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

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Maggie Bozeman and Julia Wilder: Advocates Jailed for Assisting Elderly Black Voters in Alabama

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Prisonerrs Name: Maggie S. Bozeman

Prison Number: 00130717

place of Confinement: ON PAROLE FROI{ KILBY CORRECTIONS FACfLITY

T'NITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABA!{.i\

II{ONTGOMERY DIVISION

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MAGGIE S. BOZEMAN,

Pet,it ioner , 3

- against 3

EALON I{. LN,IBERT, JACK C. LUFKIN AND :
JOHN T. PORTER IN THETR OFFICAL
CAPACITIES AS II{EI{BERS OF THE ALABAIIA :

BOARD OF PARDONS AND PAROtES, AND
TED BUTLER, A PROBATION AND PAROLE :

OFFICER, EII{PLOYED BY THE ALABAMA
BOARD OF PARDONS, AND PAROLES, 

"

Respondents. :

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Civil Action No.

IN THE

FOR THE



Petition for Writ of Habeas Corpus Bv A
Person In State Custo<la

TO THE HONORABLE JUDGE OF THE DISTRICT COURT FOR THE
UIDDLE DISTRICT OF ALABA}IA, MONTGOMERY DIVISION:

1. The name and location of the court which entered

the judgment of conviction and sentence under attack are:

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

(b) Carrollton, Pickens County, Alabama.

2. The date of the judgment of conviction and sentence

is November.2 | L979.

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

in the penitentiary of the State of Alabama for a period

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

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

4. The nature of the offense involved is that petitioner

was charged in a three count indictment with violating AIa.

Code S 17-23-1 (1975) in that she allegedly voted illegaI1y

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

1978 (hereinafter run-off).

5. Petitioner's plea was not guilty.

6. Trial was had before a jury.

7. Petitioner did not testify at trial.

8. Petitioner appealed her conviction.

9. The facts of petitionerrs appeal are as follows:

(a) The judgment of conviction vras appealed to the

Court of Criminal Appeals of Alabama. That court affirmed the

conviction on March 31, 1981. 401 So.2d L67.



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

motion for rehearing of the appeal on April 2I, 198I. Id.

(c) The Supreme Court of Alabama denied a petition

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

24, 198I. 401 So.2d 171.

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

petition for writ of certiorari to the Court of Criminal Appeals

on November L6, 1981. 454 U.S. 1058.

lO. Oiher than the appeals described in paragraphs 8 and

9 above, the other petitions, applications, motionsr oE proceed-

ings filed. or maintained by petitioner with respect to the

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

are described in paragraph 11 below.

11. A motion for a new trial was made to the Circuit

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

L979.

L2. Petitioner was convicted in violation of her rights
guaranteed by the First, Fifth, Sixth, Pourteenth and Fifteenth

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

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

reasons stated below.

I. fntroductorv Facts

13. Petitioner Maggie S. Bozeman was convicted of

i1Iega1 voting because of her alleged participation in an

effort to assist elderly and itliterate black voters to cast

absentee ballots in the run-off.

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14. On October 10, 1978, two weeks after the run-off

election, the Sheriff of Pickens County, ME. Louie Coleman,

along with the District Attorney of the County, Mr. P.ltl. Johnston,

an investigator named Mr. Charlie Tate, and Mr. Johnston's

secretary, lts. Kitty Cooper, opened the county absentee ballot
!/

box to investigate 'assumed voting irregularity." Tr. 35.

Thelz isolated thirty-nine absentee ballots out of the many

cast. What distinguished these absentee ballots from the

many others cast in the run-off l{as that they were notarized

by !1r. PauI Rollins, a black notary public from Tuscaloosa.

Tr.36.
15. .Each 

of the 39 absentee ballots was represented

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

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

participated in the casting of these ballots in violation of

Ala. Code S I7-23-I (1975).

II. Grounds of Constitutiolral. Invaliditv
--6f Petitioner' s Conviction

16. Based on the evidence offered at trialr Do rational

jury could have found that each of the elements of the offense

charged was proved beyond a reasonable doubt. Petitionerrs

conviction therefore violated the Due Process Clause of the

F'ourteenth Amendment as construed in Jackson v. Virginia, 443

u.s. 307 (1979).

*/ A1I transcript citations refer to the transcript of peti-
Eioner's trial.

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(a) The erements of the offense against petitioner
are that she employed fraud to vote more than once. wiLson

v. State, 52 Ala. 299, 303 (1875)i Wilder v. State,
151, 160 (Ala. Crim. App.), cert. denied, 401 So.2d

1981), cert. denied, 454 U.S. 1OS7 (1982).

(b) The only evidence offered against petitioner was

that she: (i) picked up '[a]pproximately 25 to 30 applications,
for absentee ballots from the Circuit Clerkts office during the
week preceding the run-off, Tr. lB; (ii) was present with three
or four other women, who did not include the votersr at the notar-
izing of some absentee ballots which were cast in the run-off,
Tr. 57i (iii) made a telephone calr to the notary "pertaining to
baIlots," Tr. 76-77; and (iv) spoke to prosecution witness Ms.

sophia spann about absentee voting when ,rit wasn't voting timer"
Tr. 184. Additionalry, there was evidence presented to the jury
in violation of petitioner's constitutional rightsr Els'aIleged
in para. 26, infra, that; (v) in the telephone carl described in
(iii), supra, petitioner had requested the notary to notarize
the ballots, TE.65; (vi) that petitioner aided Ms. Lou sonmer-

ville, with Ms. sommervil.lers consent, to fill out an applica-
tion for an absentee ballot, Tr. r61-162r 169; and (vii) that in
an election herd prior to the run-off, petitioner aided Ms.

sommerville, with Ms. sommervilrers consent, to fill out an

absentee ballot, Tr. 173-174, 176-77.

(c) The prosecution contended that the evidence of
petitioner's presenee at the notarization was sufficient
evidence of culpability under s l7-23-l because the voters hrere

not before the notary. ?r. l9s-97. But a reasonable trier of

401 So.2d

167 (A1a.

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fact would perforce harbor a reasonable doubt as to whether that

evidencer and all of the evidence presented against petitioner,

proved that petitioner intentionally aided in an alleged effort

to vote more than once through fraud.

17. The indictment charging petitioner with violating S

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

infra, insufficient to inform petitioner of the nature and cause

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

Fourteenth Amendments.

18. The indictment against petitioner charges that Peti-
t ioner:

. ,'COUNT ONE

"did vote more than once, or did deposit
more than one ballot for the same office
as her vote, or did vote ilIegalIy or fraud-
uIently, in the Democratic Primary Run-
off Election of September 26, 1978,

IICOUNT TWO

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

NCOUNT THREE

"did cast i1lega1 or fradulent absentee
ballots in the Democratic Primary Run-
off Election of September 26, 1978, in
that she did deposit with the Pickens
County Circuit Clerk, absentee ballots
which were fraudulent and which she
knew to be fraudulent, against the peace
and dignity of the State of Alabama. n

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19. The indictment was constitutionarly insufficient
because it failed to provide notice of the charges submitted
to petitioner's jury as the basis for her conviction under

s 1 7-23-1. The indictment accused petitioner of viorating
S l7-23-1 by nvotlingl illega1ly" or 'casttingl illegal
absentee ballots, i but it failed to identify either the acts

constituting the alleged illegalities or the elements of the

statutes which purportedly caused those acts to be ilregar.
That failure deprived petitioner of constitutionally required
not i ce.

(a) The trial judge instructed ln. :ury on four
statutes, AIa. code s 17-to-3 (1975) lmiscited by the judge as

s 17-23-31, Tr.2o2; Ala. code s 17-10-6 (197s) [miscited by rhe
judge as S 17-10-71, Tr. 202-203i AIa. Code S 17-10-7 (19?5),

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

the offense of conspiracy, Tr. 206. None of these statutes or
their elements was charged against petitioner in the indictment.

(b) The jury was instructed that proof that petitioner
had committed any act nnot authorized by or contrary to,
any law would constitute an nilIegaI' act warranting petitionerrs
conviction under S 17-23-1. Tr. 201. The effect of that instruc-
tion and of the subsequent instructions on each of the statutes
listed in para. 19(a), supra, rras to make each of those statutes
a separate ground for liability under S 17-23-1. The indictment
made no allegations whatsoever that petitioner had violated
those statutes or had engaged in acts which wourd constitute
violations of those statutes.

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(c) For these reasons the indictnent failed to provide

notice of the offenses actually submitted to the jury as required

by the Constitution, and petitioner's resulting conviction was

obtained in violation of due process.

20. The indictment contained conclusionary allegations of
fraudulent conduct by petitioner, but it failed to provide fair
notice as required by the Constitutionfin that it failed to give

sufficient notice of the particulars of the alleged fraud.\
(a) The indictment alleged in Count I, in the alterna-

tive with other allegations, that petitioner voted fraudulently

in the run-of f . It a1leged, in the alternative with other a.Ilega-

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

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

fraudulent absentee ballots with the Pickens County Circuit
Clerkr dDd that she knew the ballots were fraudulent.

(b) In order to provide constitutionally requisite

notice, the indictment was required to identify the particulars

of the alleged fraud with sufficient specificity to inform peti-

tioner fairly of the act.ions or transactions which constituted

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

and its failure to make those factual allegations deprived peti-

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

ments.

21. The indictment failed to a1Iege accurately each of

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

minimum notice required by the Constitution.

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

S 1-7-23-l under the rules of Al.abama law set forth in para.

16 (a), supra.

(b) Counts one and two of the indictment do not a11ege

intent or knowledge. Theythat petitioner acted with fraudulent

aIlege no mens rea of any sort.
(c) Since the verdict against petitioner was a general

verdict finding her "guilty as charged,' Tr. 209t and since she

was thereupon adjudged guilty of one undifferentiated violation
of S 17-23-1, the deficlent counts prejudiced petitioner and ren-

dered the indictment as a whole insufficient under the Constitution.
22. Section 17-23-1 is unconstitutional as applied to

petitioner, since the conduct for which she was convictedr ES

established by the evidence offered at trial, was protected by

the Voting Rights Act and the First, Fourteenthr and Fifteenth

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

trial is set forth in para. 16(b), supra. At most the evidence

shows participation by petitioner at the periphery of an effort to

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

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

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

by petitioner in activities protected under the United States

Constitution. The nFirst Amendment freedom to gather in
association for the purpose of advancing shared beliefs is
protected by the Fourteenth Amendment from infringement by any

State.' Democratic Party of U.S. v. Wisconsin. 450 U.S. 107,

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121 ( 1981 ). Additionally, the right to

political right, because Preservative of

v. Hopkins, 118 U.S. 356, 370 (1885).

vote is 'a fundamental

all rights. " Yick IiIo

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

s 1971, g!seg.., provides a right to illiterate and disabled

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

votingr and thus protects those who give such assistance. 42

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

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

unconstitutional for failure to meet the strict standards of

statutory specificity required of laws that potentially overreach

federally .prot,ected activitY.
(a) On its face, section 17-23-1 penalizes 'any kind

of i1lega1 or fraudulent votingr' and thus permits the incorpora-

tion of any provision of Alabama law which a Prosecutor can

remotely connect to voting activities. The statute contains

no clear mens rea element.

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

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

absence of a meaningful description of the proscribed conduct,

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

enforcement officials to follow in enforcing the statute, and

encourages arbitrary and discriminatory enforcement of the sort

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

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(1974) and

2, 1983).

1 iabil ity

17 -23- 1 -is

Kolender v. Lqlqcq, 51 U.S.L.W. 4532, 4534 (U.S., May

Furthermore, conviction on the basis of strict

is permitted by the language of S 17-23-1. Section

therefore unconstitutionally vague.

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

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

by the doctrine of, e.9., !U v. Blumstein, 405 U.S. 330 (1972),

to be drawn precisely to achieve legitimate state objectives

while avoiding interference with constitutionally protected

activities. Section 17-23-1 is not so drawn. On its face,

S 17-23-l permits conviction for failure to observe the provi-

sions of any law which can be connected to voting activities

regardless of whether the accused was acting in good faith.

Moreoverr ds applied to petitioner, S 17-23-1 permitted convic-

tion based on the federally protected activity described in

para. 22 supra. Therefore, S 17-23-1 is unconstitutionally
overbroad within the principles of, e.9., Gooding v. Wilson, 405

u.s. 518 (1972).

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

construed in any reported opinion prior to petitionerrs appeal,

and even its predecessor statute had not been reviewed in any

reported opinion since 1888. The 19th century Alabama Supreme

Court cases construing the statute, €.9._, Wilson v. State' 52 A1a.

299 (1875), and Gordon v. State, 52 Ala. 308 (1875), leave

considerable residual uncertainty as to various elements and

applications of the statute, and leave the statute with the

potential to reach federally protected conduct. Any judicial

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limitations imposed on the broad terms of the statute were dis-
regarded by the trial judge and the prosecution in petitioner's
case, and were not followed by the Alabama Court of Criminal

Appeals when it upheld petitionerrs conviction. Inoperative

limiting constructions cannot be permitted to save a statute.
Regardless of the eonstructions of the statute by the Alabama

Supreme Court, S 17-23-1 is therefore unconstitutionally
vague and overbroad.

24. If any of the constructions of S 17-23-1, ment,ioned in
paras. 16(a) and 23(d), supra, were valid and operative at the time

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

broadened the statute so as to create ex post facto liability in
violation of the Due Process Clause of the Fourteenth Amendment

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

The instructions to the jury also impermissibly broadened S

l3-5-115 causing, under the same principles, a separate violation
of the Due Process Clause.

(a) The jury instructions permitted various statutes

to be incorporated into S l7-23-1, as described in para. 19(a)

supra. They further permitted a conviction for "illegal" voting

without any showing of mental culpabilityr ES described in para.

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

strict liability basis for any transgression of any of the

incorporated statutes. If S 17-23-1 was subject to limiting
constructions at the time of petitioner's trial, these jury

instructions abrogated the constructions retroactively in
violation of Bouie.

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(b) Section l3-5-115 penalizes the making of a sworn

statement reguired under the election laws 'fa1sely and corruptly'

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

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

"incorrectly" for 'corruptlyr" the instructions removed the

intent element from S 13-5-115 and thus impermissibly expanded

the reach of the statute in violation of Bouie.

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

the jufy as strict liability offenses. Tr. 201, 204. Therefore,

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

especially. inasmuch as they touched on rights protected by the

Constitution. Petitionerrs conviction stands in violation of

the Fourteenth Amendment.

26. The prosecution rras permitted to impeach its own wit-

nesses by reading to the jury notes purporting to be transcripts

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

interrogations, and to use such statements as substantive evidence

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

tation Clause of the Sixth Amendment and the Due Process Clause

of the Fourteenth Amendment.

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

lvii) of para. 16(b), supra, was introduced through the purported

transcripts of out-of-court interrogations. Additionally, the

out-of-court statements were introduced by the prosecution in an

attempt to change the testimony of tts. Janie Richey, Tr. 128-129,

and Ms. Fronnie B. Rice, Tr. 143-44, 147-148. Both of these

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::
witnesses, testifying in person, remembered.receiving and voting

an absentee ballot in connection with the run-off, Tr. 126-127,

130-131 (Richey); Tr. 136-137, 144-145 tnigel. The prosecution
'j

attempted to show through the out-of-court .s.tatements that both

these prosecution witnesses had previously told him that they

did not receive an absentee ballot for the run-oft. In no rday,

however, h,as any connection made, either through the witnesses r

'+

testimony, or through the out-of-court statements, between

petitioner and the voting activities of either of these witnesses.

Tr. 126t 131 (Richey); Tr. 150 (Rice). ffre use of these out-of-
I r."

court statements as substantive evidence vi_o.lated settled
'.,i

Alabama law. See, e.q., Randolph v. Stalgr. 3aA So.2d 858 (Ala.

Crim. App.), cert. denied, 348 So.2d 857 (1977).

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

tionerr dnd the broadness of S 17-23-1 as Lonstrued in the instruc-
:'.

tions, TE. 20'l-204, these out-of-court statements were crucial to

the prosecution and devastating to petitioner, and constituted a

denial of her rights under the Confrontation Clause and the Due

Process Clause

27. The decision to prosecute petitioner was motivated by

her race and her political activities, and- therefore her conviction

was obtained in violation of the Equal Protection Clause of t,he

Fourteenth Amendment, and of the First and Fifteenth Amendments

and the Supremacy Clause.

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

selective and discriminatory enforcement, as described in para.

23 (b), supra.

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

that others similarly situated have not been proceeded against,

(ii) discriminatory in that she was singled out for prosecution

because of her race, and (iii) recriminatory in that she was

singled out for the further reason that she had engaged in

federally proEected political activities within Pickens County.

Because the prosecution was motivated by race it denied peti-

tioner her rights to due process and the equal protection of the

laws. Because the prosecution was recriminatory it violated

those constitutional and federal statutory rights whose exercise

it punished, as enumerated in para. 22 supra.

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

tioner's piosecution. It had not even been cited in a reported

opinion since its predecessor statute was referred to in Gandy

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

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

County previous to the prosecutions of petitioner and [ls. Julia

Wilder, both based upon the same events in 1978. Petitioner's
prosecution was therefore invidiously selective.

(d) Petitioner was singled out for prosecution because

of her race, and because of the race of those she was allegedly

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

ally active black resident of Pickens County. She has been

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

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

vocal critic of the administration of Pickens County schools

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

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opportunity in education. She has also been active as a

watchdog and critic of Pickens County government and the

AliceviLle municipal government in their treatment of blacks.

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

only because of her minor participation in an effort to aid

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

pation in other political activities within Pickens County.

WHEREFORE, petitioner prays that the Court:

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

show cause why petitioner should not be discharged from her

unconstitutional restraint ;

(2) Order the respondents to furnish a complete transcript

of Petitioner's trial before Alabama Circuit Judge Clatus Junkin,

including a transcript of the prosecutorfs closing argument,

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

interviews with witnessesi

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

offered concerning the allegations of this petition;
(4) Permit petitioner, who is indigent, to proceed

without payment of costs or fees;

(5) After ful1 hearing, discharge petitioner from her un-

constitutional restraint; and

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

Respectf u11y submitted,

VANZETTA PENN DURANT
539 Martha Street
Montgomery, Alabama 36108
262-7337

15



JACK GREENBERG
T,ANI GUINIER
JAI{ES S. LIEBI.I.AN
SIEGFRIED KNOPF

10 Columbus Circle
Suite 2030
New York, New York 10019
(212) s86-8397

Attorney for Petitioner
Of counsel:

ANTHONY G. A}ISTERDAII
New York University Schoo1 of Law
40 Washingtog Square South, Room 327
New YorkrNew York 10012
(2121 598-2538

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VERITICATION

Maggle S. Bozeuaa, belug first duly suora upou oath

accordlBg to 1awr. deposee aud says that ehe has read the

foregolag petltloD,, aad that she kaows the coDteuts thereof

to be true excePt as to such Batters whlch are stated uPotr

lnforuatioa aad be1lef, and such rnatters she verlly belleves

to be true, and that she belleves she is entltled to the

relief soug.ht 
_thereln. I S II

State of Alabaua )
) SS:

Couaty of Moutgouery)

Sworo to aad Subscribed before tne

thls _ day of _, 1983.

Notary Publlc

Maggie S. Bozemau