Harris v. State Second Amended Petition for Writ of Error Coram Nobis and/or Motion for Relief from Judgment

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III :}IE TT,TENTY-EIGTITH JUDICIAL CIRCUIT COURT

FOR BAIDWIN COITNTY, AI.ABAI,IA

JOHNNY IIARRIS,

PETITIOMR,

v.

THE STATE OF AI.ABAMA,

RESPONDEIIT.

cAsE NO. 6699

SECOIID AI"IENDED PETITION FOR WRIT OF

COMES NOtr{ Johnny Harris, by and through his atEorneys,

and amends the petition filed herein on March 3, 1978 and

first amended on March 20 , Lg78, to read as follows:
1. Petitloner realleges and incorporates by reference

Tl of the Petition, as if ful1y set out herein.

2. Petitioner realleges and incorporates by reference

12 of the Petition, 8s if fully set out herein.

3. Petitioner rea}leges and incorporates by reference

13 of the Petition, as if fully ser out herein.

4. Petitioner realLeges and Lncorporates by reference

14 of the Petition, BS lf fuLly set out herein.

5. Petitioner realLeges and incorporates by reference

i5(a)-(q) of the Petition as anended, ss if fu1Ly ser out

herein. Petitioner hereby adds the following allegations
and averments to those already set out in f5,:

(r) Ttre state of Alabama used as its primary evidence

against Johnny Harris the testimony of Marlon B. Harding,

then warden of Atmore Prison. tlnknown to petitioner or his
counseL, I'tarion B. Harding had been implicated in the Jan-

uary 18, L974 murder of George Dobbins. (See Affidavit of
Jesse David Jett, attached hereto as Exhibit A.) Ttre state
failed to disclose this lnforrnation to Johnny Harris or his
counsel, in violation of the due process clause of the Four-

teenth Amendment to the United States Constitution and the

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r"qoir"rnents set out in Brady v. Maryland , 373 U.S. 83

(1953) and Gig1j.o v, United States, 405 U.S. l5O (L972).

The state I s continuing ef f&ts to execute Johnny Harris from

1975 through the present and continuing failure to disclose
or act uPon the evidence against Marion B. Harding constitute
a contj.nuing violation of the Fourteenth Amend,ment due

process requirements. (See Exhibit A-I.)
(s) The evidence of Marion B. Harding's invorvement in'

the murder of George Dobbins fundamentalry impeaches the

credibility of Marion B. Harding and his test,imony against
Johnny Harris. Both the petitioner and the triar jury were

entitled to know the evidence impeaching the credibility of
a materihl Statlts witness. (See Exhibit A.) Due process

and fundamental fairness, rights guaranteed by the Eourteenth

Amendment to defendants in the criminal courts of the States

lfaretta v.. iilifornia , nD U.S. g18 (1925) I require that
the verdict of guilty be set aside, and that Johnny Harris
be granted a neld trial in which the impeachment evidence can

be brought before the jury
(t) The state of Alabama unrawfurly released a prisoner,

JesseDavid Jett, who was an eyewitness to the.January rg,
L974 murders of Luell Barrow and George Dobbins. said Jesse

David Jett was set free in the st,ate of FLorida and threat-
ened with death if he ever returned to Alabama. (see Exhi-

a*

bit A. ) this obstruction of justice by officiars of the

state of Alabama deprived Johnny Harris of access to the
testimony of Jesse David Jett at the 1975 triar of the case,

in violation of petitionerts rights under the constitution
of Alabama and the sixth and Fourteenth Amendments to the

united states constitution to obtain witnesses in his favor.
(u) The eyewitness account by Jesse David Jett that

Johnny Harris was not at the scene of the murder of the
guard, but, was in a separate part of the prison unit, and

that Johnny Harris did not provide aid or assistance to the

homicide, (see Exhibit A), is direct evidence that Johnny

Harris is innocent of the crime charged, to-wit aiding
and abetting in murder.

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(v) The state of Alabama suppressed the statements of
prison guards Robert Dale Hadley, william J. D'Andrea,
clifford Donaldson, charlie Bodiford and J. o. Davis, alr of
whom lfere present and eyewitnesses to the events of January
18, L974, and whose statements are exculpatory in nature as
to Johnny Harris and fundamentally impeach the trial testimony
of Marion B- Harding, then warden of Atmore prison and the
staters primary witness against Johnny Harris, (see excerpts
from trial testimony of Harding, attached hereto as Exhibit
B) in violation of the due process crause of the rourteenth
Amendment to the united states constitution and the requirements
set out in Brady v. Maryland, 373 U.S. g3 (1963) and Giglio
v. united states, 405 u.s.. 150 (Lg72). (see portions of the
depositions of said guards, given in carrie Bush vs. Marion
B. Harding, et ar, c.A. No. ?s-377-H, u.s. Dist. ct., so.
Div., Ara., on January 29, Lg76, attached hereto as Exhibit
c).

5. Johnny Harris is innocent of the crime charged and
had a varid and rawfur defense against the judgmentr €rs is
more fully set out in the attached Exhibits A and G and, if
given the opportunity, he wirl make and propound his defense,
as is authorized and allowed by law.

7. witnesses are availabre to testify as to the facts
that are inconsistent to the judgment of guirt against
Johnny Harris, (see Exhibits A and c), and as to facts to
Prove the aforegoing arlegations of constitutionar deprivations.

8. petitioner rearreges and incorporates by reference
f8 of the petition, as if furry set out herein.

9- petitioner realleges and incorporates by reference
119 of the peition, as if furly set out herein.

r0. petitioner rearleges and incorporates by reference
ll10 of the petitionr ds.if furly set out herein.

11. petitioner and his counser were prevented from
knowi.ng the facts set out in 115(r)-5(v) above by the specific
conduct of thc state of Alabama and by other factors beyond
the control of petitioner or counsel through the exercise of
due diligence, and the state of Alabama knew of these facts
and unlawfully and unconstitutionarry failed to discrose

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them to petitioner or his counsel.

came to know the facts set out, in
December 14, 1978 and February 14,

said facts to the attention of the

thereafter.

Petitionerfs counsel

said paragraphs between

1979, and have brought

Court as soon as possible

WUEREFORE, THE PREMTSES coNsrDERED, petitioner prays
that the state of Alabama be commanded to answer, demur or
plead to this second amended pet,ition, and,/or motion; that
the state of Alabama be ordered to produce its complete

files on its investigation into the events of January lg,
L974, and specifically the death of George Dobbins; that a

hearing of this cause be set down upon the courtrs carender;
that upon final hearing the court enter an ord,er recarling,
setting aside and guashing the judgment entered against
petitioner on February 29, l9z5; that the indictment against
petitioner be ordered quashed by this Court; that the Court
order that no executi.on of sentence against *Tohnny Harris
issue upon the judgment complained of herein; and petitioner
prays for all such other and further relief that the court
may deem proper.

RESPECTFULT.Y suBMrrrED rhis !$g- day of February Lglg.

Decatur, Alabama 35G0I

H. Diana Hicks
203 Park Building
5 N. Conception Street
I"lobile, Alabama 36602

William H. Allison
AlLison, Soreff & Garber
3208 W. Broadway
Louisville, Kentucky 4O2lL

Attorneys for petiti.oner

17 Vine Streetl N.W.

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VERIFICATION

STATE OF AI.ABAMA

COUNTY OF MOBILE

Personally appeared before me, the undersigned authority
a notary pubJ,ic in and for said state, w. crint Brown t Jt,t
who being first duly sworn, deposes and says that he is an

attorney for the petitioner in the foregoing petition, that
he has read the said petition and that the facts and things
therein arreged are true and-correct to the best of his
knowledge, information and belief.

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Sworn to and

F'ebruary, 1979;

su.bscribed before me this !.3d- day of

CERTIFICATE OF SERVICE

I do hereby certify that on this 134 day of February,
1979 , I served a copy oi the foregoingmNo ar'urgpio pnTrrroN
upon charles Graddick, Attorney cenerir for the slaie ofALabama, by depositing same in the united states r,liir,postage prepaid and properly addressed, and upon rfamesHendrix, District Attorney ior galdwin countyl in- iir.
manner.

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