Gibson v. Jackson Brief of Amicus Curiae

    IN THE UNITED STATES DISTRICT COURT

SAMUEL

GEORGE

MIDDLE DISTRICT OF GEORGIA 

MACON DIVISION

GIBSON, III, :

Plaintiff, :

V. : Civ. 77-59 MAC

L. JACKSON, et al., :

Defendants. :

BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE 
& EDUCATIONAL FUND, INC.

JACK GREENBERG 
JAMES M. NABRIT, III 
LYNN WALKER 
DAVID E. KENDALL 
LINDA GREENE 
JOEL BERGER

10 Columbus Circle 
New York, New York 10019

ANTHONY G. AMSTERDAM 
Stanford University 

Law School
Stanford, California 94305

ATTORNEYS FOR AMICUS CURIAE



IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF GEORGIA 

MACON DIVISION

SAMUEL GIBSON, III,

Plaintiff,

v. Civ. 77-59 MAC

GEORGE L.JACKSON, et al., :

Defendants. :

STATEMENT OF INTEREST OF AMICUS 
CURIAE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.

The NAACP Legal Defense and Educational Fund, Inc., 

by its undersigned counsel, submits the attached brief 

amicus curiae in this case for the following reasons:

(1) The NAACP Legal Defense and Educational Fund, 

Inc., is a non-profit corporation chartered in New York 

formed to assist black citizens in securing their constitu­

tional rights by the prosecution of lawsuits; it has rep­

resented on appeal numerous black defendants and indigent 

defendants of all races who have received death sentences. 

In 1967, the Legal Defense Fund undertook to represent all 

condemned defendants in the United States, regardless of



race, for whom adequate representation could not

otherwise be found, and by June, 1972, represented 

about 300 of the approximately 730 persons on Death Row 

in the United States. Additionally, the Legal Defense 

and Educational Fund, Inc., provided consultative assistance 

to attorneys representing a large number of other condemned 

defendants. The Legal Defense Fund represented condemned 

defendants on appeal in a number of cases in the Supreme 

Court of the United States, e,g., Beecher v. Alabama,

408 U.S. 234 (1972); Maxwell v. Bishop, 398 U.S. 262 (1970); 

and in State Supreme Courts, e,g., People v. Anderson,

6 Cal.2d 628, 493 F.2d 880, 100 Cal. Rptr. 152 (1972) as 

these defendants challenged the constitutionality of their 

death sentences, and it represented William Henry Furman 

before the Supreme Court of the United States in the case 

in which that Court declared capital punishment, as then 

imposed, cruel and unusual punishment in violation of the 

United States Constitution, Furman v. Georgia, 408 U.S.

238 (1972). Most recently, the Legal Defense Fund rep­

resented petitioners in three of the five capital punishment 

cases which the Supreme Court of the United States decided 

on July 2, 1976: Woodson v. North Carolina, 428 U.S. 280;

2



Roberts v. Louisiana, 428 U.S. 325; Jurek v. Texas,

428 U.S. 262. It filed briefs amicus curiae in Gregg 

v. Georgia, 428 U.S. 153 and Proffitt v. Florida. 428 

U.S. 242.

(2) The Legal Defense Fund has continued to 

provide legal assistance to indigent condemned prisoners 

of all races and is now involved as counsel in over one 

hundred death cases. it currently represents a number 

of indigent death-sentenced Georgia inmates who are at 

various stages of habeas corpus proceedings, see, e,g.,

Ross v. Hopper, Tattnall County Super. Ct., No. 76-226(H.C.)

Spencer v. Hopper, Tattnall County Super. Ct. No. ______ ;

McCorguodale v. Stynchcombe, Ga. Sup. Ct. No. 32057; House 

v. Stynchcombe, Ga. Sup. Ct. No. 32145.

(3) The Legal Defense Fund is supported by the 

charitable contributions of private individuals and 

foundations. In the past, it has sought to provide not 

only counsel but investigative services and expert 

witnesses for the indigent death-sentenced inmates whom 

it represented. Because of the large number of cases

it is now involved in and because of its limited financial

3



and legal resources, the Legal Defense Fund will not 

in the future be able to provide such assistance to all 

the indigent condemned inmates who apply to it for aid.

(4) The present case thus presents civil rights 

and civil liberties of great importance, and the Legal 

Defense Fund therefore desires to present its views and 

its analysis of certain legal precedents to the Court 

in the hope that the Court might be assisted in the 

resolution of the issues before it.

4



ARGUMENT

Plaintiff is a black, indigent Death Row inmate 

who has filed a complaint under 42 U.S.C. §1983 in this 

Court requesting the appointment of counsel and expert 

investigative assistance in a state habeas corpus pro­

ceeding. On May 14, 1975, when plaintiff was seventeen 

years old, he was convicted and sentenced to die for 

murder, and the Supreme Court of Georgia affirmed this 

conviction, Gibson v. State, 236 Ga. 874, 226 S.E.2d 63 

(1976). The Supreme Court of the United States denied 

a timely petition for certiorari, Gibson v. Georgia,

45 U.S.L.W. 3400 (U.S., Nov. 29, 1976), and on February 

28, 1977, the Superior Court of Jones County, Georgia, 

set March 21, 1977, as the date for the execution of plaintiff's 

death sentence.

On March 18, 1977, plaintiff filed a petition for 

habeas corpus in the Superior Court of Butts County, Georgia, 

and obtained a stay of execution. A motion for funds to 

pay counsel, investigators, and expert witnesses was made 

and denied by the trial court, and plaintiff subsequently

5



filed a §1983 complaint in this Court seeking injunctive 

relief to compel the State of Georgia to provide him with 

funds for counsel, investigators, and expert witnesses 

or* in the alternative, to enjoin the State from executing 

plaintiff until he had been afforded a full and fair hearing 

on his federal constitutional claims. This brief amicus 

curiae is submitted in support of plaintiff's request for 

suitable relief to enable him to litigate adequately in 

state court the federal constitutional claims alleged in 

his petition for writ of habeas corpus.

There is a federal constitutional requirement, en­

forceable through 42 U.S.C. §1983, that state post-convic­

tion procedures be adequate for the full and fair adjudica­

tion of federal constitutional claims. "It is the solemn 

duty of . . . [state] courts, no less than federal ones, 

to safeguard personal liberties and consider federal 

claims in accord with federal law." Schneckloth v.

Bustamonte, 412 U.S. 218, 259 (1973)(concurring opinion
*/

of Mr. Justice Powell). The Supreme Court of the United

— / See Case v. Nebraska. 381 U.S. 336, 344-345 (1965) 
(concurring opinion of Mr. Justice Brennan)(footnote 
omitted):

"Our federal system entrusts the States

6



States has frequently reversed state court rulings

denying post-conviction relief -where the procedures 

afforded by the State were inadequate to determine 

fairly federal claims. In McNeil v. Culver, 365 U.S.

109 (1961), for example, a petitioner applied to the 

Supreme Court of Florida for a writ of habeas corpus, 

alleging facts and circumstances which if true supported 

his contention that he was denied the assistance of counsel 

at trial. The Florida Supreme Court issued a provisional 

writ, but after considering the State's return and without 

any hearing on petitioner's allegations, discharged the 

writ and remanded the petitioner to custody. On review, 

the United States Supreme Court reversed, holding that 

since due process of law required petitioner to have the

jj[/ cont'd.

with primary responsibility for the ad­
ministration of their criminal laws. The 
Fourteenth Amendment and the Supremacy Clause 
make requirements of fair and just procedures 
an integral part of those laws, and state 
procedures should ideally include adequate 
administration of these guarantees as well. 
If, by effective corrective processes, the 
States assumed this burden . . .  it would 
assure not only that meritorious claims would 
generally be vindicated without any need for

7



assistance of counsel if the facts alleged in his 

petition were true, "the allegations themselves made 

it incumbent on the Florida court to grant petitioner 

a hearing and to determine what the true facts are."

365 U.S. at 117.

In Wilde v. Wyoming, 362 U.S. 607 (1960), a state

petitioner alleged in his petition for a writ of habeas

corpus that he had no counsel present when he pleaded

guilty to second-degree murder and that the.prosecutor

had suppressed testimony favorable to petitioner. Vacating

the judgment of the Wyoming Supreme Court, the United States

Supreme Court observed:

"It does not appear from the record 
that an adequate hearing on these 
allegations was held in District Court, 
or any hearing of any nature in, or by 
direction of, the [state] Supreme Court.
We find nothing in our examination of

cont'd.

federal court intervention, but that 
nonmeritorious claims would be fully 
ventilated, making easier the task of 
the federal judge if the state prisoner 
pursued his cause further."

8



of the record to justify the denial 
on these allegations. The judgment 
is therefore vacated and the case is 
remanded for a hearing thereon."

362 U.S. at 607.

In Sublett v. Adams, 362 U.S. 143 (1960), a state 

petitioner applied to the Supreme Court of West Virginia 

for a writ of habeas corpus, charging that his confinement 

was in violation of the Due Process Clause of the Fourteenth 

Amendment. That court refused to grant the writ, without 

either a hearing or a response from the State. On review, 

the United States Supreme Court found that the "facts 

alleged are such as to entitle petitioner to a hearing 

. . . ", 362 U.S. at 143, and remanded the case to the 

West Virginia Court for further proceedings. Accord: 

Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 123 

(1956); Pyle v . Kansas, 317 U.S. 213, 215-216 (1942); Cochran 

v. Kansas, 316 U.S. 255, 257 (1942); Reynolds v. Cochran,

365 U.S. 525 (1961); Smith v. O'Grady, 312 U.S. 329 (1940); 

Bushnell v. Ellis, 366 U.S. 418 (1961). "Petitioner carries 

the burden in a collateral attack on a judgment. He must 

prove his allegations but he is entitled to an opportunity." 

Hawk v. Olson, 326 U.S. 271, 278 (1945).

9



The ability of a prisoner to establish his federal 

constitutional claims in a state post-conviction pro­

ceeding will normally depend on the evidence he can 

muster and this, in turn, may depend on his economic 

status. While the State is under no obligation to 

equalize exactly the opportunities of indigent and non- 

indigent prisoners to obtain collateral relief from 

criminal convictions, a number of precedents during the 

last twenty years establish that the Equal Protection 

and Due Process Clauses of the Fourteenth Amendment do not 

allow a State's criminal justice system to deprive indigent 

defendants of basic procedural rights to obtain redress 

from illegal or unconstitutional convictions simply 

because of their indigence. The State must furnish 

indigent defendants with "the basic tools of an adequate 

defense or appeal, when those tools are available for 

a price to other prisoners." Britt v. North Carolina,

404 U.S. 226, 227 (1971). The fundamental fact

that courts have recognized is that "[t]here can be no

equal justice where the kind of trial a man gets depends

10



on the amount of money he has." Griffin v. Illinois,

351 U.S. 12, 19 (1956). See Coppedge v. United States,

369 U.S. 438, 446-447 (1962). For "differences in 

access to the instruments needed to vindicate legal 

rights, when based upon the financial situation of the 

defendant, are repugnant to the Constitution." Roberts 

v. LaVallee, 389 U.S. 40, 42 (1967). Thus, counsel 

must be appointed to represent indigent defendants at 

felony trials, Gideon v. Wainwright, 372 U.S. 335 (1963); 

Powell v. Alabama, 287 U.S. 45 (1931), and misdemeanor 

trials, Argersinger v. Hamlin, 407 U.S. 25 (1972), and 

on appeal, Douglas v. California, 372 U.S. 353 (1963).

A transcript for appeal may not be denied to a convicted 

defendant simply because of his indigence, Griffin v . 

Illinois, supra; Draper v. Washington, 372 U.S. 487 (1963) 

Williams v. City of Oklahoma City, 395 U.S. 458; Mayer 

v. City of Chicago, 404 U.S. 189 (1971); see also Rinaldi 

v. Yeager, 384 U.S. 305 (1966). An indigent defendant 

may not be forced to pay a filing fee as a prerequisite 

for an appeal, Burns v. Ohio, 360 U.S. 252 (1959);

Douglas v. Green, 363 U.S. 192 (1960). A convicted

11



defendant may not be imprisoned simply because he is

unable to pay a fine, Williams v. Illinois, 360 U.S.

252 (1959); Tate v. Short, 399 U.S. 235 (1970). See 

also Boddie v. Connecticut, 401 U.S. 371, 375-377,
V382-383 (1971). Cf. Britt v. North Carolina, supra.

The principle that the State cannot deny funda­

mental procedural rights in the criminal justice system 

simply because of economic status is not, however, 

limited to trials and direct appeals: "for the indigent 

as well as for the affluent prisoner, post-conviction 

proceedings must be more than a formality." Johnson v . 

Avery, 393 U.S. 483, 486 (1969). In Johnson, the 

Supreme Court of the United States invalidated the 

State of Tennessee's prison regulation prohibiting its 

inmates from assisting one another in the filing of state 

or federal post-conviction writs. The Court held that the 

impact of the State's regulation was to unconstitutionally 

"forbi[d] illiterate or poorly educated prisoners to file 

habeas corpus petitions." 393 U.S. at 487. "Johnson v. 

Avery makes it clear that some provision must be made to 

insure that prisoners have the assistance necessary to 

file petitions and complaints which will in fact be fully

*/ And see United States v. MacCollom, __U.S.__, 48 L.Ed.
2d 666, 674-675 (1976)(plurality opinion).

-  12 -



considered by the courts." Gilmore v. Lynch, 319 F. Supp.

105, 110 (N.D. Cal.), aff1d sub nom. Younger v. Gilmore, 

404 U.S. 15 (1971). A federal district court has upheld 

state prisoners' rights to an "expensive law library" in 

order to ensure "meaningful access to courts," Hooks v . 

Wainwright, 352 F. Supp. 163, 165, 167 (M.D. Fla. 1972), 

after finding the inmates' due process rights violated 

by the "inadequacy and insufficiency of the legal services 

provided indigent inmates," 352 F. Supp. at 168. "To be 

meaningful, the right of access to the courts must include 

the means to frame and present legal issues and relevant 

facts effectively for judicial consideration." Battle v. 

Anderson, 376 F. Supp. 402, 426 (E.D. Okla. 1974). A 

number of United States Supreme Court decisions hold that 

access to state post-conviction procedures may not be 

limited by economic barriers which have no rational 

relationship to the merits of the legal claims sought 

to be raised. See Eskridge v. Washington State Board 

of Prison Terms and Paroles, 357 U.S. 214 (1958); Ross 

v. Schneckloth, 357 U.S. 575 (1958); McCrary v. Indiana, 

364 U.S. 277 (1960); Smith v. Bennett, 365 U.S. 708 (1961) 

Lane v. Brown, 372 Y.S. 477 (1963); Long v. District Court

13



of Iowa, 385 U.S. 192 (1966); Gardner v. California,

393 U.S. 367 (1969). Although a number of different

procedural rights are involved in these cases, their

common denominator is that discriminations "based on

indigency alone," Lane v. Brown, supra, 372 U.S. at
1/

485, are impermissible.

In the present case, while the State of Georgia 

has not denied plaintiff Gibson formal access to its 

post-conviction remedies, by denying him funds for counsel 

and for investigators (legal resources available to more 

affluent defendants), it has rendered these proceedings 

a "meaningless ritual," Douglas v. California, supra,

t/ The Court of Appeals for the Fif th Circuit has been 
particularly vigilant to ensure that the rights of criminal 
defendants are not sacrificed because of their indigence.
See, e.q., Bradford v. United States, 413 F.2d 467 (CA5 1969) 
Hintz v. Beto, 379 F.2d 937 (CA5 1967); United States v. 
Moudy, 462 F.2d 694 (CA5 1972); United States v. Hathcock,
441 F.2d 197 (CA5 1971); Welsh v. United States, 404 F.2d 
414 (CA5 1968) ,* Bush v. McCollum, 231 F. Supp. 560 (N.D.
Tex. 1964), aff1d 344 F.2d 672 (CA5 1965); United States 
v. Henderson, 525 F.2d 247, 251 (CA5 1975); United States 
v. Theriault, 440 F.2d 713, 716-717 (CA5 1971)(Wisdom J., 
concurring); Rheuark v. Shaw, No. 76-1486 (CA5, Mar. 3,
1977) (this opinion is not yet reported and is reproduced 
infra as Appendix A).

14



372 U.S. at 358. And this has occurred in a case where

the highest standard of regularity and fairness is 

required, for at stake is plaintiff's very life, since 

the State has exacted the "unique and irreversible penalty’ 

of death," Woodson v. North Carolina, 428 U.S. 280, 287 

(1976)(plurality opinion)(footnote omitted). In death 

cases, courts must be "particularly sensitive to see 

that every safeguard is observed," Gregg v. Georgia,

428 U.S. 153, 187 (1976)(plurality opinion). For it 

"cannot fairly be denied . . . that death is a punishment 

different from all other sanctions in kind rather than 

degree [or that] . . . the penalty of death is qualitatively 

different from a sentence of imprisonment, however long. 

Death, in its finality, differs more from life imprisonment 

than a 100-year prison term differs from one of only a 

year or two. Because of that qualitative difference, 

there is a corresponding difference in the need for 

reliability that death is the appropriate punishment 

in a specific case."Woodson v. North Carolina, supra,

428 U.S. at 303-305 (plurality opinion)(footnote omitted). 

Only a few weeks ago, the Supreme Court of the United

15



States explicitly recognized that "constitutional

developments" of the past three decades "require us

to scrutinize a State's capital sentencing procedures

more closely than was necessary in 1949:"

"Five members of the Court have now 
expressly recognized that death is 
a different kind of punishment than 
any other which may be imposed in this
country. Gregg v. Georgia, __U.S.__,
No. 74-6257 (July 2, 1976), Slip op., at 
31 (Opinion of Stewart, Powell and Stevens, 
JJ.), see dissenting opinion of Marshall, J.; 
Furman v. Georgia, 408 U.S. 238, 286-291 
(Brennan, J., concurring), 306-310 (Stewart,
J., concurring), see 314-371 (Marshall, J., 
concurring). From the point of view of the 
defendant, it is different in both its severity 
and its finality. From the point of view of 
society, the action of the sovereign in taking 
the life of one of its citizens also differs 
dramatically from any other legitimate state 
action."

Gardner v. Florida, 45 U.S.L.W. 4275, 4277 (U.S., March
1/

22, 1977).

1/ See also Powell v. Alabama, 287 U.S. 45, 71 (1932);
Reid v. Covert, 354 U.S. 1, 77 (1957)(Harlan J., concurring); 
Stein v. New York, 346 U.S. 156, 196 (1953); Williams v. 
Georgia, 349 U.S. 375, 391 (1955); Andres v. United States,
333 U.S. 740, 752 (1948); Furman v. Georgia, 408 U.S. 238, 
286-287 (1972)(Brennan J., concurring)("This Court, too, 
almost always treats death cases as a class apart"); Griffin 
v. Illinois, 351 U.S. 12, 28 (1956)(Burton & Minton, JJ., 
dissenting)("It is the universal experience in the administra­
tion of criminal justice that those charged with capital 
offenses are granted special considerations"); United States

16



Ross v. Moffitt, 417 U.S. 600 (1974), is not a barrier

to granting the relief plaintiff seeks for three reasons. 

First, Ross was not a capital case but rather involved the 

question of whether counsel should be appointed to represent 

a defendant convicted of check forgery on his second dis­

cretionary) appeal within the State court system and on 

certiorari to the Supreme Court of the United States.

A federal district court has distinguished Ross when an 

indigent death-sentenced State prisoner sought to compel 

the appoint of counsel to seek review of his conviction in 

the Supreme Court of the United States on certiorari:

cont'd.

v. See, 505 F.2d 845, 853 fn.13 (CA9 1974)("In striking 
a balance between the interests of the state and those of 
the defendant, the courts have been admonished . . .  to 
give more weight to the fate of the person charged with 
a capital crime"); United States ex rel. Russo v. Superior 
Court, 483 F.2d 7, 12-13 (CA3 1973);McNeal v. Collier, 353 
F. Supp. 485, 490 (N.D. Miss. 1972)("In a capital case, 
special consideration must be given to the rights of the 
accused."), rev1d on other grounds sub nom. McNeal v .
Ho Howe 11, 481 F .2d 1145 (CA5 1973) .

17



"Moffitt, however, faced only imprisonment;
Albert Lewis Carey, Jr., on the other hand, 
may conceivably lost his very life, if his 
petition for certiorari is not granted; and 
the fate of the petitioner, as Justice Rehnguist 
recognized, must inevitably be tied, at least 
in part, to the quality and persuasiveness of 
the petition."

Carey v. Garrison, C-C-75-342 (W.D. N.C. Nov. 11, 1975)
1/

(emphasis in original).

Second, Ross rests partially upon the assumption, 

see Ross v. Moffitt, supra, 417 U.S. at 615,that appoint­

ment of counsel for a second appeal is unnecessary because 

there has already been a trial, which has produced a full 

ventilation of issues relating to the defendant's guilt 

and an appeal in which a brief, prepared by a trained 

lawyer, has organized and researched legal errors which 

may infect the conviction. However, in plaintiff Gibson's 

case, there appears to be evidence that the counsel appointed 

to represent him at trial and on appeal to the Georgia 

Supreme Court was incompetent and ineffective. Thus, the

^_/ Carey v. Garrison is not reported and is reproduced 
infra as Appendix B .

18



record made at trial and on appeal is likely to be 

inadequate and unreliable for a proper determination of 

plaintiff's constitutional claims. "Where the community 

fails to supply —  for those who cannot —  the effort 

and resources required for an adequate exploration of 

[relevant factual] issue [s], the trial becomes a facade 

of regularity for partial justice." Rollerson v. United 

States, 343 F.2d 269, 276 (CADC 1964).

Finally, Ross involved the right to counsel on appeal 

where there had already been one appeal. Plaintiff Gibson, 

on the other hand, faces the terra incognita of an evi­

dentiary hearing where new factual and legal issues must 

be prepared and presented. As the Supreme Court of the 

United States remarked in Powell v. Alabama, supra, 287 

U.S. at 68-69, of an indigent defendant who faced a 

capital trial without adequate counsel:

"The right to be heard would be, in
many cases, of little avail if it did not
comprehend the right to be heard by counsel.
Even the intelligent and educated layman has 
small and sometimes no skill in the science 
of law. If charged with crime, he is incapable, 
generally, of determining for himself whether 
the indictment is good or bad. He is unfamiliar 
with the rules of evidence. Left without the 
aid of counsel he may be put on trial without 
a proper charge, and convicted upon incompetent

19



evidence, or evidence irrelevant to the 
issue or otherwise inadmissible. He lacks 
both the skill and knowledge adequately 
to prepare his defense, even though he have 
a perfect one. He requires the guiding hand 
of counsel at every step in the proceedings 
against him. Without it, though he be not 
guilty, he faces the danger of conviction be­
cause he does not know how to establish his 
innocence. If that be true of men of in­
telligence, how much more true is it of the 
ignorant and illiterate, or those of feeble 
intellect."

Neither is the existence of 28 U.S.C. §2254 a barrier 

to granting the relief plaintiff seeks. The fact that 

federal habeas corpus would ultimately be available to a 

State prisoner deprived of a fair State post-conviction 

hearing did not deter the Supreme Court of the United 

States from reversing these denials of relief, see 

cases discussed at pp. 7 - 9 ,  supra; indeed, in none 

of these cases did the high Court even mention §2254 as 

a relevant factor. In Smith v. Bennett, 365 U.S. 708 (1961), 

however, the State of Iowa attempted to use such an 

argument to defend its $4.00 filing fee required of 

indigent habeas petitioners and its $3.00 appellate fee 

required of indigent habeas petitioners denied relief and 

seeking to appeal. The State contended that its filing 

fees did not violate the rule of Griffin v. Illinois,

20



supra, and Burns v. Ohio, supra, because a prisoner 

denied state habeas relief could always secure relief 

in federal court under §2254. The Court rejected 

this contention and voided the fees: " [w]hen an equivalent 

right [to that of filing a habeas corpus petition under 

§2254] is granted by a State, financial hurdles must not 

be permitted to condition its exercise," 365 U.S. at 713.

The Court added that "the state remedy may offer review 

of questions not involving federal rights and therefore 

not raisable in federal habeas corpus." Ibid.

Likewise, the relief requested is not barred by 

Younger v. Harris, 401 U.S. 37 (1971), Huffman v. Pursue, 

Ltd., 420 U.S. 592 (1975), Judice v. Vail, 45 U.S.L.W. 4269 

(U.S., Mar. 22, 1977), and similar cases, for plaintiff's 

§1983 suit is designed to effectuate rather than prohibit 

State court proceedings. For one thing, the criminal 

prosecution of plaintiff has already terminated. Moreover, 

ensuring a full and comprehensive State habeas hearing will, 

in fact, foster comity since such a hearing may make 

unnecessary a later federal evidentiary hearing. Indeed, 

one of the central purposes of the Georgia Legislature 

when it drastically restructured the State1s habeas 

corpus statutes in 1967 was to forestall litigation

21



in federal courts pursuant to Townsend v. Sain. 372 U.S.

293 (1963) and Fay v. Noia, 372 U.S. 391 (1963), of 

constitutional issues involving evidentiary questions 

arising out of state criminal convictions. See Wilkes, 

Georgia Habeas Corpus, 9 GA. L. REV. 13, 53 (1974). The 

Preamble to the 1967 Act declared an intention to strengthen 

the "state courts as instruments for the vindication of 

constitutional rights" and to effectuate the "expansion 

of state habeas corpus to include sharply-contested 

issues of a factual nature", Section 1, Ga. L. 1967, 

p.835.

Amicus curiae does not here suggest the precise 

kind of relief which should be afforded to plaintiff 

Gibson under §1983. The foregoing precedents clearly 

indicate, however, that the State is under an obligation 

to grant a full and fair post-conviction hearing to an 

indigent death-sentenced inmate, if it vouchsafes such 

procedural rights to more affluent prisoners. Moreover, 

derelictions of this duty are remediable through §1983.

While it may be necessary to mandate the expenditure

22



of State funds, the rights of an indigent defendant

are not subject to a balancing test. in Mayer v. City

of Chicago, 404 U.S. 189 (1971), for example, the City

argued that it should not have to provide transcripts

for an appeal of right to indigent prisoners sentenced

to pay a fine. The Court flatly rejected this contention

"The city suggests that . . . [an indigent 
defendant's] interest in a transcript is 
outweighed by the State's fiscal and other 
interests in not burdening the appellate 
process. This argument misconceives the 
principle of Griffin . . . Griffin does 
not represent a balance between the needs of 
the accused and the interests of society; its 
principle is a flat prohibition against 
pricing indigent defendants out of as 
effective an appeal as would be available 
to others able to pay their own way. The 
invidiousness of the discrimination that 
exists when criminal procedures are made 
available only to those who can pay is not 
erased by any differences in the sentences 
that may be imposed. The State's fiscal 
interest is, therefore, irrelevant."

404 U.S. at 196-197.

It may be the wisest course here to order the 

appointment of counsel for plaintiff Gibson in the 

State habeas action and then retain jurisdiction of the 

suit to see what particular investigative resources are 

necessary and not furnished in some way by the State.

The Georgia State Bar Association has recognized that

23



"[a] lawyer is often no better than the investigation
*/facilities or expert witnesses at his command." In view

of the apparently faulty record compiled during the trial

of this case, the Court may deem it appropriate to allow

counsel for plaintiff Gibson and the State to confer

and to ascertain what kind of factual investigation
* *  /

is now appropriate. Whatever the precise relief granted,

ty Committee of the State Bar of Georgia on Compensated 
Counsel, Assistance to the indigent Person Charged with 
Crime, 2 GA. B.J. 197, 202 (1965).

**/ Gathering information to prepare for trial is a com­
ponent of the effective assistance of counsel guaranteed 
by the Sixth Amendment. Adams v, Illinois, 405 U.S. 278, 
281-282 (1972); Coleman v. Alabama, 399 U.S. 1, 9 (1970).
See AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR 
CRIMINAL JUSTICE, STANDARDS RELATING TO THE PROSECUTION 
FUNCTION AND THE DEFENSE FUNCTION, Sec. 4,1 (Approved 
Draft 1971) at 225-226:"It is the duty of every lawyer 
to conduct a prompt investigation of the circumstances 
of the case and explore all avenues leading to facts 
relevant to guilt and degree of guilt or penalty."
The Commentary states flatly that "[f3 acts are the basis 
of effective representation." Id. at 226. "[T]he Due Process 
Clause . . . does speak to the balance of forces between 
the accused and his accuser," Wardius v. Oregon, 412 U.S. 
470, 474 (1973), and the Court of Appeals for the Fifth 
Circuit has frequently recognized that the Government has 
a duty "to ameliorate disparities between those who can 
and those who cannot afford the [investitive] resource 
sought." United States v. Henderson. 525 F.2d 247, 251 
(CA5 1975). See, e.g., Mason v, Balcom, 531 F.2d 717, 724- 
725 (CA5 1976); Windom v. Cook, 423. F.2d 721 (CA5 1970);

24



since "[t]he magnitude of a decision to take a human life

**/ cont'd.

Brooks v. Texas, 381 F.2d 619 (CA5 1967); Hintz v. Beto,
379 F.2d 937 (CA5 1967). "Effective counsel includes 
familiarity of counsel with the case and an opportunity 
to investigate it if necessary in order meaningfully to 
advise the accused of his options." Calloway v. Powell,
393 F.2d 886, 888 (CA5 1968). " [T]he right to counsel
is meaningless if the lawyer is unable to make an effective 
defense because he has no funds to provide the specialized 
testimony which the case requires." Bush v. McCollum, 231 
F. Supp. 560, 565 (N.D. Tex. 1964), aff'd 344 F.2d 672 
(CA5 1965). See also Goldberg, Equality and Govern,mental 
Action, 39 N.Y.U. L.REV. 202, 222 (1964):

"The right to counsel at trial and on 
appeal may prove hollow if appointed counsel 
is not armed with the tools of advocacy —  
investigatory resources, expert witnesses, 
subpoena, trial transcript. If the right 
to counsel is to be given meaningful content, 
and if our adversary process is to retain its 
vitality, the appointed attorney, like the 
retained attorney, must be permitted to per­
form as an advocate . . . .  If representation 
is to be as effective for poor as for rich, 
it follows that services necessary to make 
this right effective must be supplied at 
government expense to those unable to afford 
them."

And see United States v. Johnson, 238 F.2d 565, 572 
(CA2 1956) (Frank J., dissenting), rev1d 352 U.S. 565 
(1957) :

"Furnishing [a poor defendant] with a lawyer 
is not enough: The best lawyer in the world
cannot competently defend an accused person 
if the lawyer cannot obtain existing evidence 
crucial to the defense, e.g., if the defendant 
cannot pay the fee of an investigator to find

25



is probably unparalleled in the human experience of 

a member of a civilized society," Marion v. Beto, 434 

F.2d 29, 32 (CA5 1970), it should be adequate to insure 

that this indigent, death-sentenced inmate has a realistic 

opportunity to present in his state habeas corpus proceed­

ing the federal constitutional contentions which may save 

his life.

cont’d.

a pivotal missing witness or a 
necessary document, or that of an 
expert accountant or mining engineer 
or chemist. It might, indeed, reasonably 
be argued that for the government to defray 
such expenses, which the indigent accused 
cannot meet, is essential to that assistance 
by counsel which the Sixth Amendment guarantees."

26



RESPECTFULLY SUBMITTED

JACK GREENBERG 
JAMES M. NABRIT, III 
LYNN WALKER 
DAVID E. KENDALL 
LINDA GREENE 
JOEL BERGER

10 Columbus Circle 
New York, New York 10019

ANTHONY G. AMSTERDAM 
Stanford University 

Law School
Stanford, California 94305 

ATTORNEYS FOR AMICUS CURIAE

BY

DATE: April 14, 1977

27



Jack RHEUARK, Plaintiff-Appellant,

v.

Bill SHAW, Clerk of Dallas County Court, 
and the State of Texas, Defendants-Appellees.

No. 76-1486

United States Court of Appeals,
Fifth Circuit

March 3, 1977.

Appeal from the United States District Court 
for the Northern District of Texas.

Before MORGAN and HILL, Circuit Judges, and 
NOEL,* District Judge.

JAMES C. HILL, Circuit Judge:

The issue in this case is whether a prisoner1s suit 
for damages and injunctive relief against a state court 
clerk and court stenographer for their alleged failure 
to forward a state trial court transcript to the state 
appellate court is in the nature of a civil rights suit 
or a habeas corpus petition. Since we conclude that the 
action is in the nature of a civil rights suit, we reverse 
the dismissal by the district court and remand for further 
proceedings.

Appellant, Jack Rheuark, filed a complaint in the district 
court seeking injunctive and monetary relief against the clerk 
of the Dallas County Court and the court reporter pursuant to 
42 U.S.C.A. § 1983. Appellant was convicted of armed robbery 
in a Texas state court and sentenced on February 10, 1975. His 
attorney promptly filed a notice of appeal to the Texas Court of 
Criminal Appeals. The state trial court then ordered that the 
transcript of the trial he prepared at state expense. Approximately 
twelve months thereafter, appellant instituted the instant

* Senior District Judge for the Southern District of Texas, 
sitting by designation.



proceeding against the court clerk and the court 
stenographer alleging that they were unreasonably 
delaying the preparation and transmittal of his state 
trial court records because of his indigent status.
Appellant contends that the actions of the defendants 
discriminate against him and deny him equal access to the 
appellate process.

The district court dismissed the complaint. It 
concluded that appellant's proper remedy was a habeas 
petition since he was challenging his physical imprison­
ment. This appeal was then perfected.

Subsequent to the dismissal, appellant filed a habeas 
petition in the district court, alleging speedy trial 
violations and other constitutional errors in his Texas 
robbery trial. The district court denied relief on the 
basis that appellant's state appeal was pending and, thus, 
he had failed to exhaust his state remedies.

On appeal from the dismissal of his habeas petition, this 
court reversed.Rheuark v. Wade, 540 F.2d 1282 (5th Cir. 1976). 
Noting that the district court took no notice of appellant's 
allegation that fifteen months of unexcused delay in preparing 
a transcript had rendered his state remedies practically unavail­
able, we remanded the case to the district court "with instruc­
tions to determine if the delay in preparing a transcript of 
[appellant's] state trial has been justifiable." Id. at 1283.
Thus, after two years, two district court cases, and now two 
appellate decisions, appellant remains without a transcript 
ordered furnished to him by the state court two years ago, 
and which he must have in order to prosecute his appeal. In 
addition, appellant has made a variety of requests directed 
to the Texas state courts to no avail.

Suits against state court clerks are not particularly uncommon 
in this circuit and have uniformly been considered civil rights 
actions. The most analogous case to the one sub judice is Qualls 
v. Shaw, 538 F.2d 318 (5th Cir. 1976). In Qualls, a state prisoner, 
preparatory to filing a motion for collateral relief, requested 
of the court clerk the cost of sending him copies of records of 
another similar lawsuit and of the grand jury lists for 1970, 1971 
and 1972. The request was not acknowledged. The prisoner alleged



that the records he sought were regularly made available 
to others. He sued for monetary relief and requested an 
order directing the clerk to provide the information re­
quested. The district court dismissed the complaint as in 
the nature of habeas corpus. In reversing, this court said:

The district court erred in its analysis of 
appellant's complaint. Preiser v. Rodriquez,
411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) 
provides that a state inmate may not utilize the 
civil rights act to challenge his conviction, thus 
bypassing habeas corpus procedures and the requirement 
that he exhaust state remedies. In this case, the 
appellant is not challenging his conviction and he is 
not seeking his release from custody. He is claiming 
that he has been denied access to records which are 
are made available to others and has been subjected 
to discriminatory treatment. Were he to prevail in this 
action the court's opinion would not impinge in any 
manner on the validity of his criminal conviction, and 
therefore habeas corpus is not an appropriate remedy and 
the district court's reliance on Preiser is misplaced.
Id. at 319.
See also Hill v. Johnson, 539 F.2d 439 (5th Cir. 1976);
Carter v. Thomas, 527 F.2d 1332 (5th Cir. 1976); Carter 
v. Hardy, 526 F.2d 314 (5th Cir. 1976).

Also relevant to our inquiry in the instant case, the inmates 
in Carter v. Thomas, supra, alleged that the procedure utilized 
by the court with regard to in forma pauperis petitions took 
months and sometimes more than a year to complete. In finding 
that the complaint stated a claim for which relief could be 
granted, this court stated:

But the fact that some delay is inherent in a process 
does not provide constitutional immunity for extreme 
and unreasonable delays. Plaintiffs have alleged 
instances of twenty-one month intervals between sub­
mission of papers to the court and filing of the com­
plaint. We have no way of knowing whether this allega­
tion is true or, if true, whether such delay is highly 
atypical or is subject to reasonable explanation. We 
hold only that this complairt states a claim upon which 
relief may be granted. Differences of this magnitude 
in treatment accorded indigents and non-indigents



cannot be brushed away. They must be scrutinized 
and either justified or ended, (citations omitted)
527 F .2d at 1333.

Of course, the particular factual situation of this case 
is dissimilar in some respects. The controversy in this case 
is much more intertwined with the administration of the state 
appellate courts. However appellant does not ask for any relief 
from his sentence in this action, nor does he ask that the federal 
court order him released from confinement or modify, in any respect, 
the conditions of his confinement. The only possible effect that 
this action might have upon appellant's confinement would be that, 
if he can obtain the transcript to appeal, and if his appeal should 
be successful, he would escape confinement on the state sentence. 
However, he would not do so by order of this court, but as a result 
of a decision obtained from the appellate courts of the State of 
Texas. This case was cognizable as a 1983 suit. It should have 
been filed, served, and tried.

In sum, the history of this case demonstrates the plight all 
too often encountered by pro se litigants. The appellant in this 
case has been doing his dead-level best to obtain the transcript 
of his trial so that he may be afforded the opportunity of appeal­
ing his case. Unfortunately, he has repeatedly had to invoke the 
federal judicial system in his-effort to resolve a rather simple 
s ituation that should have been handled promptly and efficiently 
in the state courts. The inordinate delay evident in this case 
should have been corrected without the necessity of "making a 
federal case out of it."

REVERSED AND REMANDED.



IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division 
C-C-75-342

ALBERT LEWIS CAREY, JR., Petitioner, )
)

-VS- ) ORDER
)

SAM P. GARRISON, Warden, Central )
Prison, and the STATE OF NORTH )
CAROLINA, )

Respondents. )

Albert Lewis Carey, Jr., has presented a'Petition for 

Appointment of Counsel." He was convicted of murder in Mecklenburg 

County, North Carolina, and was sentenced to death. The conviction 

was affirmed October 7, 1975, by a divided North Carolina Supreme 

Court. Carey is now on death row at North Carolina Central Prison, 

Raleigh, North Carolina.

Petitioner was scheduled to be executed Friday, October 24, 

1975, but his state court counsel, Mr. John H. Hasty, has informed 

the court that Chief Justice Sharp, of the North Carolina Supreme 

Court, ordered Carey's execution stayed for ninety days, to allow 

him to seek certiorari in the United States Supreme Court.

Carey asks this court to appoint counsel to represent him in 

his petition for certiorari. Mr. Hasty informs the court that the 

state court has refused to provide counsel at this stage. Time is



of the essence, because under Supreme Court Rule 22, § 1, the petition, 

or a request for an extension of time, must be filed in the Supreme 

Court by January -5, 1976, ninety days after judgment was finally 

entered against Carey.

Mr. Carey's petition really fits no form, but it is a sworn 

petition, and it alleges indigency; it may properly be treated as 

a petition for writ of habeas corpus. So construed, the petition 

is read to allege that Carey is confined in violation of the Sixth 

Amendment, because the state has failed to provide counsel for his 

certiorari petition.

Ross v. Moffitt, 417 U.S. 600 (1974), must be reckoned with. 

Moffitt had been convicted of forgery, in Mecklenburg and Guilford 

Counties, North Carolina. In this court, he sought appointment of 

counsel to represent him in a certiorari petition to the North 

Carolina Supreme Court, and in the Middle District of North Carolina, 

he sought appoint of counsel to seek certiorari to the United States 

Supreme Court. Both district courts denied relief, based on existing 

cases.

The Fourth Circuit Court of Appeals reversed both decisions 

in Moffitt v. Ross, 483 F.2d 650 (4th Cir. 1973). That court 

remanded for determination of the prima facie merit of Moffitt's 

constitutional claims of error in his trial, with instructions to 

grant Moffitt a writ of habeas corpus if (1) the claims were not



frivolous, and (2) the state continued to refuse to provide counsel.

Judge Haynsworth, writing for a unanimous panel, concluded 

that Douglas v, California, 372 U.S. 353 (1963), required the state 

to appoint counsel for Moffitt.

The United States Supreme Court reversed, in a six to three 

decision written by Mr. Justice Rehnquist. He gave two reasons 

for the decision. First, he concluded that Douglas did not require 

the state to appoint counsel for Moffitt's certiorari petitions.

He distinguished Douglas, because it involved review as a matter 

of right, and then said:

"This is not to say, of course, that a skilled 
lawyer, particularly ore trained in the somewhat 
arcane art of preparing petitions for discretionary 
review, would not prove helpful to any litigant able 
to employ him. An indigent defendant seeking review 
in the supreme Court of North Carolina is therefore 
somewhat handicapped in comparison with a wealthy 
defendant who has counsel assisting him in every 
conceivable manner at every stage in the proceedings 
But both the opportunity to have counsel prepare an 
initial brief in the Court of Appeals and the nature 
of discretionary review in the Supreme Court of North 
Carolina make this relative handicap far less than the 
handicap borne by the indigent defendant denied counsel 
on his initial appeal as of right in Douglas. And the 
fact that a particular service might be of benefit 
to an indigent defendant does not mean that the service 
is constitutionally required. The duty of the State 
under our cases is not to duplicate the legal arsenal 
that may be privately retained by a criminal defendant 
in a continuing effort to reverse his cmviction, but 
only to assure the indigent defendant an adequate oppor­
tunity to present his claims fairly in the context of the 
State's appellate process. We think respondent was given 
that opportunity under the existing North Carolina system."
(Emphasis added.) P. 616.



Of course this part of the discussion dealt with certiorari to 

the North Carolina Supreme Court, but the opinion goes on to 

hold this reasoning equally applicable to certiorari to the 

United States Supreme Court.

The above-quoted language indicates that the Supreme Court 

essentially reviewed all of the facts surrounding Moffitt's 

conviction and appeal, and concluded that the handicap suffered 

was not sufficient to raise equal protection problems.

Moffitt, however, faced only imprisonment; Albert Lewis 

Carey, Jr., on the other hand, may conceivably lose his very 

life, if his petition for certiorari is not granted; and the fate 

the petitioner, as Justice Rehnguist recognized, must inevitably 

be tied, at least in part, to the quality and persuasiveness of 

the petition.

Where a man's life is at stake, I am not prepared to 

concede that the law in Moffitt, the case of a small time forger, 

should apply.

The second reason given for reversal in Moffitt was that 

if any duty existed, it was the duty of the federal government 

to provide counsel to represent Moffitt in his Supreme Court 

petition, because he was seeking relief in a federal court, not 

relief provided by the state. The court said it could not place 

a burden on stateswhich it refused to place upon itself, and



cited three instances in which it had refused to appoint counsel 

for certiorari petitioners. But the cases cited are all one 

sentence orders and give no hint that they might have been 

capital cases. So again, I am not prepared to say that the 

United States Supreme Court would deny counsel to Carey, who 

is sentenced to die.

Moreover, the burden of supplying counsel is properly the 

burden of the state, because the state is the power which seeks 

to deprive Carey of his life, and it seeks to do so without fulfilling 

its cbligation under the Douglas view of the Sixth Amendment.

Morgan v. Yancey County Department of Corrections, No.

74-1453, decided by the Fourth Circuit on October 2, 1975, does not 

compel a different result, because it, like Moffitt, did not involve 

a capital crime.

IT IS THEREFORE ORDERED:

1. That the petition be filed in forma pauperis.

2. That the Clerk mail to Carey a form petition for writ 

of habeas corpus.

3. That Carey fill out the form, sign it, and swear before 

a notary public to the accuracy of the allegations in it, and 

return it to the court not later than December 1, 1975, so the

court may have all of the facts before ruling.



4. That respondents, by December 10, 1975, answer the

allegations of Carey's petition, and show cause why a writ of habeas 

corpus should not issue if the state is unwilling to provide counsel. 

This the 11th day of November, 1975.

[s] James B. McMillan 
United States District Judge