Petition for Writ of Habeas Corpus by a Person in State Custody

    Prisonerrs Name: Maggie S. Bozeman

Prison Number: 00130717

Place of Confinement: ON PAROLE PROU KILBY CORRECTIONS FACILITY

. IN THE T'NITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAITIA

I{ONTGOII{ERY DTVI S ION

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I,IAGGIE S. BOZEMAN , '

Petitioner, : ..Civil Action No.

- against 3

EALON It{. LN{BERT, JACK C. LUFKIN AND 3

JOHN T. PORTER IN THEIR OFFICAL
CAPACITIES AS II{EMBERS OF THE ALABAITI,A 3

BOARD OF PARDONS AND PAROLES, AND
rED BUTLER, A PROBATION AND PAROLE :
OFFICER, EUPLOYED BY TTIE ALABA!,IA
BOARD OF PARDONS AND PAROLES I .

Respondents. 3

3

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_Petittonps?E#it of

TO THE HONORABLE JUDGE OF THE DTSTRICT COURT FOR THE
MTDDLE DISTRICT OF ALABAMA, MONTGOMERY DIVISTON:

1. The name and location of the court which entered

the judgment of conviction and sentence under attack are:

(a) The Circuit Court of Pickens County, Alabama.

(b) Carrollton, Pickens County, Alabama.

2. The date of the judgment of conviction and sentence

is November 2, L979.

3. The sentence is that Maggie S. Bozeman be imprisoned

in the penitentiary of the State of Alabama for a period

of four years. She is currently on parole in the custody

of respondent members of the State Board of Pardons and Paro1e.

4. The nature of the offense involved is that petitioner

was charged in a three count indictment with violating A1a.

Code S 17-23-1 (1975) in that she allegedly voted ilIega1ly

in Democratic Primary Run-Off Election of September 26, 1978

(hereinafter run-off ) .

5. Petitioner's plea was not guilty.

6. Trial was had before a jury.

7. Petitioner did not testify at trial.

8. Petitioner appealed her conviction.

9. The facts of petitioner's appeal are as follows:

(a) The judgment of conviction was appealed to the

Court of Criminal Appeals of AIabama. That court affirmed the

conviction on I'tarch 31, 1981. 401 So.2d 167.



(b ) The Court of Criminal Appeals of Alabama denied a

motion for rehearing of the appeal on April 2L, 1981. Id.

(c) The Supreme Court of Alabama denied a petition

for writ of certiorari to the Court of Criminal Appeals on July

24, 1981. 401 So.2d 17I.

(d ) The Supreme Court of the United States denied a

petition for writ of certiorari to the Court of Criminal Appeals

on November 16, 1981. 454 U.S. 1058.

I0. Other than the appeals described in paragraphs 8 and

9 above, the other petitions, apPlications, motions t ot proceed-

ings filed or maintained by petitioner with respect to the

judgment of November 2, L979 of the Circuit Court of Pickens County

are described in paragraph 11 below.

II. A motion for a nei{ t,rial was made to the Circuit

Court of Pickens County. The motion was denied on February 27,

l-979.

12. Petitioner was convicted in violation of her rights

guaranteed by the First, Fifth, Sixth, Fourteenth and Fifteenth

Amendments to the Constitution of the United States, and by the

Voting Rights Act, 42 U.S.C. S 1971 et seq., fot each of the

reasons stated be1ow.

I. Introductory Facts

13. Petitioner Maggie S. Bozeman was convicted of

illegal voting because of her alleged participation in an

effort to assist elderly and illiterate black voters to cast

absentee ballots in the run-off.

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14. On October 10, 1978, two weeks after the run-off
election, the Sheriff of Pickens County, ME. Louie Coleman,

along with the District Attorney of the County, !{r. Pep Johnston,

an investigator named Mr. Charlie Tate, and Mr. Johnstonrs

secretary, Ms. Kitty Cooper, opened the county absentee ballot

box to investigate 'assumed voting irregularity." Tr. 35.!/
They isolated thirty-nine absentee ballots out of the many

cast. What distinguished these absentee ballots from the

many others cast in the run-off was that they were notarized

by Mr. Paul RoIlins, a black notary public from Tuscaloosa.

Tr. 36.

15. Each of the 39 absentee ballots was represented

to be the vote of a different black, e1derly, and infirmed

resident of Pickens County. The state claimed that Ms. Bozeman

participated in the casting of these ballots in violation of

A1a. Code S 17-23-1 (1975).

II. Grounds of Constitutional Invalidity

16. Based on the evidence offered at trialr Do rational
jury could have found that each of the elements of the offense

charged was proved beyond a reasonable doubt. Petitionerrs

conviction therefore violated the Due Process Clause of the

FourteenthAmendmentaSconstruedinJac@,443

u.s. 307 ( 1979).

A11 transcript citations, unless otherwise indicted, refer
the transcript of petitioner's trial.!/to

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(a) The elements

are that she enployed fraud

the offense against Petitioner
vote more than once. Wilson

of
to

v. staten 52 A1a. 299 (1875); Wilder v. State,401 so.2d 151,

160 (A1a. Crim. App.), cert. denied,401 so.2d 167 (AIa.1981),

cert. denied , 454 U.S. 1057 (1982;.

(b) The only evidence offered agalnst petitioner was

that she: (i) picked up "[a]pproximately 25 to 30 apptications"

for absentee ballots from the circuit clerk's office during the

week preceding the run-off, Tt. 18; (ii) vras present with three

or four other women, who did not include the voters, dt the notar-

izing of some absentee ballots which were cast in the run-off,

Tr. 57; (iii) made a telephone call to the notary "pertaining to

baIlots.," Tr. 76-77; and (iv) spoke to prosecution witness Ms.

Sophia Spann about absentee voting when "it wasnrt voting time,"

Tr. 184. Additionally, there was evidence presented to the jury

in violation of petitioner's constitutional rightsr ds alleged

in para.26, infra, that, (v) in the telephone call described in

(iii), supra, petitioner had requested the notary to notarize

some ballots; (vi) that petitioner aided }ts. Lou Sommerville,

with Ms. Sommerville's consent, to fill out an application for

an absentee ballot, TE. 161 -162, 'l69; and (vii ) that in an

election held prior to the run-off , petitioner aided l'ls.

Sommerville, with Ms. Sommervillers consent, to fill out an

absentee baIlot, TE. 173-174t 176-77.

(c) The prosecution contended that the evidence

petitioner'S presence at the notarization was sufficient

evidence of culpability under S 17-23-1 because the voters }rere

ofnot before the notary. Tr. 195-97 .

of

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But a reasonable trier



fact would perforce harbor a reasonable doubt as to whether that

evidence, and all of the evidence presented against petitioner,

proved that petitioner intentionally aided in an alleged effort

to vote more than once through fraud.

17. The indictment charging petitioner with violating S

17-23-1 was for each of the reasons specified in paras. 19-21,

infra, insufficient to inform petitioner of the nature and cause

of the accusation against her, as required by the Sixth and

Fourteenth Amendments

18. The indictment against petitioner charges that peti-

tioner:
IICOUNT ONE

'did vote more than oncer or did deposit
more than one ballot for the same office
as her vote, or did vote i1lega1ly or fraud-
u1entIy, in the Democratic Primary Run-
off Election of September 26, 1978,

'ICOUNT TWO

"did vote more than once as an absentee
voter, or did deposit more than one absen-
tee ba11ot for the same office or offices as
her vote, or did cast ilIegal or fraudulent
absentee ballots, in the Democratic Pri-
mary Run-off Election of September 26,
1978,

"COUNT THREE

"did cast i1legal or fradulent absentee
ballots in the Democratic Primary Run-
off Election of September 26, 1978, in
that she did deposit with the Pickens
County Circuit C1erk, absentee ballots
which were fraudulent and which she
knew to be fraudulent, against the peace
and dignity of the Stat,e of Alabama. n

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19. The indictment was constitutionally insufficient
because it failed to provide notice of the charges submitted

to petitioner's jury as the basis for her conviction under

S 17-23-1. The indictment accused petitioner of violating

S 17-23-1 by 'votIing] i11ega1Iy" or "castIing1 illegal ...
absentee ballots, " but it failed to identify either the acts

constituting the alleged illegalities or the elements of the

statutes which purportedly caused those acts to be iIlegal.
That failure deprived petitioner of constitutionally required

noti ce.

(a) The trial judge instructed the jury on four

statutes, AIa. Code S 17-10-3 (1975) lmiscited by the judge as

S 17-23-31, Tr. 202i Ala. Code S 17-10-6 (1975) [miscited by the

judge as S 17-10-71, Tr. 202-203i A1a. codl S 17-10-7 (1975),

Tr. 203-204; and Ala. Code S 13-5-115 (1975), Tr. 204; and on

the offense of conspi.racy, Tr. 206. None of these statutes or

their elements was charged against petitioner in the indictment.

(b) The jury was instructed that proof that petitioner
had committed any act nnot authorized by or contrary to,
any Iaw would constitute an "iIlegaI" act warranting petitionerts
conviction under S 17-23-1. Tr. 201. The effect of that instruc-
tion and of the subsequent instructions on each of the statutes

listed in para. '19(a), supra, was to make each of those statutes

a separate ground for liability under S '17-23-1. The indictment

made no allegations whatsoever that petitioner had violated
those statutes or had engaged in acts which would constitute

violations of those statutes.

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(c) For these reasons the indictment failed to provide

notice of the offenses actually submitted to the jury as required

by the Constitution and petitioner's resulting conviction was

obtained in violation of due process.

20. The indictment contained conclusionary allegations of

fraudulent conduct by petitioner, but it failed to provide fair

notice as required by the Constitution in that it failed to give

sufficient notice of the particulars of the alleged fraud.

!.J The indictment alleged in Count I, in the alterna-

tive with other allegations, that petitioner voted fraudulently

in the run-off. It alleged, in the alternative with other a11ega-

tions in Count II, that she cast fraudulent absentee ballots in

the run-off. In Count III, it alleged that she deposited

fraudulent absentee ballots with the Pickens County Circuit

Clerk, and that she knew the ballots were fraudulent.

(b) In order to provide constitutionally requisite

notice, the indictment was required to identify the particulars

of the alleged fraud with sufficient specificity to inform peti-

tioner fairly of the actions or transactions which constituted

the alleged fraud with which she was charged. It did not do so,

and its failure to make those factual allegations deprived peti-

tioner of the notice demanded by the Sixth and Fourteenth Amend-

ments.

21. The indictment failed to allege accurately each of

the elements of S 17-23-1, and therefore failed to provide the

minimum notice required by the Constitution.

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(a) In this case, fraud is a necessary element of

S 17-23-1 under the rules of Alabama law set forth in para.

'16(a) .LqPre.

(b) Counts one and two of the indictment do not allege

that petitioner acted iith fraudulent intent or knowledge. They

allege no mens rea of any sort.

(c) since the verdict against petitioner was a general

verdict finding her "guilty as chargedr' Tr. 209, and since she

was thereupon adjudged guilty of one undifferentiated violation

of s 17-23-1, the deficient counts prejudiced petitioner and

rendered the indictment as a whole insufficierft under the

Constitution.

22. Section 17-23-1 is unconstitutional as applied to

petitioner, since the conduct for which she was convicted, as

established by the evidence offered at trial, was protected by

the Voting Rights Act and the First, Fourteenth, and Fifteenth

Amendments to the Constitution.
(a) The evidence introduced against petitioner at

trial is set forth in para. 15(b) supra. At most the evidence

shows participation by petitioner at the periphery of an effort to

aid and encourage elderly, illiterate, and disabled blacks to vote

by absentee balIot. The evidence shows no intent by petitioner to

engage in criminal activity of any sort.
(b) A11 the prosecution proved was minor participation

by petitioner in activities protected under the United States

Constitution. The "First Amendment freedom to gather in

association for the purpose of advancing shared beliefs is

protected by the Fourteenth Amendment fron infringement by any

state." Democratic Partv of u.s. v. wisconsin, 450 u.s. 107,

8-



121 (1981). Additionally, the right
political right,, because preservative

v. Hopkins, 1 18 U.S. 356, 370 ( 1886).

to vote is 'a fundamental

of all rights. " Yick Wo

(c) Furthermore, the Voting Rights Act, 42 U.S.C.

S 1971, et seq., provides a right to illiterate and disabled

persons to have the assistance of a person of their choice in

voting, and thus protects those who give such assistance. 42

U.S.C. S 1973aa-6.

23. The vague and overbroad terms of S 17-23-1 are

unconstitutional for failure to meet the strict standards of

statutory specificity required of laws that potentially overreagh

federally protected activity.
(a) On its face, section 17-23-1 penalizes 'any kind

of illega1 or fraudulent votingr " and thus permits the incorpora-

tion of any provision of Alabama 1aw which a prosecutor can

remotely connect to voting activities. The statute contains

no clear mens rea element.

(b) For these reasons S 17-23-1 fails to provide fair

notice of the nature of the forbidden conduct. Because of the

absence of a meaningful description of the proscribed conduct,

S 17-23-1 fails to provide discernible policy guidelines for law

enforcement officials to follow in enforcing the statute, and

encourages arbitrary and discriminatory enforcement of the sort

forbidden by €.9.r Smith v. Goguen, 415 U.S. 566, 574-575

9-



(1974). Furthermore, conviction on the basis of strict liability
is permitted by the language of S 17-23-1. Section 17-23-1 is
therefore unconstitutionally vague.

(c) Since S 17-23-1 reaches constitutionally protected

conduct, such as that described in para. 22 supra, it is required

by the doctrine of, e.g., Hoffman gstates v. Flipside Hoffman

Estates, U.S. , 71 L.Ed.2d 362, 369 (1982) | to be drawn

precisely to achieve legitimate state objectives while avoiding

interference with constitutionally protected activities. Section

17-23-'l is not so drawn. On its face, S 17-23-1 permits convic-

tion for failure to observe the provisions of any law which

can be connected to voting activities regardless of whether the

accused was acting in good faith. Moreover, as applied to peti-

tioner, S 17-23-1 permitted conviction based on the federally
protected activity, described in para. 22 supra. Therefore,

S 17-23-1 is unconstitutionally overbroad within the principles

of, e.9., Dunn v. Blumstein, 405 U.S. 330, 343 (1972).

(d) Section S 17-23-1 had never been judicially

construed in any reported opinion prior to petitioner's appeal,

and even its predecessor statute had not been reviewed in any

reported opinion since 1 888. The 1 9th century Alabama Supreme

Court cases construing the statutet €.g.r Wilson v. State, 52 AIa.

299, (1875), and Gordon v. State, 52 A1a. 308 (1875), Ieave

considerable residual uncertainty as to various elements and

applications of the statute, and leave the statute with the

potential to reach federally protected conduct. Any judicial

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limitations imposed on the broad terms of th: statute rrere dis-
regarded by the trial judge and the prosecution in petitioner's

case, and were not followed by the ALabama Court of Criminal

Appeals when it upheld petitionerts conviction. Inoperative

limiting constructions cannot be permitted to save a statute.

Regardless of the construct,ions of the statute by the Alabama

Supreme Court, S 17-23-1 is therefore unconstitutionally

vague and overbroad.

24. If any of the constructions of S 17-23-1, mentioned in

paras. 16(a) and 23(d) supra !{ere valid and operative at the time

of petitioner's triaI, the instructions to the jury impermissibly

broadened the statute so as to create ex post facto liability in

violation of the Due Process Clause of the Fourteenth Amendment

as construed in Bouie v. City of Columbia, 378 U.S. 347 (1963).

The instructions to the jury also impermissibly broadened S

13-5-115 causing, under the same principles, a separate violation

of the Due Process Clause.

(a) The jury instructions permitted various statutes

to be incorporated into S 17-23-1, as described in para. 19(a)

supra. They further permitted a conviction for nillegal" voting

without any showing of mental culpabilityr ES described in para.

19(b), supra, and thus allowed petitioner to be convicted on a

strict liability basis for any transgression of any of the

incorporated statutes. If S 17-23-1 was subject to limiting

constructions at, the time of petitionerrs tria1, these jury

instructions abrogated the constructions retroactively in

violation of Bouie.

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(b) Section 13-5-115 penalizes the making of a sworn

statement required under t-he election laws "falsely and corruptly"

-- i.e,, with criminal intent. The trial court instructed the

jury that petitioner could be liab1e under S 13-5-115 for "faIsely
and incorrectly" making a required statement. By substituting

"incorrectly" for "corruptlyr " the instructions removed the

intent element from S 13-5-15 and thus impermissibly expanded

the reach of the statute in violation of Bouie.

25. Both S 17-23-1 and S 13-5-115 were presented to the

the jury as strict Iiability offenses. Tr. 20.1 t" 204. Therefore,

as applied to petitioner, those statutes denied her due process,

especially inasmuch as they touched on rights protected by the

Constitution. Petitionerrs conviction stands in violation of

the Fourteenth Amendment.

26. The prosecution was permitted to impeach its own wit-
nesses by reading to the jury notes purporting to be transcripts

of statements taken by the district attorney during out-of-court

interrogations, and to use such statements as substantive evidence

against petitioner, in violation of her rights under the Confron-

tation Clause of the Sixth Amendment and the Due Process Clause

of the Fourteenth Amendment.

(a) The evidence described in subparts (v), (vi) and

(vii) of para. 16(b) xqpEe, lras introduced through purported

out-of-court statements. Additionally out-of-court statements

were introduced by the prosecution in an attempt to change the

testimony of Ms. Janie Richey, Tr . 128-129, and [1s. Fronnie B.

Rice, Tr. 143-14, 147. Both of these witnesses, testifying in

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7

person, remembered receiving and voting an absentee ballot in
connection with the run-off, TE. 126'127, 130-131 (Richey); Tr.

135-137, 144-145 (Rice). The prosecution attempted to show

through the out-of-court statements that both these prosecution

witnesses had previously told him that they did not receive an

absentee ballot for the run-off. In no way however was any

connection made, either through the witnessesr testimonY, or

through the out-of-court statements, between petitioner and the

voting activities of either of these witnesses. Tr. 126, 'l3l

(Richey); Tr. 150 (Rice).

(b) Because of the paucity of evidence against peti-

tioner, and the broadness of S 17-23-1 as construed in the instruc-

tions , Tt. 201-204, these out-of-court statements were crucial to

the prosecution and devastating to petitioner, and constituted a

'denial of her rights under the Confrontation Clause and the Due

Process Clause.

27. The decision to prosecute petitioner was motivated by

her race and her political activities, and therefore her conviction

was obtained in violation of the Equal Protection Clause of the

Fourteenth Arnendment, and of the F irst and Fifteenth Amendments

and the Supremacy Clause.

(a) The vague and overbroad nature of S 17-23-1 invites

selective and discriminatory enforcement, as described in para.

23 (b) , supra.

(b) Petitioner's prosecution was (i) selective in that

others similarly situated have not been proceeded against, (ii) dis-

criminatory in that she was singled out for prosecution because

13



of her race, and (iii) recriminatory in that she was singled
out for the further reason that she had engaged in federally

protected political activities within Pickens County. Because

the prosecution was motivated by race it denied petitioner her

right,s to due process and the equal protection of the laws.

Because the prosecution was recriminatory it violated those

constitutional and federal statutory rights whose exercise it

punishedr ds enumerated in para. 22 supra.

(c) Section 17-23-1 was dormant at the time of peti-

tioner's prosecution. rt had not even been cited in a reported

opinion since its predecessor statute was referred to in Gandy

v. State, 86 AIa. 20 (1888). On information and belief, there

is no record of a single prosecution under S 17-23-1 in Pickens

County previous to the prosecutions of petitioner and }ls. JuIia

Wilder, both based upon the same events in 1978. Petitionerrs

prosecution was therefore invidiously selective.
(d) Petitioner was singled out for prosecution because

of her racer dnd because of the race of those she was aIlegedly

aiding to vote by absentee ballot.
(e) Petitioner was, before her conviction, a politic-

aIly active black resident of Pickens County. She has been

president of the Pickens County chapter of the N.A.A.C.P.

Petitioner is an educator by profession, and she has been a

vocal critic of the administration of Pickens County schools

and a long-time activist on behalf of integration and equal

opportunity in education. She has also been active as a

14



watchdog and critic of Pickens County government and the

Aliceville municipal government in their treatment of blacks.

Petitioner was singled out for prosecution under S 17-23-1 not

only because of her minor participation in an effort to aid

elderly blacks to vote but also because of her vigilant partici-

pation in other political activities within Pickens County.

WHEREFORE, petitioner prays that the Court:

( 1 ) Order the respondents to answer this petition and to

show cause why petitioner should not be discharged from her

unconstitutional restraint ;

(2) Order the respondents to furnish a complete transcript,

of petitionerrs trial before Alabama Circuit Judge Clatus Junkin,

including a transcript of the prosecutorrs closing argument,

and to furnish all exhibits, depositions and notes of pre-triaI

interviews with witnesses;

(3) Conduct a hearing at which argument and proof may be

offered concerning the allegations of this petition;

(4) Permit petitioner, who is indigent, to proceed

without payment of costs or fees;

(5) After fu1I hearing, discharge petitioner from her un-

constitutional restraint; and

(6) Grant such other relief as may be appropriate.

Respectfully submitted,

VANZETTA PENN DURANT
539 Martha Street
Montgomery, Alabama 35108
262-7337

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JACK GREENBERG
I,ANT GUINIER. .]N.TES S. LIEBMAN
SIEGFRIED KNOPF

10 Columbus Circle
Sulte 2030
New York, New York 10019
(2'12) s85-8397

Attorney for Petitioner

Of counsel:

ANTHONY G. AUSTERDAI,T
New York University School of Law
40 Washington Squaie South, Room 327
New YorkrNew York 10012
(212) s98-2638

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