Petitioner's Response to this Court's Order of December 2, 1983

    IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

MONTGOMERY DIVISION

--x
MAGGIE S. BOZEMAN' i

Petitioner, i

against - : Civil Action No' 83-H-579-H

EALON M. LAMBERT, JACK C. :
LUFKIN AND JOHN T. PORTER IN
THEIR OFFICIAL CAPACITIES AS :
MEMBERS OF THE ALABAIITA BOARD
OF PARDONS AND PAROI,E, AND :

TED BUTLER, A PROBATION AND
PAROLE OFFICER, EMPLOYED BY :
THE ALABAI'IA BOARD OF PARDONS
AND PAROLES, :

Respondents. :

'--x

PETITIONER'S RESPONSE TO THIS
COURT'S ORDER OF
DECEII'IBER 2, 1983

petitioner hereby responds to this Court's Order of December

Z, by setting out her position on the issues in this case.

Petitioner intends to file forthwith a Motion for Summary

Judgment on those claims on which she believes she is entitled to

prevail as a matter of law, and on which no material facts are in

issue. petitioner respectfully requests that consideration of the

remaining claims in her petition be held in abeyance until the

Court rules on her Motion for Summary Judgment. In the event



petitioner does not prevail on any of her summary judgment

claims, she respectfully requests that this Court hold an

evidentiary hearing pursuant to Rule 8 of the Ru1es Governing

Section ZZ54 Cases in the United States District Courts and 28

u.s.c. s2254(d).

1.

In petitioner's view, the following are the issues in the

case:

As alleged in paragraph 15 of her Petition, Petitioner's
conviction violated the Due Process Clause of the Four-
teenth Amendment, Jackson v. Virginia, 443 U.S. 307
(Lg7g), in that no@esented on which a
properly instructed jury could have found Petitioner
iuiity Leyond a reasonaLle doubt of the offense charged
in the indictment.

(I) The elements of the offense charged, Alabama code
St7-23-1, are that she employed fraud to vote more
than one ballot as her vote. Wilson v. State, 52
AIa. 2gg, 303 (1875); wilder v. Stat9, 40I So.2d-
I51, 160 (AIa. Crim. AFF:I-@- d""itd 40I So'2d
L67 (A1a. 1981), cert. denied, 454 U.S- I057
(r982).

(2) The prosecution contended that a Prima faqig.
showing of a violation of S17-23-I was made by
evidenEe that absentee ballots had been improperly
notarized (Tr. L96, Respondent's Exhibit "I",
f iled with Response to lrtotion to Furnish Transcript)
( hereinafter references to the trial transcript
wilt be: Tr. ).

( 3 ) The only evidence linking petitioner to the
absentee ballots in question was that she may have
been present at the notarization of some of the
ballots, when the voters who had signed the
ballots may not have been present.l/ The
prosecution claimed that such evidence was proof

L/ Additional evidence was introduced linking petitioner to two
of the voters who testified as prosecution witnesses. Petitioner
contends that even considering this evidence in the Iight most
favorable to the prosecution, it does not link petitioner in any
way to the 39 ballots cast in the Democratic Primary Run-off at
isiue in this case. Moreover, petitioner contends that this
evidence was presented to the jury in violation of petitioner's
constitutional rights. See, Issue G, infra.

A.

-2



B.

that petitioner had committed fraud in violation
of 517-23-L.

(4) The prosecution's theory of liability was
insufficient to establish all the necessary
elements of the crime charged, in that evidence
was not presented that petitioner or anyone
associatea with petitioner had cast any of the 39
ballots and that any of the ballots were cast
fraudulentlY.

(5) Even if the prosecution's theory of liability
under SfZ-23-1 is correct, a reasonable trier of
fact would perforce harbor a reasonable doubt as
to whether 111 of the evidence presented against
petitioner proved that petitioner employed fraud
to vote more than one ballot as her vote.

Petitioner's indictment was fatally defective in that
it failed to inform her of the nature and cause of the
accusation against her in violation of the Sixth
Amendment and the Due Process Clause of the Fourteenth
Amendment.

(I) petitioner claims in paragraph 19 of her Petition
that the indictment failed to provide notice of
the offense actually submitted to the jury.

(a) The trial judge instructed the jury on four
statutes which were not charged against
petitioner in the indictments.

(b) Each of those statutes was made a separate
ground for liability although the elements of
Lhese four statutes were not alleged in the
indictment.

(c) The indictment was thereby constructively
amended in violation of the notice clause of
the Sixth Amendment. United States v.
Btzzard, 615 F.2d I080 (5th Cir. 1980);
GltEE-states v. carroll, 582 F- 2d 942, 944

(2) petitioner claims in paragraphs 20 and 2L of her
petition that the indictment failed to provide
Lonstitutionally adequate factual allegations of
the particulars of the fraudulent actions or
transactions alleged in the indictment and failed
even to charge in each count each of the necessary
statutory elements of the crime in violation of
petitioner's constitutional rights. Since the
petitioner was convicted on an extra-general verdict,
ngrrilty as charged, " the deficient counts prejudiced

3-



c.

p(ititioner and rendered the indictment as a whole
constitutionallY insuff icient.

As alleged in paragraph 24 of her petition, petitioner's
conviction was obtained in violation of the Due Process
CIause of the Fourteenth Amendment as construed in
Bouie v. City of Columbia, 378 U.S. 347 (1963) in that

to the jurY imPermissiblY
br:oadened SI7-23-1, the only statute charged in the
indictment and SI3-5-115, so as to create ex post facto
liability.
As alleged in paragraph 25 of her petition,.petitioner's
conviction stands in violation of her constitutional
rights in that both SI7-23-f and S13-5-I15 were
presented to the jury as strict Iiability offenses.

As alleged in paragraph 22 of the petition, petitioner's
constitutional rights were violated because she was
convicted for her participation in conduct protected by
the Voting Rights ect and the First, Fourteenth and
Fifteenth-emendments. As applied to petitioner, S17-
23-L is unconstitutionally overbroad.

As alleged in paragraph 23 of the petition, s17-23-1 is
unconstitutionally-vague and overbroad on its face, and
fails to provide fair notice of the nature of the
forbidden conduct.

As alleged in paragraph 26 of the petition, petitioner's
rights under the Confrontation Clause of the Sixth
emendment and the Due Process C1ause of the Fourteenth
Amendment were violated because the prosecution was
improperly permitted to impeach its own witnesses to
petitionei's prejudice since the jury was encouraged to
rely on such impeachment evidence as substantive
evidence of the crimes charged.

As alleged in paragraph 27 of the petition, petitioner's
conviction was obtained in violation of the First,
Fourteenth and Fifteenth Amendments and the supremacy
CIause.

D.

Er

F

G.

H.

Petitioner intends to file

under Rule 56, Federal Rules of

paragraph 16, L9-2L, 24 and 25

II.
a l,lotion for Summary Judgment

Civil Procedure on the claims in

of the Petition, described, supra,

4-



section I A, B, C, and D. Rule 11 of the Rules Governing Section

2254 Cases in the United States District Courts provides that

,'[t]he Federal Rules of Civil Procedure, to the extent that they

are not inconsistent with these rules, ffiaY be applied, when

appropriate, to petitions filed under these rules." The Supreme

Court of the United States has specifically held that F.R. Civ.

P. 56, the rule providing for summary judgment, is applicable to

a federal habeas corpus proceeding. Blackledge v. AIlison, 431

u.s. 63,80-81 (1977). See also Wright, Procedure-for Habeas

Corpus, 77 F.R.D. 227, 228 (1978).

In order to prevail as a matter of law on the claims set out

in I A, B, C and D, petitioner relies solely on the record facts,

including the evidence submitted to the jury, the indictment and
2/

the instructions to the jury.=' Those facts are reflected in the

certified transcript of the trial proceedings appended as Exhibit
uI' to Respondents' Response to t'lotion to Furnish Transcript.

Since these claims may be decided solely as questions of law,

they are appropriate for adjudication by summary judgment.

2/ Certain of the facts underlying petitioner's claim in paragTaPh-
TG of her petition, that the evidence against her was constitutionally
insufficient, noted herein as claim "A", also underline the claim
in paragraph 26 of her Petition that certain evidence used against
her was-aairitted in violation of her constitutional rights, noted
herein as claim *G". Petitioner nevertheless moves for summary
judgment on claim "A". Petitioner, therefore, fulIy accepts- that
[.he-Court, in ruting on her motion for summary judgment, will
consider against hei all the evidence Presented at her trial
including lne evidence, noted in claim "G", which was submitted
in viola[,ion of her constitutionat rights. Even considering that
evidence which is the subject of claim "G", petitioner believes
the prosecution produced no evidence of her guilt. However, if
petitioner does not prevafT on Lrer motion for summary judgment,
letitioner requests tnat the court hold an evidentiary hearing
on, inter aIii, claim "G'l , the disPosition of which, though. not
necessa-i{ E[?-determination of ctaim "A", may af f ect the universe
of evidence on which a reasonable trier of fact could have based
its verdict.

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Rule 8(a) of the Ru1es Governing Section 2254 Cases provides

for the presiding judge to determine whether an "evidentiary

hearing is requiredr" and further states: "If it appears that an

evidentiary hearing is not required, the judge shall make such

disposition of the petition as justice shall require." one of the

purposes of RuIe 8(a) is to expedite matters to avoid an

evidentiary hearing where one would be unnecessary to resolve the

constitutionality of petitioner's confinement. See Blackledge v-

Allison, 431 U.S. at 8I-82. By filing a Motion for Summary

Judgment on those claims which can be adjudicated without resort

to an evidentiary hearing, petitioner believes she is furthering

the policies underlying Rule 8(a). Petitioner is not asserting,

however, that there are no factual issues in her Petition on

which she is entitled to present evidence. She is just stating

that on the basis of the pleadings and the present state of the

record, oo some of her claims she is entitled to prevail as a

matter of law. Indeed, should the Court deny petitioner's Motion

for summary Judgment, petitioner requests an evidentiary hearing

be held. In the interests of justice, however, petitioner

believes this Court should first consider those issues that can

be decided without resort to an evidentiary hearing. A Motion

for Summary Judgment on claims A, B, C and D is therefore

appropriate.
Respectful Iy submitted,

VANZETTA PENN DURANT
639 Martha Street
l'lontgomery, Alabama 36108
262-7 337

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JP-CK GREENBERG
LANI GUINIER
JAI.{ES S. LIEBMAN

99 Hudson Street' 15th Floor
New York, New York 10013
(2L2) 219-r900

Dated: December 19, 1983
.

Of counsel:

ANTHONY G. AI.ISTERDAI.{
New York UniversitY School of Law
40 Washington Square South, Room 327
New Yorkr New York L00I2
(2L2) 598-2638

SIEGFRIED KNOPF
Suite 5060
555 Callfornia Street
San Francisco, California 94104
(4rs) 398-3909