708 F.2d 541
Wayne Carl COLEMAN, Petitioner-Appellant,
Walter D. ZANT, Warden, Georgia Diagnostic and
Classification Center, Respondent-Appellee.
United States Court of Appeals,
June 10, 1983.
Joseph M. Nursey, Millard C. Farmer, Kenneth Rose, Atlanta, Ga., for petitioner-appellant.
Nicholas G. Dumich, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court For the Middle District of Georgia.
Before JOHNSON and ANDERSON, Circuit Judges, and COLEMAN, Senior Circuit Judge.
R. LANIER ANDERSON, III, Circuit Judge:
In this capital case, petitioner Wayne Carl Coleman appeals from the federal district court's order denying his petition for habeas corpus relief. On September 4, 1973, a Seminole County grand jury indicted Coleman, Carl J. Isaacs, George Elder Dungee, and Billy Isaacs on six counts of murder. Some three months later, Billy Isaacs entered a guilty plea to armed robbery and burglary. He was sentenced to a forty-year prison term. In January 1974, Coleman and the two remaining defendants were tried separately, convicted, and sentenced to death by electrocution.
The Supreme Court of Georgia affirmed Coleman's convictions and sentences, and the United States Supreme Court subsequently denied Coleman's petition for writ of certiorari. Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976), cert. denied, 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977). Coleman filed a state habeas corpus petition in the Superior Court of Tattnall County. The superior court held hearings on July 27, 1979 and January 25, 1980. On June 13, 1980, the superior court denied Coleman's habeas corpus petition. On October 31, 1980, the Supreme Court of Georgia denied Coleman's application for a certificate of probable cause to appeal. The United States Supreme Court denied Coleman's second petition for writ of certiorari. Coleman v. Balkcom, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981). At this point, Coleman filed for habeas corpus relief in the United States District Court for the Middle District of Georgia. The district court denied the petition. Coleman v. Zant, No. 81-42-THOM (M.D.Ga. Mar. 11, 1982). In answer to Coleman's habeas corpus petition, respondent conceded that Coleman had exhausted available state remedies for the issues raised in his petition. Record at 49.
Among the several issues raised on this appeal, petitioner contends that the federal district court erred in denying his request for discovery and an evidentiary hearing on the question of whether pretrial publicity and the community's atmosphere were so prejudicial and inflammatory that the trial court's refusal to grant petitioner's motion for a change of venue deprived him of his constitutional rights. In his petition for habeas corpus, petitioner requested the district court to conduct an evidentiary hearing so that petitioner could prove the facts alleged in the petition. Record at 41. The district court decided that an evidentiary hearing was unnecessary. Record at 239. Petitioner also filed a motion for discovery. Record at 60. In this motion, petitioner indicated that he would use depositions obtained in discovery as direct evidence and as evidence of the need for an evidentiary hearing. The district court did not directly respond to this motion. In its opinion denying habeas relief, the district court said that petitioner had had full and adequate state court hearings relating to the petition's allegations. Record at 239.
We have reviewed the record and it is clear that petitioner is entitled to an evidentiary hearing on the change of venue issue. We therefore remand to the district court for an evidentiary hearing. In the interests of judicial economy and the expeditious handling of this case, we will retain jurisdiction. The district court is instructed to certify its findings and the record of its proceedings on remand to us within 60 days of the issuance of this opinion. See Spivey v. Zant, 661 F.2d 464, 478 (5th Cir.1981) (Unit B), cert. denied, --- U.S. ----, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); Harris v. Oliver, 645 F.2d 327, 331 (5th Cir.1981) (Unit B), cert. denied, 454 U.S. 1109, 102 S.Ct. 687, 70 L.Ed.2d 650 (1981).
I. CHANGE OF VENUE
The Fourteenth Amendment's due process clause safeguards a defendant's Sixth Amendment right to be tried by "a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). When prejudicial pretrial publicity or an inflamed community atmosphere preclude seating an impartial jury, due process requires the trial court to grant a defendant's motion for a change of venue, Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963), or a continuance, Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522-23, 16 L.Ed.2d 600 (1966). Ultimately, the question is whether a defendant's "trial was not fundamentally fair." Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). Two standards guide analysis of this question. They are the "actual prejudice" standard and the "presumed prejudice" standard.
To find the existence of actual prejudice, two basic prerequisites must be satisfied. First, it must be shown that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Irvin v. Dowd, 366 U.S. at 727, 81 S.Ct. at 1645. Second, these jurors, it must be determined, could not have laid aside these performed opinions and "render[ed] a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1643.
Prejudice is presumed from pretrial publicity when (1) pretrial publicity is sufficiently prejudicial and inflammatory, and (2) the prejudicial pretrial publicity saturated the community where the trials were held. Rideau v. Louisiana, 373 U.S. at 726-27, 83 S.Ct. at 1419-20; Murphy v. Florida, 421 U.S. at 798-99, 95 S.Ct. at 2035-36; Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981); see also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). As the Fifth Circuit has described the test, "where a petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, '[jury] prejudice is presumed and there is no further duty to establish bias.' " Mayola v. Alabama, 623 F.2d at 997 (quoting in part from United States v. Capo, 595 F.2d 1086, 1090 (1979), cert. denied, 444 U.S. 1012, 100 S.Ct. 660, 62 L.Ed.2d 641 (1980)).
Petitioner has the burden to show "essential unfairness," Beck v. Washington, 369 U.S. 541, 558, 82 S.Ct. 955, 964, 8 L.Ed.2d 98 (1962) (quoting United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331 (1956)), under either standard. The petitioner must "show that setting of the trial was inherently prejudicial or that the jury selection process of which he complains permits an inference of actual prejudice." Murphy v. Florida, 421 U.S. at 803, 95 S.Ct. at 2038. Given petitioner's allegations of "grave constitutional errors," Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963), regarding the trial court's denial of the motion to change venue, and given the fact that petitioner shoulders the burden to demonstrate these allegations, it cannot be doubted that petitioner is entitled to a full and fair opportunity to develop the facts material to this constitutional claim. We must determine whether or not the petitioner has had that opportunity and whether petitioner has made "an appropriate showing," Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969), for a federal evidentiary hearing.
II. THE NEED FOR AN EVIDENTIARY HEARING
Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), prescribes the standards governing the question whether the federal district court must hold an evidentiary hearing in determining the merits of a habeas corpus petition of a person in state custody. Townsend delineated six particularized circumstances which warrant an evidentiary hearing. The fifth circumstance occurs when "the material facts were not adequately developed at the state court hearing." 372 U.S. at 313, 83 S.Ct. at 757. To require the district court to hold an evidentiary hearing based on this fifth circumstance, petitioner must make a showing of two elements:
[F]irst, that a fact pertaining to his federal constitutional claim was not adequately developed at the state court hearing and that the fact was "material" (in the language of section (d)(3)) or "crucial to a fair, rounded development of the material facts" (in the language of Townsend ); second, that failure to develop that material fact at the state proceeding was not attributable to petitioner's inexcusable neglect or deliberate bypass.
Thomas v. Zant, 697 F.2d 977, 986 (11th Cir.1983) (footnote omitted); see Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759.
Petitioner has made the requisite showing of the first element of the Townsend standard. There are material facts which have not been adequately developed in the state court proceedings. Facts, or issues of fact, "refer to what are termed basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators ....' " Townsend v. Sain, 372 U.S. at 309 n. 6, 83 S.Ct. at 755 n. 6 (quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.)); see Hance v. Zant, 696 F.2d 940, 946-47 (11th Cir.1983). The primary facts regarding petitioner's presumed prejudice claim concern the nature and scope of pretrial publicity and its effect on the community where petitioner was tried. As the record now stands, it is impossible to determine what kind of coverage emanated from local television and radio programs to which Seminole County residents were exposed. Because the record does not reveal the content of and audience for these radio and television programs, it is impossible to resolve the question whether prejudicial pretrial publicity saturated the community.
Despite the absence of any factual development on television/radio news accounts, respondent argues that the facts relevant to the change of venue issue have been adequately developed. In support of this argument, respondent points to the pretrial hearings on the motion for a change of venue, the state habeas corpus hearings, and the voir dire transcript.
We have examined the transcripts of the state proceedings. Neither the pretrial hearings nor the state habeas hearings developed a well-rounded description of the nature of television/radio news accounts (whether prejudicial or not) and the audience for these programs in Seminole County. The pretrial hearings on the motion for a change of venue do not contain any evidence of the television and radio news programs about the case. The state habeas hearings contain two statements on this issue. The state editor of the Albany Herald testified that "the electronic media played ... [the case] very high." Record, Exhibit No. 10, vol. I, at 164 [hereinafter cited as State Habeas Hearings]. Petitioner's trial counsel also testified that there was extensive radio and television coverage. Id. at 94. With these two conclusory statements standing alone, the state of this record does not provide an adequate basis to review petitioner's presumed prejudice claim, especially in light of the special concern about the impact of television coverage evidenced by the Supreme Court in Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963).
This leaves respondent's contention that the voir dire transcript adequately developed the facts material to petitioner's presumed prejudice claim. In the context of petitioner's presumed prejudice claim, respondent's argument places too much weight on the voir dire transcript. While the voir dire is useful as evidence to determine whether prejudice should be presumed, see Murphy v. Florida, 421 U.S. 794, 799-803, 95 S.Ct. 2031, 2035-2037, 44 L.Ed.2d 589 (1975); Calley v. Callaway, 519 F.2d 184, 208-09 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976), the trial voir dire in this case is not conclusive evidence of the absence of prejudice. In Rideau v. Louisiana, the Court noted that three jurors who decided the case (the defendant was convicted and sentenced to death) had seen the televised confession, 373 U.S. at 725, 83 S.Ct. at 1418-19, but the Court was willing to presume prejudice "without pausing to examine a particularized transcript of the voir dire examination of the members of the jury." 373 U.S. at 727, 83 S.Ct. at 1419-20. It would be exceedingly difficult for us to consider Rideau's application to the instant case by relying on the voir dire transcript in the absence of a well-rounded description of the local television and radio coverage.
Petitioner's motion for discovery in the district court illustrates some sources of facts relevant to this constitutional claim of presumed prejudice. Petitioner sought transcripts of television and radio broadcasts which referred to the case. Petitioner sought to depose the news directors of television stations, radio stations, and newspapers in and around Seminole County. Petitioner also sought to depose other persons whom he claimed had knowledge of the prejudice against petitioner existent in Seminole County during his trial. At the most basic level, the facts that could be derived from these sources are unquestionably material to petitioner's claim on the change of venue issue. These facts would be crucial in determining the degree to which the publicity was prejudicial and the saturation thereof. The content of and audience for television/radio media's coverage are indeed "indispensable to a fair, rounded, development of the material facts." Townsend v. Sain, 372 U.S. at 322, 83 S.Ct. at 762. Petitioner has made the requisite showing of the first element of the Townsend standard.
Having decided that there are material facts which have not been adequately developed heretofore, we must now determine whether petitioner has demonstrated that the failure to develop these facts was not attributable to petitioner's inexcusable neglect or deliberate bypass. The standard of inexcusable neglect set down in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), was applied in Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759, and this standard applies in evaluating the need for a federal evidentiary hearing. Thomas v. Zant, 697 F.2d 977, 981-89 (11th Cir.1983); Guice v. Fortenberry, 661 F.2d 496, 506-07 & 507 n. 25.
We conclude that petitioner has also made a sufficient showing on the inexcusable neglect-deliberate bypass element. Despite affirmative efforts, petitioner was unable, through no fault of his own, to bring live witnesses to the state habeas hearing. At the time of that hearing, Ga.Code Ann. Sec. 38-801(e) limited the state habeas court's subpoena power by providing that a subpoena for attendance at a hearing or trial could be served only within 150 miles of the hearing or trial situs. The habeas judge rejected petitioner's constitutional attack on that statute. Record on Appeal, at 251-53. Since material witnesses resided more than 150 miles from the location of the state habeas hearing, and since many of these witnesses were hostile and unwilling to testify voluntarily, State Habeas Hearings, vol. I, at 18; id., vol. II, at 22-23, it is clear that petitioner was unable to bring live witnesses to the state habeas hearing. Petitioner was also effectively precluded from obtaining the testimony of such witnesses by oral deposition, because petitioner was indigent and the state habeas court declined to provide funds which would have been necessary to pay a court reporter or stenographer to transcribe such depositions. State Habeas Hearings, vol. I, at 29 & 34-35; id., vol. II, at 22. Although petitioner apparently could have compelled witnesses to answer written interrogatories or to file sworn affidavits, respondent has not argued either in brief or at oral argument that petitioner's failure to pursue such alternatives, or that any other acts or omissions, constituted inexcusable neglect or deliberate bypass. Moreover, it is uncertain at best whether such methods would have been effective to elicit from hostile witnesses the subtle and complex facts relative to the degree of prejudice in the community at the time of the trial. Under the particular circumstances of this case, the failure to adduce the missing material facts "cannot realistically be regarded as ... [petitioner's] inexcusable default." Townsend v. Sain, 372 U.S. at 322, 83 S.Ct. at 762.
Having satisfied both elements of the Townsend standard, petitioner is entitled to an evidentiary hearing on the change of venue issue.
The most serious issue raised by petitioner is the change of venue issue above discussed. However, petitioner also requested the district court to conduct an evidentiary hearing on two other issues, namely, whether petitioner was denied effective assistance of counsel and whether the special prosecutor's participation in the trial deprived petitioner of his constitutional rights. Although petitioner's entitlement to an evidentiary hearing on these two issues is not as clear as it is with respect to the change of venue issue, the showing is sufficient and we direct that the parties be permitted, if they desire, to present evidence at the evidentiary hearing on these two issues also. This panel will retain jurisdiction of this case, and upon certification to us of the findings and record on remand, will decide all the issues in this case.
For the reasons stated, we retain jurisdiction and remand for an evidentiary hearing. The district court shall certify its findings and the record of its proceedings on remand to us within 60 days of the issuance of this opinion.
REMANDED WITH INSTRUCTIONS.