rights Act of 1964,
§ 706(c), as amended, 42 U.S.C.A. § 2000e-
5(d).

2. Civil Rights <=36

Issuance of Commissioner’s charge
with Equal Employment Opportunity Com-
mission was not a “final agency action”
under Administrative Procedure Act [5 U.S.
C.A. § 704], so that validity of charge
alleging that employer was engaged in pat-
tern or practice of unlawful discrimination
was not ripe for review. Civil Rights Act
of 1964, §§ 701 et seq., 703, 706(a), 707,
707(e), 718, as amended, 42 U.S.C.A.
§§ 2000e et seq., 2000e-2, 2000c—5(b),
2000e-6, 2000e-6(e), 2000e-17.

Walter W. Christy, Kullman, Inman, Bee
& Downing, New Orleans, La., Richard I.
Lehr, Birmingham, Ala., for plaintiff-appel-
lant.

Constance L. Dupre, Allyson K. Duncan,
Thomas L. Gray, Karen MacRae Smith,
Washington, D.C., Jerome Rose, Birming-
_ ham, Ala., John L. Ross, Susan B. Reilly,
Washington, D.C., for defendant-appellee.

Appeal from the United States District
Court for the Northern District of Ala-
bama.

1. Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-2000e-17, as amended, creates
the EEOC and describes the mechanisms for the
EEOC “to investigate and act on a charge” that
an employer has engaged in “a pattern or prac-
tice” of employment discrimination. A commis-
sioner may file a charge naming an employer
on the basis of a “pattern or practice” of dis-
crimination pursuant to 42 U.S.C. § 2000e-6(e).

786 FEDERAL REPORTER, 2d SERIES ‘

Befére KRAVITCH and HATCHETT,
Circuit Judges, and MORGAN, Senior Cir-
cuit Judge.

HATCHETT, Circuit Judge:

In EEOC v. Shell Oil Co., 466 U.S. 54,
64, 104 S.Ct. 1621, 1628, 80 L.Ed.2d 41, 54
(1984), the Supreme Court held that the
existence of a charge that meets the re-
quirements set forth in section 706(b), 42
U.S.C. § 2000e-5(b) [42 U.S.C.S. § 2000e-
5(b) J, is a jurisdictional prerequisite to judi-
cial enforcement of a subpoena issued by
the Equal Employment Opportunity Com-
mission (EEOC). The question presented
in this case is whether an employer may
litigate the validity of a commissioner
charge before the EEOC seeks to enforce a
subpoena based upon the charge. The dis-
trict court held that an employer could not
do so because the existence of a commis-
sioner charge, along with “some investiga-
tion,” does not present a ripe controversy.
We affirm.

I. A Commissioner Files a Charge

On February 12, 1981, then-EEOC Chair,
Eleanor Holmes Norton, filed a charge
with the Commission alleging that Missis-
sippi Chemical Corporation was engaged in
a pattern or practice of unlawful discrimi-
nation.! The charge alleged that Mississip-
pi Chemical had violated sections 703 and
707. of the Civil Rights Act of 1964 at least
since January 1, 1976, “with unlawful em-
ployment practices occurring at or con-
trolled from its facilities located in Yazoo
City and Pascaguola [sic], Mississippi.”
The charge alleged discrimination against
blacks and women on the basis of race
and/or sex with respect to recruitment,
hiring, job assignments, promotions and
other terms, conditions; and benefits of em-

“[A] charge is filed with the Commission, not
with or against the allegedly discriminating em-
ployer.” Shell Oil, 466 U.S. at 84, 104 S.Ct. at
1638, 80 L.Ed.2d at 66 (O’Connor, J., concurring
in part and dissenting in part). “[{A] charge of
employment discrimination is not the equiva-
lent of a complaint initiating a lawsuit.” 466
U.S. at 68, 104 S.Ct. at 1630, 80 L.Ed.2d at 56.

Around Alabama

Prison Readies F or Execution

MOBILE, Ala. (AP) — State
prison officials have begun
preparations for the possible ex-
ecution of double-murderer Ar-
thur Lee Jones while attorneys
head into court Tuesday on the ap-
peal that could halt the inmate’s
death in the electric chair.

Unless the courts intervene,
Jones is scheduled to be elec-
trocuted at 12:01 a.m. Friday, for
the 1981 murder of a Prichard cab

driver,

“There’s a fair chance he May _

not get a stay,” prison spokesman
John Hale said Monday. by

Hale’s assistant, Margaret Grif-
fin, said a test of the electric chair
at Holman Prison, near Atmore,
had been conducted a week prior
to the scheduled execution as re-
quired by prison regulations.

She said that Jones would leave
prison and attend a hearing Tues-
day in U.S. District Court at

when his appeal goes
before U.S. District Judge W.

Brevard Hand on Tuesday.

8—-B_ THE DOTHAN EAGLE, Tuesday, March 18, 1986

|Death Penalty Foe Predicts

Stay Of Jones’ Execution

MOBILE, Ala. (AP)
— Convicted double-
murderer Arthur Lee
Jones Jr., predicting his
scheduled execution
Friday would be ‘‘just
another day,” awaited
word from a federal ap-
peals court Wednesday
on whether his trip to
Alabama’s electric
chair would be halted.

The director of a
prisoner advocacy

group said he expects a.

stay of execution to be
granted, based on
Jones’ claim that a
juror opposed to the
death penalty was ex-
cluded from Jones’ trial
in 1982.

“As far as Jones is
concerned, we’re expec-
ting a stay of execution
from the Supreme
Court,” said Joe Ingle,
director of the
Nashville-based
Southern Coalition on

11—B

Jails and Prisons, Inc.

John Furman, an at-
torney for Jones, took
the juror issue to the
11th Circuit Court of Ap-
peals in Atlanta on
Wednesday, but the a
peals court didn’t rule
immediately.

Unless the courts in-
tervene, Jones is
scheduled for execution
at Holman Prison, near
Atmore, at 12:01 a.m.
Friday. He was sentenc-
ed to die for the 1981
murder of a cab driver,
71-year-old William
Hosea Waymon, in near-
by Prichard.

Jones, 47, who
granted several death-
row interviews Monday,
told reporters that “‘Fri-
day is just another
day,” and he expected
to be alive on Friday.

On Tuesday, U'S.
District Judge W.
Brevard Hand refused

to halt the execution and
said Jones’ appeal
‘lacks merit.”

Hand castigated
Jones and his attorney
in the ruling for bring-
ing up the jury issue “‘in
bad faith for the purpose
of using it to secure
delay and a last-minute
stay of execution when

it became necessary.” .

But the Supreme

Court granted a stay of -

execution Tuesday for a
Florida death row in-
mate who argued the
same issue that Jones
raised. The high court
has also granted stays
in at least a dozen other
cases raising the issue
of ‘‘death-qualified
juries.”’

In the Florida case,
the high court, on a 5-4

vote Tuesday, granted a
Stay for Davidson Joel

THE DOTHAN EAGLE, Thursday, March 20 1985

James. James’ at-
torneys had asked

Justice Lewis Powell to |

block the execution until
the court ruled on death-
qualified juries.

But the possibility of |
another execution in |

Alabama revived a
debate over the use of
the electric chair.

The last to be ex-
ecuted in Alabama was

John Louis Evans, kill- |

ed by three separate
jolts of 1,900 volts of
electricity, each about
30 seconds in duration
on April 22, 1983.

“We felt all along
there is no humane way
to kill a person,” Ingle

‘said ina telephone inter- |
view Wednesday. ‘‘We |

think the whole method
of execution is beside
the point. The question
is whether the state is
going to kill people.”

Jones

a e
Oe en ee rete,

“9QoT “Te YOdeW (STTAOW) *BTy *9eTe fyoeTQ f*up feey unyuquy ‘suNor

- Alabama

- Executes
Murderer

ATMORE, Ala. (AP) — Convicted
double murderer Arthur Lee Jones
Jr., who came within 16 hours of ex-
ecution in 1984, died in Alabama’s
electric chair early Friday for the
shooting death of a cab driver during
a robbery.

Jones, 47, was pronounced dead at ~
said Holman Prison

12:13 a.m.,
Warden Willie Johnson.

The execution came after the U.S.
Supreme Court refused Thursday on
a 5-4 vote to delay it and Gov. George
C. Wallace failed to commute the
sentence to life in prison.

-“It’s a very, very difficult matter. .

At the same time, the law is the law,”’
Wallace said at a news conference
Thursday afternoon.

On death row Thursday, Jones
visited relatives and began eating a
last meal of pink salmon, cole slaw,
candied yams, chilled peaches and a
grape drink.

He wore a black suit and white »

shirt to the execution and made no.
final statement. oo
Jones had been calm in his waitin
tate beside the death chamber, Smith
aid. ’ 3
Jones first went to prison at age 17.
He received two death sentences, one
for killing William Hosea Waymon, a
71-year-old cab driver, and the other
for killing a 21-year-old storekeeper,
Vaughn Thompson, in separate rob-
beries in 1981.
Jones, who also went by the name
Abdul Sibar Baaque, claimed he is in-

nocent and that he was framed by |

police. He said it was against his
Muslim religion to steal or kill.

“I’m satisfied with my life,”’- he
said in an interview this week.
‘“‘There’s nothing wrong with my life.
I don’t do the things most people do.
|’ Every time I turn around, they’ve got
some cooked-up case with no facts to
support them.”

The last execution in Alabama was
-in 1983 when it took 14 minutes and
three 1,900-volt jolts of electricity
before ‘convicted killer John Louis
Evans III was pronounced dead.
That execution was branded as cruel
and unusual by death penalty foes,
but a federal judge rejected

~ pleadings to alter the state’s mode of |

execution in an electric chair known
as ‘“Yellow Mama.”’

4
.

peals, but opponents of the death
penalty have argued that it is impos-
ed with disproportionate: frequency
against blacks. ee

Prison records dating back to 1927

show that 125 black.men and one
black woman and 26 white men and.
two white women have been executed

in Alabama. The last black to be ex-

-ecuted in the state was put to death in

1962. -

Opponents of the death penalty
rallied on the Capitol steps in Mon-
tgomery at noon Thursday, with

‘Mary Wiedler of the Civil Liberties

Race was not an issue in Jones’ ap-_ _Union of Alabama calling it ‘‘a bar-

po | Jones: Expected Sta y That ‘Never

"bid for'a stay. * :.2 7 ee

AP Laserphoto
Came

baric throwback : to the. days of
slavery and branding, unacceptable

~in a civilized society:

In Baldwin County, however, ‘the
«mother of one of Jones’ victims said
“justice will be done”’.when Jones is

=-put to death. ,

_ “IT don’t think he (Jones) should
have gotten all these second
chances,’’ said Elma Thompson.
‘“‘Vaughn didn’t get a second
chance.” a ae

’ Thursday morning a. three-judge
panel of the 11th U.S: Circuit Court of
Appeals in Atlanta’ rejected Jones’

THE DOTHAN EAGLE, Friday, March 21, 1986

Se ee ee

Alabama

Executes
Murderer

Jones, 47, was pronounced dead at
12:13 a.m., said Holman Prison
Warden Willie Johnson.

The execution came after the U.S.
Supreme Court refused Thursday on
a 5-4 vote to delay it and Gov. George
C. Wallace failed to commute the
sentence to life in prison.

-“Tt’s a very, very difficult matter.
At the same time, the law is the law,”
Wallace said at a news conference
Thursday afternoon.

On death row Thursday, Jones
visited relatives and began eating a
last meal of pink salmon, cole slaw,
candied yams, chilled peaches and a
grape drink. —

He wore a black suit and white z
shirt to the execution and made no,

final statement. ee

Jones had been calm in his waiting
said. 7-8 < es :

Jones first went to prison at age 17.
He received two death sentences, one
for killing William Hosea Waymon, a
71-year-old cab driver, and the other
for killing a 21-year-old storekeeper,
Vaughn Thompson, in separate rob-~
beries in 1981.. 4

Jones, who also went by the name
Abdul Sibar Baaque, claimed he is in-
nocent and that he.was framed by —
police. He said it was against his
Muslim religion to steal or kill.

“I’m satisfied with my life,” he
said in an interview this week.
‘There’s nothing wrong with my life.
I don’t do the things most people do.

_ cell beside the death chamber, Smith

' Every time I turn around, they've got

some cooked-up case with no facts to
support them.”” —

’ pleadings to alter the state’s mode of _

execution in an electric chair known
as ‘Yellow Mama.” —

peals, but opponents of the death
penalty have argued that it is impos-

»-- Jones: Expected Stay That Never Came_

AP Laserphoto

baric throwback” to the days of

slavery and branding, unacceptable

ed with disproportionate- frequency +-in a civilized society:”- |

against blacks.

In Baldwin County, however, the

Prison records dating back to 1927. «mother of one of Jones’ victims said
show. that 125 black.men and one © “‘justice will be done’. when Jones is
black woman and 26 white men and © put to death. ee Ae

ecuted in the state was put to death in
1962. -
Opponents of the death penalty

rallied on the Capitol steps in Mon-
tgomery at noon Thursday, with™
Mary Wiedler of the Civil Liberties
Race was not an issue in Jones’ ap- Union of Alabama calling it “a bar-

ree te oe cle Be
ie Pa BET ON

two white women have been executed. “I don’t think: he: (Jones ). should

in Alabama. The last black to be ex-»

have- gotten all these second
chances,””. said Elma Thompson.
‘“‘Vaughn didn’t get a second
chance.” Ee ite

* Thursday ‘morning .a three-judge
panel of the 11th U.S: Circuit Court of
46 Pi in Atlanta’ rejected Jones’
bidforastay.= © |

£ ® ‘ ae

. ae a MOGI,

THE DOTHAN EAGLE, Friday, March 21, 1986

hex Wwe

/~ pe - Vike

Court sets. execution date to force appeals

News capital bureau »

MONTGOMERY — The Alabama _

Supreme Court’s action Monday in set-
ting a Feb. 21 execution date for Cor-

-"'1 \ nelius Singleton doesn’t mean the 29-year-

H
:

&
it
ie

old death row inmate will be the next to

| die in the state’s electric chair.

A state prosecutor said the request that

| the court set an execution date for Single- »
F’ ton was chiefly a means of pressuring him ©
to exhaust the routes of appeal that

remain open to him.

“We did it to force Singleton to pro-.
ceed with his appeals — or to execute '

him if he wasn’t going to proceed with
his appeals,” said Ed Carnes, an assis-
tant state attorney general who special-

oS LR te ee tet * gunn + ete

High Court refuses to review death

, From staff and AP reports ,

izes in death penalty cases,

“We'd be happy to do either one,”
Carnes added.

He said another death row inmate,
Arthur Jones, is closer to the end of the

“appeals, process in the state and federal

courts than is Singleton. -

The. Attorney General’s office asked
the court Monday to set an execution
date for Jones, Carnes said. :

Singleton was convicted of the Nov.
12, 1977, slaying of Sister Ann Hogan, a
51-year-old Roman Catholic nun. She was
murdered in a cemetery in Mobile after
going there to pray at a grave.

Singleton was originally convicted and

~< 3entenced to death in 1978, but the sen-

tence was overturned when the US.

Supreme Court declared part of Ala-
bama’s death penalty law unconstitu-
tional. He was retried and convicted of
capital murder in 1981.

Jones, 48, has been been convicted on
two robbery-murder charges and sen-
tenced to die for each.

In separate trials in 1982, he was con-
victed.of the August 1981 slaying of Wil-
liam Hosea Wayman, co-owner of a cab
company in Mobile, and the September
1981 murder of Vaughn Thompson, a
Baldwin County store owner.

If Jones goes to the electric chair soon,
it will be for the death of Wayman, since
he has pursued appeals further in that
case than in his other conviction.

Wed., Jan. 15, 1986 |

The Birmingham News—13A
sentence

WASHINGTON — The US. Spine

Court has refused to review the death
sentence given to Arthur Lee Jones Jr.

of Prichard for the 1981 robbery-mur-
der of a 70-year-old cab driver.
_ The decision Perec came without
comment.

Justices William J. Brennan Jr. and
Thurgood Marshall voted to review the
Jones case, citing their belief that capi-

K tal punishment i is unconstitutional i in all
’ circumstances. '

Assistant Attorney General Ed
Carnes said it is unlikely Jones’ execu-

tion could come any earlier than the .

end of February, because the Alabama
Supreme Court will have to set the date
at least 30 days into the future and no
action is likely from the court before
next week.

The Attorney General's office asked
the state court Monday to set an execu-

tion date for Jones, Carnes said.
Jones’ attorney, John Furman of

Mobile, could. not be reached for com- - |

‘ment on the case.

In separate trials in 1982, Jones, 48,
was convicted of the August 1981 slay-
ing of William Hogea Wayman, co-
owner of a cab company in Mobile, and
the September 1981 murder of Vaughn
Thompson, a Baldwin County store
owner.

)
i

pone

: oO Killer on to die Friday awaits appeals nite

delay Jones’ execution in Alabama’s electric chair.

- Atlanta in time for a hearing today.

———

MOBILE (AP) — An attorney for convicted killer Arthur Lee Jones
Jr. awaits a decision today from a federal appeals court that could

Jones is scheduled to die at 12:01 a.m. Friday.

U.S. District Judge W. Brevard Hand in Mobile denied Jones’
request for a stay of execution Tuesday and prepared a written
opinion for delivery to the 11th U.S. Circuit Court of Appeals in

-. Jones, 47, was convicted and sentenced to die for the 1981 murder
of a cab driver in Prichard, a Mobile suburb.

In a last-ditch effort to halt the execution, Jones’ aorta John
‘Furman, argued that a juror opposed to the death penalty was
excluded from his trial and a county prosecutor summed up his “ee

i with inflammatory remarks to the jury. |

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Birmingham Post-Herald

Saturday, March 15, 1986

tai.

MONTGOMERY — The Alabama

Supreme Court set March 21 as the

execution date for Arthur Lee Jones,

convicted of two capital murders,
j./but Jones’ lawyer asked for a Stay of

}) execution because a potential juror +
- + who opposed the death penalty was

nol allowed to hear the case,’
iw: The high court yesterday refused

)_.t0 stay the execution of Arthur Lee

\. Jones, who is the only man on Ala- ©

: bama’s death row for two murders
sdespite his continued claims of inno-
-. cence, '

state court refuses sta

last-minute stay, Jones, 48, will be
electrocuted at Holman prison at,
12:01. a.m. Friday, prison officials
Said. 1 f

Jones would be the first inmate
executed in Alabama since April 22,
1983, when it took three jolts of elec-
tricity to kill John Louis Evans for
the murder of a pawnbroker. Jones

would be the 682nd put to death in

Alabama since 1812.

Jones is set to be executed for the
August 1981 robbery and murder of
71-year-old Mobile cab driver Wil-

body was found in Prichard with
bullet wounds in the head and neck.
Jones also was convicted in the

robbery and murder a month later

of Vaughn Thompson. owner of the
Baldwin County store “The Out-
doorsman.”

Jones’ lawyer said he filed an
appeal for a stay with a Mobile fed-
eral court yesterday because of a
decision by the U.S. Supreme Court
in another case that casts new
doubts on the application of the
death sentence in Jones’ case.

Unless a federal judge grants a:

pm.

ee aie ae et

year ay CET

liam Hosea Waymon. Waymon’s | © ‘Mobile lawyer John Furman said
=

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PUI Opa

Bhan Po 3- -§tVe

Federal court to hear
killer's appeal to halt
execution set Friday

: Associated Press
MOBILE — State prison officials pre-
pared for the execution of double murderer
Arthur Lee Jones as attorneys planned to

head into court today seeking to prevent

Jones’ electrocution. "=: :

Unless the courts intervene, Jones is.
scheduled to be electrocuted at 12:01 a.m.
Friday for the 1981 murder of a Prichard
cab driver.

“There’s a fair chance he may not get a

“stay,” prison spokesman John Hale said

yesterday.

Hale's assistant, Margaret Griffin, said a
test of the electric chair at Holman Prison,
near Atmore, was conducted a week before
the scheduled execution, as required by
prison regulations.

She said Jones would leave prison and
attend a hearing today in U.S. District Court

* at Mobile when his appeal goes before

Judge W. Brevard Hand.
Jones, 47, a Clarke County native, was

{» sentenced to death in two south Alabama

_killings e+ the Aug. 17, 1981, shooting of’:

« 70-year-old William Hosea Waymon, a Pris‘:
, chard cab driver, and the Sept. 14, 1981,
, murder.of Vaughn Thompson, .a Baldwin
» County storekeeper. !

;, Waymon’s widow, Sadie Waymon, said

yesterday that she did not want to comment

- on the crime or Jones’ fate. "

Jones’ attorney, John Furman of Mobile,
turned to the U.S. District Court Friday,

_ asking Hand to halt the execution.

Hand set the hearing this morning on
Furman’s argument that jurors opposed to
the death penalty weré wrongly excluded
from Jones’ trial in Mobile County Circuit
Court. Furman turned to federal court after
the Alabama Supreme Court Friday refused
to grant Jones a stay of execution. _

Assistant Attorney General Ed Carnes
says Jones waited too late to raise the
jurors issue and that the U.S. Supreme Court
already has refused to grant stays of execu-
tion on those grounds.

In his brief, Carnes said Jones has: had
“many opportunities” to raise this issue and
“didn't do it soon enough.”

Jones came within 16 hours of execution
in 1984 when an appeal blocked his death.
However, both cases, the storekeeper’s mur-
der and the cab driver's slaying, have been
appealed to the U.S. Supreme Court on sepa-
rate occasions. In both instances, the high
court refused to review the cases.

Jones’ criminal record began in 1956
when at the age of 17 he received a-15-
month sentence for burglary in Clarke
County. Subsequent crimes that led to con-
victions included gambling, assault, disor-
derly conduct, burglary and robbery.

He was sentenced to life in prison in 1967

“after pleading guilty to killing his uncle,

Lloyd Kentucky, and burning down -his
house, according to police records. a

' Clarke County Sheriff Ray Sheffield said
he remembered the arson and described
Jones as ‘a rough customer, If anyone
deserves to go, he does.”

ny _

y of execution

the execution should be postponed
because a potential juror in the case
was removed from the panel after
Stating an opposition to the use of
the death penalty.

The U.S. Supreme Court agreed to
hear an appeal last October of an
Arkansas case where a court ruled
that it is unconstitutional to elimi-
nate prospective jurors because they
oppose the death penalty, ;

Jones was convicted largely on

ea evidence, Furman
said.

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Court: won't review Mobile ier

- WASHINGTON (AP) — The on-
ly man in Alabama sentenced to
die for two separate murders has
had one of his appeals turned
_down by the U.S. Supreme Court.

The court Monday rejected
Arthur Jones’ appeal of his 1981

capital murder conviction in™

Mobile County.
The justices turned away argu-
-ments that proseuctors in-

troduced insufficient evidence to —

_ justify Jones’ conviction. -

‘Jones was convicted and .
sentenced to death in November

1982 for the slaying of Hosea Way-
mon, a 70-year-old cabbie who

was shot four times in the head
and neck on Aug. 17, 1981.

Shortly before his conviction in

the Waymon case, Jones was con-

- victed of capital murder and

sentenced to die for killing a shop-

keeper in the Whitehouse Fork

community in Baldwin County.

' -“Jones is the only man in
Alabama sentenced to death for
two separate murders in two sep-
arate counties,” said Ed Carnes,
an assistant state attorney gen-

eral who handles death penalty |

cases.
Carnes said Jones still has plen-
ty of legal appeals available even

‘Clarke County, but his sentence =
was overturned -when the U.S. :

Supreme Court struck down!
Alabama’s old death penalty law.-°

though - the Supreme Court re- -
jected his first appeal in the Way-"5 ‘
mon case. —

Jones’’ other capital _ murder
conviction has been upheld by the ©
Alabama Supreme Court but the
U.S. Supreme Court has not ruled —

on it, Carnes said. aa

Jones has been sentenced to die. _
three times. He was convicted in 3 .
1968 of robbing and killing a night: * es
watchman at a lumberyard in -*

THE. TUSCALOOSA NEWS Tuesday, October 2,

ee he esp ien etn

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1984 15°

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JONES, Arthur B. - Alabama,

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» » Slayer’s execution

ee
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arene
es eine

Prichard and Baldwin County.

1981, in Prichard.

. pone Jones’ execution, claiming
~ Jones’ trial made an improper

“Saidie 4

, der. a.

“The Alabama Supreme Court has ,
‘\« ordered that Arthur Lee Jones Jr. be
~ electrocuted March 21 for one of two

~ murder convictions that has sent him to

hn » Holman Prison’s Death Row. '

- Jones becomes the second Death
Row inmate in recent weeks to be sen-

i- . tenced to the electric chair. The other

of -

n,.

»* »is Cornelius Singleton, 29, ordered to be
if

electrocuted on Feb. 21. Singleton had

he:
been sentenced to. death for t
November 1977 robbery and strangula-

State court sets
Arthur L.

execution date
‘ Men Me 4 Se
MONTGOMERY ~ The Alabama Supreme Court yes- .
terday set a March 21 execution for Arthur. Lee Jones
‘ Jr., who: received: two death sentences for killings in

- Last week, the high court scheduled a Feb. 21 execu-
tion date for Cornelius Singleton for the 1977 rob-
_ bery and Strangling of a nun in a Mobile cemetery.
\Singleton’s appeal, however, has not run its course and
that execution date is expected to be postponed.

_. Further appeals also are pending in Jonés’ case,
Jones, 48,'awaits execution for the murder of William |

-» Hosea Waymon, a 70-year-dld cab driver shot Aug. 18,

\ The high court has yet to set an execution date for
_ Jones in the Baldwin County case.

Jones’ attorney, John Furman of Mobile, said he has
‘* filed’ a motion in’Mobile County

ing to make the jurors afraid of J
Assistant District Attorney Lloyd Copeland said that
“if Jones were acquitted, the jury would tell future kill-
| ers that they could “leave bodies on the street,” Furman

et for March 21.

Tn bis

1
i
'
'

Jones

Sg ee

aos Inia Separate killing, Jones received the death sen:
, tence for the Sept. 14, 1981, murder of Vaughn Thomp-

son, co-owner of the Outdoorsman Store in Baldwin
» |i; County. er

Circuit Court to post:
that the prosecutor in

closing argument, try-
ones.

*.. ‘In addition, Furman said he is claiming that Mobile:
ie County Circuit Judge Braxton Kittrell, who presided at
- the trial, unconstitutionally excused a prospective trial.’
“juror who opposed the death penalty. Singleton received :
the death penalty for killing Sister Ann Hogan while:
the 51-year-old nun was praying at the graves of some .
nuns in a Catholic cemetery in Mobile. Meet
«Al Pennington, Singleton's attorney, said Monday that :
_ he would seek a stay of execution in about 10 days.’
_ He said he would base the motion on information that’
| tends to link other people, not Singleton, to the mur--

tion of a nun ina Mobile cemetery.

The bel (aol Tones tas oS

tenced to death for the murder of 70- .

year-old William Hosea Waymon, the

co-owner of a taxi cab company who |

ound shot to death early on the
orning of Aug. 18, 1981. Jones also
faces a death sentence for the Sept. 14,
1981 shooting of Vaughn Thompson, co-
owner of the Outdoorsman Store in

Baldwin County.

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i) »! Sun Tomorrow!"

jp eon teee W129 pam getam, * Apr. ® Bat i

{Moon Tomorrow. 2:28 p.m ° 4:00am, ( Apran @)\ fi:

Pe ay *. The! National Weather Service provides , direct p
v ‘tae [ "radlo/telephone service 24 hours a day. Thid service. j: e .,fow of minus 17,
4s. [can be poked up on a ‘narrow band’ FM receiver, at 3

hs ‘162. 8s me or ins 942-8430; |

a ims ae

Aig

‘ Re Or ea mE

ecution_

ig . From Page 1A‘ — + excluded from his 1982 trial in the
ba "5 Two doctors went in to examine the : Waymon case.

a _ body. At about 12:15, Johnson opened ~ Throughout the day, prison officials

: i, _ the door to the witness room and told had described Jones as calm and confi-
\ s Prison Commissioner Fred Smith; “Sir, . dent of a delay.

“i »- the execution of Arthur Lee'Jones has~’*’ But almost 10 hours after the 11th

43 ‘been carried out.” Circuit Court of Appeals refused to

: event to Wallace, told the governor: declined, on a 6-4 vote, .

«9 \4"snow to check the body.” peer ake Agel spel yng? ny
Ne At a post-execution press conference,

er ae Smith said Wallace, who by law could, execution chamber,

i have commuted Jones’ sentence, had.', As a Muslim, Jones had asked for an

pee aa 20 hid ger Ahlan iomame faa ‘imam to administer the last rites of his

"Smith, on the phone throughout the : grant a stay, the Supreme Court also .

ay , , | Utross thé nolthedater) quarter of {hid malon white lain
MSO Bn a ey _ oi ‘pete! "Hunde phavee | "peratures dropped to around treazing early today in Ala-
f ne” "6: ‘60 p.m. on Mar, 28 0 iM 3 , ,bama, Mississipp! and Georgia.

f A The coid alr on Thursday set low temperature records
In the Northeast, Binghampton, N.Y., was 8 degress,
‘ breaking a record low of 12 set In 1965; and Mount
i Washington, N.H., was 22, below zero, breaking a 1949
A
' Today's forecast called for rain from northern Idaho to
ey the northern Pacific Coast; and showers and thunder-
” showers over central and southern Florida.

sclordey | Gunde

egrtiagt
Rebs ae?

Reagan

@ From Page 1A

Arguing that Americans “have begun
to awaken to the danger emerging on
their doorstep,” Reagan said, “And one
day, in the not too distant futgre, that
awareness will come hom@ to the’
House of Representatives. {

“We are gaining ground; we are win-

a ‘Sir, it’s over. The doctors are going in, At2p.m. Wednesday, Jones had been | ning converts,” Reagan sald. ‘The next

battle will bring us the victory this just

| holding cell about 28.feet from and good cause rightly deserves.”

Over the past three weeks, Reagan
delivered numerous speeches and
talked with more than 130 House and

‘had studied Jones’ criminal record. __, faith, He also requested a final meal of + Senate members In a search of votes,

As Smith had spoken to the salmon, cole slaw, candied yams,
* from the witness room, shouts and cell-!” chilled peaches and grape Kool-Aid.

rattling could bé heard from some . Prison officials were able to provide :

7 |» pearby Death Row inmates and from the meal. But two Mobile Muslims
le some in the nearby segregation unit —wére unable to find an imam.
, which houses unruly prisoners. For much of the afternoon, Jones *

Jones was executed o the Aug. 17, visited with two sisters and a female
w. D-Wash., said Reagan's defeat “shows .

“1981 gunshot slaying and robbery of a .. cousin.
r ‘20-year-old Mobile cab driver, Willam ; Furman said hardly anyone had
it Hosea Waymon. He also was under a ’ visited Jones since he arrived on Death
t » death sentence for the Sept. 14, 1981;, Row in 1982. Kathy Ansheles, director

according to a White House count.
Critics of his plan said White House
strategy backfired when Reagan and
White House communications director
Patrick Buchanan questioned the patri-
otism of their opponents.
House Majority Whip Thomas Foley,

Congress resented attempts by the
administration to question the patri-
otism (of aid opponents). That was

robbery-slaying of Vaughn Thompson, 3 of the prisoners’ rights group Alabama ,) scandalous. That was unfortunate and

the 21-year-old owner, of a Baldwin’: Prison Project, said contributions from
. . County store, *' ‘volunteers had allowed family mem-
+) +. +* He was only the second Alabama bers to visit him in recent days.

» Inmate to dle inthe electric chair since 5°» About 10:30 pm. Smith said, Jones j

j ose 1968,’ *:

classically ineffective.”

The president had suggested that a
vote against aid for the Contras was
tantamount to support for the Nicara-

i finally was able to reach his estranged — guan government. Buchanan said that

Bae John Louis Evans III, a Texas drifter ; wife, and the two talked for about 10. with the vote, “The Democratic Party

i, “convicted of murdering a Mobile pawn-'y; minutes. After that, he visited with the .' will reveal whether it stands with Ron-

‘ « broker, was executed in 1 Hobaen dere : 28-year-old Furman, who never had ald Reagan and the resistance me or
é ’ @ violent thunderstorm on April 22 22, * handled a death penalty, case until he ., Daniel Ortega and the communists.

i : . 1983, Three 30-second jolts of electric. took on Jones’ appeal. i Defending the tough talk, presiden-

ity were necessary before Evans’ heart ‘. In the moments before the execution,

stopped beating, and a Holman Inmate », ‘Furman said Jones had told him he

.. played “Taps” in his cell while Evans‘ hp: glad the end had come.

: was being put to death. — punishment opponents, so
:3 , tosh te Jones, who has said he was framed Trent fs the daye Sind houre hetwe
i Wie pat elt

executed nationally since executions » be found around Holman on Thursday :

‘)*) resumed in 1977. He also became the |: night. Prison officials had set aside a
’ 155th Alabama inmate to be executed 5, spot near the entrance to the prison ’

tial spokesman Larry Speakes said,
“Our rhetoric, our statements are the
president’ 's words.”

“It's the way the president feels,”
Speakes said, “We feel it's an important

was executed, were nowhere to ” Issue. We feel that this simply presents

the issue the way it Is. I don’t consider

this inflammatory rhetoric. reek’ .

~“T consider it an opportunity to pi

tat ~ in this century, and the 126th black.’ ‘grounds for those who might have ent the message just as it is. We were’

‘Executions resumed in U.S. prisons © wanted to hold protests or vigils.

»), after the U.S. Supreme Court ruled that »: Ms, Ansheles, along with Marie
‘ capital punishment is not cruel and I Coone of Church Women United, and.’ will then make their views known.”
« «3 the Rev. Bill James, pastor of St. Jude's

po 8 ets unusual
hp ag aes Jones’ attorney, hiamnie. ind bovek | Getuae toate lontgomery, held a

« that the Supreme Court on Thursday ») brief press conference in Atmore to
_, would delay the Clarke County native’s lament what Ms. Ansheles called “the:
G24 8 execution. Jones was claiming that a ..need to take another human life in. '

( a. yf aise ema ka al ma q

“+ Account changes urged for amilitary

\ pe
pet 4 is WASHINGTON (AP) ~ The Pen: ‘ 1982- 85.
tagon needs to reform its bookkeep-"') Sprey testified that the Pentagon,

Mth

H ee ing to account for more than $40 billion ;| in the budgets approved by Congress
2, } 30% allocated in 1982-85.a8 an inflation from 1982 to 1985, obtained 7 per- .
3 cushion, a new House panel on malery cent more money than it needed to.

reaesy . cope with the rate of inflation, which ©

procurement was told.
os John Boyd, a retired Air Force ct! ,declined during that period..

ee oy In mm Lae In way the — buys weapons.

is { *
[ot 4

* telling the truth. We think the Ameri-
can people, once they know the truth,|

Sixteen Republicans joined 206 Dem-
ocrats in opposing Reagan's proposal.
Forty-six Democrats, many from
Southern states, and 164 Republicans
voted for the aid.

Before the vote, House Speaker
Thomas P. O'Neill, D-Mass., decried

‘ the administration's lobbying tactics,

likening them to “that dark era of fear”
~ the McCarthy era of the 1950s.
“Americans (have) not only the right
but also the duty to speak their minds
on questions of national policy without
fear, without the dread that their

_ motives and | aa aes will be ques-

tioned,” he said.

Senate Republican leaders met with
Reagan after the vote, and agreed with
the administration that its tactics were
not responsible for the loss.

“IT don't think it made any differ-
ence,” said Senate Majority Leader Bob
Dole, R-Kan.

Sen. Richard Lugar, R-Ind., chair-
man of the Senate Foreign Relations
Committee, said, “The White House has
argued persuasively and done a good
-.. (the tough talk) really hasn't

urt our situation.”

Lugar said Reagan suggested that a
compromise that Reagan offered the
House might be incorporated Into the
legislation considered by the Senate.
Under the compromise, delivery of
most of the aid would be delayed for 90
days to give another chance for diplo-
matic efforts to work.

Reagan agreed Wednesday to sign an
executive order that would restrict the
aid for 90 days and permit all forms of
military assistance after that time if he
determines that the Nicaraguan gov-
ernment Is not negotiating seriously
with the rebels.

Congress could block the full mili-
tary aid after 90 days, but that would
require majority votes in both the
House and Senate. Reagan could then

veto such a move, and it would hin

a two-thirds majority ig override

Cold_

Cox and his wife, Sara, have te
growing peaches — or trying to ~

, Seven years,

Pies orchard is part of the network
ch farms in Blount County. All

told there are 1,000 in peaches,
another 250 in plums, and about 200 in
apples. '
The apples are not expected to be

‘ hurt by the cold, as the trees have not

yet budded.
“J used to work at nights and farm
/ during the days,” Cox said, “just so I

. nel, and Pierre Sprey, a former sys" I) The procurement panel, which was’ * could finally be a farmer full time.
tems analyst for the Defense Depart- .{ created Jan. 29 under the chairmanship |
: ment, testified Thursday that no one In ; of Rep. Nicholas Mavroules, D-Mass, — to go back to working for someone elsé
‘government knows for certain ‘what plans further hearings on the inflation ,
‘. became of $44.8 billion from an infla- ‘cushion and other issues related to the ’ "mercy of the lending institutions.”

Well, I'm full time now, but I may have

so we can keep going. We're at. the

Not to mention the weatter.

Cox shrugged. “If we lose it this
year, I might plant me some pum
and see if I can sell them in the fall.”

It was certain cold weather wouldn't
get a pumpkin crop, he said.

But peaches are the main product up
here in this hill country.

As for the impending freeze, Cox
shook his head.

“There's just nothing we can do
about it,” he said. “It doesn't do any
good to build fires.”

He got into a truck and drove back
to the house. He would come back Sat-
urday morning to see how the frail
blossoms fared.

Driving over the rough, narrow road

leading down the mountain, he said: *

“It's all in the hands of
who knows what he’s doing.” \e

Bid to block slayer’s exec ution
goes to Atlanta appeals court

Associated Press o ;
MOBILE — An attorney for convicted murderer
Arthur Lee Jones Jr. turned to a federal appeals court in
Atlanta yesterday in an 11th-hour attempt to prevent
Jones’ execution in Alabama’s electric chair.
s_ Jones is scheduled to be: put to death at 12:01 a.m,
Friday. = 9 — me £ y 8 : :
After a one-hour hearing yesterday morning, U.S. Dis-
trict Judge W. Brevard Hand in Mobile, Saying he did
not want to hear “a lot of garbage” about the case,
denied Jones’ request for a stay. Jones’ attorney, John
Furman, filed immediate notice of appeal to the 11th
U.S. Circuit Court of Appeals in Atlanta. ’
Jones, 47, was convicted and sentenced to die for the
1981 murder of a cab driver in nearby Prichard. The
,. death row inmate attended the hearing in Mobile wear-
_ ing a white prison uniform, his hands and feet chained.
He left the courtroom without any sign of emotion.
In an interview at Holman Prison Monday, Jones den-
ied killing anyone and said he would be a “madman” if
~ he gave much thought to dying Friday.

As yesterday's hearing began, Hand said he wanted to
keep the record “as precise as I can possibly keep it
without expanding on arguments in the record.” —*

He said he did not want to hear “a lot of garbage from
lawyers,” but permitted testimony. on aspects of-the
case not already in the record. f

Jones, a Clarke County native, was sentenced to death
in two south Alabama killings — the Aug. 17, 1981,
shooting of 71-year-old William Hosea Waymon, a Pri-
chard cab driver, and the Sept. 14, 1981, murder of 21-
year-old Vaughn Thompson, a Baldwin County store-
keeper. tanh a ’ fi

He is the only Alabama death row inmate under two

_death sentences for unrelated capital offenses.

The cab driver's widow, Sadie Waymon, said Monday
she didn’t want to comment on the crime or Jones’ fate.

Elma Thompson, mother of the other slaying victim,
said if Jones is executed he will “be getting what he
deserves.” ;

Please turn to JONES, page A3

re i?
i fi a3 He fas }
* Ny by hi i
r ys ss. Lt Pag re a0 Diuosl 4 UA, oa 9 ria st ti te a a satay Tae Tals Ag iy vy ‘
Aye ‘

Pages* Se bectona VINE pean aT ae Birmingham. ‘Ala., Friday March 21, ose”

Contents copyrighted 1986 — The Birmingham News Compa

4 Vin

pata ‘: cf

BR atts 4
wel PLL ue *

1 emurderer executed at Atmore

ss Sales Moe “

re ime no ‘one not ‘even the US. Supreme ‘asked him if he had anything to say, Jones shook
Nady: a aay Cou Yor Gov. ‘George Wallace‘: would’ stop: )’ his head and continued moving his Lipa in
icobet se, kaa ck ska Naan “ Jonieg't date with “Yellow Mama,”, as the chair’ <: '* apparent prayer.
a ES hur. “set ‘Jones, a Teonvicted: e, ©) comrntionly is'called. He became the second je Moments later, the two prison guards in the
i dable murderer Who once, was described, as’ one ra bama inmate to be executed since 1968.) \!''"""/\' red-brick execution chamber attached headgear '*
‘ “ALY Matton request,‘ prison. authorities | provided | - bearing two electrodes to Jones’ freshly shaved
i Bs ‘him: with'a dark blue: suit anda white ‘shirt to’, irr head. A black cloth from the headgear covered |
a ‘fellow; somnates, fattled. ithelr,-cell bars: and: hol- wear’lh his last minutes of life. And Jones spent,» his face. A leather strap with another electrode _ :
} ylered iy PE INEICE NE TORU ORE A isan igen ‘\ those minutes moving his lips in apparent prayer, ‘: was around Jones’ left leg. it
be Lane +The 47-year-old Soler strapped into Holman | ‘* his face Sapreasionless, his eyes, often area or, z The warden, in an adjoining control room, then °
° Ptison's yellow: electric:.chair, was pronounced -*-: ~ closed." RT haat neinnlialh ds bia in ‘threw a switch and Jones’ upper body thrust.
q Ey at 12:15 a.m. today after.one 30-second jolt, 983° “He ‘was prepared to die the last time, . said h his "upward, his hands making fists.
4 aR of 1900 volts surged through his body.”*' vs"). Soh attorney, John Furman of Mobile, who witnessed.» ./° Toward the end of the surge, Jones’ hands '
“ his client’s death. “He's been prepared. all: along.’ relaxed slightly. He then slumped in the chair’!
nt hours before = was to take or te this tine. He believes in an after-life.” °° 4%": s+»! when = electric current to his body was shut °: ‘
eae ‘Whe, gum-chewing Holman Warden’ Willie e gees oi ae
ohnsof! read iculateistikras death warrant ‘and ; eR at

Peas
en

Row): went to his death quietly this’ morning ‘as.

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Convicted double murderer is executed in Alabama’s electric chair

fas
;

' ATMORE, Ala. (AP) — Convicted double murderer
Arthur Lee Jones Jr., who came within 16 hours of exe-
Cation in 1984, died in Alabama’s electric chair early
today for the shooting death of a cab driver during a
robbery.

=!" Jones, 47, was prounounced dead at 12:13 a.m., said
Holman | Prison: Warden Willie Johnson.

=. The execution came after the U.S. Supreme Court
refused yesterday on a 5-4 vote to delay it and Gov.
George C. Wallace failed to commute the sentence to life
in 1 prison. . ;

Sa itsa avery, very difficult matter. At the same time,
DE ni OG, 7; fords 3- 2/- Fé

the law is the law,” Wallace said at a news a conference
yesterday afternoon.

He received two death sentences, one for killing
William Hosea Waymon, a 71-year-old cab driver, and
the other for killing a 21-year-old storekeeper, Vaughn
Thompson, in separate robberies in 1981.

He served his first prison sentence when he was
17.

Jones, who also went by the name Abdul Sibar Baa-
que, said he was innocent and that he was framed by
police. He said it was against his Muslim religion to steal

or mA, 1 Zen g Dey /y Sfer-TUCSov

8C_ Friday, March 21, 1986. “ San Jose Biscay News @2@@@

de gge or News

brief

Killer of 2 dies in Alabama electric chair

ATMORE, Ala. (UPI) — Arthur Lee Jones, who -

insisted capital punishment does not deter crime, was
executed in Alabama’s half-century-old electric, chair
early today for killing a store clerk and cab driver.

Jones, whose final appeal was rejected on a 5-4
vote of the U.S, Supreme Court, was pronounced dead
at 12:14 a.m. after a single, 30-second jolt of current in
the “Big Yellow Mama” electric chair at Atmore
Prison. .

He became the second convict executed in Ala-
bama since capital punishment was reinstated in
1976.

- Jones, 47, made no last statement, but said earlier
this week that “capital punishment does little more to
deter crime than AIDS does to homosexuality.”

Death row inmates began rattling the bars on their .

cells five réinutes before midnight and kept up the din
until the warden announced the death sentence had
been carried out.’

Jones ate'a last meal of salmon patties, candied
yams, cole slaw, chilled peaches and grape drink and
spent his last hours watching television.

Jones was convicted Jan. 28, 1982, of killing Vaughn
Thompson, a 21-year-old Baldwin County storekeeper.
He also was convicted in Mobile on Nov. 16, 1982, of
killing William Hosea Waymon, a 71-year-old Mobile
County cab driver, and was given the death sentence
for both crimes.

The Supreme Court was asked to intervene for
Jories on grounds he did not get a fair trial because
people opposed to the death penalty were excluded
from his trial jury.

ao: eee

» A

“996T-Te-t (STTQOW) “STy °oeTSe fHOBTQ f*ur feeq anugjdy *SHNOL

JONES v. SMITH

1299

Cite as 599 F.Supp. 1292 (1984)

ness, and binding upon this Court. 28
U.S.C. § 2254(d). Accordingly, this Court
concludes that the State court’s action did
not contribute to any ineffective assistance
of counsel, rather, the actions of the State
court were intelligent, effective, and led to
smoother, and indeed good relationships be-
tween petitioner and his trial counsel.

[13] Petitioner’s next claim of ineffec-
tive assistance relates to the fact that his
attorney “made no motion for funds for an
investigator, even though petitioner was
indigent, and Alabama law provides for
obtaining such funds in this circumstance.
Hence, no effective investigation was made
to locate witnesses who might have helped
petitioner to defend himself in this case.”
That claim is refuted by paragraphs (5) and
(6) of Judge Kittrell’s Order, supra. (Exh.
Q at 2-3) Judge Kittrell specifically found
that trial counsel thoroughly investigated
the case, interviewed the State’s primary
witnesses, and attempted to find and/or
interview all of the potential alibi witnesses
named to them by the petitioner. Under
these circumstances, the Court concludes
that trial counsel were not ineffective in
their investigation of this case.

Petitioner also charges ineffective assist- -

ance of ‘counsel due to the fact that his
attorneys decided to waive an opening
statement during the guilt stage of the
trial. Judge Kittrell in paragraph (11) of
his. Order specifically found that the deci-
sion to waive an opening statement was a
“strategic one which was reasonable under
the circumstances.” He stated further:
Both attorneys concurred in that strat-

egy because they did not want to pin
themselves down to what the evidence
might or might not show. That is not an
unusual tactic of criminal defense: attor-
neys, nor is it an unreasonable one, par-
ticularly in a case such as this one. In
regards to petitioner’s argument that the
attorney should -have used the opening
statement to familiarize the jury with
principles of law and the application of
law to the facts in this case, that is not
the proper function of an opening state-
ment. Had the attorneys attempted to

use the opening statement for that pur-
pose, the Court would have sustained an
objection to it. Nor was it unreasonable
for the attorneys to forego the use of the
opening statement to tell the jury about
the alibi witnesses and warn the jury
about the criminal record of those wit-
nesses. As one of the attorneys noted at
the hearing, that would foreclose the de-
fense from nof- calling those alibi wit-
nesses. It was a reasonable decision to
leave open the possibility that such wit-
nesses might not be called, depending
upon how the case developed and what
Petitioner’s views on the subject were at
the end of the prosecution’s case.

(Exh. Q at 5).

[14,15] Attorneys are not generally
held to be constitutionally ineffective be-
cause of a tactical decision. See United
States v. Guerra, 628 F.2d 410, 413 (5th
Cir.1980), cert. denied, 450 U.S. 934, 101
S.Ct. 1898, 67 L.Ed.2d 369 (1981). In the
instant case, and based upon Judge Kitt-
rell’s findings, this Court concludes that
trial counsels’ decision to waive opening
argument was a well thought out tactical
decision, based on a number of factors, and
that said decision does not constitute inef-
fective assistance of counsel.

Defendant also claims that his trial attor-
neys were guilty of ineffective assistance
of counsel because they “failed to request
that the opening and closing statements of
counsel be recorded.”

[16] Hence there was no way for appel-
late counsel to look for reversible error
there. For the reasons stated in paragraph
(11) of Judge Kittrell’s Order, this Court
concludes that there was no ineffective as-
sistance of counsel because of the failure
to request that opening and closing state-
ments be recorded. Indeed, although not
all the opening and closing statements are
recorded, petitioner’s counsel objected
twice during the State’s closing and rebut-
tal arguments. (Exh. A at 170-171)

Petitioner further alleges that a number
of “alibi and potential alibi witnesses were
either not discovered, never investigated,

1300 599 FEDERAL SUPPLEMENT

not subpoenaed, or were subpoenaed and
did not show up, with trial counsel refusing
petitioner’s request for them to ask for a
continuance to locate these witnesses.
These witnesses included: Bobby Vaughn,
Beatrice Chestang, Bobbie Preston, Larry
Shekar, Lois Ware, Johnny Clemons, [and]
Johnny Lane.”

[17] Based upon paragraphs (6) and (7)
of Judge Kittrell’s Order, supra, (Exh. Q at
3-4) this Court concludes that petitioner’s
trial attorneys made every reasonable at-
tempt to find said witnesses, or in the cases
of Beatrice Chestang, Bobbie Preston and
Larry Shekar, the petitioner failed to tell
his attorneys about said potential witness-
es. Accordingly, the Court finds no inef-
fective assistance of counsel based upon
failure to produce certain witnesses at tri-
al.

[18] Finally, petitioner asserts that his
trial counsel were derelict in their duties
because they failed to call “as a witness a
psychological expert who could have testi-
fied as to the notorious unreliability of eye
witness testimony, and did not even move
for funds for such an expert.”

Allegations of ineffective assistance of
counsel “concerning uncalled witnesses im-
pose a heavy showing since the presenta-
tion of testimonial evidence is a matter of
trial strategy.” United States v. Guerra,
628 F.2d at 413. Counsel will not be
deemed to be constitutionally deficient be-
cause of tactical decisions. Jd. See also
paragraph (21) of Judge Kittrell’s Order.
(Exh. Q at 8) This claim also seems to be
foreclosed by Rodriguez v. Wainwright,
740 F.2d 884 (11th Cir.1984), wherein it was
held that there is no constitutional right to
have expert testimony concerning eye wit-
ness testimony admitted into evidence even
if it is offered. Jd. at 885.

For the reasons stated above, the Court
concludes that the petitioner has failed to
demonstrate by a preponderance of the evi-
dence that his trial attorneys were guilty of
any ineffective assistance of counsel, nor
has he established the requisite prejudice
component. When reviewing the trial tran-

script as a whole, and the findings of the
coram nobis proceedings, it does not ap-
pear as though the actions of his trial coun-
sel, either separately or in combination “so
undermine the adversarial process that the
trial cannot be relied on as having produced
a just result.” Strickland v. Washington,
supra.

Ill. ThePresent Insanity Claim. Peti-

tioner’s third claim (Para. 13-18) alleges
that petitioner is presently insane, thus to
execute him at this time would violate the
Eighth Amendment as applied to the states
through the Fourteenth Amendment. The
claim of insanity has already been con-
sidered by the state trial court in a coram
nobis proceeding. Pursuant to 28 U.S.C.
§ 2254(d) a presumption of correctness at-
taches to a state court’s finding of fact.
There are eight very limited exceptions to
this rule. The only contention raised by
petitioner is that the factual determination
by the state court is not fairly supported
by the record. § 2254(d)(8).

Petitioner alleges that he suffers from
paranoid psychosis, that the condition has
been continuous since sentence was im-
posed, that letters to his attorney support
this contention, and that the court-ordered
evaluation on which the state court refused
relief was too short to adequately deter-
mine petitioner’s mental condition.

[19] In the concluding paragraph of
section 2254(d), it is stated that “unless the
court concludes pursuant to the provisions
of paragraph numbered (8) that the record
in the State court proceeding, considered as

a whole, does not fairly support such factu-

al determination, the burden shall rest
upon the applicant to establish by convinc-
ing evidence that the factual determination
by the State court was erroneous.” In this
ease the evidence at the State hearing does
fairly support the finding that petitioner is
sane.

The examining psychologist, Harry
McClaren, Ph.D., testified that the report
prepared by the staff at Taylor Hardin
Secure Medical Facility after thorough re-
search was accurate and correct. Mr.
McClaren is a thoroughly qualified expert

1302 599 FEDERAL SUPPLEMENT

It was established that the defendant
was residing in Plateau and that his resi-
dence was eight-tenths of a mile from the
scene of the crime. Witnesses testified
that the defendant owned a .22 caliber
pistol.

During the month of August, the de-
fendant was employed by Industrial Ser-
vices and received $373 for that month.
The defendant was employed by this
company as a “four-fifty an hour labor-
er’ from May 29, 1981 til September 17,
1981.

In August of 1981, the defendant was
three months delinquent in his automo-
bile payments. His account was at the
“maximum delinquency” and was rough-
ly in the amount of $420. On August 12,
1981, a field representative with General
Motors Acceptance Corporation attempt-
ed to repossess the car but the defendant
refused to release the car. The defend-
ant stated that he “didn’t have the mon-
ey at the time but ... would try and
borrow it and come out to G.M.A.C. and
pay it ... the next day.”

The State also showed that the defend-
ant made the following expenditures: On
August 18th, the day of the murder, the
defendant made a $139 car payment; on
September 2d, the defendant paid $32.74
for an automobile license tag, $297 on his
G.M.A.C. account, and $40 as a deposit to
Alabama Power Company. The defend-
ant changed his address between August
17 [the day of the murder] and Septem-
ber 2d. On November 2d, his automobile
was repossessed because the defendant
“never did catch up in his back pay-
ments.”

Jones v. State, 450 So.2d 165, 167 (Ala.
Crim.App.1983).

2. The Alabama Supreme Court ex-
pressly adopted those fact findings, Ex
Parte Jones, 450 So.2d 17 1, 172 (Ala.1984),
and added its own fact finding that, “...
there was sufficient evidence presented
from which the jury could exclude every
reasonable hypothesis except that of guilt.”

3. In addition to the facts found by the
Alabama Appellate Courts, there was also

testimony by police officers indicating that
on the front seat of Mr. Waylon’s cab were
shoe prints made from a shoe “smaller
than a size 10.” (Exh. A at 31; 35) And
although there was no testimony as to the
petitioner’s shoe size, there was evidence
that his height was five feet 3 inches.
(Exh. A at 53) In addition, there was eye-
witness testimony in which the petitioner
was described as wearing a type of blue
uniform. (Trial at 61) The petitioner’s em-
ployer, Mr. Malone, testified that the peti-
tioner wore blue jean laborer type clothes.
(Exh. A at 128-129)

4. Other testimony established that the
decedent was to pay $100.00 to Mike’s Cab
for the use of the cab franchise. (Exh. A
at 142) Thus a jury could infer that the
decedent may have had as much as $354.00
in cash on him at the time of his murder.
When the decedent’s body was found, there
was no roll of money in his pants pocket.
(Exh. A at 148)

5. Thus, a jury could infer from the
evidence that the petitioner was in need of
money, that the decedent had money, that
the decedent’s money was stolen from him,
and the petitioner suddenly had more mon-
ey than he made at his own job.

B. Conclusions of Law

The petitioner raised this same sufficien-
cy argument in the Alabama Court of Crim-
inal Appeals, which summarized the appli-
cable law as follows:

Testing the sufficiency of the evidence
by the principles of Dolvin v. State, 391
So.2d 183, (Ala.1979), and Cumbo v.
State, 368 So.2d 871 (Ala.Cr.App.1978),
cert. denied, 368 So.2d 877 (Ala.1979), we
find that the evidence, although circum-
stantial, was sufficient to permit the jury
to exclude every reasonable hypothesis
except that of guilty beyond a reasonable
doubt, and was sufficient to sustain the
verdict of guilt.

Taking all the evidence and the manner
in which the individual facts connect and
mingle, United States v. Hines, 662 F.2d
362, 367 (5th Cir.1981), and viewing it in

-JONES v. SMITH

1301 |

Cite as 599 F.Supp. 1292 (1984)

in his field, and no objection was made by
petitioner to the state court’s acceptance of
Mr. McClaren as an expert. The report
showed that petitioner was aware of his
surroundings, of the charges for which he
was convicted, that he was sentenced to
death, and that he understood the proceed-
ings against him. No contradictory expert
testimony was offered.

The only objection made by petitioner to
the use of the aforementioned report was
that seven days was too short a time to
prepare it. Mr. McClaren testified that this
is plenty of time, that any delays that ordi-
narily occur, occur because of administra-
tive problems with the number of patients,
not because of the medical or clinical need
for additional time. Petitioner points to a
report of another individual that took three
months to prepare. Mr. McClaren stated
clearly that that was an unusual case in-
volving a Viet Nam veteran with a history
of mental disorder, totally different from
petitioner. The report was thus trustwor-
thy. There was ample evidence to support
the trial court’s finding that petitioner is
sane. Even petitioner’s own testimony at
the coram nobis hearing demonstrated his
awareness of the meaning of that proceed-
ing and of his impending fate.

Petitioner has presented insufficient evi-
dence to cause this Court to find the state
court’s determination to be erroneous. The
only evidence is a letter to petitioner’s
counsel from petitioner, and the testimony
of Mr. McClaren that he could not rule out
intermittent paranoid psychosis in any hu-
man being. The letters from petitioner, far
from showing insanity, demonstrate that
he was well aware of his impending fate.
In a letter dated June 30, 1984, petitioner
thanks counsel for “working to save my
life.’ The letters speak mainly of civil
actions petitioner had filed against the po-
lice and state prosecutor. They allege that
evidence against him was fabricated. This
merely shows that petitioner knew he need-
ed to do something to avoid the death
penalty. He chose to attempt to invent
various explanations for his convictions.
This does not present convincing evidence
that the state court determination was er-

roneous. The statement by Mr. McClaren
does not contravene the state court’s find-
ing, which was put down in great detail by
Circuit Judge Kittrell, that petitioner is
now sane. Claim three is therefore DE-
NIED.

IV. Sufficiency of the Evidence. Peti-
tioner’s fourth claim (Para. 19-31) is that
the State presented insufficient evidence to
sustain a convictipn.

A. Findings of Fact

1. Based upon a review of the trial tran-
script, the Court concludes that the follow-
ing historical facts found by the Alabama
Court of Criminal Appeals are, pursuant to
28 U.S.C. § 2254(d) and Sumner v. Mata,
449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722
(1981), fully supported by the record, pre-
sumptively correct, and binding upon this
Court:

The State’s evidence reveals that dur-
ing the early morning of August Fi,
1981, Mr. Waymon picked up his last fare
at 12:41. [An eye] witness testified that
the defendant stated that he wanted to
go to Plateau and got into Mr. Waymon’s
cab at Mike’s Cab Stand. The defendant
was on parole from a sentence of life
imprisonment for a robbery conviction
from Clarke County. ;

The dispatcher tried to contact Way-
“mon by radio even before he “went
around the corner.” She tried three or
four additional times but never did re-
ceive any response although Waymon
“always answered his radio.”

Mobile Police Officer Leroy Sieck
found Waymon’s body near his cab at
1:11 that morning, approximately 35 min-
utes after Waymon had left with the
defendant. Waymon had died from
four .22 caliber gunshots fired at close
range. The body was found in Plateau,
in North Mobile, approximately two and
four-tenths miles from the cab stand.
Only $35.00 was found in Waymon’s
shirt pocket although there was evidence
that he usually carried a “roll of money”
in his pants pocket and could have had as
much as $254.81.

670 772 FEDERAL REPORTER, 2d SERIES

JOHNSON, Circuit Judge:

Petitioner-appellant, Arthur Jones, was
convicted of murder and sentenced to death
in 1982. Direct appeals in state court
proved unsuccessful. See Jones v. State,
450 So.2d 165 (Ala.Crim.App.1983), affd,
In re Jones, 450 So.2d. 171 (Ala.), cert.
denied, — U.S. ——, 105 S.Ct. 232, 83
L.Ed.2d 160 (1984). Subsequent efforts to
obtain coram nobis relief in state court
also failed. Jones then filed the present
action in federal district court, seeking ha-
beas corpus relief. In this appeal, we re-
view the district court’s denial of Jones’
habeas petition. Three issues are present-
ed: (1) whether the pretrial line-up was
unduly suggestive; (2) whether the trial
court erred in rejecting Jones’ requested
instruction on eyewitness testimony, and
(3) whether Jones received effective assist-
ance of counsel during the trial proceed-
ings.

The district court below did not hold an
evidentiary hearing; it considered only the
records made at trial and at the state cor-
am nobis hearing. 599 F.Supp. 1292. The
district court examined the record to deter-
mine whether the state court’s findings of
fact were erroneous. These findings are
entitled to a presumption of correctness
unless they are “not fairly supported by
the record.” See 28 U.S.C.A. § 2254(d\8);
Sumner v. Mata, 449 U.S. 539, 101 S.Ct.
764, 66 L.Ed.2d 722 (1981). Having re-
viewed the record on appeal, we agree with

- the district court that the state court’s find-

ings are fairly supported by the record.
We also agree with the district court’s dis-
position of the legal issues presented in
this appeal. Accordingly, we affirm.

I. FACTS

The murder victim was a taxi driver
Jones hired at 12:45 a.m. on the morning of
August 17, 1981. Immediately after the
taxi left the taxi stand, a dispatcher at-
tempted to call the driver on a radio. The
driver failed to respond. Approximately
thirty-five minutes later, the driver was
found robbed and shot to death, lying in
the street beside his car eight-tenths of a
mile from Jones’ home in Plateau, a resi-

dential area in North Mobile, Alabama.
The radio in the taxi was in working condi-
tion when found.

A witness named “Shorty” Banks, saw
Jones hire the taxi and described him to the
police shortly after the murder had been

discovered. Banks recalled Jones as hav- -

ing said that he wanted a ride to Plateau.
Banks reviewed several photographic ar-
rays but did not point to anyone as the
suspect. A picture of Jones was not in-
cluded among the photographs. At a line-
up-shortly after Jones’ arrest and within
three weeks of the murder, Banks immedi-
ately recognized Jones as the man he saw
at the taxi stand. _ Banks is five feet four
inches tall. He was sitting on the hood of
an automobile when he saw Jones at the
taxi stand. He described Jones to police as
being 5’5” or 5'6”—slightly taller than
Banks—but in fact Jones is five feet three
inches tall, one inch shorter than Banks.
Jones was the shortest person in the line-
up. :

Jones was represented at trial by two
attorneys, both of whom have practiced as
criminal defense lawyers for over twenty
years. ~The first attorney appointed asked
to. be replaced because of disagreements
with Jones over how to present his defense.
The trial court did not replace this attorney
but instead appointed a second attorney to
assist. The state coram nobis court found
that Jones had no problems with either
attorney from then on.

Jones’ primary defense tactic was to at-
tack Banks’ identification of him as the last
one to ride with the slain taxi driver. At
Jones’ insistence, however, an alibi defense
was also proffered. Two alibi witnesses
testified that they saw Jones at a particular
social club on the night of the-murder.
Jones now claims that seven other witness-
es should have been located and subpoe-
naed to testify to the same effect. The
state coram nobis court found that Jones
did not give the names of three of these
additional witnesses to his attorneys before
trial. The other four witnesses either were
not located or refused to appear and testi-
fy. The state court found that Jones’ at-

JONES v. SMITH 671
Cite as 772 F.2d 668 (1985)

torneys made every reasonable effort to
find these four potential witnesses, and the
district court below adopted this finding as
correct. -

One of the potential witnesses, Bobby
Vaughn, heard before the trial that Jones’
attorneys were looking for him. - Vaughn
called the attorneys and verified Jones’
claim that on the night of the murder he
and Jones were arranging a marijuana
sale, but he refused to give the attorneys
his address and failed to appear and testify
at trial as he had promised. Despite last
minute attempts, Vaughn was never served
with a subpoena. Jones’ attorneys did not
move for a continuance and did not ask
that funds be provided to hire a private
investigator to locate Vaughn or the other
witnesses.

Vaughn is now dead. None of the re-
maining alibi witnesses have been found.
Thus, not one of the seven testified at the
state coram nobis hearing that he or she
would have appeared at trial and confirmed
Jones’ alibi defense if requested.

Il. ISSUES AND DISCUSSION

A. The Pretrial Line-up.

Jones claims that, because Banks had
previously described him as short and since
he was, in fact, the shortest participant in
the pretrial line-up, the line-up was imper-
missibly suggestive and tainted Banks’
subsequent in-court identification of Jones

. as the last one to ride with the murdered

taxi driver. Jones seeks to bolster this
claim by citing the discrepancy between his
actual height and the estimate of his height
Banks gave the police before his arrest.!

{1] A pretrial line-up is impermissibly
suggestive if, under the totality of the cir-
cumstances, the procedure challenged cre-

1. Jones also asserts that Banks’ testimony at
trial was equivocal on the issue whether the
police had told him, prior to the line-up, that the
murderer would be in the line-up for him to
identify. As the district court below noted,
however, the trial judge specifically questioned
Banks for clarification on this point. The dis-
trict court expressly found that the police had
not told Banks the murderer would be in the
line-up, and the record clearly supports this
finding. Jones’ argument in this appeal that

ated a “substantial likelihood” of misidenti-

fication: :
[F]Jactors to be considered in evaluating
the likelihood of misidentification include
the opportunity of the witness to view
the criminal at the time of the crime, the

_ witness’ degree of attention, the accura-

cy of the witness’ prior description of the
criminal, the level of certainty demon-
strated by the witness at the time of the
confrontation, and the length of time be-
tween the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200, 93
S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972).
Jones emphasizes the first three of these
factors, arguing that: (1) Banks observed
Jones for only five minutes as Jones ar-

-ranged to hire the taxi, (2) Banks was not

attentive since he did not then know that
the driver would be murdered, and (3)
Banks’ estimate of Jones’ height was inac-
curate by two or three inches.

[2] Like the state courts and the district
court below, however, we hold that the
line-up, if suggestive at all, was not imper-
missibly suggestive. The five-minute peri-
od of observation passed under good light-
ing conditions. During this period, Banks’
attention was specifically directed towards
Jones when Jones asked Banks if he were
the taxi driver. The line-up occurred only

_ three weeks later, at which time Banks

immediately and unequivocally identified
Jones. In fact, this identification was so
positive that at trial Banks could remember
very little about the other individuals who
participated in the line-up. This evidence
of Banks’ certainty is even more compel-
ling when it is recalled that he had previ-
ously rejected without hesitation several
photographic arrays not containing Jones’

Banks’ initial equivocation “clearly indicate[s]
suggestivity and severe likelihood of misidentifi-
cation” is without merit.

Also without merit is the claim that Banks
altered his description of Jones after the pretrial
line-up to agree with Jones’ actual appearance
as opposed to a composite drawing previously
made with Banks’ assistance. The state court
found a “marked resemblance” between the
composite drawing and Jones. The record fair-
ly supports this finding.

672 772 FEDERAL REPORTER, 2d SERIES

picture. The remaining core of Jones’
claim—that five minutes was too short a
period of observation and three inches too
great:a discrepancy in height estimation—
does not, under a “totality of the circum-
stances” create a “substantial likelihood”
of misidentification. The line-up was not
unduly suggestive and did not taint Banks’
in-court identification of Jones.

B. The Instruction on Eyewitness Iden-
tification.

Jones next claims that the trial court
committed an error of constitutional magni-
tude when it refused, without explanation,
to give the following jury charge:

The court charges the jury that the possi-

bility of human error or mistake, and the /

probable likeness or similarity of objects
and persons are elements that you must
act upon in considering testimony,as to
identity. You must carefully consider
these factors passing upon the Credibility
that you attach to the wit testimo-

ny, and you must be satisfied beyond a

reasonable doubt as to the accuracy of

the witness’ en of the Defend-
ant. - |

This requested instruction\is an extremely
truncated version of the “Telfaire” charge,
which derives its name from a model
charge recommended by the District of Co-
lumbia Circuit Court of Appeals in United
States v. Telfaire, 469 F.2d 552, 558-59
(D.C.Cir.1972). The court in Telfaire did
not make its proposed’ charge mandatory.
In fact, it affirmed the defendant’s convic-
tion because the trial court’s instructions—
“both the initial instruction on the burden
of proving beyond a reasonable doubt all

2. The issue of identification was specifically
mentioned by the state trial court in a-criminal
case later brought before this Court in Rodri-
guez v. Wainwright, 740 F.2d 884 (11th Cir.
1984), as an appeal from a district court's denial
of federal habeas corpus relief. Appellee in the
present action, the State of Alabama, has provid-
ed us with a copy of a portion of the State of
Florida's brief in Rodriguez, which sets forth the
rclevant part of the state trial court's jury charge
in that case:

Now, the burden of proof on the State extends
to every element of the crime charged and

the elements of the offense, and the follow-
on instructions dealing with the defense of

alibi, and the problem of mistaken identity”:

—when considered in “the overall context
of the case,” significantly focused the
jury’s attention on the issue of identity.
Id. at 556.

This Court has yet to decide whether a
“Telfaire” charge should be constitutional-
ly required in every case where identifica-
tion of the defendant is a major issue at
trial. Instead, in the few similar cases we
have decided thus far, we have held that
the more general instructions actually giv-
en fairly covered the essence of the identifi-
cation issue. Most recently, in United

States v. Martinez, 763 F.2d 1297 (11th

Cir.1985), we affirmed a district court’s re-
fusal to give a requested “Telfaire’’ in-
struction because the portions of the
charge actually given concerning reason-
able doubt and the credibility of witnesses
adequately covered the identification issue.
In Martinez, the district court had not
mentioned identification testimony specifi-
cally,? but it had instructed the jury to
“{cJonsider the witness’ ability to observe”
the events to which he had testified and to
evaluate ‘“‘whether he impresses you as
having an accurate recollection” of these
events. Jd. at 1304 n. 7.

[3] Here, the trial court did not express-
ly instruct the jurors to consider “Shorty”
Banks’ ability to observe or his accuracy in
recalling who had last hired the taxi on the
morning of the murder. But the court did
fully instruct the jurors on the requirement
that they find every element of the crime
beyond a reasonable doubt before re-
turning a guilty verdict. Moreover, as did

this [sic] include the burden of proving be-
yond a reasonable doubt the identity of the
defendant as the perpetrator of the crimes
with which he stands charged. If, after exam-
ining all the evidence, you have a reasonable
doubt, as I will define it, to identification, you
should find the defendant not guilty.
Apparently relying on this part of the trial
court's instruction, this Court summarily af-
firmed the district court's denial of habeas re-
licf, holding that the given instruction had al-
ready covered the defendant's requested “Tel-
faire” instruction. /d. at 885.

JONES v. SMITH 673
Cite as 772 F.2d 668 (1985)

the defendant in Telfaire, Jones proffered
an alibi defense. The trial court’s instruc-
tion on this defense focused precisely on
the issue of whether it was in fact Jones, or
someone else, whom Banks had seen at the
taxi stand? The instructions given in Tel-
faire are nearly identical. Without en-
dorsing or rejecting the model charge pro-
posed by the District of Columbia Circuit
Court of Appeals, we find the disposition of
that case persuasive, particularly in light of
the fact that at trial the accuracy of Banks’
identification of Jones was a major focus of
his testimony and cross-examination. In
sum, we hold that the charge given to the
jury, when taken as a whole and considered
along with the manner in which the case
was tried, clearly conveyed to the jury the
State’s burden of proving beyond all rea-
sonable doubt that the defendant, and not
someone else, committed the crime

charged.

C. The Ineffective Assistance Claims.

Jones cites an array of alleged shortcom-
ings in the representation his attorneys
provided at trial: (1) his first appointed
attorney asked to be relieved but was
forced to continue representing him, (2)
together, his attorneys made no motion for
funds to hire an investigator to locate alibi
witnesses, and the investigation the attor-

3. The trial court instructed:
The defendant in this case relies upon what
we call an alibi defense. That is that he was
not where and when of necessity he must
have been in order to have committed the
crimes with which he is charged. Now the
law is that the burden does not shift to the
defendant by reason of this defense. The
burden is and continuously remains with the
State to prove the guilt of the defendant be-
yond a reasonable doubt.

Your verdict must be based upon the evi-
dence, as I have told you, which is the testi-
mony and the exhibits and the just and the
reasonable inferences from that evidence. It
may not be based upon speculation or conjec-
ture. ...

I charge you, members of the jury, that the
defendant has introduced evidence that he
was not present at the time and the place the
alleged crime was committed. This is known
in law as the defense of alibi. Alibi is a legal
and proper defense and if after weighing the
evidence in support of the alibi with all of the

neys carried out on their own was inade-
quate, (3) the attorneys failed to request a
continuance when Bobby Vaughn did not
appear to testify at trial as he had prom-
ised, (4) they waived Jones’ right to make
an opening statement instead of using it as
an opportunity to point out the unreliability
of eyewitness testimony even before Banks
was called to testify, (5) the attorneys did
not arrange for an expert to testify as to
the unreliability of eyewitness testimony,
and (6) they did not request that opening
and closing arguments of counsel be re-
corded, and thus there is no way appellate
counsel can examine the transcript in
search of plain error.

Applying the two-part test announced in
Strickland v. Washington, —- U.S. —,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we
affirm the district court’s denial of habeas
relief as to each of these alleged shortcom-
ings. None involved both professional con-
duct that was unreasonable under the cir-
cumstances (the performance inquiry) and
a reasonable probability that, but for the
challenged conduct, the result of the trial
proceedings would have been different (the
prejudice inquiry). Jd. at ——, 104 S.Ct. at
2064-69.

[4] The state court found that a good
working relationship existed between Jones

facts and circumstances in the case the jury
has a reasonable doubt that the prosecution
has proven that the defendant was present at
the time and place that the alleged crime was
committed it should find the defendant not

guilty.

4. The district court in Telfaire instructed:

In this case the defendant has taken the stand
and testified in his own defense with respect
to what occurred on April 10, 1970.
His defense ‘is in the nature of an alibi and |
wish to give you the following instruction of
law with respect to an alibi.
If, after full and fair consideration of all of
the facts and circumstances in evidence you
find that the government has failed to prove
beyond a reasonable doubt that the defendant
was present at the time when, and the place
where, the offense charged was allegedly com-
mitted, you must find the defendant not
guilty.
United States v. Telfaire, supra, 469 F.2d at 556
n. 13.

674

and both of his attorneys after.a second
lawyer was appointed to act as co-counsel.
This finding is. fairly supported by the
record. It belies any specific claim Jones
might make as to having been prejudiced
by his first attorney’s alleged reluctance to
represent him.

[5] The state court also found that the

attorneys conducted a thorough investiga- .

tion of the case, including a diligent search
for the alibi witnesses whose names had
been given to them. Jones’ attorneys inter-
viewed several people who frequented the
social club where Jones claims to have been
on the night of the murder. Yet they were
unable to locate the alibi witnesses. The
state court’s characterization of this. inves-
tigation as adequate is more than fairly
supported by the record: Moreoyer, apart
from the reasonableness of his attorneys’
investigation, Jones has not established

that he was prejudiced by their failing to

locate the witnesses or move for investiga-
tive funds. He has not shown that he was
entitled to have such a motion granted,
that a private investigator would have -lo-
cated the witnesses, and that they would
have testified even if located. It is even
less evident that their testimony would
have created a reasonable probability that
the outcome of Jones’ trial would have
been different. Not one of these witnesses
appeared before the state coram nobis
court to testify as to what he or she would
have said if called as a witness at Jones’
_ trial.

[6] Similarly, to the extent the record
reflects what Bobby Vaughn) would have
said if called as a witness in Jones’ behalf,
no reasonable probability exists that the
outcome of the trial would have been al-
tered by his testimony. Vaughn’s attorney
summarized his client’s testimony as con-
firming that Vaughn had been with Jones
on the night before the ‘murder but not at
the precise time the murder occurred.

{7] The attorneys’ decision to waive
opening argument at the guilty phase was
one of reasonable trial strategy. It left the
defense uncommitted to a particular posi-

tion and thus free to develop any defense

772 FEDERAL REPORTER, 2d SERIES

that might materialize as the State present-
ed its case. Further, Jones has not estab-

_ lished as a reasonable probability that mak- |
Ing an opening statement addressing the

unreliability of eyewitness testimony would
have altered the outcome of the trial in this
case.

[8] Nor did the failure of Jones’ attor-
neys to offer in evidence the opinion of a
qualified expert as to the unreliability of
eyewitness testimony constitute ineffective
assistance of counsel. The likelihood of
mistaken identification by Banks was
brought to the jury’s full attention through
cross-examination. No prejudice resulted
from the lack of expert testimony.

[9] Finally, the attorneys’ failure to re-
quest that opening and closing arguments
be recorded did not comprise unreasonable
professional conduct. The attorneys did
object to two remarks made by the state,
and the statements of counsel and the
court with respect to these objections were
recorded. Jones does not allege and has
presented no evidence showing that other
allegedly improper remarks were made be-
fore the jury without objection. At best,
his claim is that additional though unspec-
ified grounds for post-conviction relief
might have been discovered had the argu-
ments been recorded.

AFFIRMED.

O & KEY NUMBER SYSTEM

sums

3997 Jo 2d. 9232

Ronald STRAIGHT,
Petitioner-Appellant,

Vv.

Louie L. WAINWRIGHT,
Respondent-Appellee.

_No. 84-3447.

United States Court of Appeals,
Eleventh Circuit.

Sept. 13, 1985.

State prisoner tried and convicted in
Florida for murder and sentenced to death

Jon iS Ly Shure Lee Lalericen.

CKCee. fey
Cite as 786 F.2d 1011 (11th Cir. 1986) :

ioe i PER CURIAM: FG
‘Arthur ‘Lee JONES, ~
_. Petitioner-Appellant, .

Vv.
Fred SMITH, Commissioner, Alabama
Department of Corrections and W.E.
_ Johnson, Warden, Nolman Unit, Re-
spondents-Appellees.

No. 86-7194.:
United States Court of Appeals,

- Eleventh Circuit.
“March 20, 1986.

- Petitioner appealed from order of the
United States District Court for the South-
ern District of Alabama, William Brevard
Hand; Chief Judge, denying his petition for
certificate, of probable cause and for stay
of execution pending: appeal. The Court of
Appeals held that: petitioner: was not enti-
tled to.stay of execution pending appeal on
basis of Grigsby issue. :

Petition denied. —

Johnson, Circuit J udge, filed dissenting
opinion. —

Habeas Corpus €7113(8) »

_ Petitioner was not entitled to stay of
execution pending appeal on basis of Grigs-
by. issue arising after venireperson was
struck for cause at petitioner’s trial be-
cause she expressed reservations about
capital punishment and noted her reluc-
tance to consider imposing death penalty.

John Furman, Mobile, Ala., for petitioner-
appellant.

Ed Carnes, Asst. Atty. Gen., Montgom-
ery, Ala., for respondents-appellees.

Appeal from the United States District
Court for ‘the Southern District of Ala-
bama. e

- Before RONEY, FAY and JOHNSON,
Circuit Judges. .

Petitioner Arthur Lee Jones is presently
scheduled for execution in Alabama on Fri-
day, March 21, 1986 at 12:01 AM. He
appeals the district court’s denial of a peti-
tion for writ of habeas corpus. Presently
pending are his petition for certificate of
probable cause and for stay of execution
pending appeal, both denied by the district
court. :

Jones was previously before this Court
when denial of a prior petition for habeas
corpus relief was affirmed. Jones v.
Smith, 172 F.2d 668 (11th Cir.1985). The
United States Supreme Court denied certio-
rari on January 18, 1986.

‘ince then, the Circuit Court of Mobile
County has dismissed another coram nobis
petition, filed on January 14, 1986. °: On
March 13, 1986, the Alabama Supreme
Court denied petitioner’s motion for a stay
of execution. The federal district court

entered its denial of relief on this second

petition for writ of habeas corpus on March
18, 1986. Ean ts

In his habeas corpus petition, Jones rais-
es two issues: first, the one involved: in
Grigsby v. Mabry, 758 :°F.2d 226 (8th Cir.
1985), cert. granted, sub nom. Lockhart v.
McCree, — U.S. ——, 106 S.Ct. 59, 88
L.Ed.2d 48 (1985), concerning a death ori-
ented jury,.and second, that certain prose-
cutorial argument made during the. guilt
phase of the trial was improper.

This Court is in much the position it was
in Bowden v. Kemp, 774 F.2d 1494 (11th
Cir.1985). The Eleventh Circuit has con-
sistently rejected “the contention accepted
by the Eighth Circuit in Grigsby. Martin
v. Wainwright, 770 F.2d. 918, 938 (11th

1012.

Cir.1985); Jenkins v. Wainwright, 763
F.2d 1390,- 1893 (11th Cir.1985); Young v.
Kemp, 158 F.2d.514, 516 (11th Cir.1985);
and Smith v. Balkcom, 660 F.2d 578, 575-

84, modified, 671 F.2d 858 (5th Cir. Unit Bs:

1982), cert. denied,. 459 U.S. 882, 103 S.Ct.
181, 74 L.Ed.2d 148. nt

“We have been unable to find any case in
which this’ Court has stayed an execution
pending appeal to this Court because of the
Grigsby issue since that issue has been
settled by our decisions. —

We stated in Bowden:

~ tion, see Barefoot v. Estelle, [463 U.S.

- 880, 103 S.Ct. 3383] 77 L.Ed.2d 1090
*. (1983), we should be bound to affirm the

district court. The grant of the writ of

. certiorari in Grigsby is. no authority to

the contrary; any “implications to. be
drawn ‘therefrom may. be discerned by

application to the Supreme Court.
‘174 F.2d 1494 (11th Cir.1985).

We recognize that the Supreme Court of
the United States has granted a stay in
some cases involving the Grigsby issue.
See James v. Wainwright, — US. —,
106 S.Ct. 1393, 88 L.Ed.2d —— stay grant-
ed March 18, 1986; Adams.v: Wainwright,

“U.S, —y 106 S.Ct. 1871, 88 L.Ed.2d
_ stay granted March 6, 1986; Bowden.
v. Kemp, — US. —: 106 S.Ct. 218, 88

L.Ed.2d 182 stay granted October 14, 1985;
Moore. v. Blackburn, 7714 F.2d 97, stay
granted October 3, 1985; .Celestine 2.
Blackburn, — U.S. —, 106 S.Ct. 31, 87
L.Ed.2d 707 stay. granted September 26,
1985. To our knowledge, however, in none
- of those cases has certiorari been granted.

- * See, e.g., James v. Wainwright, — U.S. —, 106
S.Ct. 1393, 88 L.Ed.2d —— (1985); Adams v.
- Wainwright, — US. —, 106 S.Ct. 1371, 88
L.Ed.2d' —— (1986); Bowden v. Kemp, — US.

7186 FEDERAL REPORTER, 2d SERIES —

To date, the law in this Cireuit, which has.
not been modified by Supreme Court deci-
sion, mandates a denial of relief to petition-
er on this issue. ,

TL.

The petition for a certificate of probable
cause and the petition for a stay of execu-
tion are DENIED. .

J OHNSON,. Circuit Judge, dissenting:

I am convinced that the Supreme Court’s
recent action on petitions for stay of execu-
tion in cases : presenting - Grigsby claims
gives us unmistakable direction—direction
that the majority declines to recognize—in
determining whether a stay is warranted in
Grigsby cases. I read that direction as
requiring the grant of a stay in the instant
ease. Accordingly, I dissent. .

The panel opinion notes that the Supreme
Court has recently stayed executions in a
number of ‘cases presenting Grigsby
claims.” Nevertheless, the majority hews
to’the holding of Bowden v. Kemp, 174
F.2d 1494 (11th Cir.1985), in which we ob-

‘gerved that this Court does not know and

may not infer the basis of these stays, and
concludes again that we are thus bound by
the law of this Circuit to affirm the district .
court on abuse of the writ grounds. This
was true enough at the time Bowden was
decided. However, what the majority does
not emphasize is that two days after this
Court on October 12; 1985, denied relief in
the Bowden case, which presented only the
Grigsby issue, the Supreme Court itself
stayed Bowden’s execution.

_—., 106 S.Ct. 213, 88 L.Ed.2d 182 (1985); Moore
v. Blackburn, 774 F.2d 97 (1985); Celestine v.
Blackburn, — U.S. —, 106 S.Ct. 31, 87 L.Ed.2d
707 (1985).

—_——t__-—_-~ 4 tag inca tcpdeii inne

MISSISSIPPI CHEMICAL CORP. v.. E.E.0.C.

a
1013

Cite as 786 F.2d 1013 (11th Cir. 1986)

'. That action by the high court, coupled -.
with the Court’s. recent order denying a—

stay in a case raising another variation of
the Grigsby claim, Harich v. Wainwright,
— US. —, 106 S.Ct. 1892, 88 L.Ed.2d
—— (1986), should send us a clear mes-
sage. Harich presented a situation in

‘which petitioner did not allege that per-

sons on the venire were excluded during
voir dire for. cause or through peremptory
challenge because of any objections to
capital punishment. Jones, in contrast,
raises a straightforward Grigsby claim—a

case in which a venireperson, Mrs. Sum-

merall, was excused for cause on voir dire
~‘when she expressed reservations about
imposing a death sentence. (Mrs. Summe-
rall did not indicate that her views would
prevent her from fairly judging guilt or
innocence.) An affirmance of Grigsby by
the Supreme. Court in Lockhart would
clearly favor petitioner’s claim.

‘Justice Powell’s concurrence to the
Court’s denial of stay in Harich, id. (Pow-
ell, J., concurring), indicates that this dis-
tinction is a crucial one. He writes:

The other capital case in which execu-

‘tion is scheduled for tomorrow is No.
' A-710, James v. Wainwright. I voted to

grant a stay of execution in that case.

‘Both James and Harich profess to

‘present claims similar to that pending
_ before the Court in Lockhart v. McCree,
No. 84-1865.

This case, however, presents an issue

different from James and one: without.

merit. In James, the Lockhart issue

“swas at least arguably presented when
persons on the venire who expressed res-
ervations as to capital punishment were
removed by peremptory challenges. In
this case, petitioner “conced{ed] in this
petition [before the Supreme Court of
Florida] that at his trial ‘no veniremen
were excluded’ during voir dire, either

for cause or through peremptory chal-
lenge.” Opinion of Supreme Court of
Florida 2. Similarly, before this Court
petitioner makes no allegation that per-
sons on the venire were excluded during
voir dire because of any objections to
capital punishment.

‘does not control in this situation.

Accordingly, my vote is to deny the
application for a stay of execution.

In my judgment, the Court. has indicated
clearly that Jones is precisely the sort of
case in which a stay of execution should be
forthcoming. I hold to this view not in ~
derogation of the law of this Circuit in
Bowden, but in the conviction that that law
When
the Supreme Court speaks, we are bound to
listen. ;

Accordingly, I would grant a stay of
execution pending the Court’s decision in
Lockhart.

KEY NUMBER SYSTEM

sym

MISSISSIPPI CHEMICAL CORPORA-
TION, Plaintiff-Appellant,

EQUAL EMPLOYMENT OPPORTUNI-
TY COMMISSION,
Defendant-Appellee.

No. 84-7778.

United States Court of Appeals,
Eleventh Circuit. ‘

March 25, 1986.

Employer brought action seeking de- —
claratory judgment that Equal Employ-
ment Opportunity Commission’s Commis-
sioner’s charge was invalid on its face.
The United States District ‘Court for the
Northern District of Alabama, Robert B.
Propst, J., dismissed suit, and employer
appealed. The Court of Appeals, Hatchett,
Circuit Judge, held that issuance of Com-
missioner’s charge with Equal Employment
Opportunity Commission was not a “final
agency action” under Administrative Proce-
dure Act so that validity of charge alleging
that employer was engaged in pattern or

first execution will be over. Death warrants will be read between 9:30 and 10 o'clock.
Sheriff Batson has sent word to those who are entitled by law to be admitted. The
Board of Revenue was notified Thursday that the two negroes to be hanged would have

no claimants for the bodies and therefore arrangements have been made with a

local colored undertaker to bury them. The county will pay the burial costs,"

| Birmingham NEWS, Byrmingham, AL, June2), 1915 (1/142)

loepiinin CAS en ed

JONES, Syd, black, hanged at Birmingham, Alabama, on June 25, 1915.

"Birmingham, Alas, June 25, 1915-Syd Jones, a negro, hanged in the jail yard here today,
left a note in his cell in which he confessed responsibility for thirteen homicides, Two
of his victims were white men, Jones was convicted of killing a fellow convict while he
was serving a life term for another homicide,
"Jonest note follows: 'I killed three convicts while in prison (evidently at Banner Mines,
Jefferson County. I also killed Tommie Thompson and Charles Bennitt, and Deputy Sheriff
W. S. Moseley of Crawford, Neb.; Shay White, Tom Spay, Sam Lee, a Chinaman, Monterey,
Calif.; a Mobile « Ohio brakeman at Boydwell, Ky.; Bessie Humphrey, Huntsville, Alaes
Yattie Quiergo, a Mexican, at Fort Wingate, Ne Me; John Littlejohn, Indian, at Sheridan,
Wyo. I am sorry I missed getting Richard Moore, Sept. 13, 1912, Just one more would
have made the even number,'" NEWS, Galveston, Texas, June 25, 1915 (1-3.)

"A letter left by Syd Jones, negro, who expiated the crime of murder on the gallows
in the county jail yard Friday morning, told of 13 murders he had committed during
his life, and expressed regret that he could not have made it fourteen. The letter
was written to Jimmy McAdory, a well-known young deputy sheriff, and names of most
of the victims were given, including white men, a Chinaman, Indian, a Mexican and
three or four negroeseeeeSyd Jones, colored, went on the gallows for the murder of
Will watson, another negro, in Banner mines, at 10:45 o'clock, He said that

the only statement he would make was that he was ready to go and wanted to thank
prison officials and Sheriff for attentions, The drop fell at 10:7 and he was pro-
nounced dead at 11:01 o'clock, His neck was broken, Men who have seen numerous
hangings in this county say that never before were men hanged so quickly and with
apparently no suffering, The body was turned over to the county alms wagon to be
buried by the county. While en route to the gallows, Syd Jones was halted in order
that Jimmie McAdory might take his picture in the yard. Two snapshots were taken
and Deputy Sheriff McAdory has promised to send copies to the negro's family. The
usual crowd of negroes and whites hung around the alley on Twenty-First Street and
peered out the windows in the Courthouse, The letter leftyby Syd Jones was as
follows: ‘Birmingham, Ala., June 25, 1915. Sir - This is to Mr, Jimmie Mcadory,.
Sir: this is a list of my record, While I was a convict I killed four convicts
while being in prison, I will give the names of two, Cleave Waters, 1911, on the
23rd day of May, and anot.rer convict, 1907, and another one 1911, I do not care
to express their names. Of course, I will for Will Watson be hung June 25, But
that's all right. Ido not care for that God will forgive me for all that I have
did in this world, But listen, look on the second page you will see the names of
many one. Tomie Thompson and Charles Bennett and Deputy Sheriff W. S. Moseley, of
Crawford, Neb.; Tom Shay White, Sam Lee, Chinaman, Monterey, Calif., M & 0 brake-
man, Bardwell, Kye; Bessie Humphrey, Huntsville, Ala.; Pattie Quiergo, Mexican, at
Fort Wingate, New Mexico; John Littlejohn, an Indian man at Sheridan, Iowa, Total
amofnt only thirteen. That's all. I am sorry that I missed getting Ricahrd Moore,
September 12, 1912, Just one more would have made the even number, He is the ohly
one that I have missed yest. Yours trujy, fs/ Sydney Jones.'"

NEWS, B rmingham, Alabama, June 25, 1915 (1/1.)

"Fried chicken and corn bread were asked for by Lon Carter and old country sausage
and corn bread were asked for by Syd Jones, and Chief Deputy Sheriff FE, B. Knight
has given the order for the breakfast in response to the request of the condemned men,
"All preparations are complete for the hanging of Lon Carter, who is to die on the
gallows Friday morning for the murder of his wife, and Syd Jones, who is to be hanged
for the killing of a fellow convict in the Banner mines, The men were visited |
Thursday by Chief Deputy Knight and arrangements were made for their baptism during
the afternoon, Rev, Father Malone of the Catholic Church, will call on them, The
deputy asked the men as to what they desired to eat for breakfast Friday morning and
Carter asked for fried chicken while Jones wanted onld county sausage, Carter will

be hanged first, inasmuch as he was first sentenced, An hour will intervene from
the time he is hanged until Syd Jones mounts the scaffold, The doors to the jail
will be opened exactly at 10 o'clock and within thirty minutes of that time the

BO eae PURE Yea ei crite

ee conn va

Walter Jones,’ 0 of Montgom-
ery, Wrote a History of
His Life.
oe

“(Mehthomery, A Als., ‘April 2 —Wal-
ter E. Jones, who died on the gallows
Friday wrote a history of his life. He
signed to bis fate. Arnold Gilmerf
who died the same day would like to
have.written a sketch of his life, but
’ bis nerye failed. These two white
men condoled one another on the
brink of death. !
‘‘T am willing to go if I must,’’ said
Jones. ‘‘When I came to the jail I
said I would not leave here till the
law'was vindicated. I have asked |.
nothing but justice, and accept the
verdict with brayery and resignation,
I feel that I bave been badly misled,
my confidence abused and my life for-
feited by one who should have been
my friend; but I hope my death will
x prove a warning to others, will deter
: and save others from a like fate. I

;
"

a
Le
ir

ieee but ask is it possible that I was
misled, that I was told untrue tales.
that I killed an innocent man?”’

“T have been too ill to write my
thoughts,’’ said Gilmer. ‘I have
been trying to prepare for the Cireat
Beyond. | have had no chance in
life. I was raised on thé streets, 1}
have never had what a,boy, ora man
could calla true friend. I've never

known the pleasures, comforta or in-
AEE ty as. fluences of ahome. | was born in ad-
ae : versity, | married young: and my mar-
ried life was an unhappy one... I and
my wife parted, but only after two
children had been born to us. These!
two tots.are now my chief concern. |
want them takeit and cared for,”

+ ROSE cite

Si BONE

PASEO LARA omic te

JONES, C. Walter, white, hanged at Montgomery, Alabama, April 4, 1913.
iSee also Lenethy acsount of quadruple hanging in Montgomery on same date = at front
~ Book and Ric Pret

Ale ets tat

ae SB itiee.

es able pide,
CS I Pa PRATT:

VOLUME TXX XIV.

FF lL
EDU
1 OS

4
ee

Vera Renta to - Judge |

Meet and “His Pa Ultimatum Issued to sugar I Ine

WE HG ave ah

Merritt, Thank Jury, Judge, ale cterests—Income Tax. Rates

| -°WASHINGTON, April. 4.—The Demo-
ones: had paid the law’s severest “cratic tariff revision’ bill is completed}
enalty ‘for slaying Sloan Rowan, “|\ tonight “with ‘the exception of a final j
‘Henry F. Vandiver,” ‘charged with »'|. decision’ upon sugar. From beginning }-
having inspired the crime, heard a':” to end, it-is»modelled in accord with *
- wore | ideas of President. Wilson, with wool,:'
meats and. many other food stuffs and |.
clothing “materials. on the’ free list},
“with low duties upon all agricultural.'
‘Armstead.. Brown ‘in the erlm!- -products and food stuffs that are not]
tyision of the City Court, came as. free; and with the tariffon chemicals, |
:|>steel and -other commercial products |
cut far below the, present, protective
rates... vita
© Senato tarift Nanaery today asked ‘for
an opportunity to: study the bill until
Sunday afternoon. ‘They will then con-
‘fer with Chairman Underwood of the
House Committee on Ways and Means
and later: will have a final conference !
“with President Wilson, A’. careful |
analysis. of the Senate will .be made
in. the meantime, toedetermine whoth-.
er? free wool, “one ‘cent. sugar,” and
vES9 -low ‘rates -on > “market basket’ = pro-
Retires Over igh ‘ducts'? will prove-acceptable to a ma-.
Per. “The: ‘Sury. retired after™ a'charge. of jority of. the Democrats.
one: hour ‘and’a~half-: on Thursday Briefly, summarized, the tarift devel-
night. Arguments. between:-the mem- | opments of the day were: ‘ Poh
bers. took: place in the Jury. room un-|~ President ‘Wiison’s- ultimatum to su-
til120’clock that night, “when ‘the | gar interests: that they must agree to
body: retired for the night.” Yesterday | a tariff of 1 cent per pound for three |
morning a request was made for Judge | years, with free sugar after that time, |
Brown: by the.foreman of. the jury | or’ he would attempt..to -Provide for.
body.’ At.11 o’clock Judge’ Brown ap- | free sugar at.once. / *
peared on the bench and ‘the suanal Completion of the bill by the Ways
question’ was..asked, - fer etry Ms and Means Committee with the excep-
e“Gentlemen,.. have you . agreed on ‘tion of. the sugar schedule. On © this-
erdict?" was asked. + ‘the committce is prepared to agree on :
‘ “Wwe, “have, shen th ae free sugar‘if the President insists. «>
the. foreman. De eae sears Income 'Tax Rates Fixed.
»Henry._N. Magnes Clerk of: ail avai acces tax rates fixed at 1 per'cent
Court, read the, Verdes, in, loud’ and for all corporation incomes above’ $5,-

“ ote: “was - “heard: “by. ‘a..court room “of
breathless spectators ‘who. for: a’ week
had‘ appeared daily and, heard: testi-
mony for and against..the, defendant.
Complicated as the case was, and of
testimony’ varying as it'did,. there’ was.
naturally mich speculation:as to how.
the: holders’ boa Vandlver's ‘fate. would
decid Nr hog ‘

a ee

\careful! tones... 4 .| 000;.1 percent on personal © incomes
‘We the Jury find ‘the “defendant not from $4,000 to $20,000; 2 per cent from
guilty. oe $20,000 to, $50,000; 8 per cent from

‘The silent “acne room ‘then broke $50,000 to $100, 000; 4 per: cent. above’
into :a nolse of murmurs and expres- | $100,000.

stons.The defendant, 3 ariniemmciprengig © “| wo yLe. Dron
(Qa Wad ever &éef

Y al; sprang for the tative “Peoussard of, Liuielake, early in

‘pro-/,

‘aide during: the. t
itgury box ‘and grasp\,*/the*hand_of’each | the day, Louisiana Senators and. Itypr! De iti
“jp Merrit » ‘Vandiver:| resentatives‘conferred throughout the ecora ions, Vot Sermon:
4 “wept swith ‘joy, at th jacquittal, of his day and sounded out: other. members
iid’ te-and nerve. ‘enough strength could be secured to “2 £ Li. eC ti
} Henry “.\Vandiver',w8 indicted for | fight the free sugar features of the 1S” ne ons res a tons -
‘Smurder in. the first degree by the Oc- | Plan. They had reached no decision ty

““dindlvidual . mémber.
‘naintained ‘his |'of the Senate to determine whether
“tobe?, 1912, term of the grand jury..| tonight, however,-as to the course to] ” “GHICAGO. ok

a rit anh ros
. The State’s.case was based on the fact | take.. \Notwithstanding the sugar -con- investigation, pri WT. adiont sos How’ can a person

a ‘ofthe. supposition that Vandiver iver troversy,, events ‘s0 shaped ‘themselves | reached the conclusion that the decor: dress -when’ the deco:

HE been. accessory before the fact. \ today ‘as,to indicate that the. House,| ations of the First Congregationel'| church are inharmont:

Rees i -walter Jones. First Witness. the. Senate ane.aee ene willcome| church at Evanston and not hig .ser- | curtains are pink, th:
t ie ae { “th o .de e an nal agreement upon|mons have been - responsible for: the and the decorations
Es ay The frat witness: Introduced ‘in sj the tarife bill before Monday; and tnat| drowsiness of his audiences. blue, the emotions of |
PS rial ,was ‘Walter’ Jones, ~:who «was |'the measure will be presented: to the For months he'strove to ‘stop. ‘the affected and they 12.

. hanged ' yesterday, for’ being principal | House early next week as an admin-| nodding of heads “ p
and then-h ou What Is needed 1s a =
hgin' ‘the ee. Ronee : deme tare by pcb ha measure ‘and with all tarif—|the counsel of Miss Stella pe ty mt that will not have a d:
“Wandiver ha een the inspiration eaders behind {t . instructor N m . , °

E ee murder of Rowan. Fe declared After a short meetins of Tiama. | A fear eer ees orthweatern. University, hettera:.were ments

JONES, Walter, white, hanged Birmingham, Jefferson Co., April 4, 1913,

“Walter Jones Is Hanged.

“Jefferson County Man Convicted For Crime In Bloody Beat 22 Pays The Penalty.

“Birmingham, Ala., April 4.-Walter Jones, aged twenty-four years, was hanged in the
county jail here for the murder of Lawrence B. Edwards, a mining contractor at Lewisburg,
known as Bloody Beat 22, Octrober 3, 1911. The young man went on the gallows something
after 11:30 o’clock. He spoke for a few minutes on the gallows and prayer was held. The trap
was sprung at 11:55 a.m., and he was pronounced dead at 12:03, death following the breaking of
his neck in eight minutes. While on the gallows, Jones removed his shoes, saydsing he did not
want to die with his shoes on. Before the black cap was adjusted, the condmned man said:

‘It doesn’t hur the man who is going to be hanged, but the people at home.’

‘While on the gallows, he smiled at times. ‘My advice to all is to serve God and do right,’
he said. He took occasion to criticize testimony offered in his case by a minister. He said he had
put his trust in God. The condemned man said he did not believe in capital punishment.

“In a letter which Jones left behind he said that Bloody beat 22 is painted worse than it
really is. He denied there was any suchs thing as a clan in that section of the county. He also siad
that other people knew of killings and who were responsible for them if they would only tell of
them.

“The body of Jones was turned over to Lige Loy and has been prepared for burial. The
funeral will take place Saturday afternoon at 1:30 o’clock in the Walker Chapel Cemetery, the
body to be laid at rest beside the father and brother.. The young man hanged today was a brother
to Arthur Jones who was hanged March 21.”-Advertiser, Montgomery, AL, 4/5/1913; 61
Southern 1005 (Memorandum).

“Noten hole
oh dtant not,

KAVA tosti-,

th Pr tak

eS seein

teu , @is 5 noceptai tu & tra.
dority of the Domocrate.

Urioly summarined, (he tarlft devel-
Optnents of the day were:

President Wilson's ultimatum to su-
Sar interests: that they must agree -to
® tariff of 1 cent Der pound for three
years, with free sugar. after that time,

tree sUBar ationce, « ;
Completion: of the bill’ by the Ways
and Means Committee with the excep-
tlon of the sugar schedule. On’ this
the committoe {s prepared to agree on
treo sugar {f the President insists,
vi Income ‘Tax Rates Fixed. °
Income tax rates fixed at 1 per cent
aa all corporation incomes above $5,-
Sdn 1’ per cent on’ personal ° incomes
rom $4,000 to $20,000;_2 per cent from
$50,000 to 100,00
$100,000, “at Ms $
pad’ Lire SS temcftirnpiensiemaiitieg DTO-
tative Broussard of Louisiana early in

resentatlves' conferred throughout the
day and sounded out. other, members
of the! Senate ‘to’ determine ~ whether
enough strength ‘could«be secured to
fight the free'.sugar:, features..of » the
Plan.” They =had reached‘ no decision
tonight, however,.as to the course to
take, Notwithstanding the sugar con-
troversy,;events so shaped themselves
today as ‘to: indicate that the ‘House,
tho Senate and ‘the President. will come
to“ definite and final agreement ‘upon

the moasure. will’ be presented to the
House ‘early next .week -as an admin-
istrative measure “and with: all tarift
leaders behind tt./).. 0 = eae

‘After’ a> short Meeting of: Demo-
cratlo members of the Finance Com-
mittea today, Senators Simmons, James
and Hughes, called on Mr. Underwood
And discussed the -wool,-sugar and ag-
Ticultural «tariffs, A». demand.“ from
Somo quarters ‘In the Senate for an in-

®& doubt as to the success’ of both free
WOol and free sugar in” the’ Senate,

tomorrow, oh ;
s Left with the President,
The House tariff makers have left
“matters entirely “in ‘the hands’ of the
President. Members of the Senate li-

9/ (Continued on Page Three)

ALN ORE TD
~ STATE OF AHODE ISLAND

“a _—e—.

“*|Peosident of Grand. Trunk

Would Turn Over Road as
~<Inalienable Gift

ee Spt y
PROVIOENCE, RT,
Matig Hamar

ry ess
»
et

April 4—Presi.

5 Yeltet Teceiceda by Clay.
5, hte Team. Yeeap,

oe WR* Sate he Rede Teand the
mee NGS Wice ne Pate

Thong we, is ~ eee

eh Se PemM orem ahas

stenwareece®

or he would attempt’ to provide’ for

$20,000 ta $50,000; -2 per: cent fron, 4:
4 per“ cent. above}:

‘the day... Louisiana Senators and Rep-*

aig’

rs
‘April 4.—After a ‘patient
» Rev. W...T. McElven: has
reached ‘the conclusion. that the decor-:
J Congregational
church at’ ‘Evanston: and’ not hig :ser-
have -been:responsible ‘for
drowsiness of his audiences. .

For months he ‘strove to
nodding of heads: and’ then~he. sought
the. counsel of ‘Miss Stella Skinner, art
instructor at Northwestern-University.
After making’ an. ins
church she said: \'

investigation,

the tariff bil] before Monday; and tnat

“How can a person
dress ;when:'the «deco

church are inharmon
curtains. are’ pink, ti
and ‘the decorations
blue, the emotions of
affected and -they |
What. is needed.is a
that will not have a d:
Letters were sent ti
‘of the church. askin

taken to redecorate t}

TEL O
SINT UR

(cFease in‘ the agricultural duties,: and

constitute the problems over which the
Senate leaders will: work tonight and

rtwell Douglas’ of. Montgomery
was appointed. by Governor. O'Neal. Fri-
dy .afternoon President of-~the
Convict Board .to sugceed
recently. removed | from: office.
Douglas: will take,’charge of, the
Convict Bureau Monday afternoon,

who’ has been’: tempor-
arlly at the head of this department,
will relinquish. his. duties | Monday

B. Welborn,

t~has “been’*made
eoncerning the personnel of the. office
forea of the new head of the Bureau,
{s understood. that- Dan. Tra-
former assistant Chief
promoted to the’ position of
succeeding: .Theo, Lacy,

No announcemen

He. of the Grand Trunk |

“offera ta turn }

thow ‘ners’ to’ discover’ if

Meovelved With Satisfaction.
ontns’s appointment has been
feneral satisfaction by
vlinve been’ apprised of the
' overnor in naming him
of this branch. of af-
‘1 helleved that he will
Conviet Bureau ona

Yonuglas has taken a

business affairs goods. house was the fi

postition of Presi-

being consid-
ipprised by the

GONE OFFIC
PEASOMLLY A

Same Prices Char
sin Convict Bure

Rake Charged :

\ 5 oT oe
re BP eA eae

“Officials ‘ofthe .Stat«
and ~ their: employes

chandise from -Montg..
companies atthe sami
the State, according
brought out at the I
the <Board ‘of: Inquiry
sale prices: were -‘qu
voluntarily by the mr
at the request of a)
with the’ convict der’
‘Every’ witness plac:
Thursday: and -Friday
to‘furnish’ a stateme
Sold to tho! convict de
whom these goods w
is. evident from ‘the
that ‘the’ probers: int’
these accounts checke

irregularities.
Adjournment was
afternoon until -Tues¢
10 o'clock, No witnes’
for examination-at th
ston Iriday.: Four. rc
Montgomery ’ business
examined at the mo:
Scheuer. Take
Moses Scheuer, of ¢
Company, a Montgom:

before ‘the Board cf
Convict investigation
Mr, Scheuer was que

(Continued, on

ie a ses

Woman Will Nq.
' to Pay Alimde

“ Husband, &

‘Tle got
what he
deserved’

fi Victim's daughter says
justice done with killer’s
execution on Friday

By JORDAN GRUENER
Journal Staff Writer

Von Sanders said if she had

~ been in control of the execution of

her mother’s killer,’ she would

have made sure he made it to the
state’s electric chair sooner.

Instead, she had to wait almost
12 years for justice, she said.

“It took 11 years to do this,’”’ she
said. ‘““He got what he deserved.”

Ms. Sanders was just 5 years old
on Jan. 29, 1978, when she found
the nude body of her mother, Su-
sie Bell Sanders. Her mother had
been raped and strangled by a

‘cousin, Arthur Jimes.Julius, who

was out on an 8-hour work- release
- pass while serving a life sentence
- foral972 murder.

“T was young,” she Said, “‘I didn’ t
know anything then, but as I got
older, it hurt.” | :
- Ms. Sanders, now a Montgomery
high school student, didn’t attend
the execution, but said she would
have gladly served as executioner
and sent the electrical current

| through Julius’ body.

“If I was there, I would have
pulled it beforehand,” Ms. Sanders
said in an interview Friday morn-
ing.

She and about 15 friends and
family members waited at her
home just after midnight Friday

Please see VICTIM, 2B

—_

Nae Hoa bs
/, New tpeacer (Orey / ML, LO

AGA IG 2. CALF - )

| ALABAMA EXECUTES
CONVICTED SLAYER

Supreme Court Denies Appeal
on '78 Rape-Murder Case

ATMORE, Ala., Nov. 17 (AP) — A
man convicted of raping and murder- |
ing his cousin while he was on a brief.
leave from prison was put to death in|
the electric chair this morning, 11,

years after the crime.

The condemned man, Arthur James:
Julius, gave two thumbs up and waved
both hands, nodding in the direction of
his brother, Clarence Byrd, and the
prison chaplain, Robert Simmons, be-
fore being executed at 12:09 A.M.

Mr. Julius, 43 years old, of Birming-
ham, was sentenced to death for the
1978 rape and killing of his cousin,
Susie Bell Sanders, 29, at her Montgom-
ery apartment.

Mr. Julius was the fourth inmate to
die in Alabama’s electric chair this
year and the 119th person put to death |
in the United States since the 1976 rul-
ing by the United States Supreme
Court allowing states to resume use of
the death penalty.

Mr. Julius had pinned a purple rib-
bon on the shirt of his white sweatsuit.
Prison officials said the ribbon is worn
by death row inmates to protest the
death penalty.

High Court Denies Appeal

About eight hours before the execu-
tion, Mr. Julius lost an appeal when the
Supreme Court refused by a 7-to-2 vote
to spare his life.

Justices William J. Brennan and
Thurgood Marshall, who oppose capital
punishment in all circumstances, sup-
ported Mr. Julius’s plea for a stay of
execution.

Mr. Julius was serving a life term for
a 1972 murder when he was released on
a pass from a prison work-release cen-
ter near Montgomery.

According to court records, Mr.
Julius left on an eight-hour pass at 11
A.M. on Jan. 29, 1978, and borrowed a
relative’s car from 3:30 P.M. to 6:25
: P.M. During that time, Mr. Julius
turned Ms. Sanders’s apartment into a

shambles, beating her and dragging
her through rooms and subjecting her
to “grotesque sexual abuse”’ before
strangling her.

Ms. Sanders’s body was discovered
by her 5-year-old daughter.

The victim’s parents told reporters
in January that the execution was long
overdue. Her father has since died.
Family members declined comment
when reached by telephone this week.

N.w. Timés SAT. NOU. 8 1989

Julius executed in electric chair

ment in all circumstances, sup-
ported Julius’ emergency plea for

By The Associated Press

)

ay if

ft (
gle, Friday, November 17, 1989

if
/

The Dothan Fa

ATMORE — Arthur . James
“Buddy” Julius was executed in
the electric chair at Holman Prison
early Friday for the rape and kill-
ing of his cousin while on an 8-hour
pass from a prison work-release
center. —

The father of two boys and three
girls lost an appeal to the U.S.
Supreme Court about eight hours
before the scheduled 12:01 a.m. ex-
ecution at Holman Prison.

The high court refused by a 7-2

‘N

IN _ vote late Thursday afternoon to
. spare Julius’ life. Justices William
es J. Brennan and Thurgood Mar-

Shall, who oppose capital punish-

a Stay of execution.

-KILLER_

- Continued FromjA,. |. :
dering. his ‘employer, Herbert

_. Richard Chisenhall of Jefferson
County, who. had been hit on the -

head with a pipe and robbed of

_ payroll checks. Julius pleaded.
guilty to that murder in 1972, |

according to court records.

A car Julius had borrowed.

_ from a relative was seen parked
outside Ms. Sanders’ home about
the time a medical examiner said

she was. attacked}. and-: Julius’.
blood was found. throughout, her:

home, according ’:to’ court. re-
cords. Witnesses also testified

that strands. of Ms.:Sanders’ hair |}

_were found in Julius’ underwear.

- He also told prison officials when :

‘he returned to: Draper’ that he

was expecting a call to inform’

him of his cousin’s death.

The U.S. Supreme Court. de- |

nied Julius’ final request :Thurs-
day to stop the execution follow-
ing..the 11th Circuit, Court. of
Appeals’ denial. on Tuesday. ©

Julius was first tried and con-,..

victed of the rapé and murder in.

1978 and ‘sentenced to die, but’
that conviction was. overturned

in 1981- by the state Supreme
Court after the Legislature. re-

wrote the state’s death penalty”

law.

in 1982. He was scheduled to die
on Jan. 27 but that execution was

stopped the day before it was to. |

occur after U.S. District Judge

_Truman Hobbs upheld the con- -
‘viction and: death sentence, but.||
said he wanted a higher court to |.
review his decision.’ The 11th]!
Circuit: and the U.S. Supreme

Court upheld the decision.

SES Bs rt eee

During botn trials, witnesses”
testified that Ms. Sanders’ body
was covered. with. cuts;’ bruises

- and carpet. burns:‘and she had

been violently. attacked. .

“This is a clear-cut Saale of
a case where just locking him up,
won't keep him. from committing
more crimes,”’ .. Montgomery
County Chief Deputy: District

_ Attorney Ellen’ Brooks.. said!

Wednesday. ‘‘The system did not
protect his cousin.”

At Holman Prison on Thurs-
day afternoon,. an electrician de-
clared the state’s electric chai:
was functioning. properly. The
chair malfunctioned during the
execution of- Horace Franklin
Dunkins. Jr. in July. because it
was improperly connected and
two surges of electricity were re-
quired before he was declared
dead.

On death row, Julius gave his
13-inch remote control color
television set to inmate Thomas
Lloyd, his size 11 Pony tennis
shoes to.inmate Darrell Grayson
and 36 25-cent stamps to inmate
Wallace’Norrell Thomas. He di-
rected prison. officials to send-the
$71.86 in his prison account to
the mother of his five children.
Prison officials released no infor-
mation,-about the. children or
._ their mother.

Al ulius i is the fourth person exe-

_cyted in Alabama this. year. The

ost recent execution was Aug.
18, when .Herbert Lee Rich-
ardson was put to death for the
pipe-bombing death of a puouian
girl.,

Julius is the frst person con-
victed and sentenced to death by
a Montgomery County jury and
executed since. the death penalty
was reinstated in 1976. J eremiah
Reeves, the latest «person sen-
tenced to death by a Montgom-
ery court, was put to death in |
March 1958 for rape.

The latest person put to death
for a Montgomery County mur-
der was a-woman, Rhonda Bell
Martin, who’ was executed i in Oc-
par 1957. :

STACEY v. WARDEN,. APALACHEE CORRECTIONAL INST.

401

Cite as 854 F.2d 401 (11th Cir. 1988)

Charles “Graddick,’ Atty. Gen. of Ala.,
John Gibbs, Ed Carnes, Asst. Attys. Gen.,
Montgomery, Ala., for respondent-appellee.

Appeal from the United States’ District
Court for the Middle District of Alabama,
Truman M. Hobbs, Chief Judge.

PETITIONS FOR REHEARING
“FILED BY BOTH PARTIES AND ON
- SUGGESTION FOR REHEARING IN
BANC FILED BY APPELLANT
(Opinion March 9, ‘1988, 11 Cir.,:
She 3) QMO: B2M: 1688) 2
- Before VANCE, HATCHETT and
CLARK, Circuit Judges. me

PER CURIAM: * ©
_ Upon consideration of respondent-appel-
lee’s petition for rehearing in the nature of
a request for modification, the opinion filed
March 9, 1988 is. modified in the following
respects: ve
(1) We hereby delete paragraph twelve
under Section I of the opinion. 840 F.2d
1583, 1540 (11th Cir.1988),
(2) The first sentence in the thirteenth
“paragraph is modified by making the fol-
lowing addition: —_ 3

"Turning to the.charge that his counsel
was ineffective, Julius argues that ad-
mission of the prior offense violated his
_ right to.a, fundamentally fair trial. We
need. not address the issue of ineffective-
‘ness because in the interim, the issue has
been put to rest by the Supreme Court in
__ Marshall v. Lonberger, 459 U.S. 422,.103
S.Ct. 848, 74 L.Ed.2d 646 (1983). .
-» The petition for rehearing filed by appel-
lant Julius is DENIED, and no member: of
this panel nor other judge in regular active
service on the court having requested that
the court be polled on rehearing in banc
(Rule 35, Federal Rules of Appellate Proce-
dure; Eleventh Circuit Rule 35-5), the sug-

gestion for rehearing in bane is DENIED.

‘(4unmse

3 Fred B. STACEY, Jr.,:
.. . . Petitioner~Appellant,
-- WARDEN, APALACHEE CORREC-
TIONAL: INSTITUTION, Ps
- Respondent-Appellee. =~

No. 86-7865.

United States Court of Appeals,
_ Eleventh, Circuit.

Sept. 2, 1988.

Prisoner. who had been convicted of
robbery. in Alabama then escaped from
prison and thereafter was convicted of sep-
arate crime and incarcerated. in Florida
filed habeas corpus petition in Alabama in
which he alleged that he had been deprived
of effective assistance -of | trial counsel.
The United States. District Court. for the
Southern District of Alabama, No. 86-
0540-C, Emmett Ripley Cox, J., dismissed
petition and prisoner appealed. The‘ Court
of Appeals held that: (1) remand. was re-
quired for determination as to whether Ala-

‘ama lodged détainer warrant so that pris-

oner would be sufficiently within Ala-
bama’s custody to give district court sub-
ject matter jurisdiction over habeas peti-
tion; (2) ineffective assistance of counsel
claim was not waived upon prisoner’s es-,
cape; and (8) prisoner was not procedurally
barred from federal habeas review.

Reversed and remanded.

1. Habeas Corpus @9 .
Prisoner must be “in custody” in state

for district court to have subject matter

jurisdiction over habeas petition attacking

‘conviction in that state’s, court; although

prisoner need not be physically “in custo-
dy” for subject matter jurisdiction to at-

‘tach, state must exercise some control over

prisoner to satisfy requirement. 28 USS.
C.A. § 2254(a).

—Jouius, Jotho 7

u. UV
it

JULIUS v. JOHNSON

1533

Cite as 840 F.2d 1533 (11th Cir. 1988)

P.2d 239, 242 (1986); Roberts v. Saylor,
230 Kan. 289, 6387 P.2d 1175, 1179 (1981).

[9] The court below found that McKib-
ben failed to meet the first threshold re-
quirement against either Chubb or Merrill
Lynch; their conduct was not extreme or
outrageous.'* We agree. According to the
Kansas Supreme Court, outrageous con-
duct:

“may be found only in those cases where
the conduct has been so outrageous in
character, and so extreme in degree, as
to go beyond the bounds of decency, and
to be regarded as atrocious and utterly
intolerable in a civilized society.”

Roberts, 637 P.2d at 1179.4 In this case,
Chubb drafted a will and Merrill Lynch
transferred stock pursuant to a letter ap-
parently signed by the owner. No reason-
able fact finder could find this conduct to
be extreme or outrageous and Fred McKib-
ben’s attempts to link these actions of
Chubb and Merrill Lynch to the death of
Ula McKibben are unavailing.

[10] The necessary elements for a civil
conspiracy claim in Kansas are: “(1) two or
more persons; (2) an object to be accom-
plished; (3) a meeting of the minds in the
object or course of action; (4) one or more
unlawful overt acts; and (5) damages as
the proximate cause thereof.” Stoldt v.
City of Toronto, 234 Kan. 957, 678 P.2d
153,. 161 (1984) (citation omitted).

The district court found no meeting of

any course of action, no wrongful act by
Chubb and no proximate cause linking

Chubb to Ula’s death. The first finding is —

dispositive. There is absolutely no evi-
dence in the record to suggest that Chubb
was anything more than a casual acquain-

13. It also appears from the record that the
plaintiff failed to meet the second threshold
requirement—severe emotional distress caused
by defendant's conduct—but there is no reason
to reach that question here.

14. A brief review of some cases where the Kan-
sas courts have refused, as a matter of law, to
find outrageous conduct demonstrates the diffi-
culty in meeting this standard. See Burgess, 721
P.2d 239 (after plaintiff's son died, defendant
doctor informed her that he had the son's
brain); Hoard v. Shawnee Mission Medical Ctr.,

tance of Morris and Ula McKibben retained
to draft Ula’s will. On appeal, Fred
McKibben cites no evidence to indicate that
Chubb conspired with Morris to cause Ula
McKibben’s death or take his property.
Fred’s only response is that Chubb, as an
“experienced attorney” must have been
aware of the scheme. Brief of Appellant,
at 11-12. This unsubstantiated assertion
will not defeat Chubb’s motion for summa-
ry judgment.

The district court’s decision is AF-
FIRMED.

aumMs

Arthur James JULIUS,
Petitioner-Appellant,

W.J. JOHNSON, Warden, Holman Unit,
Respondent-Appellee.

No. 86-7589.

United States Court of Appeals,
Eleventh Circuit.

. March 9, 1988.

State prisoner, who was tried, found
guilty, and sentenced to death, for rape and
murder of his cousin, filed petition for fed-
eral habeas corpus relief. The United
States District Court for the Middle Dis-
trict of Alabama, No. 85-H-1042-N, Tru-
man M. Hobbs, Chief Judge, denied peti-
tion, and appeal was taken. The Court of
Appeals held that petitioner was not denied

233 Kan. 267, 662 P.2d 1214 (1983) (defendants
incorrectly told plaintiffs that their daughter
had died); Hanrahan v. Horn, 232 Kan. 531, 657
P.2d 561 (1983) (defendant told class that plain-
tiff was a suspect in the disappearance and
murder of his son); Roberts, 637 P.2d 1175
(defendant doctor made insulting remarks to
plaintiff patient prior to surgery); Wiehe v. Ku-
kal, 225 Kan. 478, 592 P.2d 860 (1979) (defend-
ant threatened plaintiff's husband with pitch-
fork).

1534 840 FEDERAL REPORTER, 2d SERIES

effective assistance of counsel du
state murder prosecution.

Affirmed.

1. Criminal Law 641.13(2)

2. Criminal Law €641.13(6)

Trial counsel’s failure to object to use
of word murder” by prosecutor and wit-
ness during trial did not constitute ineffec-

tive assistance of counsel, where sole de-

fense at trial was that defendant did not
commit crime, not that defendant commit-
ted crime but crime was something other
than murder. U.S.C.A. Const.Amend. 6.

3. Criminal Law 641.13(2)

Trial counsel’s failure to assert defend-
ants request to act as cocounsel more
forcefully did not constitute ineffective as-
sistance; defendant did not have either fed-
eral or state protected right to act as co-

counsel in criminal trial.
pe U.S.C.A. Const.

4. Homicide 354

__ State’s use of prior conviction in guilt-
innocence phase and again as aggravating
circumstance in Sentencing phase of de-
fendant’s murder prosecution did not de-
prive defendant of individualized sentenc-
ing determination or have effect of making
death penalty mandatory, where defendant

had opportunity to present mitigating evi-
dence.

5. Criminal Law €641.13(2)

__ Defense counsel was ineffective for
failing to request cautionary instruction re-
specting defendant’s prior murder convic-
tion; however, defendant was not preju-
diced, where evidence convicting defendant

was overwhelming. U.S.C.
Anode A. Const.

ring his 6. Criminal Law €539(2)

Defendant’s testimony at his earlier
murder prosecution was admissible at re-
trial; prior testimony consisted mostly of
attempts to explain his whereabouts on day
of crime.

7. Criminal Law 641.13(2)

Defense counsel’s failure to object
when trial court told jury to consider de-
fendant’s prior testimony as if defendant
was on stand testifying did not constitute
ineffective assistance of counsel; court’s
remarks did not draw attention to defend-
ant’s decision not to testify at second trial,
and even if they did draw attention to fact,
objection by counsel would have served
only to draw additional attention to defend-

ant’s failure to testify. U.S.C.A. Const.
Amend. 6.

‘8. Courts €100(1)

Retrial under judicially rewritten death

penalty statute did not violate defendant’s
constitutional rights.

9. Criminal Law ¢641.13(2)

_Defense counsel’s closing arguments
praising work of prosecuting attorneys did
not’ constitute ineffective assistance of
counsel; counsel praised attorneys to as-
sure jury that trial was not personal con-
test between attorneys, and prosecutors
were personable young lawyers and coun-
sel was merely attempting to neutralize
effect of their personal appeal.

10. Criminal Law €641.13(2)

Trial counsel’s statement that he zeal-
ously defended clients regardless of their
character did not constitute ineffective as-
sistance of counsel; counsel was attempt-
ing to remind jury of its duty to be fair to
defendant and not to distance himself from
his client. U.S.C.A. Const.Amend. 6.

11. Criminal Law ¢641.13(7)

Trial counsel’s alleged failure to
present all available mitigating evidence
during sentencing phase did not constitute
ineffective assistance of counsel; counsel
made informed decision that best way to
save defendant’s life was to argue to jury
that there still was some doubt whether

JULIUS v. JOHNSON 1535
Cite as 840 F.2d 1533 (11th Cir. 1988) :

_ defendant committed crime. U/S.C.A.

Const.Amend. 6.

12. Criminal Law ¢641.13(7)

Defense counsel’s comment during
closing argument of penalty phase of mur-
der prosecution that he did not know
whether he was asking jury to spare de-
fendant’s life, or whether he was trying to
make sure that jury knew what it was
doing, did not constitute ineffective assist-
ance of counsel; remainder of closing argu-
ment was designed to exploit weaknesses
in state’s proof during guilt phase, in at-
tempt to persuade jury that any lingering
doubts of guilt should result in their vote
for life sentence rather than death penalty.
U.S.C.A. Const.Amend. 6.

13. Criminal Law <641.13(2)

Defense counsel’s closing argument
reference in “buck fever,” an expression
referring to a novice hunter’s inability to
kill first deer, but once being able to kill
and to kill again, did not constitute ineffec-
tive assistance of counsel, despite defend-
ant’s contention that reference actually ad-
vised jurors that they should give defend-
ant death penalty because if he would go
out and kill again; counsel’s intention was
to remind jury that guilt and sentencing
phases wers -eparate portions of trial, and
that they show 7 not feel compelled by their
verdict of guilty to return a recommenda-
tion of death. U.S.C.A. Const.Amend. 6.

14. Criminal Law <641.13(7)

Appellate counsel’s decision to winnow
out weaker arguments from appellate brief
does not constitute ineffective assistance of
counsel. U.S.C.A. Const.Amend. 6.

15. Homicide €309(3, 6)

Defendant, who did not present any
evidence suggesting that crime was man-
slaughter, did not suggest such verdict dur-
ing closing argument, and did not suggest
how he would have altered his defense if he
had known that jury might consider man-
slaughter verdict, was not entitled to man-
slaughter instruction in capital murder
prosecution.

16. Homicide <=340(4)

Guilty verdict on capital murder
charge rendered harmless any error in giv-
ing manslaughter charge.

17. Habeas Corpus €=45.3(1.30)

Mere existence of plain error rule does
not preclude finding procedural default pre-
cluding federal habeas corpus review. 28
US.C.A. § 2254.

18. Habeas Corpus ¢—45.3(4)

Assertion by Alabama court that it did
not find any errors on its independent re-
view of record did not constitute ruling on
merits of claims not raised so as to allow
federal habeas review of issues.

Thomas M. Goggans, Montgomery, Ala.,
for petitioner-appellant.

Charles Graddick, Atty. Gen. of Ala-
bama, John Gibbs, Ed Carnes, Asst. Attys.
Gen., Montgomery, Ala., for respondent-ap-
pellee.

Appeal from the United States District
Court for the Middle District of Alabama.

Before VANCE, HATCHETT and
CLARK, Circuit Judges.

PER CURIAM: ©

Arthur James Julius appeals from the
district court order denying his petition for
a writ of habeas corpus. We affirm.

Julius pled guilty to a murder charge in
1972 and was sentenced to life imprison-
ment. In 1978, while on a one-day release
from prison, Julius allegedly raped and
murdered his cousin Susie Sanders. He
was tried, found guilty, and sentenced to
death. His conviction was reversed, see
407 So.2d 152 (Ala.1981), pursuant to the
United States Supreme Court’s ruling that
Alabama’s death penalty statute was un-
constitutional. Beck v. Alabama, 447 U.S.
625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).
After Beck, the Alabama Supreme Court
severed the unconstitutional portion of the
statute. Beck v. State, 396 So.2d 645 (Ala.
1980). Julius was then retried for the 1978
murder under the modified statute in 1982.

1538 840 FEDERAL REPORTER, 2d SERIES

April 7, 1986, the Alabama Court of Crimi-
nal Appeals affirmed without opinion. The

Alabama Supre i iorari i
preme Court denied certiorari wide range of reasonable professional con-

on September 26, 1986
' ‘ , duct; and (2) that the defici
Pay picks habeas corpus relief in the sel’s performance had an feces se
maine pursuant to 28 US.C. § 2254, Viction or sentence. Jd. at 688-91, 104
ct court, relying heavily upon the S.Ct. at 2065-66

state court's opinion in the coram nobis

—— ~ a ae Julius’ claims and de. A. Guilt Phase

Petes appeal followed. Julius’ claims that counsel was ineffec-

= mee , - us presents ten claims for _ tive during the guilt phase can be broken
po be fective assistance of tria] down into two categories. First, there are
—_ of Gee ective assistance of appel- Several alleged errors of omission—instanc-
id : ( ) erroneous jury instruc. 8 where counsel failed to effectively as-
. ek e lesser included offense sert (either by objection or by motion) Jul-
é laughter; (4) double counting of [US constitutional rights. Second Julius
gravating circumstances in the guilt and lleges his counsel’s closing argument j
penalty phases of the trial: (5) prosecutori- Udiced his defense a

ance claim, Julius must show: (1) that
counsel’s performance was outside the

al misconduct during closing ar ;
(6) the use of. the 1972 cae eta
with @ cautionary instruction, during the
guilt Phase; (7) the absence of a transcript
of the jury qualification proceeding in the
Alabama appellate court record; (8) the use
of Julius’ testimony from his prior trial
during the guilt phase without a proper
explanatory instruction; (9) the use, as an
aggravating circumstance, of the 1972 mur-
der conviction obtained pursuant to an un-
Constitutional death penalty statute; and
(10) retrial under a judicially rewritten
death penalty statute. We reach the mer-

its of the first four issues. Issues five

through ten are barred because of Julius’

failure to timely raise these claims in the
State courts and because Julius has failed
to show cause for his procedural default.

I. INEFFECTIVE ASSISTAN CE
AL COUNSEL hia

Julius points to many alleged “ “
committed by trial counsel which, ace
ing to the petition, constituted a denial of
his right to effective assistance of counsel.
We analyze these claims under the two-
pronged test of Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To prevail on his ineffective assist-

2 Julius complains that the district court erred
in relying on the state court's legal conclusions
It is true that the district court is bound only by
the state court's factual determinations. How-

1. Alleged Errors of Omission

According to the petition, counsel was
ineffective because he failed to: (1) object
to several comments made by the prosecu-
tor during closing argument; (2) object or
make a motion for a mistrial when the
word “murder” was used to describe the
crime committed in this case; (3) protect
Julius’ “right” to act as Co-counsel; (4)
object to the use of the 1972 murder convic-
tion which was obtained pursuant to an
unconstitutional death penalty statute: (5)
request an instruction informing the jer
not to consider the 1972 conviction as evi-
dence of guilt; (6) object to the use of a
transcript of Julius’ testimony from his
1978 trial; and (7) object to Julius’ retrial

under a judicially rewritten
pinirks death penalty

[1,2] After reviewing the records of
the trial and state coram nobis proceedings
we conclude that none of the alleged “er.
rors” rises to the level of ineffective assist-
ance of counsel. Counsel’s failure to object
to the prosecutor’s comments during clos-
ing argument was a deliberate tactical
choice. At the coram nobis proceeding
counsel testified that he believes objections
during closing argument merely focus the

ever, nothing precludes the district court from

relying on the state court’ i
's legal conclusion:
Persuasive authority. _

_ JULIUS v. JOHNSON 1539
Cite as 840 F.2d 1533 (11th Cir. 1988)

jury’s attention on the damaging remarks.
His practice is not to object unless the
prosecutor’s remarks are clearly preju-
dicial. Since none of the challenged com-
ments were overwhelmingly prejudiced or
persuasive, we will not question this tacti-
cal decision. Similarly, we will not ques-
tion counsel’s decision not to object to the
use of the word “murder” by the prosecu-
tor and by a witness during the trial. Jul-
ius’ sole defense at trial was that he did not
commit the crime. Counsel did not choose
to make the alternative argument that Jul-
ius committed the crime but that the crime
was something other than murder. Given
the evidence presented at trial, Julius was
not prejudiced by counsel’s failure to object
to the use of the word “murder,” even if
such an objection would have been sus-
tained. ;

[3] Counsel communicated to the court
Julius’ request that he be permitted to act
as co-counsel. As a result, Julius was per-
mitted to preface his counsel’s closing ar-
gument at the guilt phase with some re-
marks of his own. Even if counsel did not
“effectively” advance Julius’ desire to act
as co-counsel, this failure would not entitle
Julius to relief. We have held that Julius
did not have a federally protected right to
act as co-counsel in his criminal trial. Jul-
ius, 755 F.2d at 1404. The state coram
nobis court found that the state constitu-
tion did not afford such a right. Under
these circumstances, counsel’s failure to
assert Julius’ request more forcefully does
not constitute ineffective assistance.

Appellant argues that defense counsel
should have objected to the introduction of
the 1972 conviction during the guilty phase
and that he was additionally ineffective in
failing to request a cautionary instruction
advising the jurors that they should not
consider the prior conviction in deciding
whether Julius was guilty in this trial. To
understand this issue it is necessary to
review portions of Alabama’s death penalty
statute as it existed when Julius was tried.
A defendant could be sentenced to death if

3. This issue involves no assertion of ineffective
assistance of counsel. We discuss this issue
here because of its close relationship to the two

he committed murder under one of four-
teen different circumstances, only two of
which are relevant here: murder commit-
ted while the defendant is under sentence
of life imprisonment; and murder by a
defendant who has been convicted of any
other murder in the 20 years preceding the
crime. Ala.Code § 138-11-2(6), (13).

Julius was charged with the intentional
killing of Susie Sanders at a time when he
was under a sentence of life imprisonment
and had been convicted of another murder
during the previous 20 years. The state
made the previous conviction an element of
the crime of murdering Susie Sanders and
the trial court admitted evidence of the
prior conviction. Appellant argues several
grounds for constitutional error arising
from these circumstances.

Defense counsel is charged with ineffec-
tiveness in not objecting to the admission
of the prior conviction and after its admis-
sion not requesting a cautionary instruc-
tion. Additionally, Julius charges that the
state’s use of the prior conviction in the
guilt/innocence phase and again as an ag-
gravating circumstance in the sentencing
phase constituted an overlapping of aggra-
vating circumstances, depriving him of an
individualized sentencing proceeding, and
rendering this phase of his trial fundamen-
tally unfair because the jury was preju-
diced by the admission of his prior convic-
tion.2 We will discuss first the overlapping
or double counting issue.

life sentence (§ 13-11-2(6)) and that Julius
had committed another murder in the twen-
ty years preceding the crime (§ 13-11-
2(13)).. After the jury returned its guilty
verdict, the state used these same two
factors as “aggravating circumstances”

issues involving ineffective assistance of coun-
sel.

eC ra <<. >

. ed

JULIUS v. JOHNSON 1533

Cite as 840 F.2d 1533 (11th Cir. 1988)

P.2d 239, 242 (1986); Roberts v. Saylor,
230 Kan. 289, 687 P.2d 1175, 1179 (1981).

[9] The court below found that McKib-
ben failed to meet the first threshold re-
quirement against either Chubb or Merrill
Lynch; their conduct was not extreme or
outrageous.!® We agree. According to the
Kansas Supreme Court, outrageous con-
duct:

The district court found no meeting of
the minds between Chubb and Morris as to
any course of action, no wrongful act by
Chubb and no proximate cause linking
Chubb to Ula’s death. The first finding is
dispositive. There is absolutely no evi-
dence in the record to suggest that Chubb
was anything more than a casual acquain-

13. It also appears from the record that the
plaintiff failed to meet the second threshold
requirement—severe emotional distress caused
by defendant’s conduct—but there is no reason
to reach that question here.

14. A brief review of some cases where the Kan-
sas courts have refused, as a matter of law, to
find outrageous conduct demonstrates the diffi-
culty in meeting this standard. See Burgess, 721
P.2d 239 (after plaintiffs son died, defendant
doctor informed her that he had the son’s
brain); Hoard v. Shawnee Mission Medical Ctr.,

The district court’s decision is AF-
FIRMED.

4qAums

Arthur James JULIUS, Ce
Petitioner—Appellant,
ee
W.J. JOHNSON, Warden, Holman Unit,
Respondent-—Appellee.

No. 86-7589.

United States Court of Appeals,
Eleventh Circuit.

. March 9, 1988.

1546 840 FEDERAL REPORTER, 2d SERIES

eral habeas review because Julius failed to
raise these issues at trial or on direct ap-
peal. Julius concedes that he did not raise
these issues at the appropriate time. He
offers two reasons why the district court
should have reached the merits of his de-
faulted claims. ;

First, Julius contends the Alabama
courts on direct appeal implicitly reached
the merits of these issues. The Alabama
appellate courts are under a duty in capital
cases to “notice any plain error or defect in
the proceedings under review, whether or
not brought to the attention of the trial
court, and take appropriate appellate action
by reason thereof, whenever such error has
adversely affected a substantial right of
the appellant.” Ala.R.App.P. 45(a) (Ala-
bama Court of Criminal Appeals), 39(k)
(Alabama Supreme Court). In affirming
Julius’ conviction, the Alabama Court of
Criminal Appeals stated that it had
searched the record for prejudicial errors
and had found none. 455 So.2d at 982.
The Alabama Supreme Court made a sim-
ilar finding in its opinion. 455 So.2d at 987.

According to Julius, the state courts’
statements that there were no plain errors
at trial indicates their belief that the issues
raised in this petition are meritless. Adop-
tion of this position would preclude a find-
ing of procedural default in virtually every
Alabama capital case. Thus, Julius’ argu-
ment questions the correctness of our deci-
sion in Magwood v. Smith, 791 F.2d 1438
(11th Cir.1986), where we held several of
petitioner’s claims to be barred by proce-
dural default. Although the “plain error”
issue was not discussed in Magwood, we
note that the state appellate court opinion
in that case contained the same language
Julius points to in this case. See Magwood
v. State, 426 So.2d 918, 928 (Ala.Crim.App.
1982) (“We have searched the record for

to include a transcript of the jury qualification
proceeding in the Alabama appellate court
record; (4) the use of the transcript from his
prior trial during the guilt phase without a prop-
er explanatory instruction; (5) the use, as an
aggravating circumstance, of the 1972 murder
conviction obtained pursuant to an unconstitu-
tional death penalty statute; and (6) retrial un-
der a judicially rewritten death penalty statute.

error prejudicial to the rights of appellant
and have found none.”), aff'd, 426 So.2d
929 (Ala.), cert. denied, 462 U.S. 1124, 103
S.Ct. 3097, 77 L.Ed.2d 1855 (1983).

[17,18] Since Magwood was silent
about the non-effect of Alabama’s plain
error rule on procedural default issues, we
will be explicit: the mere existence of a
“plain error” rule does not preclude a find-
ing of procedural default; moreover, the
assertion by an Alabama court that it did
not find any errors upon its independent
review of the record does not constitute a
ruling on the merits of claims not raised in
that court or in any court below.!® Unless
there is some indication that the state court
was aware of this issue, we cannot say that
the court rejected the merits of petitioner’s
constitutional claim. A contrary rule
would encourage the “sandbagging” of
state courts criticized in Wainwright v.
Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.
2d 594 (1977). See Murray v. Carrier, 477
U.S. 478, 106 S.Ct. 2689, 2647, 91 L.Ed.2d
397 (1986) (possibility of “sandbagging”’ ex-
ists on appeal “since appellate counsel
might weil conclude that the bes: strategy
is to select a few promising claims for
airing on appeal, while reserving others for
federal habeas review should the appeal be
unsuccessful.”’). Accordingly, we reject
Julius’ argument.

Second, Julius contends that the ineffec-
tiveness of his trial and appellate counsel in
failing to timely raise these issues in the

state courts constitutes “cause” for his

procedural default. See Murray, 477 US.
at ——, 106 S.Ct. at 2645-46. Our disposi-
tion of Julius’ claims of ineffective assist-
ance of counsel earlier in this opinion re-
solves this issue. Since counsel’s failure to
raise these issues did not rise to the level
of a Sixth Amendment violation, such fail-

10. This rule is limited to the facts of this case.
We express no opinion as to the effect of such a
statement when the allegedly barred issue was
raised by the defendant but not discussed in the
state court’s opinion. Nor need we decide
whether such language permits federal review
where the defendant raised the claim at trial,
thus making it more likely that the state appel-
late court came across the claim during its re-
view of the record.

NATIONAL CORN GROWERS ASS’N vy. BAKER 1547
Cite as 840 F.2d 1547 (Fed. Cir. 1988)

ure cannot constitute cause for the proce-
dural default. Jd. Since Julius offers no
other excuse for the default, we affirm the
district court’s decision to avoid reviewing
the merits of these claims.

CONCLUSION

For the foregoing reasons, the judgment
of the district court denying Julius’ petition
for writ of habeas corpus is AFFIRMED.

AME

NATIONAL CORN GROWERS ASSOCI-

ATION, New Energy Company of:

Indiana, Archer Daniels Midland Com-
pany, Ohio Farm Bureau Federation,
and A.E. Staley Manufacturing Compa-
ny, Plaintiffs—Cross—Appellants,

Vv.

James BAKER, III, Secretary, John M.
Walker, Jr., Assistant Secretary, Wil-
liam Von Raab, Commissioner, United
States of America, Citicorp Interna-
tional Co., Inc. and RAJ Chemicals,
Inc., Defendants—Appellants.

Nos. 87-1147 to 87-1149 and 87-1160.

United States Court of Appeals,
Federal Circuit.

Feb. 9, 1988.

Post-trial Motion Denied
March 14, 1988.

Importers appealed from order of the
United States Court of International Trade,
Thomas J. Aquilino, Jr., J., 623 F.Supp.
1262, which upheld challenge to customs
ruling that certain imports of mixed etha-
nol could enter without the 60¢ per gallon
duty. The Court of Appeals, Nichols, Sen-
ior Circuit Judge, held that Court of Inter-
national Trade was without jurisdiction be-
cause challengers had not filed protest and
obtained denial.

Reversed and remanded.
Mayer, Circuit Judge, filed an opinion
concurring in denial of post-opinion motion.

1. Customs Duties <84(1)

Determination that 60¢ per gallon tar-
iff on ethanol would apply to certain mixed
ethanol but that it would not be imposed on
certain shipments which had been arranged
for in reliance on prior determination was
subject to review as a request for classifi-
cation and rate of duty so that Court of
International Trade did not have jurisdic-
tion to hear challenge to the ruling under
the catchall jurisdictional provision. Tariff
Act of 1930, § 516, as amended, 19 U.S.C.
A. § 1516; 28 U.S.C.A. § 1581(b); Tariff
Schedules, GSP Item 901.50.

2. Customs Duties 79

Although Commissioner of Customs
may have been mistaken in determining
that certain mixed ethonal could enter the
United States free of 60¢ per gallon duty,
he did not make a void decision in interpret-
ing the customs law or permitting reliance
on previously established customs ; ractice
to be considered in assessing the appropri-
ate duties. Tariff Schedules, GSP Item
901.50.

3. Customs Duties €=7

Secretary of Treasury and Commis-
sioner of Customs are not required to make
either retroactive changes in duties or no
change at all. 19 U.S.C.A. § 3.

4. Customs Duties 5

Person should not be penalized for fol-
lowing law as stated by customs at the
time of transaction if customs later has a
change of heart. 19 U.S.C.A. § 38.

5. Customs Duties <=84(8)

Challenge to Commissioner of Cus-
toms’ determination that certain mixed eth-
anol could enter free of 60¢ per gallon duty
because of importers’ reliance on previous-
ly established customs policy could not
have resulted in retroactive application of
the duty but could have prevented future
shipments of mixed ethanol from entering
the country at a lower rate; as to ship-
ments already entered, those challenging

1534

effective assistance of counsel during his
state murder prosecution.

Affirmed.

1. Criminal Law ¢641.13(2)

2. Criminal Law <—641.13(6)

3. Criminal Law ¢—641.13(2)

Trial counsel’s failure to assert defend-
ant’s request to act as cocounsel more
forcefully did not constitute ineffective as-
sistance; defendant did not have either fed-
eral or state protected right to act as co-
counsel in criminal trial. U.S.C.A. Const.
Amend. 6.

4. Homicide 354

State’s use of prior conviction in guilt-
innocence phase and again as aggravating
circumstance in sentencing phase of de-
fendant’s murder prosecution did not de-
prive defendant of individualized sentenc-
ing determination or have effect of making
death penalty mandatory, where defendant
had opportunity to present mitigating evi-
dence.

5. Criminal Law <641.13(2)

840 FEDERAL REPORTER, 2d SERIES

6. Criminal Law ¢539(2)

Defendant’s testimony at his earlier
murder prosecution was admissible at re-
trial; prior testimony consisted mostly of
attempts to explain his whereabouts on day
of crime.

7. Criminal Law ¢641.13(2)

8. Courts <-100(1)

Retrial under judicially rewritten death
penalty statute did not violate defendant’s
constitutional rights.

9. Criminal Law ¢641.13(2)

Defense counsel’s closing arguments
praising work of prosecuting attorneys did
not’ constitute ineffective assistance of
counsel; counsel praised attorneys to as-
sure jury that trial was not personal con-
test between attorneys, and prosecutors
were personable young lawyers and coun-
sel was merely attempting to neutralize
effect of their personal appeal.

10. Criminal Law ¢641.13(2)

11. Criminal Law ¢641.13(7)

~. defendant committed crime.

JULIUS v. JOHNSON 1535
Cite as 840 F.2d 1533 (11th Cir. 1988)

U.S.C.A.
Const.Amend. 6.

12. Criminal Law <641.13(7)

13. Criminal Law €641.13(2)

Defense counsel’s closing argument
reference in “buck fever,” an expression
referring to a novice hunter’s inability to
kill first deer, but once being able to kill
and to kill again, did not constitute ineffec-
tive assistance of counsel, despite defend-
ant’s contention that reference actually ad-
vised jurors that they should give defend-
ant death penalty because if he would go
out and kill again; counsel’s intention was
to remind jury that guilt and sentencing
phases were separate portions of trial, and
that they should not feel compelled by their
verdict of guilty to return a recommenda-
tion of death. U.S.C.A. Const.Amend. 6.

14. Criminal Law ¢641.13(7)

Appellate counsel’s decision to winnow
out weaker arguments from appellate brief
does not constitute ineffective assistance of
counsel. U.S.C.A. Const.Amend. 6.

15. Homicide €=309(3, 6)

16. Homicide <=340(4)

Guilty verdict on capital murder
charge rendered harmless any error in giv-
ing manslaughter charge.

17. Habeas Corpus ¢45.3(1.30)
Mere existence of plain error rule does
not preclude finding procedural default pre-

cluding federal habeas corpus review. 28
U.S.C.A. § 2254.

18. Habeas Corpus ¢—45.3(4)

Thomas M. Goggans, Montgomery, Ala.,
for petitioner-appellant.

Charles Graddick, Atty. Gen. of Ala-
bama, John Gibbs, Ed Carnes, Asst. Attys.
Gen., Montgomery, Ala., for respondent-ap-
pellee.

Appeal from the United States District
Court for the Middle District of Alabama.

Before VANCE, HATCHETT and
CLARK, Circuit Judges.

PER CURIAM:

Arthur James Julius appeals from the
district court order denying his petition for
a writ of habeas corpus. We affirm.

Julius pled guilty to a murder charge in
1972 and was sentenced to life imprison-
ment. In 1978, while on a one-day release
from prison, Julius allegedly raped and
murdered his cousin Susie Sanders. He
was tried, found guilty, and sentenced to
death. His conviction was reversed, see
407 So.2d 152 (Ala.1981), pursuant to the
United States Supreme Court’s ruling that
Alabama’s death penalty statute was un-
constitutional. Beck v. Alabama, 447 US.
625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).
After Beck, the Alabama Supreme Court
severed the unconstitutional portion of the
statute. Beck v. State, 396 So.2d 645 (Ala.
1980). Julius was then retried for the 1978
murder under the modified statute in 1982.

1536

He was again found guilty and sentenced
to death.

The evidence presented at trial indicated
that Susie Sanders was brutally raped and
murdered on January 29, 1978. Her body
was discovered in her home by her father,
E.O. Sanders. Mr. Sanders testified that
when he and the victim’s daughter entered
the house, they saw Susie’s nude body on a
couch with her head on the floor and her
legs in the air. Trial Transcript Vol. I at
19-20. Furniture had been knocked over
and the telephone cord had been pulled
from the wall. Forensic examinations indi-
cated traces of semen in the victim’s vagi-
na, anus, and mouth. /d. Vol. II at 205.
Seminal fluid also covered the length of a
plastic banana found near the body. Jd.
Vol. I at 147. Her body was covered with
bruises, abrasions, and “rub burns” indicat-
ing that she had been dragged across the
carpet. Jd. at 197-201, 208. Handfuls of
her head hair were found near the body.
Id. at 118. An autopsy revealed that the
cause of death was manual strangulation,
probably inflicted from behind. Jd. Vol. II
at 205.

The state presented circumstantial evi-
dence that this crime was committed by
Susie Sanders’ first cousin Arthur Julius,
the appellant. Willie Clayton, another
cousin of Julius, checked Julius out of the
Draper Work Release Center at 11:40 a.m.
on January 29, 1978. As they drove to
Montgomery, Alabama, Julius asked Clay-
ton when he had last seen Susie Sanders.
Trial Transcript Vol. I at 49. Clayton
loaned Julius his car at 3:30 p.m. and did
not see Julius again until 6:30 p.m.

William Gray, the victim’s neighbor, tes-
tified that he saw Clayton’s car parked
outside the victim’s house at approximately
5:15 p.m. Trial Transcript Vol. I at 62.
Ruth Wheeler, the victim’s second cousin,
testified that she called Susie on the tele-
phone at approximately 4:00 p.m. on Janu-
ary 29. Susie said she would have to call
Ms. Wheeler back because she was talking
to her cousin “Bobo.” Jd. Vol. II at 223.
Fanny Sanders, the victim’s mother, testi-
fied that Susie referred to her cousin Ar-
thur Julius as Bobo. Jd. Vol. I at 28.

840 FEDERAL REPORTER, 2d SERIES

At 6:30 p.m., Julius revurned the car to
Clayton, who had been visiting his brother-
in-law, Orin Henderson. Henderson testi-
fied that Julius had a “fresh” cut under his
eye. Trial Transcript Vol. I at 57. Clayton
and Julius then drove back to the Draper
Work Release Center. After Julius was
checked in, he told Draper counselor Ever-
ett Rich that he was expecting an emergen-
cy telephone call. Jd. at 68. Later, Julius
told Rich he had received a call and learned
that his cousin had been robbed and killed.
Id. at 69. Julius said he had been at his
cousin’s house that day, but that she was
all right when he left. Jd.

Andrew Boykin, the victim’s fiance, testi-
fied that he gave Susie approximately $30
on the morning of January 28. Trial Tran-
script Vol. I at 73. Because Susie was ill,
she did not leave the house all weekend.
Boykin, a bus driver, was called to work on
January 29, and his employer’s records in-
dicate he drove a bus from Montgomery to
Meridian, Mississippi and did not return
until the following morning. John Byers, a
former desk officer at Draper, testified
that Julius had a little over $30 and a
carton of cigarettes when he returned to
Draper at 7:40 p.m. on January 29. Id. at
81. According to Willie Clayton, Julius
stated at 11:40 that morning that he had
only eight cents in his pockets. /d. at 49.

The state also relied on forensic evi-
dence. A toxicologist testified that. hair
found in Julius’ underwear on January 29
had the same characteristics as the victim’s
head hair and that the hair could not have
come from Julius. Trial Transcript Vol. I
at 151-54. The same witness testified that
various fibers found on Julius’ body and
clothing were the same as fibers found in
the victim’s house. Jd. at 175.

Clayton’s car at 3:00 p.m., he met a girl .

JULIUS v. JOHNSON

1539

Cite as 840 F.2d 1533 (11th Cir. 1988)

jury’s attention on the damaging remarks.
His practice is not to object unless the
prosecutor’s remarks are clearly preju-
dicial. Since none of the challenged com-
ments were overwhelmingly prejudiced or
persuasive, we will not question this tacti-
cal decision. Similarly, we will not ques-
tion counsel’s decision not to object to the
use of the-word “murder” by the prosecu-
tor and by a witness during the trial. Jul-
ius’ sole defense at trial was that he did not
commit the crime. Counsel did not choose
to make the alternative argument that Jul-
ius committed the crime but that the crime
was something other than murder. Given
the evidence presented at trial, Julius was
not prejudiced by counsel’s failure to object
to the use of the word “murder,” even if
such an objection would have been sus-
tained.

[3] Counsel communicated to the court
Julius’ request that he be permitted to act
as co-counsel. As a result, Julius was per-
mitted to preface his counsel’s closing ar-
gument at the guilt phase with some re-
marks of his own. Even if counsel did not
“effectively” advance Julius’ desire to act
as co-counsel, this failure would not entitle
Julius to relief. We have held that Julius
did not have a federally protected right to
act as co-counsel in his criminal trial. Jul-
ius, 7155 F.2d at 1404. The state coram
nobis court found that the state constitu-
tion did not afford such a right. Under
these circumstances, counsel’s failure to
assert Julius’ request more forcefully does
not constitute ineffective assistance.

3. This issue involves no assertion of ineffective
assistance of counsel. We discuss this issue
here because of its close relationship to the two

‘made the previous conviction an element of

the crime of murdering Susie Sanders and
the trial court admitted evidence of the
prior conviction. Appellant argues several
grounds for constitutional error arising
from these circumstances.

To obtain a capital murder conviction, the
state was required to prove that Julius
committed either first or second degree
murder and that this murder was “aggra-
vated” by one of the factors listed in Ala.
Code § 13-11-2. The “aggravating”
factors in this case were that the murder
was committed while Julius was serving a
life sentence (§ 18-11-2(6)) and that Julius
had committed another murder in the twen-
ty years preceding the crime (§ 13-11-
2(13)).- After the jury returned its guilty
verdict, the state used these same two
factors as “aggravating circumstances”

issues involving ineffective assistance of coun-
sel.

uear his uncle’s house. After he had sex
with the girl, he said he brought her back
to where they had met. He then got some
gas for the car and went to the governor’s
mansion to see a friend who worked there.
He went back to his uncle’s house and then
went to pick up Clayton for the ride back to
Draper. Trial Transcript Vol. I at 100-01.
This statement differs somewhat from Jul-
ius’ testimony at his first trial. The tran-
script of this testimony was read into the
record at the second trial. Julius testified
that he drove to his uncle’s house at 3:30
p.m. and stayed there for approximately 30
minutes. He then left his uncle’s house
and headed for a nearby restaurant. On
the way, he said he stopped to call his aunt
(the victim’s mother) Fanny Sanders to ask
for money. She supposedly suggested that
they meet to have sex, as they allegedly
had done several times in the past, in a
nearby motel. She did not have time to go
to the motel, so they had sex in Clayton’s
ear. Trial Transcript Vol. II at 246. Julius
claims Fanny Sanders scratched his eye
during their sexual encounter while at-
tempting to remove his glasses. Jd. at 252.
Julius testified that Fanny. Sanders gave
him a carton of cigarettes and $50 in cash,
some of which he spent on gasoline. Id. at
257.

Julius’ only defense witness was Joanne
Minnefield, who testified that she had nev-
er heard Julius referred: to as Bobo. On
cross-examination, however, Minnefield
conceded that she had only seen Julius and
Susie Sanders together twice. After
Minnefield testified, the state was permit-
ted to call one more witness, Jessie Bul-
lard. He testified that he met Julius at the
victim’s home. Although he could not re-
call the exact nickname Susie used to de-
scribe Julius, he said ‘it was Jabbo, Bobo,
Lobo or something.” Jd. at 265.

The jury was persuaded by the circum-
stantial evidence and found Julius guilty

Under the statute, a murder could be pun-
ished by death only if it was accompanied by

JULIUS v. JOHNSON
Cite as 840 F.2d 1533 (11th Cir. 1988)

1537

of: (1) murder committed by a defendant
while under a sentence of life imprison-
ment, Ala.Code § 13-11-2(6); and (2) mur-
der by a defendant who has been convicted
of any other murder in the twenty years
preceding the crime, Ala.Code
§ 13-11-2(13).! The trial court, accepting
the jury’s recommendation for the death
sentence and after reviewing a presentenc-
ing report, found the following aggravat-
ing factors:
(1) The capital felony was committed by
the defendant while under a sentence of
imprisonment [Ala.Code § 13-11-6(1) ];
(2) The defendant was previously con-
victed of another felony involving the use
or threat of violence to the person [Ala.
Code § 13-11-6(2) ]; and
(3) The capital felony was especially hei-
nous, atrocious, and cruel [Ala.Code
§ 13-11-6(8) ].
The only mitigating circumstance was that
Julius was 32 years old at the time of the
crime. See Ala.Code § 13-11-7(7). The
Alabama Court of Criminal Appeals (455
So.2d 975 (1983)) and the Alabama Supreme
Court (455 So.2d 984 (1984)) affirmed.

1538 840 FEDERAL REPORTER, 2d SERIES

April 7, 1986, the Alabama Court of Crimi-
nal Appeals affirmed without opinion. The
Alabama Supreme Court denied certiorari
on September 26, 1986.

Julius sought habeas corpus relief in the

‘district court pursuant to 28 U.S.C. § 2254.

The district court, relying heavily upon the
state court’s opinion in the coram nobis
proceeding,” rejected Julius’ claims and de-
nied the writ. This appeal followed.

On appeal, Julius presents ten claims for
relief: (1) ineffective assistance of trial
counsel; (2) ineffective assistance of appel-
late counsel; (3) erroneous jury instruc-
tions regarding the lesser included offense
of manslaughter; (4) double counting of
aggravating circumstances in the guilt and
penalty phases of the trial; (5) prosecutori-
al miseonduct during closing arguments;
(6) the use of the 1972 murder conviction,
with a cautionary instruction, during the
guilt phase; (7) the absence of a transcript
of the jury qualification proceeding in the
Alabama appellate court record; (8) the use
of Julius’ testimony from his prior trial
during the guilt phase without a proper
explanatory instruction; (9) the use, as an
aggravating circumstance, of the 1972 mur-
der conviction obtained pursuant to an un-
constitutional death penalty statute; and
(10) retrial under a judicially rewritten
death penalty statute. We reach the mer-
its of the first four issues. Issues five
through ten are barred because of Julius’
failure to timely raise these claims in the
state courts and because Julius has failed
to show cause for his procedural default.

I. INEFFECTIVE ASSISTANCE OF TRI-
AL COUNSEL

Julius points to many alleged “errors”
committed by trial counsel which, accord-
ing to the petition, constituted a denial of
his right to effective assistance of counsel.
We analyze these claims under the two-
pronged test of Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To prevail on his ineffective assist-

2. Julius complains that the district court erred
in relying on the state court's legal conclusions.
It is true that the district court is bound only by
the state court's factual determinations. How-

ance claim, Julius must show: (1) that
counsel’s performance was outside the
wide range of reasonable professional con-
duct; and (2) that the deficiency of coun-
sel’s performance had an effect on the con-
viction or sentence. Jd. at 688-91, 104
S.Ct. at 2065-66.

A. Guilt Phase

Julius’ claims that counsel was ineffec-
tive during the guilt phase can be broken
down into two categories. First, there are
several alleged errors of omission—instanc-
es where counsel failed to effectively as-
sert (either by objection or by motion) Jul-
ius’ constitutional rights. Second, Julius
alleges his counsel’s closing argument prej-
udiced his defense.

1. Alleged Errors of Omission

According to the petition, counsel was
ineffective because he failed to: (1) object
to several comments made by the prosecu-
tor during closing argument; (2) object or
make a motion for a mistrial when the
word “murder” was used to describe the
crime committed in this case; (3) protect
Julius’ “right” to act as co-counsel; (4)
object to the use of the 1972 murder convic-
tion which was obtained pursuant to an
unconstitutional death penalty statute; (5)
request an instruction informing the jury
not to consider the 1972 conviction as evi-
dence of guilt; (6) object to the use of a
transcript of Julius’ testimony from his
1978 trial; and (7) object to Julius’ retrial
under a judicially rewritten death penalty
statute.

[1,2] After reviewing the records of
the trial and state coram nobis proceedings,
we conclude that none of the alleged “er-
rors” rises to the level of ineffective assist-
ance of counsel. Counsel’s failure to object
to the prosecutor’s comments during clos-
ing argument was a deliberate tactical
choice. At the coram nobis proceeding,
counsel testified that he believes objections
during closing argument merely focus the

ever, nothing precludes the district court from
relying on the state court's legal conclusions as
persuasive authority.

JULIUS v. JOHNSON

1545

Cite as 840 F.2d 1533 (1ith Cir. 1988)

[15] Julius attempts to distinguish Hop-
per on the ground that Julius did not testi-
fy at his trial, whereas the defendant’s
testimony in Hopper negated the possibili-
ty of conviction on the lesser included of-
fense. Indeed, the Hopper court noted
that ‘{iJn another case with different facts,
a defendant might make a plausible claim
that he would have employed different trial
tactics—for example, that he would have
introduced certain evidence or requested
certain jury instructions, but for the [una-
vailability of a lesser included offense in-
struction].” Jd. at 613 n. **, 102 S.Ct. at
2054 n. **. Nothing in Hopper suggests,
however, that a defendant is entitled, as a
matter of federal constitutional law, to a
manslaughter charge when he has ad-
vanced no evidence in support of such a
charge. “{D]ue process requires that a
lesser included offense instruction be given
only when the evidence warrants such an
instruction.” Jd. at 611, 102 S.Ct. at 2053
(emphasis in original). Julius did not
present any evidence suggesting that this
crime was a manslaughter; nor did he sug-
gest such a verdict during closing argu-
ments; nor does he now suggest how he
would have altered his defense if he had
known that the jury might consider a man-
slaughter verdict. Under these circum-
stances, we will not disturb the Alabama

9. These are: (1) prosecutorial misconduct dur-
ing closing arguments; (2) the use of the 1972

[16] Julius next contends that, if there
was no evidence suggesting a manslaugh-
ter verdict, the giving of a manslaughter
instruction violates the principles set forth
in Roberts v. Louisiana, 428 U.S. 325, 96
S.Ct. 3001, 49 L.Ed.2d 974 (1976). In Rob-
erts, the Court struck down Louisiana’s
mandatory death penalty statute. The
Court also criticized the Louisiana rule that
the jury must be instructed on all lesser
included offenses ‘even if there is not a
scintilla of evidence to support the lesser
verdicts.” Jd. at 334, 96 S.Ct. at 3006.
Such a system “invites the jurors to dis-
regard their oaths and choose a verdict for
a lesser offense whenever they feel the
death penalty is inappropriate.” Jd. at 334,
96 S.Ct. at 3007. Although Roberts clearly
disapproved of such a statutory scheme, we
do not believe the court intended to extend
to defendants a right to challenge their
capital murder convictions on the ground
that the jury was allowed to consider too
many lesser included offenses. The jury’s
guilty verdict on the capital murder charge
renders harmless any error made in giving
the manslaughter charge.

V. PROCEDURAL DEFAULT

The district court concluded that Julius’
six remaining claims ® are barred from fed-

murder conviction, without a cautionary in-
struction, during the guilt phase; (3) the failure

1544

winnow out weaker arguments from his
appellate brief. See Smith v. Murray, 477
U.S. 527, 106 S.Ct. 2661, 2667, 91 L.Ed.2d
484 (1986); Jones.v. Barnes, 463 U.S. 745,
751-52, 103 S.Ct. 3308, 3313, 77 L.Ed.2d
987 (1983). After reviewing the issues Jul-
ius claims should have been raised on di-
rect appeal, we hold that counsel’s failure
to raise these issues was not an unreason-
able tactical decision.

Julius also claims counsel should have
raised a claim under Caldwell v. Mississip-
pi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d
231 (1985), because the prosecutor in-
formed the jury that the advisory verdict
was subject to review by the trial court.
Failure to raise this issue was not ineffec-
tive assistance, in part, because Caldwell
had not been decided at the time of Julius’
direct appeal. Moreover, we conclude that
the jury was not misled by the prosecutor’s
remarks. The jury was repeatedly made
aware of its responsibilities during the sen-
tencing phase, and we are satisfied that the
jurors understood the important role of the
advisory jury.

IV. LESSER INCLUDED OFFENSE IN-
STRUCTIONS

8. The instruction was correct regarding first
and second degree murder. If the jury found
the aggravating circumstance it was immaterial

840 FEDERAL REPORTER, 2d SERIES

degree murder (which is first degree mur-
der minus deliberateness and premedita-
tion), and manslaughter (which is second
degree murder minus malice). When ju-
rors expressed some confusion as to their
verdict options, the court attempted to ex-
plain the role of the aggravating factors (in
this case Julius’ prior conviction and life
sentence) in their deliberative process. The
court told the jury to decide initially wheth-
er the aggravating factors were present
and then to decide whether Julius was
guilty of first or second degree murder,
manslaughter, or not guilty. Specifically,
the court told the jury:
It’s only if you don’t find any aggravat-
ing circumstances that you then have to
determine whether it’s murder in the
first degree, murder in the second de-
gree, manslaughter, or again, not guilty.
Trial Transcript Vol. II at 291. On direct
appeal, both Alabama appellate courts held
this instruction was erroneous in that it
placed a condition precedent on the jury’s
ability to find the lesser included offense of
manslaughter.’ Both courts, however, said
this error was harmless because there was
no evidence to support giving an instruc-
tion on manslaughter. The court of crimi-
nal appeals pointed out the evidence show-
ing the maliciousness of the killing and the
absence of justification. 455 So.2d at 981.
The Alabama Supreme Court relied on the
fact that Julius’ sole defense was alibi.
455 So.2d at 986.

The Alabama court’s construction of Ala-
bama law controls this issue unless that
construction offends federal constitutional
standards. See Hopper v. Evans, 456 U.S.

whether it was first or second degree murder.
In either case, there verdict would have been
that Julius was guilty of capital murder.

1546

eral habeas review because Julius failed to
' raise these issues at trial or on direct ap-
peal. Julius concedes that he did not raise
these issues at the appropriate time. He
offers two reasons why the district court
should have reached the merits of his de-
faulted claims.

First, Julius contends the Alabama
courts on direct appeal implicitly reached
the merits of these issues. The Alabama
appellate courts are under a duty in capital
cases to “notice any plain error or defect in
the proceedings under review, whether or
not brought to the attention of the trial
court, and take appropriate appellate action
by reason thereof, whenever such error has
adversely affected a substantial right of
the appellant.” Ala.R.App.P. 45(a) (Ala-
bama Court of Criminal Appeals), 39(k)
(Alabama Supreme Court). In affirming
Julius’ conviction, the Alabama Court of
Criminal. Appeals. stated that it had
searched the record for prejudicial errors
and had found none. 455 So.2d at 982.
The Alabama Supreme Court made a sim-
ilar finding in its opinion. 455 So.2d at 987.

According to Julius, the state courts’
statements that there were no plain errors
at trial indicates their belief that the issues
raised in this petition are meritless. Adop-
tion of this position would preclude a find-
ing of procedural default in virtually every
Alabama capital case. Thus, Julius’ argu-
ment questions the correctness of our deci-
sion in Magwood v. Smith, 791 F.2d 1438
(11th Cir.1986), where we held several of
petitioner’s claims to be barred by proce-
dural default. Although the “plain error’
issue was not discussed in Magwood, we
note that the state appellate court opinion
in that case contained the same language
Julius points to in this case. See Magwood
v. State, 426 So.2d 918, 928 (Ala.Crim.App.
1982) (“We have searched the record for

840 FEDERAL REPORTER, 2d SERIES

error prejudicial to the rights of appellant
and have found none.’’), aff'd, 426 So.2d
929 (Ala.), cert. denied, 462 U.S. 1124, 103
S.Ct. 3097, 77 L.Ed.2d 1355 (1983).

[17,18] Since Magwood was silent
about the non-effect of Alabama’s plain
error rule on procedural default issues, we
will be explicit: the mere existence of a
“plain error” rule does not preclude a find-
ing of procedural default; moreover, the
assertion by an Alabama court that it did
not find any errors upon its independent
review of the record does not constitute a
ruling on the merits of claims not raised in
that court or in any court below.!® Unless
there is some indication that the state court
was aware of this issue, we cannot say that
the court rejected the merits of petitioner’s
constitutional claim. A_ contrary rule
would encourage the “sandbagging” of
state courts criticized in Wainwright v.
Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.
2d 594 (1977). See Murray v. Carrier, 477
U.S. 478, 106 S.Ct. 2639, 2647, 91 L.Ed.2d
397 (1986) (possibility of “sandbagging”’ ex-
ists on appeal “since appellate counsel
might well conclude that the best strategy
is to select a few promising claims for
airing on appeal, while reserving others for
federal habeas review should the appeal be
unsuccessful.”). Accordingly, we reject
Julius’ argument.

Second, Julius contends that the ineffec-
tiveness of his trial and appellate counsel in
failing to timely raise these issues in the
state courts constitutes “cause” for his
procedural default. See Murray, 477 US.
at ——, 106 S.Ct. at 2645-46. Our disposi-
tion of Julius’ claims of ineffective assist-
ance of counsel earlier in this opinion re-
solves this issue. Since counsel’s failure to
raise these issues did not rise to the level
of a Sixth Amendment violation, such fail-

10. This rule is limited to the facts of this case.
We express no opinion as to the effect of such a
statement when the allegedly barred issue was
raised by the defendant but not discussed in the
state court’s opinion. Nor need we decide
whether such language permits federal review
where the defendant raised. the claim at trial,
thus making it more likely that the state appel-
late court came across the claim during its re-
view of the record.

NATIONAL CORN GROWERS ASS’N v. BAKER

1547

Cite as 840 F.2d 1547 (Fed. Cir. 1988)

CONCLUSION

For the foregoing reasons, the judgment
of the district court denying Julius’ petition
for writ of habeas corpus is AFFIRMED.

AVMs

NATIONAL CORN GROWERS ASSOCI-
ATION, New Energy Company of
Indiana, Archer Daniels Midland Com-
pany, Ohio Farm Bureau Federation,
and A.E. Staley Manufacturing Compa-
ny, Plaintiffs—Cross—Appellants,

Vv.

Nos. 87-1147 to 87-1149 and 87-1160.

United States Court of Appeals,
Federal Circuit.

Feb. 9, 1988.

Post-trial Motion Denied
March 14, 1988.

Reversed and remanded.
Mayer, Circuit Judge, filed an opinion
concurring in denial of post-opinion motion.

1. Customs Duties <84(1)

2. Customs Duties <=79

Although Commissioner of Customs
may have been mistaken in determining
that certain mixed ethonal could enter the
United States free of 60¢ per gallon duty,
he did not make a void decision in interpret-
ing the customs law or permitting reliance
on previously established customs practice
to be considered in assessing the appropri-
ate duties. Tariff Schedules, GSP Item
901.50.

3. Customs Duties <7
Secretary of Treasury and Commis-
sioner of Customs are not required to make

either retroactive changes in duties or no
change at all. 19 U.S.C.A. § 3.

4. Customs Duties <5
Person should not be penalized for fol-
lowing law as stated by customs at the

time of transaction if customs later has a
change of heart. 19 U.S.C.A. § 3.

5. Customs Duties <=84(8)

1533 840 FEDERAL REPORTER, 2d SERIES

April 7, 1986, the Alabama Court of Crimi-
nal Appeals affirmed without opinion. The
Alabama Supreme Court denied certiorari
on September 26, 1986.

Julius sought habeas corpus relief in the

_ JULIUS v. JOHNSON: 1539
Cite as 840 F.2d 1533 (11th Cir. 1988)

.. Jury’s attention on the damaging remarks. he committed murder under one of four-
’.His practice is not to object unless the teen different circumstances, only two of
* prosecutor’s remarks are clearly preju- which are relevant here: murder commit-
- dicial. . Since none of the challenged com- ted while the defendant is under’ sentence
ments were overwhelmingly prejudiced or of life imprisonment; .and murder by a

ance claim, Julius must show: (1) that .
counsel’s performance was outside the .
wide range of reasonable professional con--
duct; and.(2) that the deficiency of coum |
sel’s performance had an effect on the con- :

district court pursuant to 28 U.S.C. § 2254.
The district court, relying heavily upon the
state court’s opinion in the coram nobis
proceeding,? rejected Julius’ claims and de-
nied the writ. This appeal followed.

On appeal, Julius presents ten claims for
relief: (1) ineffective assistance of trial
counsel; (2) ineffective assistance of appel-
late counsel; (3) erroneous jury instruc-
Hons regarding the lesser included offense
of manslaughter; (4) double counting of
aggravating circumstances in the guilt and
penalty phases of the trial; (5) prosecutori-
al misconduct during closing arguments;
(6) the use of. the 1972 murder conviction,
with a cautionary instruction, during the
guilt phase; (7) the absence of a transcript
of the jury qualification proceeding in the
Alabama appellate court record; (8) the use
of Julius’ testimony from his prior trial
during the guilt phase without a proper
explanatory instruction; (9) the use, as an
aggravating circumstance, of the 1972 mur-
der conviction obtained pursuant to an un-
constitutional death penalty statute; and
(10) retrial under a judicially rewritten
death penalty statute. We reach the mer-
its of the first four issues. Issues five
through ten are barred because of Julius’
failure to timely raise these claims in the
State courts and because Julius has failed
to show. cause for his procedural default.

I. INEFFECTIVE ASSISTANCE OF TRI-
AL COUNSEL

Julius points to many alleged “errors”
committed by trial counsel which, accord-
ing to the petition, constituted a denial of
his right to effective assistance of counsel.
We analyze these claims under the two-
pronged test of Strickland vy, Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To prevail on his ineffective assist-

2. Julius complains that the district court erred
in relying on the state court's legal conclusions.
It is true that the district court is bound only by

State court's factual determinations. How-

viction or sentence.
S.Ct. at 2065-66.

A. Guilt Phase

Julius’ claims that counsel was ineffec-: -

tive during the guilt phase can be broken

down into two categories. First, there are |
several alleged errors of omission—instano- -

es where counsel failed to effectively as-

sert (either by objection or by motion) Juk ;

ius’ constitutional rights. Second, Julius

alleges his counsel’s closing argument prej-
udiced his defense.

1. Alleged Errors of Omission —
; According to the petition, counsel was
ineffective because he failed to: (1) object
to several comments made by the prosecu-
tor during closing argument; (2) object or

make a motion for a mistrial when’ the ;

word “murder” was used to describe the

crime committed in this case; (8) protect .

Julius’ “right” to act as co-counsel; (4)
object to the use of the 1972 murder convic-.

tion which was obtained pursuant to an -
unconstitutional death penalty statute; (5) _

request an instruction informing the jury.
not to consider the 1972 conviction as evi-

dence of guilt; (6) object to the use of a .

transcript of Julius’ testimony from his

1978 trial; and (7) object to Julius’ retrial -
under a judicially rewritten death penalty —

Statute.

[1,2] After reviewing the records of |
the trial and state coram nobis proceedings, -:

we conclude that none of the alleged “er-
rors” rises to the level of ineffective assist-
ance of counsel. Counsel’s failure to object

to the prosecutor’s comments during clos- ..
ing argument was a deliberate tactical ‘4

choice. At the coram nobis proceeding,

counsel testified that he believes objections

during closing argument merely focus the
ever, nothing precludes the district court from _

relying on the state court's legal conclusions as
persuasive authority.

Id. at 688-91, 104.

"persuasive, we will not question this tacti-

cal decision. Similarly, we will not ques-

- tion counsel’s decision not, to object to the

use. of the-word “murder” by the prosecu-

_ tor and by a witness during: the trial. Jul-

ins’ sole defense at trial was that he did not
commit.the crime. Counsel.did not choose
to make the alternative argument that Jul-.
ius committed the crime but that the crime

was something other than murder. Given
_ the evidence presented at trial, Julius was

not prejudiced by counsel’s failure to object
to the use of the word “murder,” even if
such an objection would have been sus-

* [3] Counsel communicated to the court
Julius’ request that he be permitted to act
as.co-counsel. As a result, Julius was per-
mitted to preface his counsel’s closing. ar-
gument at the guilt phase with some re-
marks of his own. Even if counsel did not
“effectively” advance Julius’. desire to act
as co-counsel, this failure would not entitle

' Julius to relief. We have held that Julius
-- did not have a federally protected right to
~ act as co-counsel in his criminal trial. Jul-
. tus, 755 F.2d at 1404. The state coram
- nobis court found that the state constitu-
' tion did not afford such a right. Under

these circumstances, counsel’s failure to
assert Julius’ request more forcefully does
not constitute ineffective assistance.

Appellant argues that defense counsel
should have objected to the introduction of
the 1972 conviction during the guilty phase
and that he was additionally ineffective in
failing to request a cautionary instruction
advising the jurors that they should not
consider the prior conviction in deciding
whether Julius was guilty in this trial. To
understand this issue it is-necessary to
review portions of Alabama’s death penalty
statute as it existed when Julius was tried.
A defendant could be sentenced to death if

3.. This issue involves no assertion of ineffective
assistance of counsel. We discuss this issue
, here because of its close relationship to the two

defendant. who has. been convicted of any
other murder in the 20 years preceding the
crime. Ala.Code § 13-11-2(6), (13).
Julius was charged with the intentional
killing of Susie Sanders at a time when he
was under.a sentence of life imprisonment
and had been convicted:of another murder
during the. previous 20 years. The state

‘made the previous conviction an element of

the crime of murdering, Susie Sanders and
the trial court admitted evidence ,of the
prior conviction. Appellant argues several
grounds for constitutional. error- arising

from these circumstances...

Defense. counsel :is charged with ineffec-
tiveness in not objecting to the admission
of the prior conviction and-after its admis-
sion not requesting a.cautionary instruc-
tion. _ Additionally, Julius:charges that the
state’s use of the prior conviction in the
guilt/innocence phase and again as an ag-
gravating circumstance inthe sentencing.
phase constituted an overlapping of aggra-
vating circumstances, depriving him of an
individualized. sentencing -proceeding, and
rendering this phase of his trial fundamen-
tally unfair. because the. jury .was preju-
diced by. the admission of his:prior convic-
tion.2 We will discuss first the overlapping
or double counting issue. #

. To obtain a capital murder conviction, the
state was required to prove that Julius
committed either first or second degree
murder and that this murder was “aggra-
vated” by one of the factors listed in Ala.
Code §13-11-2. The “aggravating”
factors in this case were that the murder
was committed while Julius was serving a
life sentence (§ 13-11-2(6)) and that Julius
had committed another murder in the twen-
ty years, preceding the crime (§ 13-11-
2(13))... After the. jury returned its guilty
verdict, the state used these, same two
factors as. “aggravating circumstances”
wer involving ineffective assistance of coun-

1540

during the sentencing phase. The trial
court specifically instructed the jurors that
by their guilty verdict, they had already
accepted these’ two- facts as aggravating
circumstances for the penalty phase.‘ The
only other aggravating circumstance al-
leged by the state in the penalty phase was
that the crime was especially heinous, atro-
cious and cruel.

[4] Julius contends that the use of the
two overlapping aggravating circumstanc-
es deprived him of an individualized sen-
tencing determination and, in fact, had the
effect of making the death penalty manda-
tory in this case. We disagree. We have
rejected a similar challenge to Florida’s
death penalty statute. In Adams v. Wain-
wright, 709 F.2d 1443 (11th Cir.1988), cert.
denied, 464 U.S. 1068, 104 S.Ct. 745, 79
L.Ed.2d 203: (1984), the defendant was con-
victed of felony murder. The defendant
argued that “Florida has impermissibly
made the death penalty the ‘automatically
preferred sentence’ in any felony murder
case because one of the statutory aggra-
vating factors is the murder taking place
during the course of the felony.” Jd. at
1447. This argument, which is the same
argument raised by Julius, was rejected
because the Supreme Court had upheld the
Florida statute, “including necessarily the
use of this statutory aggravating factor” in
Proffitt v. Wainwright, 428 U.S. 242, 96
S.Ct. 2960, 49 L.Ed.2d 913 (1976).

Furthermore, we indicated that the sen-
tencing phase remains an individualized de-
termination because the defendant has the
opportunity to present mitigating evidence.
709 F.2d at 1447. This argument has been
used by the Fifth Circuit to defeat chal-
lenges similar to the one raised in this case.
See Welcome v. Blackburn, 793 F.2d 672,
676 (5th Cir.1986); Glass v. Blackburn, 791
F.2d 1165, 1173 (5th Cir.1986) (dicta );
Wingo v. Blackburn, 783 F.2d 1046, 1051
(5th Cir.1986) (“we fail to see why aggra-
vating circumstances narrow the sentenc-
ing discretion any less by being made a
constituent element of the crime.”). But
4. Since preparation of this opinion, the Su-

preme Court has held that under a Louisiana
Statute, different in some respects from the Ala-

840 FEDERAL REPORTER, 2d SERIES

see Collins v. Lockhart, 754 F.2d 258, 261—
65 (8th Cir.) (“we see no escape from the
conclusion that an aggravating cireum-

stance which merely repeats an element of _
the underlying crime cannot perform {the] .-

narrowing function”), cert. denied, 474

U.S. 1018, 106 S.Ct. 546, 88 L.Ed:2d 475

(1985); Wiley v. Mississippi, — U.S. —,

107 S.Ct. 304, 806, 98 L.Ed.2d 278 (1986).

(Marshall J. with Brennan J. dissenting
from denial-of certiorari). We are bound
by Adams to reject: Julius’ argument that
the double counting of aggravating circum-

stances violated his constitutional rights. j :
Turning to the charge that his counsel

was ineffective, Julius argues that admis-

sion of the prior offense violated his right

to a fundamentally fair trial. We find that
counsel was ineffective for not objecting.

The issue had be ised in 1979 in Ala [iF
page page alle si aon ; .were not violated. Consequently, the ab-

sence of an instruction may amount to a_

bama in Hubbard v. State, 8382 So.2d 577
(Ala.Cr.App.).
quent to that time and counsel should have
raised the issue to lay the basis of a later
constitutional challenge in a federal pro-
ceeding, assuming that the Alabama courts
would have adhered to their position in
Hubbard. 3

However, in the interim, the issue has

been put to rest by the Supreme Court in
Marshall v. Lonberger, 459 U.S. 422, 108
S.Ct. 843, 74 L.Ed.2d 646 (1988). There,
Marshall had been convicted by an Ohio
court and given the death penalty. The
Ohio statute permitted the state in an ag-
gravated murder case to include in the
indictment a “specification” in which the
state could allege that the respondent pre-
viously had been convicted of an “offense
of which the gist was the purposeful killing
of or attempt to kill another.” See Ohio

entitled to hear evidence of a past convic-
tion similar to the evidence under attack
here.
Spencer v. Texas, 385 U.S. 554, 87 S.Ct.

648, 17 L.Ed.2d 606 (1967), holding that the

defendant’s due process rights were not

bama statute, overlapping does not constitute a
‘violation of the Constitution. Lowentfield y,
Phelps, 42 Crim.L.Rep. 3029 (Jan. :13, 1988).

Julius was retried subse- _

In note 6, the Court reaffirmed _

JULIUS v. JOHNSON.

1541

Cite as 840 F.2d 1533 (11th Cir. 1988)

- Miolated by the introduction of -his previous
. conviction in the guilt/innocence phase of
.. the trial. . Appellant had relied upon Spenc-
t er in urging this claim. The opinion and
. dissent in Spencer make clear that at the

present time the practice of using evidence

ofa past conviction in the trial of Alabama:

death cases is permissible under the Consti-

5 tation.

‘{5] Marshall does support appellant’s
claim that counsel was ineffective for fail-

; ing to request a cautionary instruction re-.
- specting the 1972 conviction. We hold that

counsel was ineffective. Justice Rehnquist

(vow Chief Justice) writing for the majority

in Marshall relied on the fact that when

. “evidence [of a prior conviction] .was ac-
_. companied by instruction limiting the jury’s
use of the conviction to sentence enhance-.

ment,” the defendant’s due process rights

constitutional violation. .
.We do not reach that question because
we fail to find that the defendant was

prejudiced in this case. Although the evi-

dence convicting Julius was all circumstan-
tial, it was overwhelming. We cannot con-

’ ceive that any retrial of Julius with the
-, cautionary instruction could reach a differ-
— ent result.

[6,7] Respecting Julius’ sixth claim, we

- hold that counsel was not ineffective for
his failure to object when a transcript of

Julius’ testimony at the 1978 trial was read
into the record at the 1982 trial. Julius’
prior testimony consisted mostly of his -at-
tempts to explain his whereabouts on the
day of the crime. These statements were
clearly relevant and admissible. The prose-
cutor’s fleeting reference to the facts of
the 1972 murder during the prior testimony
was not enough to mandate, as a matter of

5. Toward the end of his closing argument, de-
fense counsel stated: _ z
And in closing, I want to thank’ the District
Attorney's office in this case, because they
have made my job harder, much, much, hard-
er than it would have beeh had it been one of
these ranting and raving type District Attor-
“meys that wants to do more hollering and
things like that than to try a lawsuit. I want
to thank them for being gentlemen, and yet
they have certainly made my job far more

professional competence, that counsel ob-
ject:to the introduction of: the transcript. |
Furthermore, ‘counsel’s: failure to object
when the trial court.told the jury to consid-
er the prior testimony “‘as if Julius: was-on
the. stand testifying” does not constitute
ineffective. assistance. The court’s re-
marks did not, as Julius suggests, draw
attention to Julius’ decision not to testify at
the. second trial. Even if they did draw
attention to this fact, an objection by coun-
sel would have served only to draw addi-
tional attention to Julius’ failure to testify.
Given counsel's strategy of objecting only
when necessary, we do not believe coun-
sel’s failure ‘to object to the court’s re-
marks was unreasonable.

: [8) Finally, counsel was not ineffective

for failing to object to Julius’ retrial under

a judicially rewritten death penalty statute.
The Supreme Court’s ‘holding in Beck »v.
Alabama did not bar the state from re-
prosecuting the defendant in thats case.
See Beck v. State, 396 So.2d 645 (Ala.1980).
Cf. Jordan v. Watkins, 681 F.2d 1067,
1077-80 (5th Cir.1982) (rejecting constitu-
tional challenges to retrial under Mississip-
pi’s judicially rewritten death penalty stat-
ute), clarified on reh’g sub nom. Jordan v.
Thigpen, 688 F.2d 3895 (5th Cir.1982).
Counsel had no basis to object to the re-
prosecution in this case, and therefore can-
not be faulted for his failure to object.

II. ALLEGED ERRORS OF COMMIS-
SION :

[9,10] Julius contends counsel’s closing
argument during the: guilt phase of the
trial was prejudicial to his defense. Specif-
ically, Julius points to counsel’s comments
praising the work of the two prosecuting
attorneys § and counsel’s comment that he

1544

winnow out weaker arguments from his
appellate brief. See Smith v. Murray, 477
U.S. 527, 106 S.Ct. 2661, 2667, 91 L.Ed.2d
434 (1986); Jones v. Barnes, 463 U.S. 745,
751-52, 103 S.Ct. 3308, 3318, 77 L.Ed.2d
987 (1983). After reviewing the issues Jul-
ius claims should have been raised on di-
rect appeal, we hold that counsel’s failure.
to raise these issues was not an unreason-
able tactical decision.

Julius also claims counsel should have
raised a claim under Caldwell v. Mississip-
pi, 472 U.S. 320, 105 S.Ct. 2638, 86 L.Ed.2d
231 (1985), because the prosecutor in-
formed the jury that the advisory verdict
was subject to review by the trial court.
Failure to raise this issue was not ineffec-
tive assistance, in part, because Caldwell
had not been decided at the time of Julius’
direct appeal. Moreover, we conclude that
the jury was not misled by the prosecutor’s
remarks. The jury was repeatedly made
aware of its responsibilities during the sen-
tencing phase, and we are satisfied that the
jurors understood the important role of the
advisory jury.

IV. LESSER INCLUDED OFFENSE IN-
STRUCTIONS

During its guilt phase deliberations, the
jury requested the court to re-define the
elements of the crimes charged. In re-
sponse, the court first explained that, un-
der Alabama law, a murder is > . capital
murder if the state proves one of the “ag-
gravating. factors” contained in the death
penalty statute. The court then listed the
elements of first degree murder, second

8 The instruction was correct regarding first
and second degree murder. If the jury found
the aggravating circumstance it was immaterial

840 FEDERAL REPORTER, 2d SERIES

degree murder (which is first degree mur. -,
der minus deliberateness and premedita- .:
tion), and manslaughter (which is second —
When ju- :

degree murder minus malice).
rors expressed some confusion as to their.

verdict options, the court attempted to ex- ;
plain the role of the aggravating factors (in .

this case Julius’ prior conviction and life

sentence) in their deliberative process. The -
court told the jury to decide initially wheth- .
er the aggravating factors were present .
and then to decide whether Julius was ;
guilty of first or-second degree murder, —
manslaughter, or not guilty. Specifically, |

ss court told the jury:

t’s only if you don’t find any aggravat-

sss circumstances that you then have te
determine whether it’s murder in the
first degree, murder in the second de-

gree, manslaughter, or again, not guilty. ||
Trial Transcript Vol. I] at 291. On direct ;
appeal, both Alabama appellate courts held -.
this instruction was erroneous in that it ;

placed a condition precedent on the jury’s

ability to find the lesser included offense of .
manslaughter. Both courts, however, said |
this error was harmless because there was |
no evidence to support giving an instruc ;
tion on manslaughter. The court of crimi- |
nal appeals pointed out the evidence show- .

ing the maliciousness of the killing and the
absence of justification. 455 So.2d at 981,

The Alabama Supreme Court relied on the ,

fact that Julius’ sole defense was alibi.
455 So.2d at 986.

Julius argues that the circumstances of |

the crime, without any supporting testimo-
ny, could have warranted a manslaughter
verdict. He notes that the victim’s house
was found in disarray and that he received.
a cut below his eye. The Alabama courts
disagreed, and held that Julius’ failure to
produce any evidence in support of a man-
slaughter verdict rendered the trial court’s
misstatement harmless.

The Alabama court’s construction of Ala-
bama law controls this issue unless that
construction offends federal constitutional
standards. See Hopper v. Evans, 456 U.S.

whether it was first or second degree murder.

In either case, there verdict would have been
that Julius was guilty of capital murder.

: charge.

‘(emphasis in original).

_* JULIUS ¥; JOHNSON -

Fe Cite as 840 F.2d 1533 (11th Cir. 1988)
85, 611-612, 102 S.Ct: 2049, 2053, 72 L.Ed.-
: 2d: 367 (1982). In Hopper, the Court held
:- that a'defendant who admits to intentional-
* ly killing his. victim is not entitled to a
:. lesser included offense instruction, the ele-
*. ments of which were negated by his testi-

-mony. According to the Court, Beck »v.

‘- Alabama requires the giving of a lesser
; ‘included offense instruction only where

“there was evidence which, if believed,

2 could. reasonably have led to a verdict of a

lesser offense.” Jd. at 610, 102 S.Ct. at

' 2052. This standard is consistent with the
. Alabama Supreme Court’s holding in this

case that Julius’ failure to produce any

* evidence warranting a charge of man-
- slaughter in the first degree rendered the’

trial court’s error harmless.
-{15] Julius attempts to: distinguish Hop-

per on the ground that Julius did not testi-
fy at his trial, whereas the defendant’s.

testimony in Hopper negated the: possibili-
ty of conviction on the lesser included ‘of-
fense. Indeed, the Hopper court’ noted
that “{iJn another case with different facts,

. a defendant might make a plausible claim

that he would have employed different trial
tactics—for example, ‘that: he would have
introduced certain evidence or requested
certain jury instructions, but for the [una-
vailability of a lesser included offense in-
struction].” Jd. at 613 n. **, 102 S.Ct. at
2054 n. **. Nothing in Hopper suggests,
however, that a defendant is entitled, as a

;- matter of federal constitutional, law, to a
_ Manslaughter charge when he has ad-

vanced no evidence in support of such a
“{D]ue process requires that a
lesser included offense instruction be given
only when the evidence warrants such an
instruction.” Jd. at 611, 102 S.Ct. at 20538
Julius did not
present any evidence suggesting that this
crime was a manslaughter; nor did he sug-
gest such a- verdict during closing argu-
ments; nor does he now suggest how he
would have altered his defense if he had
known that the jury might consider a man-
slaughter verdict. Under these circum-
stances, we will not disturb the Alabama

9% These are: (1) prosecutorial misconduct dur-
ing closing arguments; (2) the use of the 1972

court’s conclusion that Julius was not enti-
tled to-a- manslaughter instruction. Since
Julius was: not entitled to an instruction,
the trial court’s error in giving that instruc-
tion was harmless.

[16] Julius next contends that, if there
was no evidence suggesting a manslaugh-
ter verdict, the giving of a manslaughter
instruction violates the: principles set forth
in Roberts v. Louisiana, 428 U.S. 325, 96
S.Ct. 3001, ‘49 L.Ed.2d:974 (1976).: In Rob-

erts, the Court struck down Louisiana’s’

mandatory death “pénalty statute. The
Court also criticized the Louisiana:rule that
the jury must be instructed’ on all lesser
included offenses “even if theré is not a
scintilla of‘ evidence to support: the ‘lesser
verdicts.” Td. at’ 384, 96 S.Ct. at 3006.
Such a system “invites the jurors to dis-
regard their oaths’and choose a verdict for
a ‘lesser ‘offense whenever’ théy feel the
death penalty is inappropriate. ” Id. at 334,
96 S.Ct. at 3007." ‘Although Roberts clearly
disapproved of such a statutory scheme, we
do not believe the court intended to‘ extend
to defendants a right to challenge 'their
capital murder convictions on the ground
that the jury was allowed to consider too
many lesser included offenses. The jury’s
guilty verdict on the capital murder charge
renders harmless any error made in giving
the manslaughter charge.

Finally, Julius contends the challenged
instruction placed a condition precedent on
the jury’s ability ‘to find him not guilty.
The Alabama Supreme’ Court found that,
although the instruction was techniéally in-
correct, the error was harmless because
the jury was repeatedly instructed that it
could find the defendant innocent. 455 So.
2d at 987. We are convinced, after review-
ing the remainder of the court’s instruc-
tions and the arguments of counsel, that
the jury understood that it had the option
of finding Julius not guilty even if the
aggravating circumstances were present.

Vv. PROCEDURAL DEFAULT

The district court concluded that Julius’
six remaining claims * are barred from fed-

murder conviction, without a cautionary in-
struction, during the guilt phase; (3) the failure

1545

1542

distance himself from his client. Jd:. We

agree with the coram nobis court that coun-
sel’s comments did not prejudice Julius’
defense. Even if counsel’s arguments
were pot particularly helpful, they certain-
ly were not harmful enough to undermine
our confidence in the correctness of the
jury’s verdict.

A. Penal ty Phase

‘{11] Julius claims counsel failed to
present all the available mitigating evi-
dence during the sentence phase. The cor-
am nobis court made detailed factual find-
ings that counsel zealously tracked down
all leads to mitigating evidence. Counsel
simply made the informed decision that the
best way to save Julius’ life was to argue
to the jury that there was still some doubt
whether or not Julius committed the crime.
Given the brutal nature of the crime, we
conclude that such a decision was within
the range of professional competence.

they are assets to this county and assets to any
organization.
Supplemental Trial Transcript at 25.

6. During argument, counsel talked to the jury
about the day he received his license to practice
law and a promise he made to himself on that
day:

{JJust as long as I live and I walk into a
courtroom, I'm going to make myself a vow,

that I don’t care who it is, I don't care if _

they're a convict, I don’t care if they are the
biggest liar that ever walked under the sun, if
I, George Cameron, if I'm going to be thrown

840 FEDERAL REPORTER, 2d SERIES

Furthermore, we agree with the state cor’
am nobis court that the proposed testimony :
of family members and friends would not:
have affected the outcome. Accordingly, :
Julius is not ‘entitled to relief on this

ground.

[12] Second, Julius alleges counsel's *

closing argument was ineffective because :

counsel distanced himself from his client
and because counsel failed to argue. per '
Specifically, Jul |

suasively for Julius’ life.
ius objects to the following comment made

by his counsel during closing argument: :

May it please the Court, members of the |
jury. I don’t know, to tell you the truth, :

whether I am asking you to spare Arthur

Julius’ life, or whether I’m up here to.
‘make sure that you know what you are

doing.

Supplemental Trial Transcript at 46. Jul.
ius’ argument is meritless because this
comment, in the context of the entire argu- |
ment, did not prejudice his case. Counsel’s -
argument was quite different from the ar. -
gument we criticized in King v. Strick- .

land, 714 F.2d 1481 (11th Cir.1983), vacat-
ed on other grounds, 467 U:S. 1211, 104

S.Ct. 2651, 81 L.Ed.2d 358 (1984), adhered :
to on remand, 748 F.2d 1462 (11th Cir. :

1984), cert. denied, 471 U.S. 1016, 105 S.Ct.
2020, 85 L.Ed.2d 301 (1985).

conveying to the jury that he had reluctant-
ly represented a: defendant who had com-
mitted a reprehensible crime.” 714 F.2d at

1491. In this case, counsel in no way indi- °

cated that he was being compelled to repre-
sent Julius. -Moreover, counsel did not
needlessly stress the brutality of the crime
charged in the indictment. The remainder

person. I don’t want anybody to ever back
off and say, well, that lawyer sold them down
the river; that lawyer wasn’t worth two cents;

that lawyer just sat there; that lawyer hasn't .

done his job. Not against me, I hope.
Supplemental Trial Transcript at 22-23.

In King, -
“counsel separated himself from his client, #

JULIUS v. JOHNSON

1543

Cite as 840 F.2d 1533 (11th Cir. 1988)

of his closing argument was designed to
exploit weaknesses in the state’s proof dur-

}. ing the guilt phase, in an attempt to per-

suade the jury that any lingering doubts

. about Julius’ guilt should result in their

vote for a life sentence... Given that the
verdict:.was based on circumstantial evi-

dence, and given Julius’ past problems with’

the law, such a decision was not unreason-

~ able.’ We find that counsel adequately ful-
. filled. his role as an advocate.

{13]' Julius also argues that one of

" counsel’s attempts to remind the jury of its:
duty during the penalty phase actually

made it more likely: that the jury would
' return a recommendation for the death

penalty. During his oases argument,
_— stated:

-> Now, I’m not sure I'm asking for him
at all. But let me say this, please don’t
; do, what I call getting over buck fever.

_: They have an expression among deer.
'.. ‘hunters, that they laugh at the young-
_- ,Sters. They go out and the first cute,

little deer they see hopping. through the
+ woods, they are so cute that they can’t

dll it. The next time they go, they do

kill it. They they keep. going and killing
and killing and~killing because they’ve
done it one time. What I’m cautioning
this jury about is this, you were in there
-six hours. over that evidence. And I
_ don’t want to offend nobody [sic], but the
least. I can do is that in a hearing like
this, I can at least tell you—and I’m not
being critical—that that evidence was
rotten when it was weak.

. Supplemental Trial. _Transeript at 47-48.

Julius complains that this anecdote actually
advised the jurors they should give Julius

. the death penalty because, if they did_not,

he would go out and kill again. Counsel
testified, however, that his intention was to
remind the jury that the guilt and sentenc-
ing phases were separate portions of the
trial, and that they should not feel com-
pelled by their verdict of guilty to return a
recommendation for the death penalty.
While counsel’s choice of anecdote might
have been ill-advised, we do not believe his

__¢losing argument did “more harm than

7. Julius’ appellate counsel, George Cameron,

good” as did the argument in King. In

sum, Julius ‘has failed to show that coun-

sel’s closing argument was sufficiently
unartful to undermine our confidence in
the outcome of the. sentencing phase.

Finally, Julius claims counsel should
have objected to the prosecutor’s: remarks
during closing argument. Again, counsel
testified that his strategy was to avoid
drawing attention to the prosecutor’s argu-
ments by objecting unless an :egregious
error had been committed. We will rarely
second guess such a. strategy. In any
event, we. find, nothing in the prosecutor’s
closing arguments so improper as to re-
quire an objection by counsel.

III. INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL

Julius maintains that the record before
the Alabama’ Courts of Appeals did not
contain a transcript of the juror selection
proceedings. He claims that appellate
counsel's? failure ‘to make sure that a
record of such proceedings was presented
to the Alabama courts constituted ineffec-
tive assistance of appellate counsel. : Since
Julius has not offered any facts that would
even suggest that the transcript might sup-
port a constitutional violation, he has failed
to prove that his attorney’s “failure” preju-
diced his defense. See Smith v. Wain-
wright, 741 F.2d 1248, 1260-61 (11th Cir.
1984), cert. denied, 470 U.S. 1088, 105 S.Ct.
1855, 85 L.Ed.2d 151 (1985). :

[14] Next, Julius ‘claims counsel should
have raised on direct appeal the issues he
raises in this, petition. On direct appeal,
counsel raised two issues: (1) whether the
trial court erroneously instructed the jury
regarding the lesser included offense of
manslaughter; and (2) whether the death
sentence was unconstitutionally imposed
where the same aggravating factors used
during the guilt phase were used during
the sentencing phase of the trial. The cor-
am nobis court found that counsel made a
tactical decision to limit his. appellate brief
to what he believed were his two strongest
issues. . Counsel is, of course, permitted to

was also his trial counsel...

154u

eral habeas review because Julius failed to
raise these issues. at trial or on direct ap-
peal. Julius concedes that he did not raise
these issues at the appropriate time. He
offers two reasons why the district court
should have reached the merits of his de-
faulted claims.

_ First, Julius. contends the Alabama
courts on direct appeal implicitly reached
the merits of these issues. The Alabama
appellate courts are under a duty in capital
cases to “notice any plain.error or defect in
the proceedings under review, whether or
not brought to the attention of the trial
court, and take appropriate appellate action
by reason thereof, whenever such error has
adversely affected a substantial right of
the appellant.” Ala.R.App.P. 45(a) (Ala-
bama Court of Criminal Appeals), 39(k)
(Alabama Supreme Court)... In affirming
Julius’ conviction, the Alabama Court of
Criminal Appeals stated that it had
searched the record for prejudicial errors
and had found none. 455 So.2d at 982.
The Alabama Supreme Court made a sim-
ilar finding in its opinion. 455 So.2d at 987.

-Aceording to Julius, the state courts’
statements that there were no plain errors
at trial indicates their belief that the issues
raised in this petition are meritless. Adop-
tion of this position would preclude a find-
ing of procedural default in virtually every
Alabama capital case. Thus, Julius’ argu-
ment questions the correctness of our deci-
sion in Magwood v. Smith, 791 F.2d 1438
(11th Cir.1986), where we held several of
petitioner's claims to be barred by proce-
dural default. Although the “plain error’
issue was not discussed in Magwood, we
note that the state appellate court opinion
in that case contained the same language
Julius points to in this case. See Magwood
v. State, 426 So.2d 918, 928 (Ala.Crim.App.
1982) (‘We have searched the record for

840 FEDERAL REPORTER, 2d SERIES

error prejudicial to the rights of appellant
and have found none.”), aff'd, 426 So.2d
929 (Ala.), cert. .denied, 462 U.S. 1124, 108
S.Ct. 3097, 77 L.Ed.2d 1355 (1983).

[17,18] Since Magwood was silent

about the non-effect of Alabama’s plain

error rule on procedural default issues, we

will be explicit: the mere existence of a -

“plain error” rule does not preclude a find-
ing of procedural default; moreover, the
assertion by an Alabama court that it did
not find any errors upon its independent
review of the record does not constitute a
ruling on the merits of claims not raised in
that court or in any court below.’® Unless
there is some indication that the state court
was aware of this issue, we cannot say that
the court rejected the merits of petitioner’s
constitutional claim. A contrary rule

would encourage. ‘the. “sandbagging” of a

state courts criticized: in Wainwright ».
Sykes,;-433 U.S. -72, 97 S.Ct. 2497, 58 L.Ed.
2d 594 (1977). See Murray v. Carrier, 477
U.S. 478, 106 S.Ct. 2689, 2647, 91° L.Ed.2d
397 (1986) (possibility of “sandbagging”’ ex-
ists on appeal “since appellate counsel

might well conclude that the best strategy |

is to select a-few promising claims for
airing-on appeal,.while reserving others for
federal habeas review should the appeal be
unsuccessful.”). Accordingly, we reject
Julius’ argument.

Second, Julius contends that the ineffec-
tiveness of his trial and appellate counsel in
failing to timely raise these issues in the

state courts constitutes “cause” for his

procedural default. See Murray, 477 U.S.
at ——, 106 S.Ct. at 2645-46. Our disposi-
tion of Julius’ claims of ineffective assist-
ance of counsel earlier in this opinion re-
solves this issue. Since ¢ounsel’s failure to
raise these issues did not rise to the level

of a Sixth Amendment violation, such fail- !

10. This rule is limited to the facts of this case.

We express no opinion as to the effect of such a. -

statement when the allegedly barred issue was

raised by the defendant but not discussed in the .

state court’s opinion. . Nor need we decide
whether such language permits federal review
where the defendant raised the claim at trial,
thus making it more likely that the state appel-
late court came across the claim during its re-
view of the record.

NATIONAL CORN GROWERS. ASSOCI-

NATIONAL CORN GROWERS .ASS'N v.) BAKEK

1547

ee ee

ure ‘cannot constitute. cause ‘for the proce-
dural default. Jd. Since Julius offers'no

' other excuse for the default, we affirm the

district court’s decision to avoid, -Feviewing
the. merits of these claims.

“CONCLUSION

Pee the foregoing reasons; the iainiinn

of the district court :dénying Julius’. petition

for writ of habeas corpus is AFFIRMED.

oat

/ATION, -'New .- Energy: Company: of:
Indiana, Archer Daniels Midland Com-.:
pany, Ohio Farm Bureau Federation,
and A.E. Staley Manufacturing Compa-
“ny, Plaintiffe-Cross-Appellants,

Vv.

James BAKER, Ill, Secretary, John. M..
Walker, Jr., Assistant Secretary, Wil-.
liam Yon Raab, Commissioner, United
States of America, Citicorp Interna-
tional Co., Inc. and RAJ Chemicals,
Inc., Defendants—Appellants.

Nos. 87-1147 to 87-1149 and. 87-1160.

United States Court of Appeals,
Federal Circuit.

Feb. 9, 1988.

Post-trial Motion Denied
March 14, 1988.

Importers appealed from order of the
United States Court of International Trade,
Thomas J. Aquilino, Jr., J., 623 F.Supp.

1262; which upheld challenge to customs

ruling that certain imports of mixed etha-
nol could enter without the 60¢ per gallon
duty. The Court of Appeals, Nichols, Sen-

dor Circuit Judge, held that Court of Inter-
national Trade was without jurisdiction be-

cause-challengers had not filed protest and
obtained denial.

:) Reversed-and remanded.

Mayer, ‘Circuit Judge; filed an opinion
concurring in denial of postopinion motion.

1. Customs Duties €84(1)-.

- Determination that 60¢:per gallon tar-
iff. on.ethanol would apply to certain mixed.
ethanol but: that it would not-be imposed on -
certain, shipments which had been arranged:
for in reliance on prior determination. was
subject to review as a request for classifi-
cation and rate of: duty so:that Court of
International Trade’ did ‘not have jurisdic-
tion to hear challenge. to the.ruling under
the catchall jurisdictional-provision. - Tariff
Act of 1930, § .516, as amended, 19 .U.S.C..
As § 1516; 28 US.C.A. § 1581(b); Tariff
Schedules, GSP Item 901.50.

2. Customs Duties ¢79 |

__ Although Commissioner "of Gustoms
may have. been mistaken in determining
that certain mixed ethonal could enter, the
United States free of 60¢ per gallon duty,
he did not make a void decision:in interpret-
ing. the customs law or permitting reliance
on, “previously established customs practice
to be considered in assessing the appropri-

ate duties. Tariff Schedules, GSP. Item
901. 50.

3. Customs Duties 7

Secretary of Treasury and Commis-
sioner of Customs are not required to make
either retroactive changes in duties or no
change at all. 19 US.C.A. § 3.

4. Customs Duties 5.

Person should not be penalized for fol-
lowing law as stated by customs at the
time. of transaction if customs later has a
change of heart. 19. U.S.C.A. § 3.

5. Customs Duties ¢=84(8)

Challenge to Commissioner of Cus-
toms’ determination that certain mixed eth-
anol could enter free of 60¢ per gallon duty
because of importers’ reliance on previous-
ly established’ customs policy could not
have resulted in retroactive application of
the duty but could have prevented future
shipments of mixed ethanol from entering
the country at-a lower rate; .as to ship-
ments already entered, those challenging

DoHAan AL, CR ELE

(age 2-4
t

Wednesday, January 25, 1989

ALABAMA

By The Associated Press

| Rescue workers
search for child

MONTGOMERY — Rescue
workers searched the Alabama
River again Tuesday for a
10-year-old girl who disap-
peared while playing with
friends on the riverbank.

Police were notified Sunday
afternoon that the child slipped
and fell in the river, said si
Wyatt Gantt, a spokesman for
the Montgomery police. He said
two girls ran to get help, but
there was no sign of the child
when they returned.

Man charged with
attempted murder

PINTLALA — Eddie Brown,
23, a man accused of holding a
couple hostage overnight,
shooting the woman and leaving
them in their burning home, had
victimized the two once before,
an investigator said Tuesday.

Brown, who continued to
elude authorities Tuesday, was
charged with attempted murder
in the latest attack. State and
local officers searched for
Brown with tracking dogs.

Court refuses to

- halt execution

MONTGOMERY — The
Alabama Supreme Court refus-
ed Tuesday to halt Friday’s
scheduled execution of Arthur
James Julius, sending the death
row inmate’s last-minute ap-
peals back into the federal court
system.

The court, in a 7-0 ruling
issued without comment, refus-
ed to grant a stay of execution
for Julius, sentenced to die for a
1978 murder committed while he

was on an eight-hour pass from
a prison work-release center.

Trustee questions
pro tem selection

‘AUBURN — An Auburn
University trustee questioned
the board’s selection of a new
president pro tem at a special
meeting in New Orleans, but
President James Martin said
nothing improper happened.

John Denson, an Opelika at-
torney and board member, said
the election of Michael McCart-
ney of Gadsden was invalid. Mc-
Cartney was picked to fill the
vacancy created by the death
last month of U.S. Rep. Bill
Nichols, D-Sylacauga.

Complaint filed
against judges

MONTGOMERY — The
state’s Judicial Inquiry Com-
mission has a complaint against
three Jefferson County. district
judges who expressed concern
about AIDS-infected defendants
appearing in courtrooms.

Linda Potts of the AIDS Task
Force of Alabama said that
Monday’s complaint stemmed
from reports the judges asked
AIDS-positive inmates not to ap-
pear in their courtrooms and
that prisoners’ AIDS status was
common knowledge throughout
the court and the county jail.

Mrs. Hunt said in
‘good spirits’

BIRMINGHAM — Alabama
first lady Helen Hunt was
reported to be in a good mood
Tuesday at a hospital where she
has undergone tests to deter-
mine the cause of a stubborn

— high fever.

Speke Dette (626d,
la-h C4#-S) |

MONTGOMERY (AP) — A
federal judge Wednesday halted
_Friday’s scheduled execution of
death row inmate. Arthur James
Julius, saying the courts need more

raised by his attorneys.

Assistant Attorney General Ed
Carnes said the ruling by. U‘S.
District Judge Truman Hobbs
meant Julius’ execution would be
delayed at least a month, possibly
much longer.

Hobbs’ decision came after Gov.
Guy Hunt refused to grant clemen-
cy for Julius, whose mother and
other relatives met with Hunt
earlier in the day. —

Julius was scheduled to be elec-
trocuted at 12:01 a.m. Friday for
the 1978 murder of his cousin, Susie
Bell Sanders. yoy

Ms. Sanders was strangled and
sexually assaulted at her Mon-
tgomery home while Julius was
free on an eight-hour pass from a
prison work-release center. At the
time of the killing, Julius was serv-
ing a life sentence for a 1972
slaying.

At issue before Hobbs were
defense attorneys’ claims that pro-
secutors failed to turn over all the
materials they had concerning the
1978 slaying. :

Prosecutors are required to pro-
vide defense attorneys with any
evidence that would tend to prove a
defendant’s innocence. But Julius’
attorneys, during a two-hour hear-
ing before Hobbs, contended the

state failed to meet the require-
ment in a string of ‘‘deceptions”

surrounding Ms. Sanders’ murder.

“Let’s slow this thing down and -
take a careful look,” said attorney -
Richard Burr, representing Julius”

for the New York-based Legal
Defense Fund. “‘It doesn’t have to
take weeks or months or years.”

Carnes said Montgomery County -
prosecutors delayed turning over

their complete file on the Julius
case to defense attorneys until
earlier this month, despite re-
quests from the attorney general’s
office. But he said any information
that might have been provided to
the defense ‘‘wouldn’t have made a
hill of beans’’ to a jury. '
Hobbs agreed with. Carnes that
any evidence withheld from
defense attorneys probably would
not have made a difference in
Julius’ trial. Still, Hobbs said, he

wanted the 11th U.S: Circuit Court .

Happy Birthday
‘‘Sweet Sixteen’”’
Brandi Fellows

of Appeals to review the case.
“Pm sensitive that the court

- shéuldn’t be hurried in this, but I’m

also sensitive that this thing has
gone on for 10 or 11 years,” he said. _

“‘T just want someone else to look at
the thing. I started reading this -
stuff last night.” :

Carnes said the only way to
dissolve Hobbs’ stay would have
been to convince the 11th Circuit
that Hobbs abused his powers in
granting the delay. Given’ that
Hobbs had less than a day to
review the case, Carnes said, “‘We .
just couldn’t do that in good faith.”

Once Hobbs issues a written stay
of execution, Carnes said, the at-
torney general’s office will ask the
11th-Cirfecuit to handle the case as
quickly as possible. Still, he said, it
“could be weeks or months”’ before
a ruling is made.

I Love You,
Grandma Ruth

PAGE 4D

2YAIF4

THE BIRMINGHAM NEWS

By Stan Bailey
News staff writer

MONTGOMERY — Lawyers for
convicted killer Arthur James Julius
have notified a federal judge that they
may ask him to block Julius’ scheduled
— execution in Alabama’s electric
chair. :

Richard H. Burr III of New York,
one of Julius’ attorneys, said documents
in the case have been sent to U.S. Dis-
trict Court Judge Truman Hobbs in
case state courts rule unfavorably on

pending appeals.

Lawyers for Julius asked the Ala-
bama Supreme Court Monday to over-
turn a lower court’s refusal to grant
him a new trial.

They also asked the state Supreme
Court in a separate petition last week
to delay Julius’ scheduled execution at
12:01 a.m. Friday. .

Supreme Court Clerk Robert Esdale
said he expected the justices to rule

EEA NE RN Ea EI ea A TRS a aT a TP Serr ne INN am HR RSE

today on the petition to delay execu-
tion.

Montgomery Circuit Court Judge
William Gordon Monday turned down a
request for a third trial on charges that
Julius raped and murdered his cousin
in 1978.

Defense lawyers argued the state
improperly withheld evidence that
might have cleared Julius, but Gordon

’ ruled that such claims should have

been raised long ago. _
State attorneys said lawyers for
Julius were using delaying tactics.
“This 11th-hour abusive petition. is
typical of the kind of last-minute tac-

tics followed by the attorneys for death

row inmates who have exhausted all of
their legitimate avenues of appeal,”
said state attorney Ed Carnes.

The case has been through state and
federal courts twice, and the U.S.
Supreme Court refused two months ago
to review it further, he said.

In their petition to the state Supreme
Court, attorneys for; Julius said they
realize “that many courts have grown

METRO /STATE

Slayer notifies U.S. judge

weary of petitions from the condemned
and may view a second petition from
such a person as presumptively without
merit.”

In a similar case, the U.S. Supreme
Court has ruled that lawyers for an
accused person cannot be required to
look for hidden “misconduct” on the
part of the state, they said. °~

After hearing more than eight hours
of testimony Saturday, Gordon ruled
Monday that lawyers for Julius had
failed to show why “reasonable dili-
gence” on their part during earlier
trials would not have turned up any
evidence they now say was hidden
from them.

Gordon also noted that state lawyers
had told Julius’ attorneys in open court
that they would not object if they
bypassed further appeals to the state
courts and went straight to the federal
courts.

Joy Patterson, spokeswoman for
Attorney General Don Siegelman, said
state attorneys offered not to object to
a direct federal appeal “because the

ur James Julius

* execution is set for Friday and the

state has an interest in seeing that the
issue is settled.”

Burr said Julius’ attorneys decided
not to skip state appellate courts, how-
ever.

“We are not going to do that because
we believe the Alabama appellate
courts, both the Alabama Court of
Criminal Appeals and the Alabama
Supreme Court, will take our claims
quite seriously,” said Burr.

The advance word and documents to
Hobbs were filed to keep Hobbs from
having to review the lengthy record at
the last minute in case a federal appeal

becomes necessary.

ouSING Sat. ee é :
' )RTED _ aoons.|.
nd ereriantiag tolling |

ferward this, week le — ae

6 ‘ea importation of
Hoee, « bosiery too well
or extended comment.
no ls farort . _gentie-

fades bach makes a

a “a
42
te,

ee mast insure «

¢ eats portion

: 1
fot Alabama was one Comisty, & Russia |

{at thas time ia Pike. He wae a carciage-
maker by rrado and a mar of considera: |

; erg! fuad of kuowledge gained. frovo_

- dour ciled in itis family of au ald § ‘gentler

AS ae ‘Two & ‘Persons

Were Hung, One ‘a2. ola £
-cfeere,| _ Women, « g the: :

ben 1. Hon FORM

Perbape one OL the ae desperate
crimjnals that ever Gisgraced the annals .

Pole, who about 1835, or a littie tater, |
awe to Farriorvilic, snail village near
tbe southern lice of Bullock county, vat

ble education,’ supplemented. by es ges-
extensive travel and close. observation. |
Asto personal eppearacce, “thote “who
knew bim woll.differ, but the. ‘general. |

trend seems to ho that i ie. looks & bh wiles ti

rather forbidding. | It was not long efte
48 comlug to Fartloryille that he! Drcaine|

appro p §O
, Prizzel, ns uian- of
‘uulératandtag.

‘Pole one entirely),
of Ay Woman, 1:

Ch De
al” had ‘exposed

Caristian. 5 3

«G6 me
nae, Avion ate
the had eomailited aru grent crime
fie bis own conatey nf miade his escape
16 the. “Belang: th exprrriated and
ontof from ‘all fe held near and d
-fvaturally of a moiose avd brooding

‘posidon, be bad gruwn 6u Naperncn tel.
Feerupled little at earthing that promised

rovebge on Auyone wiio camo in the way
of bis plans. Of thia there wag never

jany pos tive proaf, thoug'r many little

things Ledid before he lanunehed him-

“beelf foto actnal crime and afterwards re-

membered as belog ‘strange and unne-
connted fay uuiler any: other: ‘Lypothesis | bod

-| give color ae ‘the theory, one thing is

certain, no bolder, Onrelentiny, soul-lesa

“| fiend ever existed-in this country. One

whom to call murderer. would bev inis-

-Lovmer—ono aa {aro below: the Zulu in

moral stamins as the alu is below: the
‘Some say. he. Was crazy. ‘Obhera ‘and
+by far. the ‘greater: namber, “maintain
Tat if bo was it was his insatiable, de-
moniacal tbirat Yor human life that
made. him ao, and the galiows i is the unty
iitting end for gach’ insanity as makes an
iubnman monstex of aman, |
However, we did not start thia aketch
for’ the purpose of moratizing, but to
give: the facta, -

a ar ee hee wi

“be wes | bees:
pander ad assuiniedt
at Mey fod Sor so: cotng

we remeinber and
dbave heard. them from | thers
er

ic :

haa wot feclinnd to tthe gal
ber bow atterly. desetace |
be when the hand of-G
providing father or a ‘ayool
mother. Grief teaches

| wondertal lesson of gentle

*,*
The ideal woman is gey Le
not pat berlover om tt
prove his tove. She de
another giri’s for the p
her power, She leads a
Bhe-is the haudiwork that
men, ae is the woma
ee od and useful
7 psi She is the
the tinies of great 2
the wife above suspicion,
of chi dren, tho eurve ¢
t:'6 temple of fame.

]

EE,

peed:
CORAL

Fleadache 2nd rctiere all Be
> gent to @ bilktus stafeoe? the j
Disrineas, Nausea. Drowsiness Bias
eating, Prin in tue Sale, €c¢ é
: markabie Bucttas bes beca

es Hictacke. ret Cagrtes’s tir

ere equally taisable in Cer:
asd prev ending this armnoving

= they, alao COrrect Ali disorders
stimusate the iver and rege
it bey omy cured

realms og
pr She: atin > ie

ete chs
“eld Bess

ake pet ee.

wal ‘t ae Said ie

oc le
os fanyaa ws

Harman KARMINSKY, hanged State Prison, Rockford, 10-17-1862.

Dr. Ambrose burrows, warden and lessee of penitentiary murdered on
March 15, 1862. Karminsky tried, convicted and executod on Oct,
17, 1862, Convicted in circuit court of Coosa County and executed
on October 17, 1862, Two other convicts who had interceded on part
of police of prison were immediately pardoned, MONIGOMERY WEEKLY
ADVERTISER, Nov, 8, 1862.

Harman Carminsky, who was sentenced at the last term of the Circuit
Court of Coosa County for murdering Dr, Burrows, the lessee of the
penitentiary was executed, we learn, on the 17th of October within
the walls of the penitentiary. He asserted his innocence of the
poisoning of the Frizell family, on charge of which he had been

sent to the penitentiary. He said he felt justified in killing Dr,
Burrows and felt no remorse for having committed the mrder but would
do it again under like circumstances, He was perfectly cool and
collected, and took considerable interest in having the rope adjusted
to suit him, claiming plenty of rope so as to have a good fall as he
did not fear to die. He requested the hangman not to throw the drop
until he gave the word, which he did in a minute or two after he had
made the request, as calmly as he would have asked the most trifling
request. MONTGOMERY MAIL, October 19, 1862,

Kamiski escaped from Pike County jail on March 7, 1858, but was
subsequently recaptured, INDEPENDENT AMERICAN, Troy, Ala., March
10, 1858,

NANCY and KOMISKY case = Pike County, Ala,

"One of our informers from Pike County informed us yesterday of a most horribeland
atrocious case of poisoning in that county, just below the link of Montgomery Co,,
and in the neighborhood of Bruceville, ‘he annals of crime will hardly show a more
extensive and diabolical piece of villany,.
"It seems that a German or Hungarian, whose name our informant had forgotten, was on
intimate terms with a negro woman, the property of old Mr, Thomas Frazel, one of the
earliest settlers of Pike, This man had once been in the employ of Mr, FX and was
familiar with his premises, ‘Some time since he had been detected in gambling with
Mr, F.'s negroes, and Mr, F, had instituted a prosecution against him, On Saturday
evening, Sept, 12, 1855, he was seen in conversation with the negro woman above
alluddd to, at thewell, although he had received orders from Mr, Frazell never to
come about his premises,
"On Sunday there were some 37 persons dining at Mr, Frazell's house, of whom about
30 were visitors from the neighborhood, All these became sick soon after eating,
vomiting violently; and the cook being arrested immediately on a suspicion of
poisoning, at once proceeded to state as follows: She said that the white man above
referred to, while at the well, had given her a vial of arsenic, which he instructed
her to mingle with 'the meal, the milk, the butter and the coffee,' He was partic-
ulalrly desirous that it should go into every article of food, because old Mr,
Frazell was in delicate health, and generally ate very sparingly, Thenegro woman
said she followed the directions of her lover to the letter = who by the way added
to his instructions the remark that ‘after the old man had taken that, he would hardly
prosecute him in that case,'
"The poison was administered, as we have seen, but too successfully. The whole asse-
mblage of p rsons were put under its influence; and at the last agcounts six had died
from its affects, Old Mr, Frazell died about sunset of Sunday, the day of the poiso-
ning, His oversear's wife and two children; Mrs Cloud, a widowed daughter of Mr, Fra-
eellsand KH4X Mr, F's grand daughter died the next day, Several others were lying in
a critical condition, and doubtlessthere will be myevictims of this awfully fiendish
crimes
"Mr, Jack Frazell, son of the old man, happened to be out of meal on the day of the
poisoning, and sent to his father's and borrowed a bushel, All who partook of this
including a brother who had declined to eat at his father's, having come in after
some of the company had got sick, were more or less effected,
"After we had written the above, our informant, Mr, J, M, Johnson of Pike, called
on us again, and gave us the name of the poisoner, which is Comiska, Mr, J. further
states that the infuraated people of the neighborhood have burnt the negro woman
and will perform the same service for Comiska on next Monday. In the meantime he
is safely lodged in jail at Troy. He neither denies nor admits anything. = Montgomery
MALL, Septe 17, 185%" - MOBILE DAILY REGISTER, 9-22-1857,

"The Montgomery MALL from a conversation with a gradnson of old Mr. Frazell at whose
house the dreadful poisoning case recently occurred in Pike County, 4“la., is enambeled
to make some corrections of the account given of that affair in that paper a few days
since: Only four persons died from the pa@ison: Mr, Frazell, his granddaughter, and the
overseer's wife and child, The four mentioned awove all died before the morning of
the next day after taking the arsenic, The negro woman had not been burned but had
bem sent to Troy jail, The spelling of the prisoner's hname is Kamiski, nistead

of Comisky, He is said to be a Russian,W SOUTHERN ADVOCATE, Huntsville, Ala.,

Oct.. 6, 1857.

“&

BES A

i I ice

74 ALABAMA HISTORICAL QUARTERLY 9/2; *7 £334"

and each cell had its separate door and lock, and then a strong
chain ran in to a staple in each door through the length of the
line of cells. There was quite a clanking night and morning as
these chains were being rapidly run along the tiers of cells. The
convicts were not allowed to converse with each other, or visi-
tors to talk with them except by special permission

The condition of the Penitentiary financially was not satis-
factory to the legislature, the cost of maintenance being so far
in excess of income. To January Ist, 1846, it had cost to main-
tain it $53,546.44, while the receipts from its products had been
only $21,565.75, leaving a balance against it of $31,980.69. In
January, 1846, Thomas Cargyle was made warden. In February
of that year an Act was passed authorizing the lease of the insti-
tution; and it was leased by John G. Graham in the same month,
and he was lessee and warden until 1852, when his six-year
lease expired.

From 1852 to 1858 the lessees were Moore and Jordan, with
Mr. Moore as warden. They engaged largely for a time in the
manufacture of rope and bagging, but it was a financial failure,
involving the lessees in heavy loss. It also proved unhealthy
for the convicts.

In 1858, Dr. Ambrose Burrows and Mr. Holt were lessees,
Dr. Burrows as warden. He was killed in 1862 by a convict
named Karminsky. Dr. Burrows had whipped him for miscon-
duct in accordance with the rules of the system. He vowed re-
venge. Watching his opporcunity, at a time when Dr. Burrows
was off his guard, Karminsky, with an axe in hand, at one blow
nearly severed the Doctor's head from the body. He was tried
for the murder in Rockford, and hanged in the yard of the Peni-
tentiary, in the presence of the convicts.

The State resumed control upon the death of Dr. Burrows,
and appointed Dr. M. G. Moore warden. The war came in 1861.
The supply of men for soldiers was getting scarce, and a proposal
was made to the convicts to pardon those who would enlist as
soldiers in the Confederate service. Many enlisted. With those

Oy Ee, sith ca eGR: inet nL de cote

tuse stale meat.
the Tennessee:
gCo’s plantand),
ow their meats
ndled and you

Oo other. —
s ct neta at

- Ja highly respected minister of the

4 ne Me RG 2 Pepe

. AAODIISE Y,
“ts paramour anit tue old. nezro WOWAD |

) b 4 ." tA] * *

se) ntis lung, white, Wei: vainted ‘gowns

cook w ate at once sus. ectar, rics’ ed fon commencement days They are the

ard indicted foe wuider,

“The tr-al of ihe oa! ‘d VvoJ0 IN Hecultad in
aseutenes of death, aud she paid the!
penaity on the g: Wigws. Tue pentieman
who was Sheriff at the time aud executed
the sentecce is stil Wying. He is. now

+,
a one-armed Confelerate actdier exlices

}yailantry aod bravery js known in all,

» {that seaMou, and who has more than

d . Elgiteestt
ile} He where T

jeoves little to talk,

= {once since the war been honored by the

people of his county with positions of
high trust. ‘The hanging. “of old Nancy
ia an episade in - his life of : which he
There are. those, |
uO alive, who do not hesitate to Bay
they believe old Nancy Wag innocant, na
she, to the lust, stottly. declared. that
without ker> knowledge _ the | other
woman, at tbe inatance of. Comisky,
put the poison in the meal, and the poor

~} old cook was sacrificed in ordet to save

“4 the younger aud nore pouswe) yellow

= (fail

‘Duriog” his) ‘insacceration ‘Comixky}

| proved be an extremrly troublesome and

| became enraged at th
that officer’s head to’
diabolical marder, he was shortly”

‘a.ter he was sent ‘
during his: Alor bane

unruly prisoner, caging lis. jailers no

~ lend of anxiety by bis. frequent. daring
| and nearly successful attempts to escape.

Hee appeared at times to have bo fear at
a
bave no effect. on tim. whatever, and
ouly by thé exercise of overpowering |

' pbysical foree could he be kept In ‘sub. |

jection. On the ground that: he would
not be accorded a fair trial in Pike, his
lawyers got n change of venue to Ba
bour county. He was. finally:
Clayton, receivivg a life.
ing incarcerated {n- that: prison, be
Warden, and at
broad-axe sp!:
shoulders. S

one feli stroke of a ha;

- For this: unprovok

inxide the walle. At oue time, not long
6 tlie penitentiary, the
: ree him |

Jj
some other. convicts to: tlie State

flashing: ‘from

‘ready to spring
hedoubtl

Sor pers: as ite itvable
in jail ere iee

‘Threats of instant death seemed to} _

- tried at :
penitentiary at. Wetumpka Soon:

{women whem they too o'ten class among). ~ is
jbiew ideale for emulation.
+ Woman!
t

A proud
A pasJonata woman! They
mike svleudid eoarncters in fiction.

Medea. Lucila, Biizabeth, Mary Queen
of Scots, lady Mache h, these are expi-
fal dramatis perionw for stage-work,

Fand Webster, of Washington,. Jackson
“nod Lee, of Cromwelt and Sir, “Thomps
Moore. No; the moullets! of: ereat men

are gentle wonten,

= Many a young woman makes a creat
mistake upon enteting the sociai wold.
She bas too freqgicotly taker ber tdeal
from the books she hag read and too
seldom from ber own zood mother’s Hie.
‘She is quick to correct the young min
who tinds in ler anything but perfect on,
S;o has an idea that any. delection from’
ue stundard.of pride wil be vistted

Ste bristles up and says sharp. things,
sometiines bright and cut ing, sutnetimes

thor.

pane ‘eway, and ategrete : come too fate,
ad an ;

Asa drop ol water: eoostaatl) falling
will penetrate the most hard of hearts;

ersey cow is irresist

bly attractive
to all ages and both sexes.

| titdes I bave heard a wom Pen 1p
: ‘They Tove the

gentle, beaut:ful ey
animail’s:face becaus

-| because in its eyes they gee mixrore tbh
4 divin

est f all analitics

wed at her. shrine In such
| paar Eat ale ony Ro} ee saretul

Lat does one suppesy they have madat
history like ihe mothers of Liay, Caihoun.: +qnarters. as many pall

n ber by tho contempt of bin or her
w 101 she allows to make the assault. |

silly and rebunnding upon the tart au-4
Only” too often a good man is

in the same place, will gradually wear |”
away a stone, tie genticuess of a woman |.

sand, io the: end, win, where pride, : pas~ aE
nd beauty ‘have failed, Aj: >

merbecuice! she har not beeo |
jhe has reveled in hor sway and

every =pale: of SHOE

“The pans buylify t
pairs of Shoes witt
ticket and $20 ineash

SEC O
To. thee one ‘bu
given ove son nd: trip

cash.
“222 TAM

The al ty. buying n

| pairs as Nol will reed

one Jonas) “inp ticket

“To re custonier Ww
est one-twen'jeth as ¥
will be given onc. rou
$5 iucash, =.
This Ives every. on
Our shoes aie m:
one" Ss, and, much
them, - 2

2, Wher! I asy care Ido so: 5

radical pre: 2 bare mde
_LEPSY os FALLING SICK
“wasreant my romcdy t2 ex70
~} others Rove falled ts notes
-oare,. Scifat orcs fcr a tr

“my infaliiuce remedy, | Give
1 [te Gs BOOTLEG Os

. ae es
en enemies

AMMOTH

WINDOW DIEPLAY.
ee makes and the
ecetentork: for extraordi-

ues. Se

& cHALIFODY & (0,

_ Mammoth: ‘Clothiers,
“Wty and 19i7 First; avence..

Army Excursion - os
nD. Q,, and return, only
pin trip via the Queen &

‘ticke:s on gale Sep-
' "20th, god t> return Oc-

“rales: ‘schedules pod
rion, write or call on:

CG Ray, Pass. pete
rs)

| Brien’ S Opera
and hearacom-
tailed’: report!
free greatfights

Ast ars: Birninsbag 1

far trom meetin” the approval of t -e old
ople... Mr. Friazeil, a man of sound
ndgment, weil understandiag huiwan
nature, saw in the wilv Pole one entirely
tunworthy the respect of any woon.
Comsky had amours with a mulatto
rervant, prowl of which had come to
Frizzeil’s knowledge,

As soon as this fact had become

. known the Folander had beon exposed

and) unceremonuionsiy hustled from tho
beuse, and forbidden ever to enter tt
egaiv, bnt the tascal never retings shed
his influence over tis colored . mixtsess,
and it is claimed: that by promises to
buy her freedom «be wbtained sac cun-

‘{trol of Ler ae to be able to make her]

his strong and wilfiag ally in his nefari-
og schemes for reveave, fur, a3 the «e-
quel proved, @rere yankl-d in bis blrek
beart a deadly. hatiad against all the
white, inmates” of the fon sevolk.
malignant wax be that in accomplisiin:
bis bellish purpose he did not liesiiale to,

_ {sacritice.the lives of. innocent shillren,

who were too young even to. haibor a
thought of injury to him: |

Mr. Fr zzcil was a prominent: ‘Baptist,
aud trig walk showed that-he endeavored |.
tolive upto the tenets of lis chureb and |
his duty: fas a. citzén. Asthn term of
the circuit: court approached he made
nu secret of his intebtiou to. go ta the
‘county seat and ave Comisky indicted:
by.the’grand jury for: bis flugrang, viola-
ton of» daw, doceney and | morals, of

. which there - Was’ abundant. and indt-

cies‘in sea-

mbest day board:
i reasonable
0. Galatoire’s
gant, now con-
: by ‘Beccaria of

: and ‘determined ‘yillain®

tevard whatever~

asus haved
sousht” sufety. ‘in’ fl ght. “Now 80. with
Comiaky. Valuing in18 “own . woribless
life but littie, if any, “Le. had no re-
‘for that of. others, and
Mas 1eidy to resort to. Roy crime, hows.
ever hemons, for the, sake of naveng ng ay
real or imaginary <Wrous. At breakfast
on the mornity of the’ day. for Mr. Friz-
zeli’s visit. to the court - house the eutiie
family partook of a® hearty meal, “Al-
most immed ately afterward they wee

shor L time the inost- alarming Ry plone,
were developed lightiall the ob
rent lemien: and’ tw bree at his gia

toatl *
kne ailye

some favor, a state of affairs which was |

So }sime timo her

attacked with a violent “illress- aod in a}

, fare Ch

AaAieaaia! ab the porfect
: Jdeal woman of the noval
world ig Maggie Tailliver, the creation of
(seorge Eliot, strong, se}{-re'iant, pas-
sovate, proad, temp‘ed, triumphant.
The preackher’a otbiess wonan is she
who loves the shurch aad gives herself
and chi}dren to it.. Tne dream of the:
philosopher is the rational wo nan, who
thinks | twice before sho. spoaks Pncs,
who guards, her hea! tbh vy eariy. hours
and ix not given to hys* erie Tho
skeptic likes her best who. is not sar-
prised at aay tae nor. reeds wth
relisious P: On IRSIES, picts
ee ae CSREES : :
mM ee
‘Bat it stiikes me teat one wor ord alone.
of al} the bandreds tbat are -emplosed
in) wounan's- praise, expresses at the.
bighest daty and ber
greatest possible attainment. It is the:
word *yentle.” Tu its earliest. sin fis:
cance it simply. meant along} ag to ihe.
sane! gens,” tribe or. familys” Then.
Was used . to. dSaienite. th 82 ATO. << 2.
-onged toa good: or noble “gens? And,
at last, by the law of generalizition, » hd
came ‘to mean that? qial ty wich peo-
ple. weil, boi n, onght to fi: iva, Vz: > gen:
tieness.: A ‘proud woman: ROS ites, a
passionate woman blinds and abs: arbs, '
wilful Pavoman:

as. invi ible. Ihe: otvers
sometime
their feet?.

frgst as adew-bathed rose asd renews

itas the. spring showers year by vear yp

cover-ihe earth with perennial, foliaze

-Men bowdown and. v vorship ie proud |

aod? passionate: women | of the. earih.
Antony. threw away av grown” for tha

love of Cleopatra, and. it took the jou)”
yf Augustus. to. resist the yielet ”

tint of th sey pt mB eyes,

abla to» slave Uiysses, and.

WAS endanger all. Greevee f for }
ery isin ‘These are

U: rce -wWas

sae and? individ AE y rates: “
omen. whont acitool gir
r w bite, mi i }

Sai for. he te
on Bippose they

“amuses, but” “a gatle :
| womay ‘allurcs and the te stunt binds ta).
j heris/as: su Ong, ny eweet and as lasting |
: adsorb aud; AR

onsuing ‘the love cast at | oo
the ventle-wom in kecps it as)...

yy fhHOE STORE.
=} date ONE. FIC KEL ri

Sheqebetips rest rage
we make our groat .
white othere do not. =>
Car ren’s Loree a Tver
and very easy to take. One
a@ dose. They cra strictly ¥
hot cripe or Aeshy tat by -
easy All who use them.
ve.cor §t © Sold seerr wins

od HL fu Don

ACTUA

“For the next 30 L Fi
tre stock of Misses’ and
shoes at actual cost. «

20 PER CENT. R

Achilies a :

ee Tadi D; ne expense F
do tein custuiners By ot
Comm

every: ope vi SHOES,

buyng Neat
etl Pees aj Vv

%)
4 —

Wis, 3

68 ALABAMA HISTORICAL QUARTERLY

The Penitentiary of the State stands closely related to the
history of Wetumpka, for it was located there at its first estab-
lishment, and has ever since remained there. During the year
1839, the Commissioners to build the Penitentiary, A. A. Mc-
‘Whorter, William Hogan, and Malcom Smith, had let the con-
tract to W. H. Thomas for $84,899.00. The cornerstone wus
laid with imposing ceremonies by the Masons, March 4th, 1840,
escorted to the place by the Borderers. Prayer was offered by
Rev. Mr. Holman, and an address was made by A. B. Dawson.

The land upon which it was built was owned in times of Indian Be

possession by an Indian named Slab. On the 27th of October,
1841, the keys of the Penitentiary were formally turned over
to the Commissioners, and the occasion was publicly celebrated
by a dinner. William Hogan was made the first Warden.

To January, 1842, but one convict had been incarcerated. ;
“s His name was William Garrett from Autauga County, a harness _
es maker from New York. He was charged with harboring a ‘
ee He had j
a wife in New York. He once escaped, but was recap‘ured. He Paes

was finally pardoned by act of the legislature, because grave ; ee
Four additional convicts #3

runaway negro, and was sentenced for twenty years.

doubts had arisen as to his guilt.
were received on the 22nd of March, 1842, and still others later.

~ On the 24th of December, 1842, eight convicts made their escape

by lashing together two pieces of timber, nailing cross pieces °

at intervals on these for steps, and tieing a rope to the end going
over the wall, by which they could lower themselves to the
ground. This was done while the Warden and guar’s were at
dinner. Seven got out then, but the eighth, hearing the guard
apprcaching, hid himself in a pile of lumber until night, and
then made his escape. One, in descending, fe’l and hurt him-
self so he failed to make good his escape.
1843, all but two had been recaptured.

In February, 1843, there were 28 convicts in the walls, 12

of whom were from Mobile. Of these, six were making wagons;

three were blacksmiths; three shoemakers; four tailoring; three Be

at cabinet work; three coopering; one a painter; one a cook:
and two at miscellaneous work. Other industries were added,
such as saddle and harness making, tinners trade, ete. :

A. M. Bradley succeeded Hogan as warden in January,
1844. Sometime during the year 1814 the wooden workshops in

we ai ta CL ree oe a ait as ag SiAcntaaadiy |
s = » 1

By January 10th,

/ Sd x

ee atin

Sa ae =

2 the yard were burned, but replaced. The convicts in those days
we-were not congregated together in large cells as now. There were

Sor

% “Wechain ran in to a staple in each door through the length of the

bessline of cells. There was quite a clanking night and morning
#26 as these chains were being rapidly run along the tiers of cells.

, fea The convicts were not allowed to converse with each other, or
ae visitors to talk with them except by special permission. |
Sh, :
re Bis
Cee e,° ° ° M
: “>e The condition of the Penitentiary financially was not satis-
a «factory to the legislature, the cost of maintenance being so far —

ek To January 1st, 1846, it had cos in-

ie ex tain it $53,546.44, while the receipts from its products VR

ae } eaving a balance against it of $31,980.69. In

a ranuary, 1846, Thomas Cargyle was made’warden. In February
? of that year an Act was passed authorizing the lease of the in-
stitution; and it was leased by John G. Graham in the same

month, and he was lessee and warden until 1852, when his six-
ear lease expired. oc :

= = From 1852 to 1858 the lessees were Moore and J ordan, with
; Mr. Moore as warden. They engaged largely for a time in the
«manufacture of rope and bagging, but it was a financial failure, .
involving the lessees in heavy loss. It also proved unhealthy
‘for the convicts, |
oho Meas fee
3Dr. Burrows as warden.
: : Dr. Burrows had whipped him for mis-
nduct in accordance with the rules of the system. He vowed
revenge. Watching his opportunity, at a time when Dr. Bur-
rows was off his guard, Karminsky, with an axe in hand, at
Severed the Doctor’s head from the body. He
e murder in Rockford, and hanged in the ‘
e . J . : yard
xf the Penitentiary, in the presence of the convicts,

sys: The State resumed control upon the death : "OW
Ba, and appointed Dr. M. G. Moore warden. The wie aubishaer
we. Ue Supply of men for soldiers was getting scarce, and a aeb:

l was made to the convicts to pardon those who would enlist
Many enlisted. With

“ meS.soldiers in the Confederate Service.

phe nose left Dr, Moore manufactured many articles useful for the ||

___ SPRING ISSUE, 1942 | ago

a long rows cf narrow cells, each occupied by only one at night, +
p and each cell had its separate door and lock, and then a strong f

pees

Metadata

Containers:: Box 1 (2-Documentation of Executions), Folder 13
Resource Type:: Document
Description:: Arthur Jones executed on 1986-03-21 in Alabama (AL)
Rights:: In Copyright - Educational Use Permitted
Date Uploaded:: June 26, 2019

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