Memo from Fins to Chambers

    Ituitrii (ttnurl of Appeals
F or th e  F ifth  Circuit 

No. 21,853

In th e

J ames W arren, et al.,
Appellants,

R ichard A. Connor, Sheriff, City 
Court of Savannah, et al.,

Appellees.

on appeal from th e  united  states district court for th e

SOUTHERN DISTRICT OF GEORGIA, SAVANNAH DIVISION

BRIEF FOR APPELLANTS

H oward M oore, J r .
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

J ack  Greenberg 
J ames M . N abrit, III 
Charles H. J ones

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X

PAGE

Statement of the C ase........................................................ 1

Specification of Error ...................................................... 5

A r g u m e n t ................................................................................................ 6

Co n c l u s io n .............................................................................................  11

A ppendix ..................................................................................................  13

T able of Cases

Bell v. Maryland, 378 U. S. 226 ....................................  10
Bowen v. Johnston, 306 U. S. 1 9 ...................................... 7
Boynton v. Virginia, 364 U. S. 454 ..............................  10

Clark v. State, 219 Ga. 680, 135 S. E. 2d 270 (1964) .... 9
Cobb v. State, 218 Ga. 10, 126 S. E. 2d 231 (1961) .......  8
Cornelius v. State, 193 Ga. 25, 17 S. E. 2d 156 (1941) 8
Cross v. Foote, 17 Ga. App. 802, 88 S. E. 594 (1916) 8

Davis v. Smith, 7 Ga. App. 196, 66 S. E. 401 (1909) .. 8
Durham v. State, 219 Ga. 830, 136 S. E. 2d 322 (1964) 9

Fay v. Noia, 372 U. S. 391 ..............................................  7

Garner v. Louisiana, 368 U. S. 157 ...............................  10

Hamm v. Rock Hill, U. S. Sup. Ct., No. 2, Oct. Term 
1964 ................................................................................... 10

Jones v. Cunningham, 371 U. S. 236 ..............................  6, 7

Lupper v. State, U. S. Sup. Ct., No. 5, Oct. Term 1964 10



11

PAGE

McFarland v. Donaldson, 115 Ga. 567, 41 S. E. 1000
(1902) ...............................................................................  8

McKay v. Balkcom, 203 Ga. 790, 48 S. E. 2d 453 (1948) 8
Mack, et al. v. Connor, Sheriff, et al., not yet reported,

Nos. 22,694-22,706, Snp. Ct. of Ga., Nov. 5, 1964 .... 9
Morris v. Peacock, 202 Ga. 524, 43 S. E. 2d 531 (1947) 9

Peterson v. City of Greenville, 373 U. S. 244 ............... 10

Sims v. Balkcom, 136 S. E. 2d 766 (1964) ....................... 8
Smith v. Milton, 149 Ga. 28, 98 S. E. 607 (1919) .......  8
Stack v. Boyle, 342 U. S. 1 ................................................  7

Taylor v. Taintor, 16 Wall. 366 ........................................  7

Wallace v. Foster, 206 Ga. 561, 57 S. E. 2d 920 (1950) 8
Wells v. Pridgen, Warden, 154 Ga. 397, 114 S. E. 355

(1922) ......................................................................... 8
Whitus v. Balkcom, 299 F. 2d 844 (5th Cir. 1962), va­

cated and remanded for hearing on the merits, 370
U. S. 728 .........................................................................  9

Wilcoxon v. Aldredge, 192 Ga. 634, 15 S. E. 2d 873
(1941) ........................................................................  9

Williams v. State, 210 Ga. 665, 82 S. E. 2d 217, re­
manded, 349 U. S. 375, adhered to 211 Ga. 763, 88 
S. E. 2d 376, cert, denied 350 U. S. 950 (1956) .......  8

Federal and State Statutes Involved

Civil Eights Act of 1964, Title II, 78 Stat. 241............... 10

Ga. Code Ann., Sec. 26-3005 ..............................................  2, 6

Ga. Code Ann., Sec. 50-1.................................................... 5, 7

28 U. S. C., Sec. 2254 ........................................................ 7,10

42 U. S. C., Sec. 1981 ........................................................ 3, 6



In the

Huitrit States (Enurt nf Appeals
F or th e  F ieth  Circuit 

No. 21,853

J ames W arren, et al.,

-v.—
Appellants,

R ichard A. C onnor, Sheriff, City 
Court of Savannah, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF GEORGIA, SAVANNAH DIVISION

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from an order and judgment allowing 
the appellees’ motion to dismiss for failure to exhaust state 
remedies, denying the writ of habeas corpus, and remand­
ing appellants to custody, entered in the United States 
District Court for the Southern District of Georgia, on 
June 19, 1964 (R. 63, 64).

Appellants are some twenty-eight youthful Negroes ar­
rested at restaurants, theatres, hotel and motels situated 
in the City of Savannah, Georgia during racial protest



2

demonstrations in the summer of 1963 (R. 17, 33, 48). Ap­
pellants were arrested and charged with violating the state’s 
trespass law (26-3005, Ga. Code Ann.) (App. 13).

Appellants were tried on accusations in the City Court 
of Savannah, Georgia in the fall of 1963 and convicted. At 
the trial appellants attacked the constitutionality of the 
trespass statute upon its face and as applied to their con­
duct (R. 6, 16).

Appellants were convicted and sentenced to pay fines or 
to serve prison terms (R. 4). Following conviction and 
sentencing, appellants through their former attorney, 
B. Clarence Mayfield, filed skeleton motions for new trials. 
Pursuant to the motion, a show cause order was allowed 
and put down for a hearing on a day certain (R. 5, 6). 
Appellants were enlarged upon supersedeas bond in an 
amount fixed by the court. R. Z. Lavender was approved 
by the clerk as surety (R. 5, 6).

The motions for new trial were denied and, on May 17, 
1964, the time in which an appeal could have been perfected 
from the denial of appellants’ motions for new trials ex­
pired.

Richard A. Connor, Sheriff of the City Court of 
Savannah, gave appellants’ surety notice to surrender them 
on or before June 1, 1964 to begin service of sentence or 
to pay the amount of the supersedeas bond (R. 6).

On June 4, 1964, all of the appellants, except Dumas, 
Crawford, Bolden, and Bonaparte, filed petitions for writs 
of habeas corpus (R. 14, 15). Dumas, Crawford, Bolden, 
and Bonaparte filed petitions on June 12, 1964 (R. 45). All 
the appellants, except Moore, Tukes, Smith, and Barziel, 
alleged that they were unconstitutionally restrained of their 
liberty by Richard A. Connor and R. Z. Lavender, surety 
(R. 5, 6, 30).



3

Moore, Tukes, Smith, and Barziel averred that they were 
illegally detained by Carl Griffin, Sheriff of Chatham 
County, pursuant to an unconstitutional conviction and sen­
tence (R. 14).

Motions to be admitted to bail were filed on behalf of 
Moore, Tukes, Smith, and Barziel (R. 23, 24). The District 
Judge allowed the motion and admitted each of the movants 
to bail, conditioned upon their appearance to abide final 
determination of their petitions for writs of habeas corpus 
(R. 25).

Appellant Randy Mack, who had been surrendered by his 
surety, filed a motion to add Carl Griffin, Sheriff of Chat­
ham County, as a party respondent and a motion to be ad­
mitted to bail. The Court below allowed each motion (R. 
39-44).

District Judge Frank Scarlett issued a show cause order 
in each case and set a hearing for June 12, 1964 (R. 12, 13, 
22, 23, 38, 53, 54).

Motion for leave to proceed in forma pauperis was al­
lowed on behalf of each appellant, except James Warren 
(R. 26-28).

In their verified petitions for writs of habeas corpus, 
appellants alleged that their conviction and sentence pro­
ceeded from a statute which was unconstitutional upon its 
face and that the trespass statute as applied to their con­
duct denied them the equal protection of law in violation of 
the Fourteenth Amendment and abridged rights and privi­
leges guaranteed and secured by the First Amendment and 
Title 42, U. S. C., Sec. 1981 (R. 7, 10).

Appellants alleged that they had “ neither intentionally 
nor deliberately forfeited [their] right to take an appeal 
from the order” overruling their motions for new trials 
(R. 6). They showed that the reason or reasons why their



4

attorney did not tile a timely appeal was unknown to them 
and that they believed that his failure to do so was wholly 
attributable to inadvertence (R. 6).

On June 10, 1964, appellees, Connor and Griffin, tiled mo­
tions to dismiss together with a supporting memorandum. 
The grounds for their motions were that (1) the petition 
failed to state a claim upon which relief could be granted;
(2) appellants had not exhausted their State remedies;
(3) the federal questions alleged were “ frivolous and un­
substantial” ; and (4) the alleged existence of adequate 
and independent State grounds for denying the relief 
sought (R. 54, 55).

June 12, 1964, R. Z. Lavender, surety, filed a verified 
“Answer and Response” (R. 56). Lavender admitted his 
suretyship and that the surety bond was conditioned as 
alleged in paragraph three of the petition. The surety fur­
ther showed that he had surrendered appellant, Randy 
Mack, prior to service of the petitions for writs of habeas 
corpus and the show cause order (R. 56-59).

On June 12, 1964, the District Court, pursuant to mo­
tion, consolidated the cases for trial. After hearing oral 
arguments on the motion to dismiss, the District Judge 
stated in open Court that he would sustain appellees’ mo­
tion to dismiss on the ground that appellants had failed 
to exhaust state remedies and directed appellees’ counsel 
to prepare an order, incorporating findings of fact and 
conclusions of law, dismissing the petitions on the stated 
ground.

On June 22, 1964, the order was formally signed and 
judgment entered accordingly. The District Judge found 
and held that:

. . . The exhaustion of state remedies is a jurisdic­
tional requirement in federal habeas corpus proceed­



5

ings . . . The court finds that the [appellants] pres­
ently have available to them the state remedy of habeas 
corpus (Georgia Code 50-1). It is true, as urged by 
the [appellants], that habeas corpus does not lie as a 
substitute for appeal, writ of error, or other remedial 
procedure for the correction of errors or irregularities 
alleged to have been committed by a trial court. How­
ever, state habeas is an appropriate remedy when the 
trial court was without jurisdiction, or where it ex­
ceeded its jurisdiction in making the order, rendering 
the judgment, or passing the sentence by virtue of 
which the party is imprisoned, so that such order, judg­
ment, or sentence is not merely erroneous, but is abso­
lutely void (R. 61, 62).

On June 26, 1964, appellants filed a motion to consolidate 
the cases on appeal, consolidated notice of appeal, and 
consolidated petition for issuance of certificate of probable 
cause (R. 64-76). Thereupon, the District Judge allowed 
the motion to consolidate and issued a certificate of prob­
able cause stating, inter alia, that:

[appellants] have good cause for appeal . . . and that 
substantial questions of constitutional law are pre­
sented for determination on said appeal” (R. 72).

The District Court stayed service of the sentence pend­
ing final determination of the appeal (R. 73).

Specification of Error

The District Court erred in dismissing the petitions on 
the ground that appellants had a presently available and 
effective remedy by state habeas corpus proceedings which 
must be exhausted as a prerequisite to federal habeas 
corpus relief.



6

A R G U M E N T

The Court Below Erred in Ruling That Appellants 
Had an Available State Court Remedy Which Precluded 
the Grant of Federal Habeas Corpus.

The 28 appellants filed petitions for habeas corpus in 
the District Court asserting that their convictions in the 
City Court of Savannah for violations of Ga. Code Ann., 
§26-3005 were in violation of their rights under the Consti­
tution of the United States.1

At the time of the filing of the petitions, appellants 
Randy Mack, Barziel, Tukes, Bonaparte and Smith had 
been taken into custody to serve sentences imposed by the 
City Court of Savannah. Sheriff Connor had demanded 
that the surety surrender the other appellants to serve 
their sentences. The district judge stayed the service of 
sentence or payment of fine and admitted appellants to 
bail.2

1 Among the issues which appellants sought to litigate were: 
(1) Whether 26-3005, Ga. Code Ann., violates the due process 
clause of the Fourteenth Amendment upon its face; (2) whether 
the trespass statute as applied to their attempt to end restaurant 
segregation constitutes significant state action which denies them 
equal protection of the law; (3) whether the statute as applied 
to their conduct abridges rights guaranteed to them by the First 
Amendment; and (4) whether the statute as applied to their 
conduct abridges their right to contract for the purchase of food 
and services upon the same basis as white citizens in violation of 
42 U. S. C. 1981 (R. 7-10).

2 No question was raised below as to the sufficiency of appel­
lants’ “ custody” for purposes of federal habeas corpus. But those 
appellants not actually incarcerated were in custody of their 
surety who had been ordered to surrender them and thus were 
under “ restraints not shared by the public generally,” Jones v. 
Cunningham, 371 U. S. 236, 240. Indeed, their surety had un­



7

The State moved to dismiss the petition for habeas corpus 
on several grounds, including a claim that “ the petition is 
brought prematurely because the Petitioners had not ex­
hausted their State remedies” (R. 55). Without holding 
an evidentiary hearing, the District Court granted the mo­
tions to dismiss each of the petitions, relying on the pro­
vision of 28 U. S. C., §2254 requiring exhaustion of state 
remedies. The trial judge deemed the exhaustion of state 
remedies “ a jurisdictional requirement in federal habeas 
corpus proceedings” (R. 61).3 The court went on to state 
that “ the Petitioners presently have available to them the 
state remedy of habeas corpus (Ga. Code 50-1).” The trial 
court’s ruling did not rest on the fact that petitioners had 
not taken appeals following their convictions in the state 
court and there was no holding that they deliberately had 
by-passed state appellate review, cf. Fay v. Noia, 372 U. S. 
391, 438-440.

As the court below recognized, the exhaustion require­
ment relates to “presently available state remedies” 
(R. 61). This much is clear from Fay v. Noia, supra. But 
the court below thought that state habeas corpus was avail­
able to appellants in this case. Appellants urge that to the 
contrary the Georgia courts have given such a limited scope 
to the habeas corpus remedy that they would be unable

questioned powers to rearrest and surrender them even without 
the sheriff’s demand.

See Stack v. Boyle, 342 U. S. 1; Taylor v. Taintor, 16 Wall. 
366, 371-72. Obviously, the surety’s power is even more arbitrary 
and summary than that of the parole officer in Jones v. Cunning­
ham, supra.

3 Appellants disagree with the trial court’s view of the exhaus­
tion requirement as jurisdictional. The Supreme Court recently 
wrote in Fay v. Noia, 372 U. S. 391, 420, that “ the rule of exhaus­
tion ‘is not one defining power but one which relates to the ap­
propriate exercise of power.’ Bowen v. Johnston, 306 U. S. 19, 27.”



8

to obtain an adjudication of the federal constitutional ques­
tions they seek to litigate.

In Georgia, habeas corpus is a fretfully slender reed 
upon which to hang a federal claim. The appellate courts 
of the State have for years limited habeas corpus to in­
stances where the trial “ court was without jurisdiction in 
the premises, or where it exceeded its jurisdiction in mak­
ing the order, rendering the judgment, or passing the sen­
tence by virtue of which the party is imprisoned, so that 
such order, judgment or sentence is not merely erroneous, 
but absolutely void.” Wells v. Pridgen, Warden, 154 Ga. 
397, 114 S. E. 355, 356 (1922); McFarland v. Donaldson, 
115 Ga. 567, 41 S. E. 1000 (1902); Smith v. Milton, 149 Ga. 
28, 98 S. E. 607 (1919); McKay v. Balkcom, 203 Ga. 790, 
48 S. E. 2d 453 (1948); Wallace v. Foster, 206 Ga. 561, 57 
S. E. 2d 920 (1950); Cobb v. State, 218 Ga. 10, 126 S. E. 2d 
231 (1961); Davis v. Smith, 7 Ga. App. 196, 66 S. E. 401 
(1909); Cross v. Foote, 17 Ga. App. 802, 88 S. E. 594 
(1916).

Under Georgia law, the denial of a constitutional right 
must not be merely erroneous but “ such as to deprive the 
court of jurisdiction.” Wells v. Pridgen, Warden, supra.

Thus, state habeas corpus is not an appropriate remedy 
to review “ alleged errors in holding one commitment hear- 
ing when the accused was without counsel” or “ discrimina­
tion in making up the jury boxes in the absence of a timely 
challenge to the jury.” Sims v. Balkcom, 136 S. E. 2d 766, 
768 (1964), citing Cornelius v. State, 193 Ga. 25, 31, 17 
S. E. 2d 156 (1941); Williams v. State, 210 Ga, 665, 667, 
82 S. E. 2d 217, remanded, 349 U. S. 375, adhered to 211 
Ga. 763, 88 S. E. 2d 376, cert, denied, 350 U. S. 950 (1956); 
Cobb v. State, supra.



9

This rule has been held “ equally applicable” to bar re­
view on habeas corpus a claim that a confession was in­
voluntary. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S. E. 2d 
873, 876 (1941); Morris v. Peacock, 202 Ga. 524, 43 S. E. 
2d 531, 534 (1947).

In a recent case where the District Court for the South­
ern District of Georgia dismissed a habeas corpus petition 
on the ground that petitioner should first seek state habeas 
corpus, the United States Supreme Court reversed. Whitus 
v. Balkcom, 299 F. 2d 844 (5th Cir. 1962), vacated and re­
manded for hearing on the merits, 370 U. S. 728. Thus, the 
Supreme Court has summarily rejected a ruling similar 
to that in this case.

Even if the Georgia courts were willing to consider the 
constitutional issues raised by appellants here on a habeas 
corpus proceeding that remedy would not be effective. This 
is plainly so because the Georgia Supreme Court has, in 
other cases arising out of sit-in demonstrations in Savan­
nah and elsewhere, repeatedly rejected constitutional claims 
like those made here. See Clark v. State, 219 Ga. 680, 135 
S. E. 2d 270 (1964); Durham v. State, 219 Ga, 830, 136 
S. E. 2d 322 (1964); Mack, et at. v. Connor, Sheriff, et al., 
not yet reported, Nos. 22,694-22,706, Sup. Ct. of Ga., Nov. 5, 
1964. In the last mentioned case, which was a habeas corpus 
proceeding, the procedural issues as to the propriety of 
habeas corpus were not raised or discussed and the court 
was content merely to reject the constitutional claims by 
citation of its prior decisions in Clark v. State, supra, and 
Durham v. State, supra. Thus, it is evident that it would 
be futile for these appellants to bring identical claims be­
fore the Georgia courts in habeas corpus proceedings, even 
if the state courts may entertain them because no proce­
dural objection is made.



10

Title 28, U. S. C., §2254 does not require exhaustion where 
there are “ circumstances rendering [state corrective] . . . 
processes ineffective to protect the rights of the prisoners.” 
Obviously, the Georgia habeas corpus remedy is ineffective 
in the present circumstances since the state courts con­
sistently have decided these constitutional issues contrary 
to appellants’ contentions.

It should be observed that the underlying federal consti­
tutional issues which appellants seek to litigate are indeed 
substantial. These questions have been before the United 
States Supreme Court in a variety of cases during the past 
several terms of Court. As of June 1964, three Justices 
of the Supreme Court agreed with appellants’ claim, three 
disagreed, and three took no position. Bell v. Maryland, 
378 U. S. 226.4

The issue was again argued before the United States 
Supreme Court at the beginning of the October 1964 Term 
{Hamm v. Rock Hill, No. 2; Lupper v. Arkansas, No. 5). 
An additional issue argued in the last mentioned cases is 
also latent in these cases, namely, whether Title II of the 
Civil Eights Act of 1964 abates the prosecutions even 
though the events took place before passage of the Act. 
Cf. Bell v. Maryland, supra. The judgment below in these 
cases was entered before passage of the Civil Rights Act 
and thus the issue was not raised below. But if the cases 
are remanded for a hearing appellants will seek leave to 
amend the petition to add this ground.

4 Some of the other cases in which the underlying issue as to 
the use of state trespass prosecutions to enforce racial segregation 
has been argued to the Supreme Court are Boynton v. Virginia, 
364 U. S. 454; Garner v. Louisiana, 368 U. S. 157; Peterson v. 
City of Greensville, 373 U. S. 244.



11

CONCLUSION

Wherefore, for the reasons hereinbefore stated, it is re­
spectfully submitted that the Order and Judgment of the 
District Court allowing appellees’ motion to dismiss, de­
nying the petition for writ of habeas corpus, and remanding 
appellants to custody be reversed, vacated, and set aside 
with directions to the District Court to conduct a full evi­
dentiary hearing and with such other directions as to this 
Court appear to be just and comformable to the usages 
and principles of law and equity.

Respectfully submitted,

H oward M oore, J r.
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

J ack  Greenberg

J ames M. N abrit, III
Charles H. J ones

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants





13

APPENDIX

Statutes

Ga. Code Ann., Sec. 50-101:
50-101. Who may sue out writ.—Any person re­

strained of Ms liberty under any pretext whatever, or 
any person alleging that another, in whom for any 
cause he is interested, is restrained of his liberty or 
kept illegally from the custody of the applicant, may 
sue out a writ of habeas corpus to inquire into the 
legality of such restraint.

Ga. Code Ann., Sec. 27-904:

27-904. (960 P. C.) Bail surrendering principal; 
costs; death of principal.—Bail may surrender their 
principal in vacation to the sheriff, or in open court, 
in discharge of themselves from liability, and such 
privilege shall continue to the last day of the term, 
without liability for costs for a forfeiture of the bond. 
After forfeiture, and before final judgment, the bail 
may, at any time surrender their principal, upon pay­
ment of all costs accruing up to that time. The death 
of the principal at any time before final judgment shall 
be equivalent to a surrender, and the court shall, after 
final judgment, relieve the sureties of the penalty of 
the bond upon surrender of the principal and payment 
of the costs. (Acts 1943, p. 282.)

Ga. Code Ann., Sec. 26-3005:
26-3005. Refusal to leave premises of another when 

ordered to do so by owner or person in charge.—It 
shall be unlawful for any person, who is on the prem­
ises of another, to refuse and fail to leave said premises



14

when requested to do so by the owner or any person 
in charge of said premises or the agent or employee of 
such owner or such person in charge. Any person vio­
lating the provisions of this section shall be guilty of 
a misdemeanor and upon conviction thereof shall be 
punished as for a misdemeanor. (Acts 1960, p. 142.)



15

CERTIFICATE OF SERVICE

I hereby certify that on ........... day of November, 1964,
two copies of the foregoing brief were served upon Honor­
able Eugene Cook, Attorney General of the State of 
Georgia, State Judicial Building, Atlanta, Georgia 30303, 
by United States mail, air mail, postage prepaid.

Attorney for Appellants



38