Did Morris and Sanders (Petitioners) waive their claims of systematic discrimination in the selection of grand and petit jurors by failing to raise them prior to their filing of the instant consolidated federal habeas corpus case?1

Sanders was convicted in 1964 of murder in the Bessemer division of Jefferson County, Alabama, but the death sentence he received then has been amended to life imprisonment as a result of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); and he is presently serving this sentence. Morris, convicted in 1968 in the Bessemer division, is serving a life sentence for murder and a 10-year sentence for burglary. Based upon Salary v. Wilson, 415 F.2d 467 (5th Cir. 1969), in which we held that the method of compiling the grand and petit jury rolls and jury boxes used in the Bessemer division during a time period including the years when petitioners were indicted and convicted, violated constitutional proscriptions,2 the court below found that both petitioners had proved a prima facie case of jury discrimination which the State of Alabama had failed to rebut. However, although both were represented by counsel neither challenged the means of selecting grand or petit jurors prior to trial as required by Alabama decisional law, see e.g., Ex parte Seals, 271 Ala. 622, 126 So. 2d 474 (1961), and Hamilton v. State, 283 Ala. 540, 219 So. 2d 369 (1969). Although the State did not prove that this omission was the result of a deliberate tactical decision by either petitioner, the district judge found that this court-fashioned Alabama procedural rule should be given the same preclusive effect for purposes of federal habeas corpus as was given to Fed.R.Crim.P. 12(b)(2) by Davis v. United States, 411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973). Recent cases in this circuit dictate our affirmance.

Pre Davis, the rule in this circuit had been that a jury discrimination claim barred by a state procedural timeliness rule could be presented initially on federal habeas corpus absent proof by the state of a Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), deliberate bypass, a conscious, knowing and strategic waiver. See, e.g., Hamilton v. Watkins, 436 F.2d 1323 (5th Cir. 1970); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966); Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964), and Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964). Davis refused to place upon the United States any burden to show a knowing and understanding waiver and held that a claim of grand jury discrimination would be waived for purposes of collateral relief under 28 U.S.C. 2255, if not raised before trial as required by Rule 12(b)(2), unless the petitioner made a showing of cause for not presenting it. Post Davis, this circuit has consistently held the Davis rule to be applicable to state court grand and petit jury discrimination claims.3 See Jones v. Henderson, 494 F.2d 47 (5th Cir. 1974); Marlin v. Florida, 489 F.2d 702 (5th Cir. 1974), and Rivera v. Wainwright, 488 F.2d 275 (5th Cir. 1974).4 The Alabama rule applicable to the instant case embodies the same timeliness requirements as Rule 12(b)(2) for challenges to the selection of both grand and petit jurors.

Petitioners did not allege that their court-appointed attorneys were incompetent, see Jones v. Henderson, supra; that the jury discrimination was covert and undiscoverable, or that any other form of 'cause' for the omission existed, see Wells v. Wainwright, 488 F.2d 522 (5th Cir. 1973). In sum, petitioners failed to carry the burden, prescribed by Davis and by this court's line of authorities applying Davis to state waiver cases, of demonstrating facts or circumstances that would justify waiver relief. The proceedings conducted in the court below afforded them an ample opportunity to present such evidence.5

At oral argument, petitioners urged that their failure to allege, or seek to prove, cause was due to their reliance upon pre Davis cases. Such a reliance reflects a miscalculation of law, not fact.6 Petitioners having failed timely to raise their jury discrimination claims, or to show cause why they were not timely raised, we affirm the district court's finding of waiver.

Affirmed.