Draft of Petition for Writ of Habeas Corpus by a Person in State Custody 9

    Prisonerrs Name: Maggie S. Bozeman

Prison Number:

Place of Confinement:

IN TEE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRTCT OF ALABAMA

BIRMINGHAI{ DIVTSTON

---X

MAGGfE S. BOZEMAN t i

Petitioner, : Civil Action No.

- against 3

--x



Petition for Writ of Habeas Cor

TO THE HONORABLE JUDGE OF THE DISTRICT COURI FOR THE
NORTHERN DISTRICT OF ALABAII{A, BTRMTNGHAM DTVTSION:

I. The name and Iocation 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, 1979.

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

in the penitentiary of the State of Alabama for a period

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

of defendant 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 Ala.

Code S 17-23-1 (1975) in that she allegedly voted iIlegaIIy
in Democratic Primary Run-Off Election of September 26, 1978

(hereinafter run-off ) .

5. Petitioner's plea was not guilty.

6. Trial was had before a jury.

7. Petitioner did not testify at trial.
8. Petitioner appealed her conviction.

9. The facts of petitioner's appeal are as follows:
(a) The judgment of conviction was appealed to the

Court of Criminal Appeals of Alabama. That court affirmed the

conviction on March 31, 1981. 401 So.2d 167.



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

motion for rehearing on the appeal on April 2L, 199r. rd.
(c) The supreme court of Alabama denied a petition

for writ of certiorari to the court of criminar Appears on July
24, 1981. 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 15, 1981. 454 U.S. 1058.

10. other than the appeals described in paragraphs g and

9 above, the other petitions, apprications, motions, or proceed-

ings filed or maintained by petitioner with respect to the
judgment of November 2, L979 of Circuit Court of pickens County

are described in paragraph 11 below.

11. (a) A motion for a new triar was made to the circuit
court of Pickens county. The motion was denied on February 27,

1979.

L2. Petitioner was convicted in violation of her rights
guaranteed by the First, Fifth, sixth, Fourteenth and Fifteenth
Amendments to the constitution of the united states, and by the
voting Rights Act, 42 u.s.c. s 1971 et seq., for each of the

reasons stated be10w.

I. Introductory Facts

13. Petitioner Maggie S. Bozeman was convicted of
illegal voting because of her alreged participation in an

effort to assist elderly and illiterate black voters to cast,

absentee ballots in the run-off.

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

along with the District Attorney of the County, Mr. PeP ilohnston,

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

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

box to investigate 'assumed voting irregularity.' Tr. 35.!/

They isolated thirty-nine absentee ballots out of the many

cast. What distinguished these absentee ballots from the

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

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

Tr. 35.

15. Each of the 39 absentee ballots was represented

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

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

participated in the casting of these ballots in violation of

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

II. Grounds of ConStitutional Invalidi

A. rnsufficiencv of the Evidence

16. Based on the evidence offered at trial no rational
jury could have found petitioner guilty beyond a reasonable

doubt of each of the elements of the offense charged, and

therefore petitionerrs conviction violated the Due Process

Clause of the Fourteenth Amendment. Jac@,

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

to

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443 U.S. 307 (1979).
(a) The elements of the offense against petitioner

Wilsonare that@ne employed fraud to vote more than on""A
v. State, 52 Ala. 299 (1875); Wilder v. State, 401 So.2d 151,

160 (A1a. Crim. App.), cert. deniedr 40l So.2d 167 (A1a.1981),

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

(b) The only evidence offered against petitioner was

that she: (i) picked up "lalPproximately 25 to 30 aPPlications"

for absentee ballots fron the circuit clerkrs office during the

week preceding the run-off, Tr. 18; (ii) was present at the

notarizing of some absentee ballots which were cast in the

run-off, Tr. 57; (iii) made a telephone call "pertaining to

ballotsr" Tr. 76-77, to the notary; (iv) spoke to prosecution

witness l,ls. Sophia Spann about absentee voting when "it wasnrt

voting timern Tr. 184. Additionally, there was evidence pre-

sented to the jury in violation of petitionerrs constitutional

rights, see para.26, infra, that; (v) in the telephone call

described in (iii), supra,, petitioner had requested the notary to

notarize some ballots, (vi) that petitioner aided Ms. Lou Sommer-

ville with her consent to fill out an application for an absentee

ba]lot, Tr. 169; and (vii) that in an election held prior to the

run-off petitioner aided Ms. Sommerville with her consent to fill

out an absentee ballot, TE. 174, 176-77.

(c) The prosecution contended that the evidence of

petitionerrs presence at the notarization was sufficient

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

not before the notary. Tr. 195-97. But a reasonable trier of

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fact would perforce harbor a reasonable doubt as to whether that
evidence, and all of the evidence presented against petitioner,
proved 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 under the Sixth and

Fourteenth Amendments.

18. The indictment against petitioner charges that peti-

tioner:
,ICOUNT ONE

"did vote more than oncer of, did deposit
more than one ballot for the same office
as her voter oE did vote illegaIly or fraud-
ulently, in the Democratic Primary Run-
off Election of September 26, 1978,

IICOUNT TWO

".{id 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 illega1 or fraudulent
absentee ballots, in the Democratic Pri-
mary Run-off Election of September 26,
1978 |

NCOUNT TEREE

"did cast il1ega1 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. "

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19. The indictment was constitutionally insufficient
because it failed to provide notice of charges made against

petitioner for the first tine in the instructions to the

jury. In addition, the indictment accused petitioner of

violating S t7-23-1 by "votIing] il1egally" or "castIing]
i11e9a1... absentee ballotsr" but it failed to identify both

the alleged acts constituting the charged illegalities and the

elements of the statutes which purportedly caused those acts to
be illegaI, and that failure deprived petitioner of

constitutionally required notice.

(a) The trial judge instructed the jury on four

statutes, A1a. Code S 17-10-3 (1975), which was miscited by the

judge as S 17-23-3, Tr. 202, Ala. Code S 17-10-6 (1975), which

was miscited by the judge as S 17-10-7, Tr.202-203, AIa. Code

S l7-10-7 (1975), Tr. 203-204, and AIa. Code S 13-5-115 (19751,

Tr. 204t and on the offense of conspiracy, Tr. 206, none of which

was charged against petitioner in the indictment.

(b) The jury was instructed to the effect that proof

that petitioner had committed any act 'not authorized by

or ... contrary ton any law would constitute an "ilIegaI" act

and warrant fu1l liability under S 1 7-23-1. Tr. 201. The

effect of that jury inst,ruction, and the subsequent instructions,
Tr. 202-204, on each of the statutes listed in para. 19(a), .el]!E,
nas to make each of those statutes separate grounds for per se

liability under S l7-23-1. The indictment made no allegations

whatsoever that petitioner had violated those statutes or had

engaged in acts which would constitute violations of those statutes.

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(c) For these reasons the indictment failed to provide
notice of the offenses actually submitted to the jury as re-
guired by the Constitution, see, United States v. Cruikshank,

92 u.s. 542 (1875), and petitioner's conviction amounts to an

egregious denial of due process, see De Jonge v. Oregon, 299 U.S.

3s3 (1e37).

20. The indictment contained allegations of fraudulent
conduct by petitioner but it failed to provide the notice required

by the Constitution in that it failed to give sufficient notice
of the particulars of the alleged fraud.

(a) The indictment alleged in Count I, in the alternative
with other allegations, that petitioner was guilty of fraud because

she voted fraudulently in the run-off r ot in the alternative with
other allegations in Count fI that she cast fraudulent absentee

ballots in the run-off . rn Count (67ee it alleged that she

deposited the fraudulent absentee ballots with the Pickens County

circuit clerk, and that she knew the ballots vrere fraudulent.
(b) In order to provide constitutionally required

notice, the indictment needed to descend to the particulars of the

alleged fraud by giving not,ice of the actions or transact,ions

which allegedly constituted the fraud with which petitioner was

charged. Failure to make those factual allegations deprived

petitioner of the notice required by the constitution. See

United States v. Cruikshank, 92 U.S. 542 (1875).

21. The indictment failed to allege accurately each of
the elements of S 17-23-1, and therefore failed to provide the

minimum notice required by the constitution. See Russell v.

United States, 749t 763-765 (1962).

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(a)

17-23-1. See

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

acted with fraudulent intent when she violatedthat petitioner

s 1 7-23-1.

(c) Since the verdict against petitioner was a general

verdict finding her nguilty as chargedr " of all counts in the

indictment, Tr. 209, and since the indictment charged but one

violation of S l7-23-1, the deficient counts prejudiced petitioner
and rendered the indictment as a whole insufficient under the

constitution.
22. Section 17-23-l is unconstitutional as applied to

petitioner, since her conduct, as established by the evidence

offered at trial, was protected by the Voting Rights Act and the

First, Fourteenth, and Fifteenth Amendnents to t,he Constitution.
(a) The evidence introduced against petitioner at

trial is summarized 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 baIlot. The evidence shows no intent by petitioner to

engage in criminal activity of any sort.
(b) AI1 the prosecution proved was minor participation

by petitioner in activities protected under t,he 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. i Democratic Partv of U.S. v. Wisconsin, 450 U.S. 107,

fn this case fraud is a necessary element of S

para. l5(a) supra.

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121 (1981). Additionally, the right to vote
political right, because preservative of all

v. Hopkins, 118 U.S. 356, 370 (1886).

is "a fundamental

rights. n Yick Wo

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

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

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

votingr and thus protects those who give such assistance. 42

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

23. The vague and overbroad terms of the statute are

unconstitutional for failure to meet the strict standards of

statutory specificity required of laws that potentially overreach

federally protected activity.
(a) Section 17-23-1 provides that criminal penalties

be imposed for nany kind of illegal or fraudulent voting. " The

statute by its terms permits the incorporation of any provision

in Alabama Iaw which a prosecutor can remotely connect to

voting activities. Additionally, the statute fails to provide a

clear intent element.

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

notice of the nature of the forbidden conduct. See, €.9.7

Papachristou v. Citv of Jacksonville, 405 U.S. 156t 162 (1972).

Because of the absence of a meaningful description of the pro-

scribed conduct, S 17-23-1 fails to provide discernable policy

guidelines for law enforcement officials to follow in enforcing

the statute. Instead, arbitrary and discriminatory enforcement

is encouraged. Seer €.9.r Smith v. Goguent 415 U.S. 566t 574-575

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(1974). Furthermore, conviction on the basis of strict liability
is permitted by the language of S l7-23-1. Section 17-23-1 is
therefore unconstitutionally vague.

(c) Since S 17-23-1 reaches constitutionally
protected conduct, 89, e-.3=_, para. 22 supra, S 17-23-1 must be

scrutinized for overbreadth. see Hoffman Estates v. Flipside
Hof fnan Estates , _ U. S. _, 71 L. Ed. 2d 362, 369 ( l9S2 ) .

section 17'23-1 was not precisery drawn to achieve legitimate
state objectives while avoiding interference with constitutionally
protected activities. on its face, S 17-23-1 permits conviction
for failure to meet the requirements of any law which can be

connected to voting activities regardless of whether the accused

$ras acting in good faith. Moreover, as applied to petitioner, S

17-23-1 permitted conviction based on federally protected

activity, see para. 22 supra. Therefore, S 17-23-1 is unconsti-
tutionally overbroad. See Lgnn v. Blunst_e:!g, 4OS U.S. 330, 343

(1972).

(d) Any judicial linitations imposed on the broad

terms of the statute were disregarded by the trial judge and

the prosecution in petitionerrs case, and were not folrowed by

the Alabama Court of Criminal Appeals when it upheld

petitioner's conviction. rnoperative limiting constructions

cannot be permitted to save a statute. Moreover, g 17-23-1 had

never been judicially construed in any reported opinion prior
to petitioner's appeal, and even its predecessor statute had

not been reviewed in any reported opinion since 1888. The 19th

10



century Alabama Supreme Court cases construing the statute leave

considerable residual uncertainty as to various elements and

applications of the statute, and still leave the statute with

the potential to reach innocent and protected conduct. Regardless

of which constructions of the statute by the Alabama Supreme

Court are considered, S l7-23-1 is nonetheless unconstitutionally
vague and overbroad.

24. If any of the asserted limiting constructions to S

17-23-1, see para. 16(a) supra, were valid and operative at the

time of petitionerrs t,ria1 then the instructions to the jury

impermissibly broadened the statute so as to create ex post

factor liability in violation of the Due Process Clause of the

Fourteenth Amendment. Bouie v. Citv of Co1umbia, 378 U.S. 347

( t 953 ) . The instructions to the jury also impermissibly

broadened S 13-5-1 15 causing, under the same principles, a

separate violation of the Due Process Clause.

(a) The jury instructions pernitted various statutes

to be incorporated into S 17-23-1, see para. 19(a) supra. A1so,

because the instructions permitted a finding of liability for

"il1egaln voting without requiring any showing of mental culpability,
see para. 19(b), supra, the instructions permitted conviction

I
under thefi.ncorporated statutes on a strict liability basis. ff S

I
17-23-1 was subject to limiting constructions at the time of
petitionerrs tria1, the jury instructions constituted a Bouie

violation.
(b) Section 13-5-115 requires that for liability

to attach the accused must "falsely and corruptlyn (i.e., with

criminal intent ) make a sworn statement required under t,he

election laws. The trial court instructed the jury that peti-

11



tioner could be liable under S 13-5-115 for "false1y and incor-
rectly" making such a statement. By substituting 'i.ncorrectlyn
for "corruptly" the instructions removed the intent element from

S 13-5-15 and thus impermissibly expanded the reach of the

statute in violation of Bouie.

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

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

as applied to petitioner, those statutes denied her due process

especially since the statutes as applied touched on rights
protected under the Constitution. & Smith v. California, 361

U.S. 147 (1959). Petitionerrs conviction stands, therefore,

in violation of the Fourteenth Amendment.
,----:\

26. Allowing the prosecution to impeachl h-islwn witnesses

by reading to the jury notes purporting to be transcripts of

statements taken by the district attorney during out of court

interrogations, and the using of such statements as substantive

evidence against petitioner, violated the Confrontation Clause of
the Sixth Amendment and the Due Process Clause of the Fourteenth

Amendment.

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

(vii) of para. 15(b) supra, was introduced through purported

out-of-court statements. Given the paucity of evidence against

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

the instructions, Tr. 201-204, that evidence was crucial and

devastating to petitioner and constituted a denial of her rights
under the Confrontation C1ause and the Due Process Clause.

See Ohio v. Robertst 448 U.S. 55 (1980); California v. Green,

399 U.S. 149,188-189 (1970) (HarIan, J., concurring).
12



2'1. The decision to prosecute petitioner was motivated by

her race and her political activities, and therefore her conviction

was obtained in violation of the Equal Protection Clause of the

Fourteenth tunendment, 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, S Para. 23(b), supra-

(b) Petitioner]F prosecution was both selective in that

others similarly situated have not been proceeded against, dis-

criminatory in that she was singled out for prosecution because

of her race, and recriminatory in that she was singled out for

the further reason that she had engaged in federally protected

political acitivities within Pickens County. Because t,he prosecu-

tion was motivated by race it denied petitioner her right

to due process and equal protection of the 1aws. ESg United

States v. .Iohnson , 577 F.2d 1304, 1308 ( 5th Cir. 1978 ) . Because

the prosecution was recriminatory it violated those constitu-

tional and federal statutory rights whose exercise it punished.

See para. 22 supra.

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

tioner's prosecution. 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 Prosecutor of petitioner and Ms. JuIia

Wilder. Petitionerts prosecution was therefore selective.

13



(d) Petit,ioner lras singled out for prosecution because

of her race, and because of the race of t,hose she was alleged1y

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

active black resident of Pickens County. For examPle, petitioner

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

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

critic of the administration of Pickens County schools and a

long-time activist on behalf of integration and equal opportunity

in education. She has also been active as a watchdog and critic

of Pickens County government and the Aliceville nunicipal government

in their treatment of blacks. Petitioner was singled out for

prosecution under S 17-23-1 not only because of her minor participa-

tion in an effort to aid elderly blacks to vote but also because

of her vigilant participation in other political activities within

Pickens County.

WHEREFORE, petitioner prays that the Court:

( 1 ) Issue a Writ of Habeas Corpus to have petitioner brought

before it to the end that she may be discharged from her unconsti-

tutional restraint;
(2) Order the Defendants to produce a complete transcript

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

including a transcxiffi, of the prosecutorrs closing argument and

all exhibits, depositions and notes of pre-tria1 interviews with

witnesses i

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

14



t

a

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

without payment of costs or fees;

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

Respectf u1ly submitted,

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

LANI GUINIER
SIEGFRIED KNOPF

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

Attorney for Petitioner
Of counsel:

ANTEONY G. AMSTERDAM
40 !{ashington Square South
Room 327
New YorkrNew York 10012
(212) s98-2638

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