Ross v. Hopper Brief Petitioner Appellant (Hebeas Corpus)

    IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT 

NO. 82-84-13

WILLIE X. ROSS,

Petitioner-Appellant, 

- against -

JOE S. HOPPER, Warden,
Georgia State Prison,

Respondent-Appellee.

On Appeal From The United States District Court 
For the Southern District of Georgia 

Savannah Division

BRIEF FOR PETITIONER-APPELLANT 
(HABEAS CORPUS)

JACK GREENBERG 
JAMES M..NABRIT, III 
JOEL BERGER 
JOHN CHARLES BOGER 
DEBORAH FINS 
JAMES S. LIEBMAN

10 Columbus Circle
New York, New York 10019

C.B. KING 
HERBERT E. PHIPPS

502 South Monroe Streep 
Albany, Georgia 31706

ANTHONY G. AMSTERDAM
New York University Lpw School 
40 Washington Square South 
New York, New York 10012

ATTORNEYS FOR PETITIONER-APPELLANT



STATEMENT REGARDING PREFERENCE

This is an appeal from the denial of habeas 
corpus relief sought under 28 U.S.C. §§2221-2254 from a 
judgment of a state court. This appeal should be given 
preference in processing and disposition pursuant to 
Rule 12 and Appendix One (a)(3) of the Interim Rules of 
this Court.

l



REQUEST FOR ORAL ARGUMENT

Petitioner-appellant Willie X. Ross ("petitioner") 
requests oral argument of this appeal pursuant to Rule 22(F)(A) 
of the Interim Rules of this Court. Petitioner is under a 
sentence of death. This appeal raises significant federal 

constitutional issues involvingthe application of the Supreme
Court's recent decision in Enmund v. Florida, __U.S. __, 73
L.Ed.2d 114-0 (1982), the reach of the Supreme Court's decisions 
in Giglio v. United States, 405 U.S. 150 (1972) and United States 
v . Agurs, 427 U.S. 97 (1976). The appeal also involves several 
important questions concerning the right of a habeas petitioner 
to a federal evidentiary hearing under Townsend v. Sain, 372 U.S. 
293 (1963) when state factfinding procedures have been inadequate.

1 1



TABLE OF CONTENTS

Page

STATEMENT REGARDING PREFERENCE ......................... i
REQUEST FOR ORAL ARGUMENT ..............................  ii
TABLE OF AUTHORITIES ...................................  v

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .........  1
STATEMENT OF THE CASE

(i) Course of Proceedings in the State
Courts and in the Court Below ................  4-

(ii) Statement of Facts ............................ 5

A. The Crime .................................  5
B. Petitioner's Role in the Crime -- The

Family's Story ............................ g
C. Petitioner's Role in the Crime -- Two

Co-Defendants' Stories ...................  10
D. The State's Legal Theory At Trial ........  12
E. Co-Defendant Theodore Ross' Recantation... 13
F. The District Court's Denial of a Fair 

Hearing on:
(i) Petitioner's Grand and Traverse

Jury Claims ........................... 16
(ii) Petitioner's Claims of Arbitrariness, 

of Racial Discrimination and of
Inadequate Appellate Review ........  18

(iii) Petitioner's Change of Venue Claim.. 25
SUMMARY OF ARGUMENT ....................................  27
STATEMENT OF JURISDICTION ..............................  30
ARGUMENT

I The District Court Erred By Failing To Consider 
As A Constitutional Issue Petitioner's Claim That 
His Death Sentence Is Excessive And Disproportionate 
Under The Eighth And Fourteenth Amendments ....  31

II The District Court Erred By Failing To Give Full 
And Independent Consideration To Petitioner's 
Claim That A Key State's Witness Testified Against 
Him Falsely During His Trial, In Violation Of His 
Rights Under The Due Process Clause Of The Fourteenth 
Amendment ........................................ 36

iii



Page

III The District Court Violated Townsend v .
Sain, 372 U.S. 293 (1963) By Refusing 
To Hold An Evidentiary Hearing On Three 
Well-Pleaded Constitutional Claims,
Despite Petitioner's Demonstration That 
Due To Petitioner's Indigence And The 
Inadequacy Of State Factfinding Procedures 
Material Facts Had Not Been Developed In
The State Courts ...............................  42

A. Petitioner's Grand And Traverse Jury
Jury Challenge .............................  4.4.

B. Petitioner's Claims Of Arbitrariness,
Racial Discrimination, And Inadequate
Appellate Review ........................... 46

C. Petitioner's Change Of Venue Claim .......  48
CONCLUSION .............................................  4 9

CERTIFICATE OF SERVICE ................................  50

IV



TABLE OF AUTHORITIES

Page

Alcorta v. Texas, 355 U.S. 28 (1957) ........ ........... 4-1

Boone v. Paderick, 541 F .2d 447 (4th Cir. 1976) ....... 41
Borden's Farm Products Co. v. Baldwin, 293 U.S. 194

( 1934) ......................... .......................  44
Brady v. Maryland, 337 U.S. 83 (1963) .................. 41
Bronstein v. Wainwright, 646 F .2d 1048 (5th Cir. 1981). 49

Coker v. Georgia, 433 U.S. 584 (1977) .................. 27, 31

Dickerson v. State of Alabama, 667 F .2d 1364 (11th Cir.
1982 ) . ............... .................. . ...............  38

Eberheart v. Georgia, 433 U.S. 917 (1977) .............  31
* Enmund v. Florida, __U.S.__, 73 L.Ed.2d 1140 (1982).... ii,27,28

32,33

Freeman v. State of Georgia, 599 F .2d 65 (5th Cir.
1979).................... ..............................  39

Furman v. Georgia, 408 U.S. 238 (1972).................  22,23

Gibson v. Jackson, 578 F.2d 1045 (5th Cir. 1978)......  47
* Giglio v. United States, 405 U.S. 150 (1972)...........  ii,28,37,

39,41
Gregg v. Georgia, 428 U.S. 153 (1976)................... 22,23,31
Guice v. Fortenberry, 661 F .2d 496 (5th Cir. 1981)

( en banc ) .............................................  44

Harris v. Oliver, 645 F.2d 327 (5th Cir. 1981)......... 47
Hooks v. Georgia, 433 U.S. 917 (1977)................... 31

Irwin v. Dowd, 366 U.S. 717 (1961)..... ............ 30,49

Jackson v. Wainwright, 390 F .2d 288 (5th Cir. 1968).... 37

Kircheis v. Long, 425 F. Supp. 505 (S.D. Ala.1976),
aff'd, 564 F . 2d 414 (5th Cir. 1977).................  41

Lockett v. Ohio, 438 U.S. 586 (1978)....................  32

Marble v. Edwards, 457 F .2d 759 (5th Cir. 1972)..........  44
Mooney v. Holohan, 294 U.S. 103 ( 1935)................   28,37

*Napue v. Illinois, 360 U.S. 264 (1959)..................  37,41

v



Polk Co. v. Glover, 305 U.S. 5 (1938) .................. 44
Price v. Johnston, 334 U.S. 256 (1948) ................. 44
Proffitt v. Wainwright, 685 F .2d 1227 (11th Cir. 1982). 30,48

Rogers v. Richmond, 365 U.S. 534 (1961)................. 47
Ross v. Georgia, 428 U.S. 910 (1976)...................  4
Ross v. Hopper, 435 U.S. 1018 (1978)...................  4,5,23
Ross v. Hopper, 240 Ga. 369, 240 S.E.2d 850 (1977)........ 4,14,17

22,25,39
Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974)...... 4
Ross v. State, 238 Ga. 445, 233 S.E.2d 381 (1977)...... 5

Sanders v. United States, 373 U.S. 1 (1963)............  44
*Smith v. Balkcom, 671 F .2d 858 (5th Cir. 1982)(on

rehearing) ............................................  2,24,
30,47

Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.
1978)....................................................... 23,30,47

Spivey v. Zant, 661 F . 2d 464 (5th Cir. 1981)...........  38
Sumner v. Mata, 449 U.S. 539 (1981).....................  18,43

*Townsend v. Sain, 372 U.S. 293 (1963)................... ii,iv,28,
30,38,41,42, 
44,45,46-47

United States v. Agurs , 427 U.S. 97 (1976).............  ii,37,41
United States ex rel. Almeida v. Baldi, 195 F . 2d 815

(3rd Cir . 1952 )........................................  37
United States v. Smith, 480 F .2d 664 (5th Cir. 1973)... 41

In re Wainwright, 678 F .2d 951 (11th Cir. 1982)........ 29,43
Wainwright v. Sykes, 433 U.S. 72 (1977)................  18
Walker v. Solem, 648 F .2d 1188 (8 th Cir. 1981)......... 38

Other Authorities

Ga. Code Ann. §27-2301 ..................................  35

Ga. Const. §2-108 .......................................  35

28 U.S.C. §2253 ..........................................  30

28 U.S.C. §2254 (d ) .......................................  29,42

Page

- vi -



IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

No. 82-84-13

WILLIE X. ROSS,

Petitioner-Appellant, 
-against-

JOE S. HOPPER, Warden,
Georgia State Prison,

Respondent-Appellee.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Whether petitioner Ross' claim that his sentence 

of death is excessive and disproportionate may be resolved as 
a federal constitutional matter merely by determining that the 

Supreme Court of Georgia has previously addressed the issue in 
compliance with Georgia statutory procedures?

2. Whether a sentence of death imposed under a felony 
murder theory, employing principles of accessorial liability, 
violates the Eighth Amendment, absent any specific jury finding 
that petitioner himself took life, attempted to take life, or 
intended to take life?

3. Whether petitioner should have been afforded a 

federal evidentiary hearing on his claim that the State knowingly 
used perjured testimony against him, when the State courts failed 
to make any finding whether the crucial testimony was or was not 
perjured, and when petitioner had no full opportunity to demonstrate

that State officials other than the District Attorney may have



known of the perjury?

4. Whether petitioner should have been entitled 
to present sworn testimony from the District Attorney who

tried him -- unavailable at the time of his state habeas proceed­
ing —  in which the District Attorney acknowledged that an 

arrangement had been entered into, prior to petitioner's trial, 
with the attorney for a co-defendant who became a crucial 

State's witness and who denied knowledge of any arrangement when 
questioned on cross-examination during petitioner's trial?

5. Whether petitioner's right to due process is 

violated if a co-defendant and a crucial witness for the State 
denies on cross-examination that any State official has recommended 
a lighter sentence for him, when the District Attorney knows
that he had previously informed the witness' lawyer that, be­

cause witness' had been "cooperative," the State "would consider 
waiving the death penalty" after petitioner's trial?

6 . Whether petitioner, an indigent, was entitled to 
a federal hearing on his claims that death sentences in Georgia 
are being imposed in an arbitrary and discriminatory pattern un­

corrected by appellate review, based upon substantial relevant 
social scientific evidence that became available from independent 
sources only several years after the completion of petitioner's 
state habeas corpus proceedings?

7. Whether petitioner was entitled to prove his claims 
of arbitrariness and racial discrimination in partial reliance 

upon statitstical evidence which addresses the evidentiary criteria 
set forth by this Court in Smith v. Balkcom, 671 F .2d 858, 860 
n.33 (5th Cir. l982)(on rehearing)?

2



8 . Whether petitioner should have been permitted
an evidentiary hearing on his claim that the venue of his 
trial should have been changed?

9. Whether the record before this Court establishes 
that petitioner's Sixth Amendment right to an impartial jury 

was denied by the trial court's refusal to grant his motion 

for a change of venue?

3



STATEMENT OF THE CASE

(i) Course of Proceedings in the State Courts 
and in the Court Below

Petitioner Willie X. Ross was tried in the Superior 
Court of Colquitt County, Georgia, on March 12-13, 1974, for 
the murder of T. J. Meredith, the armed robbery of Robert Lee, 

and the kidnapping of Wandell Norman. He was convicted and 
sentenced on March 13, 1974 to death for murder, to life imprison­

ment for armed robbery, and to twenty years imprisonment for 

kidnapping.
The Supreme Court of Georgia affirmed his conviction 

and sentence on November 18, 1974, in Ross v. State, 233 Ga. 361, 
211 S .E .2d 356 (1974)(Gunther, J., dissenting). The Supreme 

Court of the United States denied a petition for certiorari on 
July 6 , 1976. Ross v. Georgia, 428 U.S. 910 (1976)(Brennan &
Marshall, JJ., dissenting). A petition for rehearing was denied 
by the Court on October 4, 1976. 429 U.S. 873 (1976).

Petitioner filed a petition for a writ of habeas corpus 

in the Superior Court of Tattnall County on November 8 , 1976.
After an evidentiary hearing on December 9, 1976, the Superior 
Court entered an order on March 22, 1977, denying relief. The 
Supreme Court of Georgia affirmed on November 29, 1977 in Ross v. 

Hopper, 240 Ga. 369, 240 S .E .2d 850 (1977).
Petitioner then filed a motion for declaratory judgment 

in Superior Court of Colquitt County on October 14, 1978. The

Superior Court denied relief. The Supreme Court of Georgia



affirmed on March 2, 1977 in Ross v. State, 238 Ga. 245, 233
S.E.2d 381 (1977). The Supreme Court of the United States denied 

a petition for certiorari on May 1, 1978. Ross v. Hopper, 235 
U.S. 1018 (1978). A petition for rehearing was denied by the 

Court on June 12, 1978. 236 U.S. 962.
Petitioner filed the present petition for a writ of 

habeas corpus (R. 7-25) in the United States District Court for 
the Southern District of Georgia on July 7, 1978. The District 

Court held hearings with counsel on January 26-27 and May 1, 1981 
to determine whether further evidentiary hearings would be per­

mitted. The Court denied petitioner's request to submit addi­
tional evidence, and on April 1, 1982, entered a memorandum 
and opinion dismissing the petition (R. 298-350). A motion to 
alter or amend the judgment was denied in an amended memorandum 
and order entered May 10,1982 (R. 362-67). This appeal follows.

(ii) Statement of Facts
A . The Crime

Petitioner Willie Ross was convicted and sentenced to 
death for his role as one of four participants in an armed robbery 
and kidnapping scheme which unfolded in rural Colquitt County,

*/near Moultrie, Georgia on August 23 and 22, 1972 (Tr. T. C-13). 

According to the State's evidence, petitioner Ross, his brother 
Theodore Ross, Rudy Turner and Freddie King —  all residents of 
the State of Florida -- crossed into Georgia during the afternoon

V  Each reference to the transcript of the trial of petitioner 
Ross, held in the Superior Court of Colquitt County on March 12- 
13, 1972, will be indicated by the abbreviation, "Tr. T.," followed 
by the number and letter, when appropriate, of the page on which 
the reference may be found.

5



of August 23 in order to survey the Clover Farms Highway Grocery 
for possible robbery (Tr. T. 359). After observing Wandell Norman, 
one of the proprietors, close the store and after following him 
home, the group returned that evening to Madison, Florida (Tr. T. 
359-60). The next evening, August 24-, the four returned to the 
Moultrie home they had located (Tr. T. 361), which in fact belonged 
to J . R. Stanford, the father-in-law of proprietor Norman (Tr. T. 
295-96). Stanford testified that about ten o'clock, while Norman 
and his wife were away at a movie, Stanford's fourteen-year-old 
stepdaughter Brenda Cronic heard a noise at the door and went to 

investigate (Tr. T. 296). A black man, who proved to be Freddie 
King (Tr. T. 35; 298), "grabbed her, put a gun to her head, and 
more or less forced his way into the house with her as a hostage" 
(Tr. T. 297). Mr. Stanford started to resist Rudy Turner, who 
came into the living room holding a gun, when the other intruders 
approached him, (Tr. T. 298-99), shouting that no one would be 
hurt if the family would remain calm (Tr. T. 301). Although the 
family members were upset, they did as they were told (Tr. T. 302).

Rudy Turner inquired whether there was a gun in the house 
and seized Mr. Stanford's .32 caliber pistol to which Mr. Stanford 
directed him (Tr. T. 302-03). Upon discovering that no one present 
had the day's receipts from the store, Turner threatened to "clip" 
Mr. Stanford's ears with a knife, but he was deterred when peti­
tioner Willie Ross intervened (Tr. T. 304). Thereafter, the men 
settled in to wait for the return of Wandell Norman (Tr. T. 362). 
Brenda Cronic testified that between 10:15 P.M. and 2:30 A.M.,

Rudy Turner, Freddie King and Theodore Ross remained inside with 
the family, while petitioner Willie Ross spent most of the time

6



When Wandell Norman and his wife returned to the Stanford 

home at approximately 2:30 A.M., Rudy Turner approached them with a 
gun and led the couple into the living room where the rest of the 

Stanford family was gathered (Tr. T. 55). He asked Norman for the 
store receipts; when Norman replied that his partner Robert Lee had 
the receipts at his home, Freddie King said that he and Theodore 
Ross would drive Wandell Norman and Brenda Cronic to Lee's home 
while Rudy Turner and Willie Ross would remain with the rest of 
the Stanford family (Tr. T. 364-).

At the Lee home, both King (Tr. T. 77) and Theodore Ross 
(Tr. T. 390) engaged in an exchange of gunfire with Lee, but managed 

to escape on foot with about $18,000 after Theodore Ross temporarily 
took a child hostage (Tr. T. 92-93; 365). As soon as Theodore Ross
and Freddie King had fled from the Lee household, Lee and Norman 
telephoned the police, reporting that several men were holding the 
Stanford family hostage (Tr. T. 65-66; 103). Lieutenant Tommy
Meredith of the Moultrie Police Department, who received the tele­

phone call, immediately proceeded to the Stanford home in his patrol 
car (Tr. T. 103; 153-54). Another officer, Frank Lynch, followed 

closely in a second police vehicle (Tr. T. 155).
Inside the Stanford home, Rudy Turner had remained in the 

living room with the family, "constantly taking his gun inside of 
his pants, taking it out and flashing it around" according to 
Wandell Norman's wife, Debbie Norman (Tr. T. 109). Ms. Norman 
could not account for petitioner Ross' whereabouts during this 
period (id.). Mr. Stanford thought that petitioner Ross may have 
been in the kitchen "a couple of minutes" before Meredith

outside the house (Tr. T. 17; 42-43; 144.) .

7



As Lieutenant Meredith approached the home and knocked, 

Terry Cronic, another stepdaughter, answered the door (Tr. T. 109), 
and announced to those within "Its the police" (Tr. T. 110). Rudy 
Turner quickly stooped behind the dining room table (_id. ) , calling 
to Lt. Meredith, "I have them in here," (Tr. T. 111). Lt. Meredith 
responded, "I've got a shotgun," and Turner rejoined "I've got a 

magnum" (id.) or, as Mr. Stanford recalled, "'I have magnums in 
this thing,' I believe is the exact words he used" (Tr. T. 309). 
Turner, who had been "squatted down and pointing the gun at Tommy 
Meredith" (Tr. T. 108) then "started flashing his gun toward the 
living-room trying to get [the family] to go into the dining-room" 
(id.). Instead, they fled into a bedroom, where they shut the door 
and barricaded themselves in (Tr. T. 112). Mr. Stanford heard Lt. 
Meredith exchange further words with Rudy Turner, "and from his 
footsteps I could tell he was continuously advancing toward 
Turner" (Tr. T. 310).

The family in the bedroom then heard five shots, the 
first three rapidly one after another, followed by two others after 
a pause (Tr. T. 113; 311). Dennis Cronic, a stepson of Mr. Stanford, 
remembered first two shotgun blasts, and one or two additional shots 
(Tr. T. 131). Officer Lynch testified that, as he approached the 
Stanford home in his police vehicle, he "heard 3 shots . . . jumped
out of the car"(Tr. T. 155) and "fired . . . [t]wo times" at two
silhouetted figures who were fleeing on the other side of the 

home (Tr. T . 155).
Lieutenant Meredith was killed by a single shot (Tr. T.

9, 21-22), apparently fired from Stanford's .32 pistol (Tr. T.

arrived (Tr. T. 309).

8



270), at extremely close range (Tr, T. 9-10; 271-72). Stanford's 
.32 pistol was recovered by police behind the Stanford house near 
a fence post (Tr. T. 246-47).

The four participants were eventually captured during 
succeeding months and each was charged with murder, kidnapping and 
armed robbery. Petitioner alone received a sentence of death.
B . Petitioner's Role in the Crime-The Family's Story

None of those present were able to say who fired the 
shot that fatally wounded Lieutenant Meredith. Brenda Cronic and 
Wandell Norman, as indicated, were at the home of Robert Lee at 
the time of the shooting (Tr. T. 27). Debbie Norman, Wandell's 
wife, acknowledged that the entire Stanford family had barricaded 
itself in the bedroom shortly before the shots, and "from then on 
all [they] know is what [they] heard through the wall" (Tr. T. 119). 
Turner had remained with the family until they fled to the bedroom. 
Debbie Norman could only "really account for one, and that is the 
one that stayed in the living-room most of the time [Turner]"
(Tr. T. 109). Mr. Stanford testified that he had not observed 
petitioner Ross for at least "a couple of minutes" before Lt. 
Meredith drove up (Tr. T. 309) and stated he didn't "know where 
the fellow, Willie Ross, was" when Lt. Meredith arrived (Tr. T.
332). As the family fled toward the bedroom, after Lt. Meredith 
entered, however, Dennis Cronic claimed to have "seen Willie Ross 
who was over there [in the living room] by the refrigerator, walk­
ing back and forth" (Tr. T. 128); Cronic recalled that petitioner 
Ross "had one [gun] stuck in his pants, and I'm pretty sure he 

had one in his hands, I know he did" (Tr. T. 130), although Cronic 
gave no indication what caliber weapon Ross held.

9



Mr. Stanford testified that, it was Rudy Turner who had 
seized Stanford's .32 caliber gun from a rack on a door (Tr. T.
302) although at one point, before Wandell and Debbie Norman 
arrived, he had also seen petitioner Ross wielding that weapon 
(Tr. T. 304-05).

c • Petitioner's Role in the Crime-Two Co-Defendants' Stories

Two co-defendants of petitioner Ross, his brother Theodore
Ross and an accessory, Bobby Gamble —  neither of whom were present
at the scene of the crime -- gave testimony for the State during

petitioner's trial that petitioner had fired the shot which killed
Lt. Meredith. Theodore Ross told how he had rendezvoused with his
brother, petitioner, back in Madison, Florida, several days after
the crime. "I asked Willie where Rudy [Turner] was and he didn't
know, maybe he was shot, and he asked me where was Freddie [King] and
I told him I didn't know . . . ." (Tr. Tr. 374).

Q [District Attorney]: Did Willie tell you
anything about why Rudy might be shot?

A [Theodore Ross]: Yeah, he said the officer
bust in on them and then there was some shooting 
going on.

Q Did he say he did some of that shooting?
A Yeah, he did.
Q What did he say about that?
A He said that he shot the policeman, that all."
(Tr. T. 375).

On cross-examination, Theodore Ross, who had been indicted
for murder, kidnapping, and armed robbery for his role in the

*/
crimes, was asked about any arrangement made with the State prior

*/ Theodore Ross, unknown to petitioner Ross or his counsel, had 
been permitted to plead guilty to all three counts before petitioner's 
trial. At his sentencing, deferred until after petitioner's trial. 
Theodore Ross received two life sentences for murder and kidnapping 
and 20 years' imprisonment for armed robbery after the State

10



to his testimony:
"Q [Defense Counsel]: Have you talked with the

District Attorney concerning this case?
A No.
Q The gentleman that's been asking you these 

questions.
A No, not until just now.
Q Have you ever talked to Mr. Hitchcock, the 

gentleman whose sitting to his right [the 
Assistant District Attorney], about this case?

A No."
(Tr. T. 377-78)

* * *

"Q Has any official of the Court offered you 
any deal that if you testified they would 
recommend a lighter sentence for you or 
something like that?

A No, sir.
Q You have had no conversation with anyone on 

that subject?
A No, sir."
(Tr. T. 396)

Another co-defendant, Bobby Gamble, who came to 

Moultrie to retrieve the stolen money shortly after the crime 
(Tr. T. 4-00-01), and who returned a second time to pick up peti­
tioner Ross (Tr. T. 403-04) testified that Ross met them in Moultrie 

and hollered, "'Man, get me out of here fast.'" According to Gamble, 
petitioner Ross added, "'I believe I have killed a policeman'"
(Tr. T. 405-06), explaining that, after Lieutenant Meredith had
fired twice with a shotgun, Ross himself "fell to a falling motion* */
and fired back at the policeman" (Tr. T. 406).

*J cont' d .
specifically waived the death penalty (St. Hab. Tr. 70-71;187).
(Each reference to the transcript of petitioner's state habeas corpus 
proceeding, held in the Superior Court of Tattnall County on December 
9, 1976, will be indicated by the abbreviation "St. H. Tr." followed
by the number of the page on which the reference may be found.)
**/ Gamble, who was charged with hindering apprehension of the other 
co-defendants, was given a sentence of "two years probation and a

11



D. The State's Legal Theory at Trial

The State, while offering the evidence outlined above 
to suggest that petitioner Ross had been the triggerman, nevertheless 
chose to indict him on an alternative theory of felony murder 
(Tr. T. C-l; C-9). The trial court instructed petitioner's jury 
that

"when two or more persons conspire to 
commit the crime of armed robbery, or 
robbery, and in furtherance of the common 
design to rob, they all are participating 
in and being concerned in the commission of 
the armed robbery, or robbery, one of them 
shoots and kills another person in further­
ance of the effort to accomplish the armed 
robbery, or robbery, such killing may be a 
probable consequence of the unlawful design 
to rob, and all co-conspirators therein, if 
there are any, may be convicted of the offense 
of murder."
(Tr. T. C-8 )

The jury was also charged that

"[a]ny party to a crime who did not directly 
commit the crime, may be indicted, tried, con­
victed and punished for the commission of the 
crime upon proof that the crime was committed, 
and that he was a party thereto."
(Tr. T. C-9)

No special findings concerning petitioner's role in the 
shooting were required, and the jury rendered a simple verdict 
finding petitioner Ross "guilty" of "the offense of murder" (Tr.
T. C-13). District Attorney Lamar Cole acknowledged during state 
habeas proceedings that the verdict did not "necessarily sho[w] 
that" petitioner Ross "fired the fatal shot" but only that "these 
were four co-conspirators [and] all co-conspirators would have been

**/ cont'd.

one thousand dollar fine . . . [o]n a plea." Deposition of
District Attorney H. Lamar Cole, taken December 9, 1979, at 39.

12



guilty of murder" (St. H. Tr. 192).
E . Co-Defendant Theodore Ross' Recantation

During petitioner's state habeas corpus hearing, Theodore
Ross testified that he had initially told police officers he did not
know who shot Lt. Meredith (St. H. Tr. 73, 76). Only after his

lawyer assured him that if he cooperated with the State he would
receive a lighter sentence and access to his wife while in jail

*/
(St. H. Tr. 75), and after the police had told him that his wife 
had said that petitioner Willie Ross had shot Lt. Meredith (id.) 
did he change his story (St. H. Tr. 76). Other promises were 
apparently then offered him by Colquitt County Sheriff D. H.

Alderman and Captain Gaines Reeves at the time he entered his guilty 
plea (St. H. Tr. 83).

Theodore Ross repudiated his trial testimony fully during 
state habeas proceedings; he testified that in fact petitioner Ross 
had never declared that he shot Lt. Meredith (St. H. Tr. 78-81; 92).

District Attorney Cole denied at the state habeas hearing 
that he had bargained with Theodore Ross or his attorney for a 
particular sentence (St. H. Tr. 187-88). The Superior Court made 
no finding of fact as to whether Theodore Ross had discussed a 

plea with the State prior to trial or had been promised a lighter 
sentence. Instead the court registered only the limited finding

*_/ Theodore Ross testified that on three or four subsequent 
occasions he was permitted sexual relations with his wife in 
the Moultrie City Jail (St. H. Tr. 77).

13



that it
"disbelieve[d ] Theodore Ross' testimony 
that he was coerced into testifying against 
his brother Willie X. Ross. This Court 
further finds that there is no credible 
testimony that the State knowingly and in­
tentionally used perjured testimony at the 
trial of Willie X. Ross."
(Order of the Superior Court of Tattnall 
County, entered March 28, 1977, at 9)
(Emphasis added).

On appeal, the Supreme Court of Georgia stressed the 

legal issue of whether any perjury had been solicited knowingly. 
Stating that "[t]he burden was on the appellant at his habeas 
hearing to prove that Theodore Ross' testimony was not only perjured, 
but that it was knowingly and intentionally used by the state to 
obtain a conviction," it upheld the Superior Court's holding, 

noting also that Bobby Gamble had testified against petitioner 
Ross alleging that Ross had admitted the shooting. Ross v.

Hopper, 2X0 Ga. 369, ___, 2X0 S.E.2d 850, 852 (1977).
Petitioner repeatedly sought a federal evidentiary hearing 

on this issue, seeking to call "his brother, Theodore Ross, and . . .
Colguitt County prosecutors and law enforcement personnel" (R. X6-X7; 
see also R. 1X5, 1T2; 152-53; 217 n.l; 258-59). Moreover, in a
discovery deposition of District Attorney Lamar Cole permitted by 
the District Court, (R. 5X-57; 11X), petitioner obtained what he

informed the Court was "significant new evidence" (R. 1X7). The 
deposition,(a portion of which is annexed to this brief as Appendix 
A) includes Cole's admission that he "believe[d]" that he spoke 
with Theodore Ross' attorney prior to petitioner Willie Ross' 

trial and that
"of course, I can't recall the specific 
things that were said but I believe it 
was along these lines, that his client 
had been cooperative with the officers 
and shown remorse, that he had no bad

- IX -



prior record, and what were our intentions 
regarding him and so forth, that he might 
plead.
Q [Defense Counsel]: And did he ask for some
promise from you with respect to a plea 
recommendation or a recommendation of the 
sentence to the Court?
A [District Attorney Cole]: Here again, I
can't recall specifically. It seems reasonable 
that we must have discussed whether or not he would 
receive the death penalty if he did plead or 
whether or not the state would waive the death 
penalty or whether or not we would ask for it, 
and I believe what we told him was that he had 
been cooperative and yes, he was in some regards 
perhaps different from the others, but that when 
he pled, we would consider waiving the death 
penalty."
(Appendix A: Deposition of H. Lamar Cole, taken 
December 7, 1979, at 19.)

The District Court, however, denied a further hearing 
and summarily rejected petitioner Ross' federal claim, holding that 
"[t]he credibility determination made by...[the Superior Court]appears 
reliable, and since Ross has not provided this Court with any indica­

tion of the reverse, 28 U.S.C. §2254(d) requires this Court to 
accept that determination" (R. 343).

Petitioner also contended in state habeas proceedings 

(State Habeas Petition TT11 ) and in the District Court (R. 21) that 
his sentence was constitutionally excessive in light of all relevant 
factors, especially since "[it is not clear from the State's evidence 
whether petitioner fired the pistol which killed the victim" (R. 21), 
and since "[t]he . . . murder was not premeditated" (id.). The
Superior Court rejected the claim as part of its adverse finding 
on Theodore Ross' recantation (Order of the Superior Court, 8-9), 

and the Supreme Court of Georgia failed to address the claim 

expressly.
The District Court held that evidence "that it was not

15



clear that Ross had actually shot the victim . . .  is not relevant 
to this Court's duty" (R. 343), holding that such a task was one 
exclusively for the Georgia Supreme Court under Georgia's capital 

statute, and that its finding was "fairly supported by the record"
(R. 344).
F . The District Court's Denial of a Fair Hearing On:

(i) Petitioner's Grand and Traverse Jury Claim

The voir dire transcript in petitioner's case reveals 
that only four of the forty-eight prospective jurors available 
to petitioner were women (Supplemental Transcript of Voir Dire, 

at 3; 60; 87B). Petitioner's trial jury proved, in fact, to be
all white and all male. Petitioner challenged the racial and 

sexual composition of Colquitt County grand and traverse juries 
in his state habeas corpus petition (State Habeas Petition 1T21) 
and the State -- without procedural objection -- permitted the 
claim to proceed to the merits. Petitioner submitted to the 

Superior Court of Tattnall County an affidavit
sworn to by Herbert Phipps, one of his counsel and a prominent 
civil rights attorney in South Georgia, who averred that "[s]ince 
1971, we have filed at least three jury challenge motions in criminal 
cases in Colquitt County, Georgia. In preparing to make out a 
prima facie case of jury discrimination on these motions, I have 
personally examined the Colquitt County grand and traverse lists 
and each time found Blacks and women to be disproportionately 

and unconstitutionally underrepresented." The affidavit went on 
to state that Phipps had examined the 1974 lists from which he 
believed petitioner Ross had selected his jury several months earlier, 

and that the lists unconstitutionally underrepresented Blacks and 
women. (Affidavit of Herbert E. Phipps, sworn to October 13, 1976,1-2).

16



At the state evidentiary hearing, petitioner was declared 
an indigent (St. H. Tr. 7), and indicated that he had been without 

funds to prepare his claims (St. H. Tr. 12-13). Counsel further 
informed the Superior Court that "when I went to the Clerk's 
Office to examine the jury list that were [sic] in use at that 
time, I was informed by the Clerk that about a year ago the jury 
list was revised and the practice is that when they revise they 
discard the trial list. So the Clerk was unable to find a list 
that could be identified as the one in use at that time. So 
we don't have any further evidence on that claim." (St. H. Tr. 
181-82) .

On this basis, the Superior Court rejected petitioner's 
jury issue "finding that Petitioner has failed in his burden to 
establish a factual basis for this allegation" (Order of the 
Superior Court, at 12). The Georgia Supreme Court affirmed on 
appeal with no more than the comment that "[t]'nis Court has fully 
considered all of the contentions made by this appellant in this 
case . . . [and] we are convinced that the appellant was fairly
tried and convicted," Ross v. Hopper, 24-0 Ga. 369, ___, 240 S.E.2d
850, 853 (1977).

Petitioner re-presented the jury claim in his federal 
petition (R. 14) and repeatedly sought an evidentiary hearing in 
order "to introduce testimony and exhibits from the Clerk of 

Colquitt County and members of the Jury Commission in support of 
claims" (R. 45; 138; 146; 355). Moreover, after depositions of 
the Colquitt County Clerk and a Jury Commissioner, taken by 
permission of the District Court (R. 54-57; 114), petitioner twice

informed the Court, in support of his request for a further

17



evidentiary hearing, that "testimony obtained from a Colquitt 

County jury commissioner virtually concedes that the jury list 
from which petitioner's jury was chosen substantially underrep­

resented blacks and women" (R. 14-6; see R. 357), thus confirming 

from an official Colquitt County source Attorney Phipps' earlier 
affidavit to the Superior Court (id.).

The District Court initially denied petitioner's claim
for an evidentiary hearing on waiver grounds, citing Wainwright v .
Sykes (R. 328, 333). After petitioner pointed out that the State
courts had chosen to address the claim on the merits (R. 355-57),
the Court, in a supplemental order, found that "petitioner was
afforded a full and fair opportunity to present his jury composition

issue to the courts of Georgia and simply failed to meet his burden
of proof" (R. 354). Citing Sumner v. Mata, 449 U.S. 539 (1981),
the District Court held,moreover, that petitioner had failed to
give any further indication that he was prepared to meet the Sumner
burden and that the jury issue was without merit (R. 354-65).

The District Court's Denial of a Fair Hearing On:
(ii) Petitioner's Claims of Arbitrariness, of Racial

Discrimination and of Inadequate Appellate Review
Petitioner alleged in his state habeas petition that 

the death penalty was being imposed in an arbitrary and racially 
discriminatory manner in the State of Georgia and that Georgia's 
appellate sentence review procedures were constitutionally inadequate 
(State Habeas Petition, 1T1T10,12,13 ) . Petitioner subsequently filed 
a "Motion for Appointment of Experts, Authorization of Investigation 
and Continuance" which recited that Ross was an indigent and 
asserted that

18



"the evidence . . .  of a factual 
investigation petitioner's counsel 
was able to conduct, in the time and 
with the resources available to them, 
by reading and analyzing the appellate 
cases reported in the Georgia reports, 
establishes a prima facie showing that 
the death penalty in Georgia is being 
administered arbitrarily and capriciously.
Because of his indigence, petitioner is 
unable to conduct the further investigation 
which would enable him to establish conclusively 
that the administration of the Georgia capital 
punishment statute violates the Eighth Amendment 
of the Constitution of the United States. Peti­
tioner respectfully submits that before he is 
executed, the Due Process and Equal Protection 
Clauses of the Fourteenth Amendment to the 
Constitution of the United States entitle him 
to the assistance of a state-supported factual 
investigation."
(Petitioner Ross' Motion, at 1-2).

At the very outset of the state habeas corpus hearing,

petitioner's counsel addressed this motion:
"Now very briefly what this motion requests 
is the authorization by this Court of a factual 
investigation. This factual investigation we have 
not attempted to define precisely because we think 
it can be conducted in a number of different ways 
and we would be quite willing to choose a way or 
to specify a method but we thought the most appro­
priate thing might be to present this to the Court 
with a number of alternatives and let the Court 
establish a method. Briefly what we'd like here is 
authorization to proceed to analyze a representative 
sample of death penalty cases that have been 
adjudicated in the State of Georgia . . . And we
think, on the basis of the evidence we've been 
able to derive by a study of the appellate reports 
that this would establish that the death penalty 
is in fact been [sic] administered capriciously 
and arbitrarily."
(St. H. Tr. 11)(pauses omitted).

Counsel made clear that the request for funds was not limited to 
the arbitrariness claim but instead that the "motion for a factual 
investigation applies to claims 10, 12 and 13 [comprising the 

arbitrariness, racial discrimination, and appellate review claims]" 
(St. H. Tr., at 12). Counsel asserted that both the Equal Protection

19



Clause and the Due Process Clause of the Fourteenth Amendment 

required the court to grant the motion (id.).
In response to questions, counsel for petitioner 

acknowledged that "[w]e do have evidence today. We presented 
and are presenting as much evidence as we can." However, counsel 
urged that the motion demonstrated "the need for a further investi­
gation that we've been unable to conduct because of our limited 

> resources" (St. H. Tr., 13). After hearing arguments, the state 
court overruled the motion, "subject to changing my ruling at 

a later time" (St. H. Tr., at 19).
Following the state court's ruling, petitioner Ross 

introduced a list of eleven Georgia appellate cases which suggested 
arbitrary and capricious imposition of capital sentences and inadequate 

appellate review (St. H. Tr. 9-10, 18-19; Pet. Exhibit 1).
In support of his claim that Georgia capital sentences 

were being imposed in a racially discriminatory manner, petitioner 
offered volunteer witness,Dr. Tobe Johnson, a professor of political 
science at Morehouse College. Dr. Johnson explained that although 

he had himself conducted no studies on racial discrimination in 
capital sentencing in Georgia, he had reviewed research studies 
conducted by other social scientists on this issue (St. H. Tr.
111-12). Dr. Johnson testified that he had reviewed two particu­
larly relevant studies which focused on the State of Georgia: one 
by Marvin E. Wolfgang and Mark Riedel entitled "Race, Judicial 
Discretion and the Death Penalty" 4-07 Annals 119 (1973); the other 
by Marvin Wolfgang and Mark Riedel, "Race, Rape and the Death 
Penalty in Georgia", 45 Am. J . Ortho. 558 (1975)(St. H. Tr. 111-13;

Pet. Exhibits 9 & 10) on the basis of which he had formed an

20



expert opinion. (St. H. Tr. at 113).
Although the court permitted Dr. Johnson to be qualified 

as an expert (St. H. Tr. at 125), and to render his expert opinion 
that "the most significant factor and probably the most predictive 
factor related to the actual execution of the death sentence in 
the State of Georgia is the race of the defendant and the race of 
the victim" (St. H. Tr. at 14-1), the court sustained the State's 
repeated objections to testimony by Dr. Johnson concerning the 
findings reported by Wolfgang and Riedel, thereby precluding the 

admission of evidence on the principal factual bases underlying 
Dr. Johnson's opinion. On cross-examination, the State obtained 
an acknowledgment from Dr. Johnson that his expert opinion could 

not rest solely on the limited data which the state court had 

permitted into evidence.
During oral argument, petitioner's counsel also expressly 

addressed petitioner's claim that appellate review procedures for 
capital cases in Georgia were inadequate, calling on the court to 
judicially notice the opinions of the Georgia Supreme Court and 
urging that "it is unknown and we submit unknowable to counsel 
for indigent petitioner just what the source of [the data employed 
by the Georgia Supreme Court in conducting its comparative sentence 

review] is" (St. H. Tr. 176).
In its order dismissing the petition, the Superior Court 

noted that it had overruled petitioner's motion for experts and in­
vestigative assistance "subject to changing its ruling at a later 
time," and stated that "at no subsequent time was the motion 
renewed or argument made there on," (Order of the Superior Court, 

at 5). The court found that petitioner Ross' appellate review 
claim had been determined adversely on direct review and could

21



therefore not be relitigated in habeas proceedings (Id. at 5). 
Addressing petitioner's claims of arbitrariness and racial 
discrimination, the Superior Court found "as a matter of fact 
that petitioner has failed in his burden to establish the denial 

of a constitutional right based upon these allegations" (Id. at 11). 
Furthermore, the court held that "these assertions were either 
explicitly or implicitly rejected by the United States Supreme 
Court in Gregg v. Georgia," (Id., 11-12).

Shortly after the hearing, a 1974 article came to the 
attention of counsel for petitioner which described a 1972 study of 
capital punishment conducted in Georgia by the Georgia Department 
of Corrections. Although the study concluded on the basis of its 
data, covering cases from 1943 through 1965, that "probably in­
equities existed in [capital]sentencing" based upon racial factors 
(see Brief for Petitioner-Appellant, dated July 17, 1977 at 47), the 
state court in an order filed April 5, 1977, denied petitioner's 
motion to reopen the evidentiary hearing to receive this newly 
discovered evidence.

On appeal the Supreme Court of Georgia held that "[t]he 
denial of state investigative and research assistance to the 
appellant, though an indigent, was not a denial of his rights 
under the Federal or State Constitution," Ross v. Hopper, supra,
240 Ga. at __, 240 S .E .2d at 852. Addressing petitioner's claims

concerning patterns of arbitrariness and racial discrimination, the 
Georgia Supreme Court noted that "[Dr. Johnson's] testimony was 
largely based on his analysis of data gathered prior to the 
decision in Furman v, Georgia, 408 U.S. 238 (1972)" and that

22



the newly discovered study excluded by the state habeas court 

"was based on a study of capital punishment in Georgia for the 
years 194-3 to 1965" which it found "irrelevant to this case since 
[Ross] was convicted and sentenced after Furman v. Georgia,"
Ross v. Hopper, supra, 240 Ga. at ___, 240 S.E.2d at 852-53.
Such evidence, the court concluded, "was insufficient to show 
that the death penalty was arbitrarily and capriciously imposed 
in his case as a result of deliberate discrimination," (id.).

In federal court, petitioner repeatedly sought to 
present evidence in support of these claims (R. 44-45; 47; 234-37; 
358-59), informing the Court that "new evidence has recently 
become available in support of petitioner's claims that Georgia's 
capital statute is not working to prevent the arbitrary and 
racially discriminatory imposition of the death penalty and that, 
contrary to the Supreme Court's expectations in Gregg v. Georgia, 
428 U.S. 153 (1976), Georgia's new appellate sentencing review 
system is not operating to check this arbitrariness" (R. 146), 
and explaining that "these comprehensive studies . . . were not
completed prior to his state habeas corpus hearing . . . [and thus]
could not be offered into evidence at that time" (id.).

The District Court erroneously found that "[e]xtensive 
findings of fact were made in the courts of Georgia on all the 
issues" (R. 313), and relied heavily on Spinkellink v. Wainwright, 
578 F .2d 582 (5th Cir. 1978) in holding that "the type of evidence 
which would be relevant" under Spinkellink was "severely limited" 
(R. 315). Further, the District Court intimated -- although it 

did not find -- that "petitioner's ability to present evidence

23



here when faced with the same purported lack of funds they faced 
during state proceedings" suggested a "strategic default" (id.).

In his motion to alter or amend, petitioner made clear 
that the complex evidence he sought to introduce was simply un­
available in 1976, that it had been gathered independently of 
his case by social scientists since that time, and that as an 
indigent, he could not fairly be penalized for his inability to 
command the resources to produce such evidence in 1976 (R. 358). 
Petitioner also expressly called the Court's attention to this 
Court's then-recent opinion on rehearing in Smith v, Balkcom,

671 F .2d 858 (5th Cir. 1982)(R. 359) which substantially modifies 
Spinkel1 ink by recognizing that statistical evidence may well 
suffice to prove claims of systemwide racial discrimination. He also 
proffered the research of Dr. David Baldus which, petitioner 

asserted, demonstrated signficiant racial discrimination in the 
State of Georgia after an investigation of the very factors 
identified as crucial by this Court in Smith on rehearing 
(R. 358-59 n.l).

V' Smith calls for data on those homicides in which "charges or 
indictments grew out of reported incidents" and in which "charges 
were for murder under aggravating circumstances," discounting 
voluntary and involuntary manslaughter cases and acquittal cases. 
Smith v. Balkcom, supra, 671 F .2d at 860 n.33.

Petitioner Ross specifically proffered to the Court that "Dr. 
Baldus' evidence demonstrates that statistically signficant racial 
discrimination is present in Georgia's capital sentencing system," 
and that "'[t]he discrimination persists even when only those 
homicides resulting in murder indictments are examined, including 
that subset of murder indictments accompanied by aggravating circum­
stances. The discrimination persists even in the subset of those 
cases submitted to juries in a capital sentencing phases [sic].
The absence or presence of mitigating circumstances in the various 
cases does not provide a sufficient basis rationally to explain 
the discrimination found'" (R. 359 n.l).

2k



In its supplemental order, the District Court rejected
petitioner's arguments, relying both upon Spinkellink and, 
apparently upon a portion of the original Smith v. Balkcom 
opinion deleted by this Court in its subsequent opinion on 
rehearing in Smith (R. 366).

(iii) The District Court's Denial Of A Fair Hearing 
On: Petitioner's Change of Venue Claim

Petitioner alleged in his state habeas corpus petition 
that the trial court deprived him of an impartial jury by refusing 
to change the venue of his trial (State Habeas Petition 1T20). 
Petitioner submitted as Exhibit E to the petition a transcript 

of a pre-trial change-of-venue hearing in support of this claim. 
The Superior Court denied relief without any discussion of the 
federal constitutional issues, instead simply "find[ing] as a 
matter of fact that the trial judge did not abuse his discretion 
in denying the motion" (Order of the Superior Court of Tattnall 
County, at 12). On appeal, the Supreme Court of Georgia afforded 
the venue claim no independent consideration, merely holding that 
"[b]ased on . . . [our] complete review, we are convinced that the
appellant was fairly tried and convicted" Ross v. Hopper, supra, 
24-0 Ga. at ___, 240 S.E.2d at 853.

In the District Court, petitioner reasserted this claim 
(R. 15-16) and obtained discovery from the District Court of local 
news media (R. 54-57; 114). That discovery included evidence that
one local reporter agreed that the case, involving the death of a 
popular local policeman who had been involved in extensive 

community service and work with school children was "'one of the 
biggest stories to hit Colquitt County'" since [he'd] been a 
newspaper reporter there. (Deposition of Dwain Walden, taken

25



December 6, 1979, 11-12). The documentary evidence showed newspaper 
photographs of a "mounted posse" looking for the defendants, a 
front-page offer of an $1,000 reward by the City of Moultrie for 
information leading to the defendants' conviction, and word of 
a $10,000 reward to be offered by then-Governor Jimmy Carter, who 

assured Moultrie citizens that "'[t]he full resources of the state 
will be devoted to this case because of the dastardly nature of 
the crime.'" (Deposition of Dwain Walden, exhibits.)

Petitioner sought to introduce additional evidence at 
an evidentiary hearing (R. 4-5-46; 138; 151-52; 259), but the 

District Court refused. In its order denying relief, the Court 
held that "Ross has not carried . . . [his] burden" of proof
(R. 341) even though the Court acknowledged on the evidence 

before it: (i) "that almost every [prospective] juror had heard
or read accounts of the case" (R. 342); (ii) that "there is no 
guestion that the case received much publicity . . . [in the]
small, largely rural community where violent events such as the 
one in which Ross participated are not at all usual" (id.); and 
"that extensive coverage of the case occurred" (id.).

26



SUMMARY OF ARGUMENT

Petitioner Willie Ross was convicted of murder and 
sentenced to death as one of four conspirators in an armed 
robbery scheme during which a police officer was killed. Peti­
tioner was tried under a felony murder theory, and his jury was 

instructed that any party to the crime, even one not directly 
committing the homicide, could be found guilty of murder. The 
State's evidence in fact presents a serious jury guestion -- 
never resolved during petitioner's trial -- as to whether peti­
tioner, or another co-defendant, Rudy Turner, fired the shot 
that killed the officer.

Petitioner alleged below that the imposition of a 

death sentence under these circumstances was constitutionally 
excessive. The District Court held that federal habeas con­
sideration must be limited to determining whether the Georgia 

Supreme Court had complied with a state statutory provision 
that requires review of death sentences for excessiveness. 

Petitioner's contention, however, states an independent consti- 
tutitional claim, rooted in the Eighth Amendment's requirement 
that a death sentence may not be excessive in view of the 
defendant's own culpability. See, e .g ., Coker v. Georgia,
4-33 U.S. 584 (1977). Recently, in Enmund v. Florida, __ U.S.
_, 73 L.Ed.2d 1140 (1982), the Supreme Court addressed the 
very claim petitioner presented below, and held that the 
imposition of a death sentence absent a finding that a defendant 
"killed or attempted to kill, and regardless of whether [he]

27



intended or contemplated that life would be taken," violates 

the Eighth Amendment. Enmund v. Florida, supra, 73 L.Ed. 2d 
at 1154-. Petitioner's death sentence must therefore be vacated 
under Enmund and a new sentencing trial directed before a properly- 

instructed jury.
Petitioner also contended that the State knowingly 

permitted certain perjured and misleading testimony to be intro­

duced during his trial in violation of Mooney v. Holohan, 294 

U.S. 103 (1935) and Giglio v. United States, 405 U.S. 150 
(1972). The perjured witness recanted during state habeas 
proceedings; the state courts, however, without making any 
finding as to whether or not it believed the recantation, held 
that the District Attorney had not "knowingly or intentionally" 
used the testimony. Petitioner sought in federal habeas proceed­
ings an opportunity to prove that State officials other than the 

District Attorney knew of the false testimony, but the District 
Court declined to receive new evidence, instead denying relief 
on reliance solely upon the partial and incomplete factfindings 
of the state courts. Moreover, although the District Attorney, 
in sworn federal depositions permitted by the District Court, 
acknowledged a prior sentencing understanding with the perjured 
witness' lawyer -- despite a denial by the witness on cross- 
examination of any sentencing recommendation in exchange for 
his testimony -- the District Court refused to receive further 
evidence bearing directly upon this apparent Giglio v. United 
States violation. The District Court's action thereby violated 

the requirements of Townsend v. Sain, 372 U.S. 293 (1963) and

28



require that these claims be remanded for further evidentiary- 

cons i deration .
The District Court similarly violated Townsend in 

declining to receive newly available evidence presented by 
petitioner in support of several substantial constitutional 
claims. This material evidence had not been available to petitioner, 
an indigent, during his state habeas proceedings in 1976; his attempts 
to obtain funds from the state court to secure the evidence had 
been uniformly denied by the state courts. The District Court's 

rationale for the refusal to accept this evidence erroneously 
transformed 28 U.S.C. §2252(d)'s initial "presumption of correct­
ness" afforded certain state fact findings into an absolute barrier 
to the receipt of further evidence in federal proceedings, an 
error this Court has recently cautioned lower courts to avoid in 

In re Wainwright, 678 F .2d 951, 953 (11th Cir. 1982).
Petitioner's excluded evidence included sworn admissions 

by a Colquitt County official that the jury lists from which peti­
tioner's grand and traverse jury had been selected seriously 
underrepresented blacks and women. Petitioner's jury challenge 
had been thwarted in state court because the Colquitt County 
Clerk had destroyed the actual jury lists. This new evidence 
would have afforded to petitioner, a black man tried by an all 
white, all-male jury for the murder of a white policeman, a 
first real opportunity to establish his federal constitutional 

jury claims.

29



Petitioner also sought to introduce recently available
statistical evidence which was directly responsive to the criteria 
this Court in Smith v. Balkcom, 671 F.2d 858, 860 n.33 (5th Cir. 
1982)(on rehearing), held would suffice to prove a systemwide Equal 
Protection violation in capital sentencing. The District Court 

declined to hear this evidence, relying on language in Spinkellink 
v. Wainwright, 578 F .2d 582 (5th Cir. 1978) concerning the scope 
of admissible evidence on the issue which has since been modified 
by this Court in Smith on rehearing. See also Proffitt v. 
Wainwright, 685 F .2d 1227, 1261-62 n.52 (11th Cir. 1982). Both 

procedurally, on Townsend v. Sain grounds, and substantively, on 
Smith grounds, the District Court erred in excluding this new 
evidence.

Finally, the District Court declined to receive further 
evidence in support of petitioner's change of venue claim. Peti­
tioner submits the Court's action was error, and also contends 
that the evidence already of record suffices to prove a violation 
of Irwin v. Dowd, 366 U.S. 717 (1961).

STATEMENT OF JURISDICTION
This is an appeal from the denial of habeas corpus 

relief by the United States District for the Southern District 
of Georgia, Savannah Division. This court has jurisdiction 
under 28 U.S.C. §2253.

30



I

THE DISTRICT COURT ERRED BY FAILING TO CONSIDER 
AS A CONSTITUTIONAL ISSUE PETITIONER'S CLAIM THAT 
HIS DEATH SENTENCE IS EXCESSIVE AND DISPROPORTIONATE 
UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS__________

Petitioner Ross has contended that his sentence of death 
is constitutionally excessive and disproportionate, in the absence 
of any jury finding that he himself either murdered Lieutenant 

Meredith or intended the murder. The District Court rejected 
petitioner's claim, concluding that such factors were "not 
relevant to th[e] Court's duty" (R. 3X3). The Georgia Supreme 
Court had approved petitioner's sentence, and since that finding 
was "fairly supported by the record" (R. 3X3-XX), all federal 

inquiry, the District Court concluded, was at an end (R. 3X4).
In so holding, the Court clearly erred, overlooking 

prior Eighth Amendment cases which have (i) repeatedly held that 
possible excessiveness of a state penal sentence is a matter of 
federal constitutional concern and which have (ii) strongly 
implied that death would be a constitutionally excessive penalty 
for one, like "the rapist who, as such does not take human life," 
Coker v. Georgia, X33 U.S. 58X, 598 (1977). Accord: Eberheart 
and Hook v. Georgia, X33 U.S. 917 (1977)(vacating as excessive 
death sentences of convicted kidnappers who had not taken life). 
Indeed, Justice White, drawing upon the carefully delimited 
language of Gregg v. Georgia, X28 U.S. 153 (1975) -- which 
approved the imposition of a death sentence only upon proof that 
"a life has been taken deliberately by the offender," Gregg v . 
Georgia, supra, X28 U.S. at 187 -- had expressly contended in
1978 "that it violates the Eighth Amendment to impose the penalty 
of death without a finding that the defendant possessed a purpose

31



to cause the death of the victim," Lockett v. Ohio, 4-38 U.S. 586,
624 (1978)(White, J .,concurring in the judgment).

The constitutional foundation of petitioner's Eighth 
Amendment claim had thus already been laid when petitioner pre­

sented the claim to the District Court. That court, however, mis­
understood both the constitutional dimensions of petitioner's 
claim and its corresponding duty to evaluate the claim. The 

District Court was obligated on federal habeas review not merely 
to assure itself that state sentencing procedures had been followed, 
but to determine, as a substantive matter under the federal consti­

tution, whether petitioner's capital sentence -- imposed without 
any finding that petitioner Ross took life -- violated the Eighth 
Amendment. The District Court's failure to carry out this task 

normally would suffice to require a remand to the District Court 
for further consideration.

However, as this Court is aware, in Enmund v. Florida,
___ U.S. ___, 73 L.Ed.2d 1140 (1982), the Supreme Court has recently
addressed the very claim petitioner has raised here. Enmund 

involved three Florida defendants who conspired to rob an elderly 
couple at their rural farmhouse. The couple were fatally wounded 
by the conspirators in a shootout during the course of the robbery. 
Enmund received a death sentence, the Supreme Court observed, 
without any jury finding that he had murdered the couple, had 
intended their death, or had even been present when they were 
shot, through "the interaction of the 'felony murder rule and 

the law of principals [which] combine to make a felon generally 
responsible for the lethal acts of his co-felon,'" Enmund v.

32



Florida, supra, 73 L.Ed.2d at 1144. Insisting that "[i]t is

fundamental that 'causing harm intentionally must be punished 
more severely than causing the same harm unintentionally,'"
73 L.Ed.2d at 1152, and that "[pjutting Enmund to death to 

avenge two killings that he did not commit and had no intention 
of committing or causing does not measurably contribute to the 
retributive end[sj" of justice, 73 L.Ed.2d at 1154-, the Court 

reversed his death sentence. "[I]n the absence of proof that 
Enmund killed or attempted to kill, and regardless of whether 
[he] intended or contemplated that life would be taken," the 
Supreme Court held a death sentence to be constitutionally 

excessive under the Eighth Amendment. Id.
As the record here reveals, petitioner Ross, like 

Earl Enmund, was tried under a theory of felony murder. His 
jury, moreover, was expressly instructed that "any act done in 
furtherance of the unlawful enterprise by any party to the con­
spiracy, is in legal contemplation the act of all," and that if 
"one of [two conspirators] shoots and kill another person in 
furtherance of the effort to accomplish the armed robbery . . .
all co-conspirators therein . . . may be convicted of the offense
of murder" (Tr. T. C-8). The District Attorney freely admitted
that "under the State's theory . . . all co-conspirators would

*/
have been equally guilty of murder" (St. H. Tr. 192).

*/ The Supreme Court in Enmund noted that Georgia was among a 
Timited group of states that would by statute permit the imposition 
of a death sentence on proof of participation in an armed robbery 
during which another robber took life. Enmund v. Florida, supra,
73 L .Ed.2d at 1146-47 & n.5.

33



A jury evaluating the evidence presented by the State
at petitioner's trial could well conclude that it was Rudy Turner, 
not petitioner Ross who fired the shot that killed Lt• Meredith.

It was Rudy Turner who burst into the Stanford living room, 
holding a gun. It was Turner who threatened to cut off Mr. Stanford's 
ear until deterred by petitioner Ross. Rudy Turner seized Mr. 

Stanford's .32 caliber pistol from the wall, and Turner chose 
to remain inside guarding the family at gunpoint, while petitioner 

Ross spent much of the time outside the house. When Lt. Meredith 
entered the Stanford home, the entire family remembers Rudy Turner 
moving quickly to the dining room table, where he "squatted down 
and pointing the gun at Tommy Meredith." Turner then "started 
flashing his gun toward the living-room trying to get [the family] 
to go into the dining room." When the family fled instead to the 
bedroom, Mr. Stanford remembers hearing Meredith's "footsteps
. . . continually advancing toward Turner" just before shots

*/
were fired.

The initial burden of appropriating responsibility for 
Lt. Meredith's death rests not with a reviewing state or federal

*/ The State, of course, presented evidence from which it could 
argue that petitioner might have fired the fatal shot. Petitioner 
at one point may have had possession of the .32 caliber pistol 
which Rudy Turner seized from Mr. Stanford, and Dennis Cronic -- 
alone among the family -- remembered seeing petitioner in the 
kitchen just as the Stanfords fled their captor Turner to their 
bedroom. Finally, the State presented evidence of an alleged 
admission by petitioner Ross to a co-defendant, his brother 
Theodore, who has since repudiated his testimony. (Petitioner 
will address the Agurs/Giglio issues presented by Theodore Ross' 
testimony in the next section of this brief.) A second State's 
witness, co-defendant Bobby Gamble, also recounted an alleged 
statement suggesting that Ross may have, at least accidentally, 
fired at Lt. Meredith as he fell after being shot at twice by 
Meredith's shotgun.

3 2



*/
court, but with a trial jury. Both the Georgia Constitution

■k* /
and Georgia's criminal statutes, vest exclusive power to find 

the facts in a criminal case in a trial jury. Since petitioner's 
jury never determined whether he fired the shot that killed Lt. 
Meredith, or even whether he attempted or intended Meredith's 
death, petitioner Ross' capital sentence must be reversed under 
Enmund v. Florida, and a new jury empanelled to determine the 

extent of petitioner's criminal culpability and the sentence 
appropriate within the confines of the law and the federal con­
stitution .

*_/ Section 2-108 of the Constitution of Georgia of 1976 reads 
in pertinent part:

" . . .  [T]he jury in all criminal 
cases, shall be the judges of the 
law and the facts."

**/ Ga. Code Ann. §27-2301 reads in pertinent part:

"On the trial of all criminal cases 
the jury shall be the judge of the 
law and the facts . . . ."

35



II

THE DISTRICT COURT ERRED BY FAILING TO 
GIVE FULL AND INDEPENDENT CONSIDERATION 
TO PETITIONER'S CLAIM THAT A KEY STATE'S 
WITNESS TESTIFIED AGAINST HIM FALSELY 
DURING HIS TRIAL, IN VIOLATION OF HIS 
RIGHTS UNDER THE DUE PROCESS CLAUSE OF 
THE FOURTEENTH AMENDMENT

The critical evidence tying petitioner Ross to the 
murder of Lt. Meredith -- evidence that must have weighed heavily 
with the jury during its deliberations at both the guilt and

•k /sentencing phases— -- was testimony offered by petitioner's 
own brother, Theodore Ross, who told petitioner's jury that 
Willie Ross had confided to him "that he [Willie] shot the
policeman." Theodore also implied strongly to the jury, in

#■
response to repeated cross-examination, that he was offering this 
testimony freely, without any promise or prior arrangement with 
the State respecting the charges pending against him:

"Q [Defense Counsel]: Have you talked
with the District Attorney concerning 
this case?

A No.
Q The gentleman that's been asking you 

these questions.
A No, not until just now.
Q Have you ever talked to Mr. Hitchcock, 

the gentleman whose [sic] sitting to his 
right [the Assistant District Attorney], 
about this case?

A No . "
(Tr. T. 377-78)

* * *

V  Petitioner alone, among all of the four conspirators involved 
in the armed robbery and murder, received a death sentence. Rudy 
Turner and Freddie King, who were also tried capitally, received 
life sentences from their respective juries. A Brady/Giglio 
violation may be found, of course, even when the injury affects 
only the jury's resolution of a sentencing issue. See, e.g.,

36



"Q Has any official of the Court offered you 
any deal that if you testified they would 
recommend a lighter sentence for you or 
something like that?

A No, sir.
Q You have had no conversation with anyone on 

that subject?
A No, sir."
(Tr. T. 396)

We now know two facts that petitioner Ross' jury never 

learned: first, that Theodore has repudiated his testimony con­
cerning Willie Ross' alleged admission to him; and second, that 
both Theodore and the District Attorney have since given testimony 
which renders false or seriously misleading Theodore's denial of 
any arrangement with the State. The former fact, if Theodore Ross 
is believed, could suffice to establish a violation of the State's 

constitutional duty not to introduce testimony it knew to be false. 

See, e . g . , Mooney v. Holohan, 294- U.S. 103 (1935); United States v . 
Agurs, 427 U.S. 97, 103 (1976). The latter fact, if either

Theodore or the District Attorney (or both) are believed, establishes 
a clear violation of Napue v. Illinois, 360 U.S. 264 (1959) and 
Giglio v. United States, 405 U.S. 150 (1972), both cases in which 
the Supreme Court unanimously condemned the nondisclosure to a 
jury of sentencing arrangements bearing on a co-conspirator's 
credibility.

The District Court apparently rejected the first point 
in reliance upon flawed state-court credibility findings that 

dodged any decision respecting the most crucial contentions made by 
Theodore Ross. The District Court did not even address the second

*_/ cont'd.

Jackson v, Wainwright, 390 F.2d 288, 295-96 (5th Cir. 1968), 
citing United States ex rel. Almeida v. Baldi, 195 F .2d 815 
(3rd Cir. 1952).

37



point, rejecting a further evidentiary hearing that would have 

placed the State's Giglio violation squarely before the Court.
On both points, the District Court erred.

The state habeas court, after hearing the testimony 
of Theodore Ross and District Attorney Cole, made three factual 
findings: (i) that it "disbelieve[d ] Theodore Ross' testimony
that he was coerced into testifying against his brother Willie;"
(ii) "that there is no credible testimony that the State knowingly 
and intentionally used perjured testimony at the trial of Willie 
X. Ross;" and (iii) "that at the time of Theodore Ross' testimony 
. . . there had been no plea bargaining with Theodore Ross or his
attorney." (Order of the Superior Court of Tattnall County, at 9.) 

The first of those state court findings ignores the entire thrust 
of Theodore's testimony, which is not that he had been coerced into 
testifying, but rather, and quite differently, that he had testified 
in exchange for certain promises -- that he would receive a lighter 
sentence; that he would have opportunities to visit with his wife 

in jail. The Superior Court made no findings at all on this crucial 
testimony by Theodore. Thus the District Court's rejection of
petitioner's claim in reliance upon "[t]he credibility determination

*/
made by Judge Caswell," (R. 34-3), is misplaced.

*_/ Petitioner's point is obviously no mere verbal quibble. Peti­
tioner concedes there is no evidence indicating that Theodore Ross 
was ever coerced, threatened or ill-treated by police or State 
officials, but there is ample evidence that he was offered promises 
for his testimony. Petitioner's right to prove his constitutional 
claims cannot be lost under §2254(d) by reliance upon a "presumption 
of correctness" afforded to critical facts on which the state court 
never expressly made findings. E.g., Dickerson v. State of Alabama, 
667 F .2d 1364, 1368 (11th Cir. 1982); Spivey v. Zant, 661 F .2d 464,
476 (5th Cir. 1981); Walker v. Solem, 648 F .2d 1188, 1191 (8th Cir. 
1981). Cf. Townsend v. Sain, 372 U.S. 293, 313 (1963)(federal hearing

38



The state court's second finding conceals far more than
it resolves. The Superior Court pointedly chose not to decide
whether Theodore's testimony at petitioner's trial was false and
perjured, but only whether "the State knowingly and intentionally

*/
used" perjured testimony. The state court, however, heard only 
District Attorney Cole on this issue. Under well-accepted federal 
standards, even if the District Attorney himself had no actual 

knowledge that Theodore Ross' testimony on this point was false, 

the State would be charged with that knowledge if any state officials 
including other prosecutors, see, e .g ., Giglio v. United States, 
supra, 4-05 U.S. at 154 ("[a] promise made by one attorney must be 

attributed, for these purposes to the Government"),or police 
officers, see, e .g ., Freeman v. State of Georgia, 599 F .2d 65, 69 

(5th Cir. 1979)("the policeman's conduct must be attributed to the

*_/ cont'd.
required when "the merits of the factual dispute were not resolved 
in the state hearing" or "the material facts were not adequately 
developed").

jV The Supreme Court of Georgia underlined this important distinction 
on appeal when it noted that

"[t]he burden was on the appellant 
at his habeas hearing to prove that 
Theodore Ross' testimony was not only 
perjured, but that it was knowingly and 
intentionally used by the state to obtain 
a conviction . . .  On the basis of this 
testimony the habeas judge concluded that 
there was 'no credible testimony that the 
State knowingly and intentionally used 
perjured testimony . . . .'" In our opinion
the evidence . . . already authorized this
finding and conclusion of the habeas judge."

Ross v. Hopper, supra, 240 Ga. at __, 240 S.E.2d at 852;
(emphasis added). Indeed, if there is any implied factual

39



State as part of the prosecution team."), knew it was false. 
Petitioner sought, but was denied, any opportunity to develop 
such testimony in federal court.

Finally, in its third factual finding, the state court 
held that there had been no plea bargaining with Theodore or his 
attorney before his testimony. Although Theodore Ross testified 
that his attorney had spoken about a deal with the District 

Attorney, he was forced to admit on cross-examination that he 
did not know conclusively what his lawyer and the District 
Attorney had agreed to (St. H. Tr. 83-84-). District Attorney 
Cole denied there had been any plea bargaining (St. H. Tr. 187).

However, in petitioner's federal deposition of District 
Attorney Cole three years later, Cole admitted that prior to 
Theodore's testimony at petitioner's trial, "[i]t seems reasonable 
that we [Theodore Ross' attorney and Cole] must have discussed 
whether or not he would receive the death penalty if he did plead 
or whether or not the state would waive the death penalty or 

whether or not we would ask for it, and I believe what we told 
him that he had been cooperative and yes, he was in some regards 
perhaps different from the others, but that when he pled, we would 
consider waiving the death penalty." (Deposition, Appendix A at 
19) .

Such an "understanding,"of course, was well within the

finding to be ascertained from the state courts' treatment 
of this issue, it is that Theodore Ross did perjure himself at 
trial.



range of agreements required to be disclosed under the Due Process
Clause. See, e ■g ., Napue v. Illinois, supra, 360 U.S. at 270;
United States v. Smith, 4-80 F . 2d 664, 667 (5th Cir. 1973); Kircheis 
v. Long, 425 F. Supp. 505, 511 (S. D. Ala. 1976), aff'd , 564 F .2d 
414 (5th Cir. 1977). See also Boone v. Paderick, 541 F .2d 447 
(4th Cir. 1976).

It is immaterial, moreover, whether or not the District 

Attorney realized during trial the scope of his Giglio obligations; 
a prosecutor's subjective good faith does not excuse a constitutional 
injury to a defendant. See United States v. Agurs, supra, 427 U.S. 
at 110 and n.17, citing Brady v. Maryland, 337 U.S. 83 (1963) and 
Giglio v. United States, supra ("In Brady this Court . . . expressly
rejected the good faith or the bad faith of the prosecutor as the 
controlling consideration"). Finally, constitutional error cannot 
be avoided by any argument that Theodore Ross' testimony had been 
literally true since it was his attorney, and not he himself, who 
had been told that the State "would recommend a lighter sentence 
for you or something like that." The Supreme Court has made it 
perfectly plain that testimony, even if literally true, which is 
shaped "to g[i]ve the jury [a] false impression" on the matter at 
issue, violates due process. Alcorta v. Texas, 355 U.S. 28, 31 
(1957). Theodore's testimony plainly implied no deal had been made.

The District Court never expressly resolved this claim, 
however, for it never fully addressed it, instead denying petitioner 
a federal evidentiary hearing and resting upon the partial and 
incomplete fact findings of the state court. Under Townsend v .

Sain, 373 U.S. 293, 313-16 (1963), the refusal to conduct a full 
federal evidentiary hearing on this record was error, requiring 
this Court to remand for further proceedings.



Ill

THE DISTRICT COURT VIOLATED TOWNSEND V. SAIN,
372 U.S. 293 (1963) BY REFUSING TO HOLD AN 
EVIDENTIARY HEARING ON THREE WELL-PLEADED 
CONSTITUTIONAL CLAIMS, DESPITE PETITIONER'S 
DEMONSTRATION THAT DUE TO PETITIONER'S 
INDIGENCE AND THE INADEQUACY OF STATE FACT­
FINDING PROCEDURES, MATERIAL FACTS HAD NOT 
BEEN ADEQUATELY DEVELOPED IN THE STATE COURTS

Petitioner presented to the District Court at least 

three additional federal constitutional claims on which he sought 
a federal evidentiary hearing: (i) a challenge to his grand and
traverse juries; (ii) a claim that the death penalty in Georgia 
is being applied in an arbitrary and racially discriminatory 
pattern, and that Georgia capital sentence review procedures 
are, in practice, constitutionally inadequate to remedy this 
pattern; and (iii) a claim that the venue of petitioner's trial 

ought to have been changed. Addressing the need for a federal 
hearing, petitioner pointed the District Court toward additional 
material evidence on each claim, unavailable to him as an indigent 
during his state habeas corpus proceedings in 1976. Petitioner 
explained to the Court, first in writing (see Petitioners' Consoli­
dated Memorandum of Law in Support of Their Renewed Motions for an 
Evidentiary Hearing, R. 212, 220-28, 234-37) and then orally, in 
hearings directed by the Court, precisely wherein the state proceed­
ings had been inadequate, referring frequently to the standards 
governing federal hearings set forth in Townsend, and the related 

standards under 28 U.S.C. §2254(d).
The District Court's refusal to grant a hearing on any of 

these claims reflects, in part, a misunderstanding of federal 
standards governing a habeas petitioner's entitlement to a hearing 

and, in part, an erroneous view of the substantive constitutional

42



claims presented. In general, the District Court viewed 
the criteria set forth in 28 U.S.C. §2254(d), particularly 

in light of Sumner v. Mata, 4-49 U.S. 539 (1981), as a series
of absolute barriers to a federal hearing, rather than as criteria 
to assist a federal court in determining whether to afford 
state factfindings an initial presumption (a rebuttable pre­
sumption) of correctness. This Court has recently clarified 
the point in In re Wainwright, 678 F .2d 951, 953 (11th Cir.
1982) :

"Mata in no way speaks to the issues 
of if and when a federal court may hold 
an evidentiary hearing. Moreover, section 
2254(d) contemplates that in some cases the 
federal court will hold an evidentiary hearing 
for the purpose of determining whether to apply 
the presumption of correctness to the state 
court findings . . . Thus neither Mata nor
section 2254(d) can be read to require the 
federal court to determine section 2254(d)'s 
applicability, prior to holding a hearing on 
the federal habeas claims."

The District Court deliberately avoided considering 
petitioner's newly available evidence in determining petitioner's 
constitutional claims, justifying its refusal by faulting peti­
tioner for his inability, though an indigent, to produce that 
evidence five years earlier, during state habeas proceedings.
Yet neither statutory provisions nor federal case law justify 
the District Court's refusal to receive additional material 
evidence, absent some proof (of which there is none) that peti­
tioner Ross or his counsel deliberately withheld that evidence 
in order to circumvent full resolution of his claims in the state 
court. To the contrary, the record here shows clearly that peti- 
titioner and his counsel repeatedly implored the state courts to 

provide the necessary resources to prove petitioner's claims

43



and that, when denied those resources, petitioner and his counsel

acted in good faith to present the state courts with all relevant

evidence at their disposal. On this record, the District Court's

denial of an evidentiary hearing directly violates the mandate

of Townsend v. Sain, 372 U.S. 293 (1963) and a host of additional

cases. See, e.g., Sanders v. United States, 373 U.S. 1, 10 (1963);

Price v. Johnston, 33d U.S. 266, 291 (1948); Guice v. Fortenberry,

661 F .2d 496, 507-08 (5th Cir. 1981)(en banc); Marble v. Edwards
*/ ~  ’ 

457 F .2d 759 (5th Cir. 1972). A brief examination of each claim

will demonstrate that a further evidentiary hearing is required.

A . Petitioner's Grand and Traverse Jury Challenge

The District Court initially dismissed petitioner's 
jury challenge on waiver grounds citing Wainwright v. Sykes and 

observing that the claim had not been asserted at the time of 

petitioner's trial as Georgia statutes require (R. 327-28).

After petitioner Ross showed that no waiver could be imputed to him 

on this claim -- since the state habeas courts indisputably reached 
the merits -- the District Court, on reconsideration, adopted a 

different approach. It first recited the Superior Court's clearly

*_/ Furthermore, petitioner contends that under the present circum­
stances even if Townsend did not suffice to require a hearing,it 
was an abuse of discretion for the District Court not to have permitted 
one here. It is an axiom of constitutional litigation that "the 
essential facts should be determined before passing on grave consti­
tutional questions," Polk Co. v. Glover, 305 U.S. 5, 10 (1938),
especially "if there is a reasonable likelihood that the production 
of evidence will make the answer to the [constitutional] questions 
clearer," Borden's Farm Products Co. v. Baldwin, 293 U.S. 194,
213 (1934). Where the newly available evidence bears so directly 
on petitioner's constitutional claims, a hearing was necessary 
even absent the Townsend criteria.



"'Petitioner [had] offered no evidence
*/

erroneous finding that 
in support of this allegation'" (R. 364), then afforded this 
"factfinding" a presumption of correctness under §2254(d), and 
finally stated that petitioner had failed to give any indication 
that he was prepared to meet his evidentiary burden (R. 364).

This resolution of the jury claim simply ignores 
the fact that petitioner produced no additional evidence in state 

habeas proceedings, as he explained to the court, because the 
Colquitt County Clerk reported that he had destroyed the jury 
lists on which petitioner intended to rely to prove his claim.

In addition, the District Court ignored two direct, formal 
communications by petitioner to the Court -- one before its January 
26-27, 1981 hearing and one after -- in which petitioner stated 

that, in sworn federal depositions taken with the Court's per­
mission, "testimony obtained from a Colquitt County jury commissioner 
virtually concedes that the jury list from which petitioner's 

jury was chosen substantially underrepresented blacks and women 
(R. 146; see also R. 357). The District Court itself virtually 
conceded one Townsend criterion was met, that "the material facts 
were not adequately developed at the state court hearing,"
Townsend v. Sain, supra, 372 U.S. at 313, (principally because the 
State had destroyed the relevant records). When petitioner 
proffered "newly discovered evidence," consisting of sworn

*_/ Petitioner had appended to his state habeas petition an un­
rebutted affidavit of an experienced civil rights attorney who 
had prepared three jury challenges in Colquitt County in the 1970's, 
and who found through actual examination of jury lists on each 
occasion that the lists substantially underrepresented blacks 
and women.

45



admissions by Colquitt County jury officials, with no suggestion 
by the State -- which had attended the depositions in question -- 
that such evidence was either "frivolous or incredible," a second 
Townsend criterion was also met. Id. Petitioner, a black defendant, 
tried by an all white, all male jury for the murder of a white 
policeman, is entitled to a fair opportunity to prove in federal 
habeas proceedings that the juries which indicted him, tried him 
and sentenced him to death, did in fact -- as Colquitt County 
officials have now conceded —  substantially underrepresent 
black persons and women, in violation of rights guaranteed by 
the federal constitution.
B. Petitioner's Claims of Arbitrariness, Racial Discrimination, 

and Inadequate Appellate Review______________________________
The District Court dispensed with petitioner's claims of 

systemwide arbitrariness and discrimination by reliance both upon 
Sumner v. Mata and Spinkellink v. Wainwright. Neither ground 
justifies dismissal of these claims without a further hearing. 
Petitioner will not repeat here (see pp.18-22 supra), the 
chronicle of his efforts, as an indigent, to obtain sufficient 
financial resources from the state courts to assemble the complex 
proof necessary to establish these claims. Suffice it to state that 
all requests for state assistance were denied, and all attempts to 
prove a prima facie case were thwarted by state court rulings.
These circumstances establish several of the Townsend criteria:
(i) "the fact-finding procedure employed by the state court was not 
adequate to afford a full and fair hearing"; (ii) "the material 
facts were not adequately developed"; and (iii) petitioner did 
not receive "a full and fair fact hearing." Townsend v. Sain,

26



supra, 373 U.S. at 313. See Gibson v. Jackson, 578 F . 2d
104-5, 1052-53 (5th Cir. 1973) (Rubin, J., addendum). Indeed, 

insofar as the state court findings rested in part on an 

erroneous legal ground, that petitioner's "assertions were either 

explicitly or implicitly rejected by the United States Supreme 

Court in Gregg v. Georgia," (Order of the Superior Court, 1-12), 
they were not entitled to any presumption under §2254(d). See,

6 •g •, Rogers v . Richmond, 365 U.S. 534, 547 (1961); Harris v. 
Oliver, 645 F .2d 327 (5th Cir. 1981).

In addition, petitioner directed the Court to new 

social scientific evidence, developed independently of his case, 

which was brought to the court's attention as quickly as it 

became available. This evidence is directly material to the 

substantive standards for proof of such claims which this Court 

set out in its opinion on rehearing in Smith v. Balkcom, 671 F .2d 

858, 860 n.3 (5th Cir. 1982). Under Townsend, it deserves to be 
fully heard and considered.

The District Court rejected this evidence in further 
part because of its adherence to the rigid standard of proof 

demanded in such claims by Spinkellink v. Wainwright, 578 F .2d 

582 (5th Cir. 1978)(R. 317-29). Even if petitioner could "show 

that sentencing patterns under the new statute still revealed 

glaring disparities in the imposition of the death penalty based 

upon race, sex and poverty," the District Court held, citing 

Spinkellink, such evidence, while "sad and distressing . . .

[would] not alone show any infirmity in a statute otherwise 

found to be acceptable under the Constitution" (R. 319). These



issues, the Court concluded, "have been effectively foreclosed 
to the petitione[r] by judicial decisions in Gregg v. Georgia, 
Spinkellink v. Wainwright, and Smith v. Balkcom" (id.).

The Spinkellink standard, however, has been modified 
by this Court in Smith v. Balkcom on rehearing; accord, Proffitt 
v. Wainwright, 685 F .2d 1227, 1261-62 n.52 (11th Cir. 1982). 

Although directed by petitioner to the Smith opinion as modified 
(R. 359), the District Court chose to adhere to its decision 
to deny any further hearing (R. 365-66).

In view both of the District Court's misapplication of 
procedural standards under Townsend and of its failure to accord 
proper consideration to the change announced on rehearing in Smith 

in the evidence appropriate to the determination of the merits of 
petitioner's claims, this Court should remand this case for a 
full evidentiary hearing.

C . Petitioner's Change of Venue Claim
Petitioner's experience with his change of venue claim 

presents a similar picture. After offering available evidence 
at his state hearing, petitioner sought a further evidentiary 

hearing in federal court, directing the District Court's attention 
to additional evidence he had developed during federal depositions, 
including information that a $1000 City reward and a 510,000 
State reward, the latter announcement featured as front-page news 
in the Moultrie Observer. The District Court acknowledged that 
petitioner's proffered evidence demonstrated "extensive coverage 
of the case" (R. 34-2) but denied him relief, finding that "Ross 
has not carried . . . [the] burden" of showing the atmosphere

of community prejudice which would require a change of venue.

48



Petitioner submits that he should have been afforded an 
opportunity for a federal hearing on this claim as well. In 
the alternative, petitioner submits that the evidence of record 
establishes a violation of his jury rights under Irwin v. Dowd, 
366 U.S. 717 (1961) and Bronstein v. Wainwright, 64-6 F.2d 1048 
(5th Cir. 1981), and that the District Court's legal conclusion 
to the contrary (R. 341) is reversible error.

CONCLUSION

For all of the reasons set forth above, petitioner 
Willie X. Ross urges this Court to reverse the judgment of the 
District Court and to remand this case with instructions to vacate
petitioner's unconstitutional conviction and sentence of death,
or in the alternative, to remand for a full evidentiary hearing.

Respectfully submitted,
JACK GREENBERG 
JAMES M. NABRIT, III 
JOEL BERGER 
JOHN CHARLES BOGER 
DEBORAH FINS 
JAMES S . LIEBMAN

10 Columbus Circle
New York, New York 10019

C. B. KING 
HERBERT E. PHIPPS

502 South Monroe Street 
Albany, Georgia 31706

ANTHONY G . AMSTERDAM
New York University Law School 
40 Washington Square South 
New York, New York 10012

Dated: November 22, 1982

ATTORNEYS FOR PETITIONER-APPELLANT
by Tj

4 9



CERTIFICATE OF SERVICE

I, JOHN CHARLES BOGER, hereby certify that on 

November 22, 1982, I served the annexed Brief for Petitioner- 
Appellant on counsel for respondent-appellee by depositing two 
copies of the brief in the United States mail, first class mail, 
postage prepaid, addressed as follows:

Done this 
November,

Hon. Michael Bowers 
Attorney General of the State of 

Georgia
132 State Judicial Building 
4-0 Capital Square, S.W.
Atlanta, Georgia 30334

TOHN CHARLES BOGER 
One of the Attorneys for 

Petitioner-Appellant
22nd day of 
1982 .

50



Appendix A
Excerpts from the Deposition of 
H. Lamar Cole, taken on December 
7, 1979 in Ross v. Hopper, CV-478- 
162 (S.D. Ga.)



UNITED STATES DISTRICT COURT 
for the

SOUTHERN DISTRICT OF GEORGIA
x

WILLIE X. ROSS, Petitioner
versus

JOE S. HOPPER, Warden
Georgia Prison System, Respondent

Habeas Corpus Number 
CV-478- 162

_ _ _ _ _ _ _ _ _ _ _ _ _

The Deposition of H. UMAR COLE, called as a 
witness by and on behalf of the Petitioner in the 
above captioned matter, taken pursuant to subpoena, on 
the 7th day of December, 1979, in the Grand Jury Room, 
of the Colquitt County Courthouse, Moultrie, Georgia, 
commencing at approximately 9:10 o’clock, a. m., 
signature of the witness having been waived, before 
James A. Black, CVR-CM, Certified Court Reporter A-16. 

A p p e a r a n c e s :
For the Petitioner: John Charles Boger , Esquire
For the Respondent: Daryl A. Robinson, Esquire.

J A M E S  A. B L A C K  
C E R T I F I E D  C O U R T  R E P O R T E R

S u it e  380
1800 P e a c h t r e e  S t r e e t , N. W. 

A T L A N T A ,  G e o r g i a  30309  
( A C  40 4 )  8 9 4 -4 2 8 0



1

2

3

4
5
6

7
8

9
10

11

12

13
14
15
16
17
18
19
20

21

22
23
24
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gee together the state's witnesses or a number of them and 
asked them to tell me their story and compare it with what I 
had in my file.

Q Did you speak with Theodore Ross prior to his
testimony?

A A s far as I can recall I didn't ever personally
speak with him.

Q Who at trial --
A And my recollection is not crystal clear on

this.
Q -- (Continuing) asked questions for the

prosecutor's office of Mr. Ross? Was it yourself or your 
assistant?

A You know, I really can't recall. I can tell by
referring to the transcript but --

Q Why don't we do that?
A As I recall, Hitchcock and I more or less

alternated and we were both prepared on all witnesses but we
thought it would be pretty tiring, so we just kind of picked 
and chose as the trial progressed.

Q Let me show you, Mr. Cole, a copy of the trial
transcript that you brought today at Dage 355, and see by 
looking at that page and following two or three pages, see if ! 
you can tell whether it was yourself or Mr. Hitchcock who is 
examining Mr. Theodore Ross?



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A According to the transcript on page 355, it
says, "Mr. Cole, Direct Examination," and I have no reason to 
disbelieve the transcript.

Q Do you know whether Mr. Hitchcock ever spoke
with Theodore Ross prior to the trial itself?

A Well, of course, I don't know all of his
actions but he never did in my presence. He never reported to 
me that he had.

Q When did Mr. Hitchcock die?
A I believe it was March or April of '74.
Q Shortly after this trial?
A I suppose it was.
Q Would any notes that he may have made have

become part of the case file, to your knowledge?
A I don't think that he had any significant notes

in there. As I have suggested before, he may have had 
something about which witness we intended to call first or 
we had a practice of maybe highlighting certain things with 
a magic marker that we thought were significant in the copies 
of the police reports, but again, having prepared a brief or 
any particular extensive notation, I wouldn't think so.

Q But do you recall after his death whether he
had a body of personal files relating to the cases that he 
had been involved in?

A Oh, no, I don't believe so. There was never a



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practice to create a side file. Everything would go into the 
file itself, if there was anything to be added.

Q Do you recall who the attorney was representing
Theodore Ross at the time of his trial or his plea?

A I was thinking it was Mr. Edward Parrish. I
looked at the transcript of the plea this morning and it appea: 
it was Emory Hiers and Edward Parrish.

Q The plea is one of the documents that you
brought with you today?

A Yes, that is a copy. It is not a certified
copy but I believe it is a true and correct copy.

MR. BOGER; Off the record.
(Discussion off the record.)
MR. BOGER; Back on the record.
Mr. Reporter mark that as Petitioner's Exhibit

Number 12.

(Petitioner's Exhibit Number p- 
was marked for identification.) 

MR. BOGER: This is a document of 10 pages
entitled "Transcript of Plea from Colquitt Superior 
Court, The State of Georgia versus Theodore Ross,"

MR. BOGgR:
Q Did either the two attorneys we mentioned as

presenting Theodore Ross ever approach you or to your 
owledge or Mr. Hitchcock about a plea in this case?



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A I talked to Mr. Parrish about the olea.
Q Did you -- do you recall when you sooke with

him first?
A No, I couldn't put a date on it.
Q Was it prior to the trial of Willie Ross?
A I believe that it was.
Q What was the substance of your conversations

with respect to pleas?
A Well, of course, I can't recall the specific

things that were said but I believe it was along these lines, 
that his client had been cooperative with the officers and 
shown remorse, that he had no bad prior record, and what were 
our intentions regarding him and so forth, that he might 
plead.

Q And did he ask for some promise from you with
respect to a plea recommendation or a recommendation of the 
sentence to the court?

A Hereagain, I won't recall specifically. It
seems reasonable that we must have discussed whether or not 
he would receive the death penalty if he did plead or whether 
or not the state would waive the death penalty or whether or 
not we would ask for it, and I believe what we told him was 
that he had been cooperative and yes, he was in some regards 
perhaps different from the others, but that when he pled, we 
would consider waiving the death penalty.



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Q Did you go further than that to suggest that
if testimony followed the statements he had given the police 
officers, that you would request the death penalty be waived?

A No, there was no promise of any consideration
on account of testimony.

Q Let me rephrase that. Did you go further to
state that because of his prior cooperation with the police
officers and the different nature of his involvement in the 
crime, for those reasons you would recommend or would not 
recommend the death penalty in this case, would not seek it?

A Well, I think what we told him was that we
would certainly give honest consideration to the fact that 
he had cooperated and we had a good prior record and that 
I would talk with the law officers about it, their feelings 
and very well might waive the death penalty should he plead.

Q Did you say that you had talked with the law
officers previous to your conversation with the attorney or 
that you promised to talk with the law officers?

A I think I told him that I wanted to consult
with the law officers and verify his absence of a prior 
record and so forth.

Q Did you subsequently do that? I
A I am sure that I d id but hereagain, from

referring to this transcript this morning of a plea of Theodore
|

loss, I don't have the specific page -- you have the transcriot



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C E R T I F I C A T E
G E O R G I A  )

)
DeKALB COUNTY )

I hereby certify that the above and foregoing 
is a true and correct transcription of my notes taken 
at the same time and place, and that the same was 
reduced to typewriting by me.

counsel to any of the parties and am not financially 
interested in the matter.

I further certify that I am neither of kin nor

WITNESS my hand and official seal at Stone 
Mountain, DeKalb County, Georgia, this 21st day of
December, 1979.

BLACK, CVR-CM
Certified Court Reporter A-16.



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