author: HERMAN, District Judge.

text:
    COMMONWEALTH of PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, and the United States of America, Defendants.
    Civ. No. 84-0690.
    United States District Court, M.D. Pennsylvania.
    Nov. 18, 1985.

      Jason W. Manne, Asst. Counsel, Dept, of Public Welfare, Harrisburg, Pa., for plaintiff.
    Sally A. Lied, Asst. U.S. Atty., Harrisburg, Pa., for defendants.
   MEMORANDUM

HERMAN, District Judge.

Plaintiff brought this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to compel the Department of Health and Human Services and its operating component, the Health Care Financing Administration, to disclose certain records relating to the allowability of costs for vocational training and educational activities under the Medicaid program. The Commonwealth made three FOIA requests for these records between March, 1984, and January, 1985. In all, the defendants have released over 1,000 pages of responsive materials to plaintiff. Currently, defendants are withholding fifteen documents, claiming they are protected from disclosure by 5 U.S.C. § 552(b)(5). Plaintiffs contest the applicability of exemption (5) to the withheld documents, challenge the adequacy of the search conducted by defendants, and claim that even if parts of the documents withheld are exempt from disclosure, the court should order an in camera inspection of the documents and order the release of segregable factual portions. The dispute is now before us on the defendants’ motion for summary judgment.

I. Adequacy of the Search and Sufficiency of the Index.

In an FOIA case, the summary judgment standard of F.R.Civ.P. 56(c) applies just as much as in any other civil suit. Under that standard, the burden is on the moving party to demonstrate that there is no genuine issue of material fact and “that the moving party is entitled to a judgment as a matter of law.” F.R.Civ.P. 56(c). In the context of an FOIA case, application of this standard means that the defending agency “must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the [FOIA’s] inspection requirements.” Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982), quoting, National Cable Television Association, Inc. v. Federal Communications Commission, 479 F.2d 183, 186 (D.C.Cir.1973). In other words, the agency must prove the adequacy of the search undertaken and the applicability of specific exemptions. Such proof may be made by way of affidavits and a Vaughn index. Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973); Perry v. Block, 684 F.2d at 127.

In the instant case, plaintiff preliminarily challenges defendants’ entitlement to summary judgment by contesting the adequacy of the search undertaken by the agency, and the sufficiency of the affidavits and index provided to support the claimed exemptions.

In determining the adequacy of a search undertaken pursuant to an FOIA request, “[t]he issue is not whether any further documents might conceivably exist but rather whether the government’s search for responsive documents was adequate.” Perry v. Block, 684 F.2d at 128 (emphasis in original). The government details the search undertaken in the instant case by way of affidavits of Rosario Cirrincione, Chief of the Freedom of Information Branch, Office of Public Affairs, Health Care Financing Administration, Department of Health and Human Services, and of Carl C. Coleman, Acting Director, Freedom of Information, Privacy Division, Office of Public Affairs, Department of Health and Human Services.

Mr. Cirrincione avers that, after analyzing the requests, he directed search of a total of six offices or bureaus within the Health Care Financing Administration, as well as of the ten regional offices of HCFA. Further, Cirrincione avers that in addition to the searches conducted under his supervision, he referred two of the requests to the Office of the Secretary for additional searches conducted by the Freedom of Information, Privacy Division.

Mr. Coleman avers that, with respect to the two requests referred to the Office of the Secretary, his office directed a search of the Office of General Counsel, the Office of Inspector General, the Departmental Grant Appeals Board, and the Office of the Assistant Secretary for Personnel Administration.

The Commonwealth challenges the sufficiency of the Cirrincione and Coleman affidavits to show the adequacy of the government’s search on the grounds that neither Mr. Cirrincione nor Mr. Coleman has personal knowledge regarding what kind of search was performed at the regional level, or in the various bureaus and offices of the Health Care Financing Administration and of the Office of the Secretary.

The adequacy of an affidavit explaining the search procedure used is not measured by the personal knowledge of the affiant of each individual file that was searched. Rather,

in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.

Perry v. Block, 684 F.2d at 127. Further, adequacy of search is not only demonstrated by the agency’s affidavits, but also by the scope and responsiveness of the materials submitted by the agency:

In rendering a challenge to an agency's retrieval procedures, a reviewing court must thus determine whether the materials submitted by the agency satisfactorily demonstrate the apparent adequacy of the search conducted. Where the agency’s responses raise serious doubts as to the completeness of the search or are for some other reason unsatisfactory, summary judgment in the government’s favor would usually be inappropriate.

Id. From the affidavits, it appears that a widespread search was conducted for documents responsive to the Commonwealth’s request. Further, the disclosure of over 1,000 pages of responsive documents indicates that the search proceeded in the appropriate agencies and offices. Finally, the Commonwealth has pointed out no blocks of requested information or documents which appear to be missing and which might be discovered by further search of different offices. In short, the affidavits and the documents produced satisfactorily demonstrate to this court the apparent adequacy of the government’s search.

Plaintiff also challenges the sufficiency of the affidavits and the index provided by the government to meet the government’s burden of proving the appropriateness of continuing to withhold fifteen documents. In an FOIA case, the courts require that “when an agency seeks to withhold information, it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Mead Data Central, Inc. v. U.S. Department of Air Force, 566 F.2d 242, 250-51 (D.C.Cir.1977). In the Mead Data case, the court found that the affidavits and index were adequate because the withheld documents were described in sufficient detail to allow plaintiff to argue effectively against the government’s exemption claims:

The source, subject matter, and nature of each document were described separately, and although not individually stated for each document, it is clear from the nature of the documents and the single exemption asserted which justifications apply to which documents.

Id. at 252.

In the instant case, there are only fifteen documents being withheld by the government. Each document is described in an index attached as Exhibit A to Rosario Cirrincione’s affidavit. The index details the date, author, recipient, subject matter, and length of each document, as well as the circumstances of its preparation and the exemptions pursuant to which the document or portions thereof are being withheld. Additionally, the Cirrincione affidavit and the affidavit of Robert A. Dublin, staff attorney with the Health Care Financing and Human Development Service Division of the Office of General Counsel, both set out in greater detail the circumstances surrounding the preparation of the withheld documents. The Dublin affidavit in particular, together with its supplement, details the litigation before the Grant Appeals Board in preparation for which eleven out of the fifteen withheld documents are claimed to have been generated. Given the detail provided in the Dublin affidavit, the reasonably detailed index, and the clarity with which each exemption is claimed for each document, this court finds that the government has met its burden of providing plaintiff with sufficient information to effectively oppose the government’s summary judgment motion.

II. Application of Exemptions.

The Freedom of Information Act, 5 U.S.C. § 552(a)(3), mandates that certain federal government agencies, including the ones involved in the instant action, make available to the public, upon a reasonably detailed request, internal records of that agency. Section 552(b) details certain exemptions to this rule of disclosure. Subsection (b)(5) provides that “(b) This section does not apply to matters that are—... (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” In the instant case, the government is withholding fifteen documents, all pursuant to exemption (b)(5). This exemption has been interpreted to include the three privileges asserted by the government in this case: the attorney-client privilege, the deliberative process privilege, and the work-product privilege.

The attorney-client privilege is asserted for eight of the fifteen withheld documents (documents 2-9 of the index). This privilege is available in the context of an FOIA request where the agency functions as the client and the agency lawyers function as attorneys to the agency. One fundamental prerequisite of the privilege, however, is that there be “confidentiality both at the time of the communication and maintained since. The burden is on the agency to demonstrate that confidentiality was expected in the handling of these communications, and that it was reasonably careful to keep this confidential information protected from general disclosure.” Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 863 (D.C.Cir.1980). In order to prove the continued confidential nature of the documents, the agency must “demonstrate that the documents, and therefore the confidential information contained therein, were circulated no further than among those members ‘of the organization who are authorized to speak or act for the organization in relation to the subject matter of the communication.’ ” Id., quoting, Mead Data Central, 566 F.2d at 253 n. 24.

The most the government has been able to demonstrate by way of affidavits and the Vaughn index in this case is that documents 2-9 were intended to be confidential at the time they were made. There is no assertion, and no proof, that the matter discussed in the documents remain confidential to this day, or that the documents were circulated only to those in the agency authorized to speak or act for the agency on the subject matter of the communications. We therefore find that the agency has not met its burden of proof with respect to the applicability of the attorney-client privilege to any of the withheld documents.

The work-product privilege is asserted for eleven of the fifteen withheld documents (numbers 1-11). This privilege under exemption 5, while not coextensive with the privilege of F.R.Civ.P. 26(b)(3), protects those materials that would not be “routinely” or “normally” disclosed under that rule. Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 2214, 76 L.Ed.2d 387 (1983). Rule 26(b)(3) protects from disclosure materials “prepared in anticipiation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent).” A review of the Dublin affidavits and the index demonstrates clearly that documents 1-11 were all prepared in preparation for the continuing litigation between the state of Oklahoma and the Health Care Financing Administration by either one of the agency’s attorneys or one of its employees at the behest of an attorney. Some of these documents discuss settlement proposals, while others propose litigation or settlement strategy. This type of document is clearly not subject to routine disclosure in a civil discovery context, and therefore is protected by exemption 5 to the FOIA.

The final privilege asserted by the government is the deliberative process privilege. This privilege is asserted for fourteen of the fifteen withheld documents (numbers 2-15). It is the only privilege asserted for documents 12-15. Because these are the only documents not also exempted by the work-product privilege, discussion of the deliberative process privilege will be primarily in the context of these four documents.

The deliberative process privilege protects from disclosure documents that are both “predecisional” and “deliberative”. A “predecisional” document is one that is “actually antecedent to the adoption of an agency policy,” Jordan v. U.S. Department of Justice, 591 F.2d 753, 774 (D.C.Cir.1978), while a “deliberative” document is one that “reflects the give-and-take of the consultative process.” Coastal States Gas Corp., 617 F.2d at 866. The coverage of the exemption thus extends to “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Id.

Document 12 as described in the index is clearly within this privilege. According to the detailed description, the document contains personal opinions and recommendations of at least two agency officials. The document is annotated with handwritten notes and recommendations and, according to the index, was intended for discussion purposes only. The final version of this document was released to plaintiffs and does not include many of the notations and recommendations found in document 12. Document 12 is thus both predecisional and deliberative.

Document 13 has been released in part to plaintiffs, but three sentences continue to be withheld. The three sentences reflect the opinions of the author only and do not state established policy of the agency. Further, they are predecisional because they were made pursuant to a request for comments on how certain HCFA instructions should be viewed. The three sentences withheld from document 13 are thus protected by the deliberative process privilege.

Document 14 has been released to plaintiffs with one sentence deleted. According to the index, this one sentence contains a personal opinion and does not state established agency policy. It is therefore protected by the deliberative process privilege.

Finally, document 15 has also been partially released, but portions continue to be withheld pursuant to the deliberative process privilege. The whole document was prepared at the request of the Director of the Office of the Executive Secretariat for comments on an Inspector General’s Report. The withheld portions of the document contain recommendations for a course of action in response to the Report, proposed interpretations of regulations, and opinions of the author on the report. The document appears to be both predecisional and deliberative, and is therefore protected by the deliberative process privilege.

Because we find the work-product privilege applicable to documents 1-11, there is no need for us to detail the applicability of the deliberative process privilege to these documents.

III. Segregable Factual Material

The Commonwealth’s final argument in this case is that, even though various privileges may apply to the withheld documents, segregable factual information must be released and in camera inspection is the most appropriate method of determining the segregable material. We disagree.

First, with regard to the material appropriately withheld pursuant to the work-product privilege, release of segregable factual information is not required. As noted earlier, the work-product privilege of exemption 5 protects from disclosure all material not “normally” or “routinely” disclosed under Rule 26(b)(3). The rule requires that factual information collected or prepared in anticipation of litigation be disclosed “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Under the FOIA, then, such factual material is exempt from disclosure, even if segregable, because it is not “normally” or “routinely” discoverable in a civil context. See Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 27-28, 103 S.Ct. 2209, 2214-15, 76 L.Ed.2d 387 (1983) (“under the current state of the law relating to the privilege, work-product materials are immune from discovery unless the one seeking discovery can show substantial need in connection with subsequent litigation____ It is not difficult to imagine litigation in which one party’s need for otherwise privileged documents would be sufficient to override the privilege but that does not remove the documents from the category of the normally privileged.”)

Although segregable factual material is protected by the work-product privilege of exemption 5, it is not protected by the deliberative process privilege. See Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). In this case, the government has already released significant portions of three out of the four documents for which it claimed solely the deliberative process privilege. The Commonwealth, however, claims that the government is refusing to disclose segregable factual material, and urges that “[ultimately the Court must have the documents before it to make an informed decision on the issue of segregability.” Plaintiff’s Brief in Opposition to Motion for Summary Judgment Filed by Defendants, at 5.

We do not find that this case is an appropriate one for in camera review. In camera inspections of documents in the FOIA context are not favored because they are conducted without the benefit of the adversary process and because they are not a “wise use of increasingly burdened judicial resources.” Mead Data Central, Inc., 566 F.2d at 262. Where the government has provided a detailed index and justification for withholding each of the documents, “a district court need not conduct its own in camera search for segregable nonexempt information unless the agency response is vague, its claim too sweeping, or there is a reason to suspect bad faith.” Id.

We find nothing vague about the descriptions of the withheld portions of documents 12-15. Further, the Commonwealth has suggested no bad faith, nor do we find any reason to suspect bad faith, especially given the extensive disclosure of segregable factual material already made from documents 13-15. We therefore will order no further disclosure, nor will we order an in camera review of the documents.

Because we find that summary judgment is appropriate in this case at this time, we see no reason to address defendant’s motion for a protective order. No further discovery need take place.


source: Caselaw Access Project

author: LATCHUM, Senior District Judge.

license: Public Domain

text:
    WITCO CHEMICAL CORPORATION, Plaintiff, v. The DOW CHEMICAL COMPANY, Defendant.
    Civ. A. No. 84-514-JLL.
    United States District Court, D. Delaware.
    Nov. 19, 1985.
    Edmund N. Carpenter II, Robert H. Richards III and Robert W. Whetzel of Richards, Layton & Finger, Wilmington, Del. (Harold Haidt, G.T. Delahunty and C.G. Mueller of Brooks Haidt Haffner & Delahunty, and Alan M. Abrams and Morton Friedman, New York City, of counsel), for plaintiff.
    Douglas E. Whitney and Mary B. Graham of Morris, Nichols, Arsht & Tunnell, Wilmington, Del. (Bernd W. Sandt and Michael S. Jenkins, Midland, Mich., of counsel), for defendant.
   OPINION

LATCHUM, Senior District Judge.

Witco Chemical Corporation (“Wit-co”), a Delaware corporation, brought this action for patent infringement, and unfair competition, against the Dow Chemical Company (“Dow”), also a Delaware corporation. Witco’s predecessor corporation, Isocyanate Products, Inc. (“IPI”), had entered into a License Agreement (“Agreement”) with Dow, dated June 1, 1967, under which Dow was licensed for certain hoped-for patent rights involving use of polyether polyols which were at the time the subject of IPI’s pending patent applications. The dispute which led to this litigation began when Witco gave Dow notice on September 17,1979, that it was terminating the Agreement pursuant to its provisions.Dow responded that no such termination had occurred and, after Witco continued to claim that the Agreement was terminated, Dow filed a notice of intention to proceed in the Chancery Court of Delaware to resolve this issue. Dow later filed a Chancery suit. Witco then filed the present action in this Court. After a conference with counsel for the parties, Dow agreed to dismiss its Chancery action and proceed in federal court on the issue of whether Witco had terminated the Agreement.

On April 8, 1985, Dow moved for summary judgment in this Court (Docket Item [“D.I.”] 18) on the ground that no termination of the Agreement had occurred. After considering the parties’ submissions on this motion and oral argument, this Court has determined that the Agreement is still in full force and effect and will therefore grant defendant’s motion for summary judgment.

BACKGROUND

The interpretation of contract provisions is crucial to the resolution of the issues raised by Dow’s summary judgment motion. Therefore, primary attention will be devoted to a description of the Agreement between Dow and Witco and the correspondence between the parties, applying the facts that are undisputed to the provisions of the Agreement. Since this case at its present juncture does not directly involve patent infringement, the technology of polyurethane foam need be only briefly described.

Kenneth P. Satterly, an owner/employee of IPI, Witeo’s predecessor, invented a rigid, insulating polyurethane foam at reduced cost. The foam is prepared by reacting an arylene polyisocyanate and a polyether polyol, an additional product of an alkylene oxide having three or more carbon atoms, and a polyol having at least four hydroxy groups and a chlorofluoro alkane as the essential blowing agent. (D.I. 39, If 4.) Satterly’s polyurethane foam gains its excellent thermal insulation from the fluorocarbon blowing agent which is retained within the closed cells of the foam. Satterly’s insulation is nearly twice as efficient as the next best kind of commercial insulation and is recognized as the most cost effective insulation available commercially. (Id. at 115.) The patent, No. 3,846,347 (’347 patent), was issued on this invention only on November 5, 1974. (Id. at II 6.)

At the time that the Agreement was entered into with Dow, Witco’s predecessor, IPI, a relatively small company, was being sued for patent infringement. This suit imposed significant burdens on IPI’s finances. (D.I. 39, 117.) In order to finance its defense to this suit, IPI entered into separate license agreements with E.I. duPont de Nemours & Company, Mobay Chemical Corporation, Atlas Chemical Company, and Dow, four major suppliers to the polyurethane foam industry. (Id. at 118.) Under Witco’s License Agreement with Dow, the need to report royalty payments on the use of polyols did not arise until a patent was actually issued. (Id. at ¶ 14.) On February 3, 1981, Witco was issued another patent, No. 4,248,975 (’975 patent), which covers rigid shrink stable thermal insulating polyurethane foams in language different from that of the ’347 patent. (Id. at ¶ 28.)

The genesis of this controversy occurred in 1967, when IPI entered into the Agreement with Dow, granting Dow a non-exclusive license to the rights of patents which had yet to be issued. (D.I. 1, 114.) The Agreement remains unchanged to the present, except for an amendment to the reporting terms by way of a letter agreement.

The terms of the Agreement, as they pertain to the issues in this case, are as follows. The Agreement states Dow’s desire for a license under the two patents with a right to sublicense this license to its subsidiaries. (D.I. 34A at A-1.) In Section 2(a), Dow and its subsidiaries have the right to grant immunity from suit to customers for infringement of the patent rights with respect to polyol sold by each of them. (Id. at A-2.) Pursuant to Section 3(a), Dow paid IPI $25,000 in part payment for the license and rights. Dow and IPI agreed that the “amount of polyol used or sold for use by Dow under Patent Rights is a convenient and adequate measure of royalties hereunder.” (Id., Section 3(b).) Dow further agreed to pay running royalties to IPI “at the rate of no more than one-quarter cent ($0.0025) per pound of polyols used or sold for use” under the rights applicable only after Dow and its sublicensed subsidiaries used or sold for use forty million pounds of polyols. (Id.) Section 4, whose language is central to this case, reads in full:

4. DOW AND SUBLICENSED Subsidiaries shall keep records in sufficient detail to permit an accurate determination of royalties which accrue under this agreement and DOW shall report to IPI in writing within sixty (60) days after the end of each calendar half-year during the life of this agreement the number of pounds of polyols which DOW and said Subsidiaries used or sold for use under Patent Rights during said half-year and accompany the report with a payment of any accrued royalties thereon. If DOW and said Subsidiaries during said half-year have not used any polyols under Patent Rights nor sold any for such use the report shall so state. DOW agrees that its pertinent records may be examined at IPI’s request during regular business hours by a certified public accountant, reasonably acceptable to DOW, for the purpose of determining royalties accrued hereunder, and such accountant shall report to IPI the amount of accrued royalties only.

(D.I. 34A at A-3.)

Section 7(a), the termination provision, also merits quotation in full:

7(a). This agreement and license unless earlier terminated as hereinafter provided shall terminate upon the expiration of the last to expire of patents included in Patent Rights.
(b) . DOW may terminate this agreement and license at any time by giving IPI sixty (60) days written notice thereof.
(c) . IPI may terminate this agreement and license upon sixty (60) days notice in writing to DOW in the event that DOW shall fail to make a payment of royalties, or render any report or keep accurate records or permit examination thereof as required herein; provided, however, that if any such failure is remedied within such sixty (60) day period the agreement and license shall not then be terminated.
(d) . Termination of this agreement and license, in whole or in part, shall not relieve DOW of its obligation to make payment or royalties that have accrued hereunder prior to the effective date of such termination or to render any report or to permit examination of records with respect thereto.

(D.I. 34A at A-4-5.)

At the time IPI entered into this Agreement with Dow, there was very little demand for rigid polyurethane foam and, thus, for the polyol used to make the foam. Only much later did a significant market develop, with a corresponding increase in value of the right to the license.

Dow’s reporting under this Agreement can be traced clearly from the correspondence between the two parties. In arguing that it properly terminated the Agreement, Witco disputes that Dow complied with the Agreement’s provisions on reporting or at the very least, that such compliance raises factual issues. On its motion for summary judgment, Dow in turn attempts to rebut Witco’s allegations with evidence from the correspondence, including explanatory letters as well as reports.

Dow claims to have filed all reports of its activities as required under the provisions of the Agreement. Dow began reporting under the Agreement on November 3,1975, when it stated that there had been no activity for the period January 1, 1975 to June 30, 1975. (D.I. 34A at A-24.) On May 19, 1976, Dow reported no activity for the period January 1, 1976 to December 31, 1976. Subsequently, Dow duly reported no activity on February 28, 1977 for all of 1976 (id. at A-29) and on February 15, 1978 for all of 1977. (Id. at A-30.) Dow’s first report of activity was on March 27, 1979, when it reported activity for the second half of 1978. (Id. at A-31.)

By a letter of notice dated September 17, 1979, Witco stated that it was terminating the Agreement pursuant to Section 7(c). In this letter, Witco claimed that Dow was required to keep records “which permit an accurate determination of the royalties due and to make periodic reports each calendar half-year during the life of the Agreement.” (D.I. 34A at A-32.) Witco stated that since it had not received any royalty reports, Dow was in default of the Agreement. Witco did state, however, that there would be no termination if the fault was remedied within the sixty day period stipulated in the Agreement. Dow replied to Witco on September 25, 1979. In that reply, Dow stated that it had indeed sent royalty reports to Witco covering 1976 and 1977, reporting no activity under the Agreement, and the report on March 27, 1979, concerning the initial sale of polyols for the second half of 1978. (Id. at A-33.) Dow also sent a report to Witco on October 12, 1979, reporting activity for the first half of 1979. (Id. at A-34.)

Witco sent its next letter to Dow on November 28, 1979 which made two major complaints, different from those in its September 17 letter,of notice, concerning the accuracy of the records used by Dow under the reporting provisions of the Agreement. First, Witco stated that Dow must report under the Agreement not only the number of pounds of polyols which Dow and its subsidiaries sold but also “the number of pounds of such polyols used by Dow and its subsidiaries.” (D.I. 34A at A-35.) Witco contends that none of Dow’s royalty reports had given the figures for the polyols used, and thus purported to terminate the Agreement pursuant to Section 7(c). Second, Witco was concerned about the allegedly low level of sales of polyols reported by Dow. Witco questioned the type and kind of records which Dow kept and requested a “full explanation” of the records maintained and how Dow determined the quantity of polyols, subject to the royalty reporting requirement. (Id.) On December 12, 1979, Dow responded to the November 28 letter of Witco. Dow stated that it had reported all the polyols used and sold by Dow and its subsidiaries in the production of prepolymer of the type covered by Witco’s patents. Dow also explained the records it used in preparing royalty reports, although by the terms of the Agreement it was not required to do so. The records showed only the quantity of the prepolymer which Dow and its subsidiaries sell. Neither Dow nor its subsidiaries used any of the prepolymer. Dow obtained the amount of polyol by multiplying the pounds of prepolymer by a factor which shows the quantity of polyol in the prepolymer. (D.I. 34A at A-36.)

On February 29,1980, Dow sent an activity report to Witco covering the second half of 1979. (D.I. 34A at A-36.) On October 13, 1980, Witco sent to Dow another letter stating that the Agreement had been terminated. Witco stated that no royalty report had been received for the first half of 1980. As the letter stated, “[accordingly, you have acknowledged that the said Agreement has been and is terminated.” (D.I. 34A at A-37.) Dow responded on October 27, claiming inadvertence because its reporting procedures were still set up on an annual reporting rather than a semiannual reporting basis, as modified by letter agreement. Dow apologized for the delay and correctly stated that under the Agreement it had sixty days after the October 13 notice to correct the deficiency. The letter also rejected Witco’s “acknowledgment” of the termination and repeated Dow’s statement in its December 12, 1979 letter that there was no basis for the termination. (D.I. 34A at A-39.) Dow sent this letter on October 30, well within the sixty-day period, reporting activity for the first half of 1980. (Id. at A-39a.)

Witco responded to Dow’s letter of October 27 on November 18, 1980, again claiming termination of the Agreement. Witco’s complaints essentially repeated those of its November 28, 1979 letter: (1) no reports had been made concerning the number of pounds of polyols used by Dow; and (2) the type and kinds of records maintained by Dow were inadequate. Witco claimed that it received no reply to its request for an explanation of the recordkeeping. (D.I. 34A at A-40.) Again, Witco claimed that the License Agreement had been terminated. (Id. at A-41.)

Dow responded on November 25, 1980, stating that the terms of the Agreement do not require reporting of the polyols used by Dow separately from those sold by Dow nor do they require disclosure to the licensor of the form or manner of its accounting practices. Dow also stated that under the Agreement Witco was entitled to have a CPA examine records at Dow for the purpose of determining the proficiency of Dow’s royalty reports, and that beyond that Dow had no obligation to tell Witco how its records are kept. Again, Dow rejected Witco’s position that the License Agreement had been terminated. (D.I. 34A at A-42.) In response, Witco again claimed that the Agreement had been terminated in a letter of December 22, 1980. Specifically, Witco contended that Dow had received notice of its breach and had failed to cure this breach within the time required. Wit-co continued to claim that Dow’s royalty reports were “incomplete and misleading,” referring to the use of sales figures rather than use figures. (D.I. 34A at A-43.) ANALYSIS

A. Summary Judgment on the Issue of Termination

The sole issue in this case is whether summary judgment is appropriate for the defendant on the issue of whether the Agreement is still in full force and effect. In order to obtain summary judgment, a moving party must demonstrate that there is no genuine issue as to any material fact and is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Company, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In deciding whether to grant summary judgment, the Court must draw all inferences from the existing record in a light most favorable to the non-moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1975), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Although it is true that the moving party bears the initial burden on this motion, the non-moving party bears the burden of producing material evidence in support of its allegations and must establish specific facts showing the existence of a “genuine issue for trial.” Fed.R.Civ.P. 56(e).

B. Witco’s Purported Termination of License Agreement

Witco offers several arguments to support its contention that it properly effected termination and that at the very least, there are factual issues which should be addressed in a trial on this issue.

Witco’s motivations are transparent for claiming that it properly terminated the Agreement: the patent had become too profitable to license to Dow and the three other companies under the present terms. Witco apparently decided at some point that the potential profit from a renegotiated, higher rate outweighed the risk of costly litigation. For example, Witco sent the same initial notice letter to Mobay (word for word) (D.I. 34 at 9) on the same day that it sent it to Dow, stating that the licensee had “breached” the Agreement and that the Agreement was therefore terminated.

Witco contends that its allegation that Dow materially breached the License Agreement requires a factual inquiry into the meaning of the Agreement and the scope of the patent claims. (D.I. 38 at 4.) The License Agreement is sufficiently clear concerning what both parties were required to do—particularly when a dispute arose. Section 7(c) explicitly states the four major obligations of Dow under the Agreement and the procedure Witco should follow when it believes that Dow is not properly fulfilling one of its obligations. (D.I. 15A at A-3.) Witco first must give notice of the deficiency, which may relate only to one or more of thefour obligations.

Section 7(c) is the critical language of the Agreement which is at issue here. Witco focuses most of its complaints on the alleged inaccuracy of Dow’s recordkeeping. Arguably, the meaning of the requirement to “keep accurate records,” which Witco in several respects contends is a critical material issue in this case, is open to interpretation. The other three requirements—to make payment of royalties, to render any report, or to permit examination of the records—are sufficiently clear in meaning.

Nevertheless, for two major reasons, the meaning of “to keep accurate records” does not present a factual problem. First, it is not in any event of crucial importance because another part of the Agreement renders sole reliance on this language unnecessary. Should Witco suspect the accuracy of Dow’s records, Witco has the option under the Agreement to have a CPA examine Dow’s records to determine the accuracy of the royalty reports. (D.I. 15A at A-3.) Particularly damning to Witco’s case is the undisputed fact that it did not use this option to have a CPA examine Dow's royalty records if Witco sincerely disputed the accuracy of those reports. Indeed, allegations of underreporting, nonreporting, and misleading reporting form the substance of Witeo’s complaints. In a license agreement, concern about accuracy of royalty reports is natural. An efficient manner of alleviating this concern is to have some provision for a third party to check the report’s accuracy. It is true that failure within sixty days’ notice of a deficiency in keeping “accurate” records would be a breach of the Agreement—a notice which Witco did give to Dow—but this provision must be read together with Witco’s option to employ a CPA. Both terms of the Agreement are contained in the same paragraph. (D.I. 15A, ¶ 4.)

Thus, it is apparent that the parties contemplated that the accuracy of the royalty records could be a potential problem; and that therefore the parties instituted a monitoring procedure that would act as a safeguard for the licensor’s interests. This is both explicit and implicit in the Agreement.

Second, Section 4 clarifies the meaning of this language in requiring Dow to “keep records in sufficient detail to permit an accurate determination of royalties.” (D.I. 34A at A-3.) This language appears to be clear, although Witco attempts to impute meaning that is foreign to the fair import of this section.

There is no question that Dow’s method of reporting under the Agreement is accurate. Witco complains that Dow only reported sales data and not the amounts used in its production process. However, this argument proves nothing since Dow states that it quite simply obtained the amount of polyol used or sold for use (in the terms of the License Agreement) by multiplying the amount of prepolymer it produced from the polyol by a certain factor. Dow did not use any of the prepolymer but sold all of it. The Court is convinced that use of the sales figure in this fashion is thus keeping records “in sufficient detail” as required by the Agreement. Dow could not have reported the polyols otherwise; it did not keep a production record of polyols and was not required to by the Agreement. Moreover, although Witco makes much of this “mysterious” factor applied by Dow, Witco never had a CPA examine the records to determine how Dow used it in its calculations.

Witco also contends that Dow did not report on sales of products using polyols during the period 1974-79. Dow reported there were no sales during this period; but Witco offers no positive evidence that such sales occurred in violation of the Agreement. Witco offers the deposition testimony by Dow officials and engineers (D.I. 38 at 15-16), who had no personal knowledge of sales during the period in question, and offers only sales brochures (D.I. 38A, Ex. 3) as evidence, no facts or figures.

In this connection Witco refers specifically to two portions of deposition testimony in addition to the sales brochures. First, Douglas Kunnemann, a product marketing manager for Dow, in response to questions whether Dow sold any other rigid polyols, stated that the only sales data he had personally looked at were in 1978—an “overview” of a sales report that reviewed just one specific product. (D.I. 34A, Ex. 2 at 20.) Second, Witco points to a colloquy by counsel in which Ms. Graham, an attorney for Dow, stated: “You did ask that we search for any other forms of sales data that might exist, and what we will do is agree that, for purposes of our summary judgment motion, the amount of polyols sold by Dow for use in rigid foams is significant. In other words, we won’t assert as a defense to termination that the amount of those polyols is insubstantial.” (Id., Ex. 21 at 3.) Ms. Graham makes no specific reference to the time period here, nor does she specify whether the products were covered by the Agreement.

All of this, however, is immaterial because the Court agrees substantially with Dow’s narrow framing of the issue relating to the notice letter of September 17, 1979. Although the Court finds subsequent letters of notice, which complained of accuracy of reporting concerning the polyols used or sold for use, to be material, Witco’s complaints concerning reporting from 1974-1979 were never formally incorporated into a letter notice. This was a bare minimum required to set the process of termination in motion under the terms of the Agreement.

Witco further contends that the issue of whether it terminated the Agreement in accordance with the provisions is a question of fact. (D.I. 38 at 4.) However, it appears that the correspondence as well as the license provisions speak for themselves. Before determining that certain issues are to be tested in court for credibility, it must be determined that these issues are disputable issues of fact. Here, the correspondence shows the procedural history of the dispute, and the undisputed facts thus determined can be interpreted according to the provisions of the Agreement. Witco attempts to generate a smoke screen by contending that the correspondence shows that Dow was not reporting accurately, yet never followed the procedure stipulated in the Agreement for termination in addressing that concern.

As indicated before, Dow seeks to limit the issue of termination solely to consideration of the language in the September 17, 1979 letter of notice. The Court is in general agreement with Dow’s approach to interpretation of the correspondence between the parties and rejects Witco’s attempt to inject broad factual issues relating to patent infringement and alleged deficiencies in Dow’s reporting system into what is simply an inquiry into the procedure for termination which is unambiguous in its terms. Nevertheless, Dow is incorrect in singling out Witco’s September 17, 1979 letter to the exclusion of Witco’s other correspondence discussed above.

The record shows that in all cases Dow made reports on the amount of polyols used or sold for use. The only deficiency noted in the September 17 letter was Wit-co’s complaint that, “We have not received any such (half-year) royalty reports.” (D.I. 34A at A-32.) Dow quickly corrected this oversight. The only other deficiencies alluded to in Witco’s letters of notice on November 28, 1979, November 18, 1980, and December 22, 1980, concerned alleged inaccuracies in reporting. Dow, however, gave Witco a full report of its reporting method. The burden was then on Witco to check Dow’s records through the services of an independent CPA as the Agreement provided.

The Court thus finds that the Agreement between Dow and Witco has not been terminated and remains in full force and effect. The claims of patent infringement raised by Witco cannot be reached because the Agreement grants a license to Dow and its subsidiaries with the right to grant immunity to their customers.

If Witco believes that Dow has underreported the royalties due to Witco under the Agreement, then Witco must pursue its remedy in a forum (not this Court) which has jurisdiction over that issue.

Summary judgment will be entered in favor of Dow and against Witco for the above reasons.

      . Jurisdiction arises under 28 U.S.C. § 1338(a) and venue is based on 28 U.S.C. §§ 1392(a), 1400(b). Dow, the defendant, resides in the District of Delaware.
      Dow objects to this Court’s lack of subject matter jurisdiction to decide the claim of patent infringement because Dow is licensed under the patents and thus immune from suit. (D.I. 34 at 19.) This latter claim has not been dismissed but reserved for judgment, should the Court decide against Dow on the issue of termination. Allegations of infringement are sufficient to give this Court jurisdiction. "The federal courts have jurisdiction of a suit for infringement of a patent notwithstanding that a license is set up in defense, so that the question of its existence is involved and must be tried in trying the question of infringement.” Morpul, Inc. v. Crescent Hosiery Milts Co., 265 F.Supp. 279, 303 (E.D. Tenn.1967).

      . ’ Jurisdiction on this claim is based on 35 U.S.C. § 1338(b) and venue is based on 28 U.S.C. §§ 1391(c), 1400(b).

      . It should be noted at the outset that neither party contends nor argues in this case that the Agreement is unenforceable. Witco does refer in its brief (D.I. 17 at 7) and an affidavit (D.I. 39, ¶¶ 31-32) to the case of Witco Chemical Corp. v. Peachtree Doors, Inc. and Mobay Chemical Corp., No. C81-1648A, slip op. (N.D.Ga. Dec. 4, 1984), where that Court held the Mobay-Witco license agreement to be a mere "agreement to agree” because the royalty rate was stated as not more than a specific rate. The same language appears in the Dow-Witco Agreement. However, since the unenforceability of the present Agreement has not been questioned in this case, the Court will not address that issue.

      . Witco contends that both the ’347 and '975 patents would have been patent rights licensed to Dow under the Agreement. (D.I. 39, ¶ 28.)

      . Dow and Witco agreed on July 21, 1976, to modify a provision which required biannual reporting to require annual reporting instead until Dow commenced operations under the patents. (D.I. 34A at A-28.)

      . The parties agreed to an amendment of the Agreement on July 21, 1976, under which Dow would be permitted to report on an annual basis until activity began under the terms of the Agreement. (D.I. 34A at A-28.) Although Dow filed this annual report before this amendment was formalized on July 21, 1976, Dow in any event had already reported no activity to date on May 12, 1976. (Id. at A-25.)

      . Witco alleges that Dow breached the Agreement because it never made a report for the first half calendar year of 1978. (D.I. 38 at 11.) Witco apparently ignores the amendment to the Agreement, which permitted reporting on an annual basis until production of prepolymers began. Witco also complains about the absence of a report for the second half of 1974, when a report would first be required because of the issuance of the ’347 patent on November 5, 1974. Significantly, Witco only raises these points in the context of litigation; they could not have ripened into breaches unless Witco had followed the provisions of the Agreement in giving notice to Dow of its deficiencies.

      . Dow, in its briefs and particularly at oral argument, focuses the issue of termination on the notice of September 17, 1979. Witco purported to effect termination over sixty days later, on November 28. (D.I. 34A at A-35.) The relevant portions of this notice, which states the alleged deficiencies, read as follows:
      In accordance with Paragraph 4 of the aforesaid license agreement, you are required to keep records which permit an accurate determination of the royalties due and to make periodic reports each calendar half-year during the life of the agreement. We have not received any such royalty reports. Accordingly, you are in default of said license agreement, and we are compelled pursuant to the provisions of Paragraph 7(c) of said license agreement to terminate said agreement as of sixty days from your receipt of this letter.

        (Id. at A-32.)

      . Witco first attempted to terminate the Agreement at this time. However, Dow was given notice of these particular deficiencies only at this time and, by the terms of the Agreement, had sixty days to correct or explain them, which it subsequently did.

      . Here, again the evidence of record shows otherwise. As already stated above, Dow replied within sixty days, reporting on polyols used or sold for use and giving an adequate explanation of how it arrived at this figure. (D.I. 34A at A-36.)

      . Witco argues that Dow is required to maintain production records of the amount of polyols (D.I. 38 at 12-13) despite the total absence of any such requirement in the Agreement.

      . As already stated, technically, Dow did not file and report for the second half of 1974, during which time the ’374 patent was issued. However, Witco never sent a notice directed to this deficiency, as required by the Agreement, and in any event Dow corrected this deficiency on May 12, 1976, when it reported no activity ”[t]o the present.” (D.I. 34A at A-25.) Further, the letter amendment to the Agreement permitting annual instead of biannual reporting until activity occurred, which was made after Dow’s omission for the second half of 1974, superseded Dow’s obligation in this instance, since there was no activity at that time.

      . The only other letter notice, dated October 13, 1980, concerned solely the absence of a biannual report for the first half of 1980 (D.I. 34A at A-37), which Dow quickly sent to Witco on October 30, 1980. (Id. at A-39a.)


author: BOWEN, District Judge.

text:
    Jose Martinez HIGH, Petitioner, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent.
    Civ. A. No. CV185-041.
    United States District Court, S.D. Georgia, Augusta Division.
    Nov. 19, 1985.

      Bradley S. Stetler, Office of Public Defender, Burlington, Vt., Michael C. Garrett, Augusta, Ga., for petitioner.
    Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent.
   ORDER

BOWEN, District Judge.

The petitioner, Jose Martinez High, is under sentence of death and applies to this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.

In its review of this case the Georgia Supreme Court noted that the facts were set out in the companion case of Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979), cert. denied 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 425 (1980). High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981). The Ruffin court summarized the evidence as follows:

In the late evening hours of July 26, 1976, Henry Lee Phillips was operating an Amoco service station off 1-20 near Crawfordville, Georgia, with his eleven-year-old stepson, Bonnie Bulloch, helping him. A car pulled into the station with three occupants. [Judson Ruffin] and the two co-indictees, Nathan Brown and Jose High, were in the car. The car had been in the station a week or two earlier. The three men got out of the car and one pointed a pistol at Phillips. [Ruffin] had a sawed-off shotgun. Phillips was forced to leave the booth while [Ruffin] removed the money from the register and demanded any other money. When Phillips told him that there was no more money, [Ruffin] grabbed Bonnie Bulloch and told Phillips to get in the car trunk or Phillips and the boy would be killed. Phillips got in the trunk of the car and when he was released from the trunk found that they were in the woods. Phillips and his stepson were ordered to lie on the ground. Phillips then heard shots fired. When Phillips regained consciousness he discovered the Bulloch was dead____ Phillips had been shot in the temple and wrist. He managed to get to a nearby house and the sheriff was summoned.

Ruffin v. State, supra at 95, 252 S.E.2d at 474 (1979), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 425 (1980).

The Georgia Supreme Court noted the following additional evidence in the instant case:

The evidence, if it is to be believed, shows that [High] and his two co-indictees planned the armed robbery on the night in question with the express purpose of eliminating any witnesses to the crime. They abducted an eleven-year-old child along with his stepfather at gunpoint. The victim was fifty-six inches tall and weighed seventy pounds. As they drove the victims to the execution site, the young boy rode inside the automobile with [High] while his stepfather was locked in the trunk. [High] in his statement said he thought the boy was too young, but he kept asking him as they rode, “Are you ready to die? Do you want to die? Well, you’re going to die.” He stated that the boy was begging for his life. Once the three robbers reached a rural area, the victims were removed from the car, marched around to the front of the automobile and forced to lie on their faces. They were then shot in the head in a cold-blooded execution fashion. The murder victim’s stepfather, however, was not fatally injured.

High v. State, 247 Ga. at 296, 276 S.E.2d at 13.

Petitioner was convicted in the Superior Court of Taliaferro County, Georgia, on charges of murder, armed robbery, two counts of kidnapping with bodily injury, aggravated assault and the unlawful possession of a firearm during the commission of a crime. On December 1, 1978, petitioner initially was sentenced to death for murder, armed robbery and two counts of kidnapping with bodily injury. Petitioner also received a five-(5) year sentence for unlawful possession of a firearm and a ten-year sentence for aggravated assault. The Georgia Supreme Court affirmed the convictions for murder, armed robbery and two counts of kidnapping with bodily injury. The court vacated the convictions for the unlawful possession of a firearm and aggravated assault, holding that these crimes merged into the crimes of armed robbery and kidnapping. High v. State, 247 Ga. at 294-95, 276 S.E.2d at 11-12. The court affirmed the death penalty for murder and one count of kidnapping with bodily injury but sua sponte vacated the death sentences for armed robbery and for the one count of kidnapping with bodily injury in which the victim did not die. High v. State, 247 Ga. at 297, 276 S.E.2d at 14. The Georgia Supreme Court denied a petition for rehearing on March 31, 1981. The United States Supreme Court denied petitioner a writ of certiorari. High v. Georgia, 455 U.S. 927, 102 S.Ct. 1290, 71 L.Ed.2d 470 (1982). A petition for rehearing was also denied. High v. Georgia, 455 U.S. 1038, 102 S.Ct. 1742, 72 L.Ed.2d 156 (1982).

Petitioner’s state habeas corpus petition, filed in the Superior Court of Butts County, Georgia, was denied on June 25, 1982. On June 30, 1982, the Georgia Supreme Court granted petitioner’s motion for a stay of execution and an application for certificate of probable cause to appeal. The court remanded the case to the superior court for further proceeding. After an evidentiary hearing on the issue of the ineffectiveness of counsel, the Superior Court of Butts County found that this and all other issues raised by petitioner were without merit and denied relief on September 10, 1982. The Georgia Supreme Court affirmed the dismissal of the habeas corpus petition. High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983). Petitioner’s motion for a rehearing was denied. Petitioner’s subsequent petition for a writ of certiorari was denied by the United States Supreme Court on May 29, 1984. High v. Georgia,— U.S.-, 104 S.Ct. 2669, 81 L.Ed.2d 374 (1984).

The petitioner is before this Court to challenge the constitutionality both of his conviction and of the sentence imposed. The state does not contest the fact that the petitioner has exhausted all of his available state remedies. In paragraphs 12 through 89 of his petition, High generally enumerates the following reasons, not all of which were seriously urged, to support his challenge:

A. His counsel provided ineffective assistance during the sentencing phase of petitioner’s trial. Paragraphs ISIS.
B. The death penalty oriented qualification of his jury. Paragraphs 16-20.
C. Certain jurors were prematurely excluded in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Paragraphs 21-23.
D. The voir dire procedures denied petitioner his right to a fair trial. Paragraphs 24-27.
E. The Georgia statute which gives the state peremptory strikes is unconstitutional. Paragraphs 28-29.
P. Petitioner was denied state paid assistance of experts in the preparation of his case. Paragraphs 30-32.
G. The venue of petitioner’s trial should have been changed due to pre-trial publicity. Paragraphs 33-36.
H. Petitioner was denied his right to a speedy trial. Paragraphs 37-40.
I. Petitioner’s statements and certain physical evidence were obtained as the result of an arrest that violated the Fourth and Fourteenth Amendments. Paragraphs 41-45.
J. Petitioner was denied a fair trial. Paragraphs 46-47.
K. The failure to record bench conferences violated petitioner’s constitutional rights. Paragraphs 48-49.
L. Petitioner was denied state paid assistance in pursuing habeas corpus relief. Paragraph 50.
M. The jury instructions on intent unconstitutionally shifted the burden of proof to the petitioner. Paragraphs 51-54.
N. The trial court gave other improper instructions during the guilt-innocence phase of the trial. Paragraph 55.
0. Improper prosecutorial argument during the guilt-innocence phase of the trial. Paragraphs 56-59.
P. Improper prosecutorial argument during the sentencing phase of the trial. Paragraphs 60-64.
Q. Sentence of death for this petitioner is cruel and unusual punishment. Paragraphs 65-67.
R. Georgia’s “aggravating circumstances” statute was applied in an overly broad manner. Paragraphs 68-70.
S. The jury instructions on mitigating and aggravating circumstances were improper and inadequate. Paragraphs 71-73.
T. Multiple death counts were improperly submitted to the jury. Paragraphs 74-75.
U. Petitioner was improperly sentenced for crimes that merged. Paragraph 76.
V;W. Petitioner’s sentence is arbitrary and discriminatory. Paragraphs 77-83.
X. The appellate review process violates petitioner’s constitutional rights. Paragraphs 84-86.
Y. Petitioner improperly received the death sentence. Paragraph 87.
Z. The means of execution in Georgia is unconstitutional. Paragraphs 88-89.

INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner alleges that his counsel, John H. Ruffin, Jr., did not render reasonably effective assistance during the sentencing phase of his trial in that Mr. Ruffin failed to:

1. investigate and call witnesses during the sentencing phase; and
2. present any evidence during the sentencing phase.

In considering an allegation of ineffective assistance of counsel, it should be noted that “[t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). In this two-part test, petitioner must first show that his counsel’s “acts or omissions were outside the wide range of professionally competent assistance.” Id. at-, 104 S.Ct. at 2066. Petitioner must also show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at-, 104 S.Ct. at 2068. That is, petitioner must show that the error had a prejudicial effect.

“Judicial scrutiny of counsel’s performance must be highly deferential. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at-, 104 S.Ct. at 2065.

The evidence presented in the state habeas proceedings was that Mr. Ruffin practiced law for over twenty years and that approximately twenty-five percent of his practice had been in the area of criminal law. Habeas Corpus Transcript at 12. High v. Zant, Civil Action No. 5585 (Sup.Ct. of Butts Co., Ga., Aug. 12, 1982). Mr. Ruffin further testified that he had represented at least a half dozen other defendants in capital cases and in at least two of those cases the death penalty was imposed. Id. at 13.

Regarding the failure to present mitigating evidence during the sentencing phase of the trial, Mr. Ruffin and two law students assisting him were unable to find witnesses to testify on High’s behalf. Id. at 14. High’s parents were also unable to suggest any witnesses. Id. at 16. As part of his trial strategy, Mr. Ruffin decided not to call High’s parents as witnesses during the sentencing phase because “[t]hey were very broken up and distraught about this and I thought that the jury might get the impression that it was fiegned [sic] and decided against calling either one of those.” Id. at 18.

Petitioner High submitted a number of affidavits from people who stated they would have been willing to testify at trial during the sentencing phase. However, as the Superior Court of Butts County found and as Mr. Ruffin testified, it is not unusual for potential witnesses to come forward after trial with offers of help. Id. at 17. See also Order Denying Habeas Corpus Petition at 6-7, (Sup.Ct. of Butts Co., Ga., Sept. 10, 1982). It should be noted that petitioner has had years to line up the witnesses. Mr. Ruffin had only a few hours.

As stated by the United States Supreme Court, “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984) (emphasis added).

Mr. Ruffin and his assistants did investigate for potential evidence of mitigating circumstances. Mr. Ruffin considered the potential witnesses and made a conscious decision not to present any evidence to the jury during the sentencing phase. In deciding not to present potential evidence available to him at the time of the trial, Mr. Ruffin, an experienced trial lawyer, acted professionally and reasonably. In fact, Mr. Ruffin’s performance was more than adequate. As correctly stated by the Georgia Supreme Court:

In viewing the contention of ineffectiveness of counsel, we cannot consider potential mitigation evidence in vacuo, any more than the trial jury might blot out what they have seen and heard for several days in the guilt phase, once they turn to consider sentence. Here, the jury learned of the execution-style killing of an eleven-year-old child, whose only offense against High was that he was present when High and his companions robbed a service station, thereby committing the crime of becoming an involuntary witness. Here, the jury was exposed to the tragic death of a little boy, shot through the head after High had continued to ask and assure him “ ‘Are you ready to die? Do you want to die? Well, you’re going to die.’” High v. State, [247 Ga. 289, 296, 276 S.E.2d 5, 13, (1981)]. Here, the jury learned of a small child removed from a car, marched around the front of an automobile and forced to lie upon his face, as three murderers snuffed out his life. Here, the jury heard of High bragging that “he wanted to be the most famous black ringleader in the world.”

Up against that, High’s counsel is charged with derogation of duty in failing to call someone who would mount the stand to say that Jose was a normal teenager, or that he never talked to a school psychologist.

In the face of the monstrosity of what High did to eleven-year-old Bonnie Bulloch, we can easily understand the decision of an experienced defense lawyer who sees, with us, the hazard of deigning to present such transparencies.

High v. Zant, 250 Ga. 693, 695, 300 S.E.2d 654, 657-58 (1983) (emphasis in original).

Considering all the circumstances, High was furnished effective assistance of counsel and petitioner’s contention is without merit.

JURY INSTRUCTIONS ON INTENT

Petitioner High urges that the jury instructions during the guilt-innocence phase of the trial improperly shifted the burden of proof in violation of Sandstrom. v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The relevant instructions are as follows:

A crime is a violation of a statute of this State in which there shall be a union of joint operation of act and intention. I charge you that the acts of a person of sound mind and discretion are presumed to be the product of a person’s will, but the presumption may be rebutted. I charge you that a person of sound mind and discretion is presumed to intend the natural and probable consequences of his act, but the presumption may be rebutted. I charge you that a person will not be presumed to act with criminal intention, but the trior (sic) of the facts may find such intention upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.

Trial Transcript at 882.

I charge you, ladies and gentlemen of the jury, that the law presumes that a person intends to accomplish the natural and probable consequences of his act or acts if that person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily employed to produce death and thereby causes the death of a human being. The law presumes the intent to kill. This presumption may be rebutted. I further charge you that a person shall not be presumed to act with criminal intention but the triors (sic) of the facts may find such intention upon consideration of the words, conduct, demeanor, and all other circumstances connected with the act for which the accused has been prosecuted. The burden is upon the State to prove the act alleged to be criminal is, in fact, a criminal act beyond a reasonable doubt.

Id. at 894-95.

The instruction that “[A] person of sound mind and discretion is presumed to intend the natural and probable consequences of his act, but the presumption may be rebutted” is nearly identical to the ones found impermissible in the recent Supreme Court case of Francis v. Franklin,—U.S.-, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) and by the Eleventh Circuit Court of Appeals in Davis v. Kemp, 752 F.2d 1515 (11th Cir.1985) (en banc). The Eleventh Circuit, however, has said that a Sandstrom error can be held harmless beyond a reasonable doubt. Davis v. Kemp, 752 F.2d at 1520-21. There are two situations in which a Sandstrom violation can be harmless error: (1) where the evidence of the defendant’s guilt is overwhelming; and (2) where the element of intent is not in issue at trial. Davis, 752 F.2d at 1521. Footnote 10 of the Davis opinion makes it clear that the analysis should focus on whether the evidence of intent, rather than guilt, is overwhelming. Davis, 752 F.2d at 1521, n. 10; see also Brooks v. Kemp, 762 F.2d 1383, 1390 (11th Cir.1985) (rehearing en banc); Drake v. Kemp, 762 F.2d 1449, 1453 (11th Cir.1985) (rehearing en banc); and Tucker v. Kemp, 762 F.2d 1496, 1502 (11th Cir.1985) (rehearing en banc).

In discussing the first type of situation in which a Sandstrom error may be harmless, the Court in Tucker v. Kemp stated: “The reason for this focus [on whether there is overwhelming evidence of intent, instead of guilt] is apparent. In the usual case, as in Davis and the instant case, the erroneous intent instruction could not possibly affect the jury’s determination of who the killer was. Rather, the intent instruction could have tainted only the finding of intent.” Tucker, 762 F.2d at 1502. The evidence in High’s case is overwhelming that whoever killed the victim did so with intent and malice. The youthful victim was abducted during an armed robbery; driven to a remote area; unmercifully taunted and threatened; and taken out of the car and shot. There is no evidence that the shooting was accidental. The Sandstrom error is harmless beyond a reasonable doubt because of the overwhelming evidence of the intent of the killer.

Additionally, the Sandstrom error is harmless beyond a reasonable doubt under the second situation identified in Davis: intent was not in issue. Jose High’s defenses had been that he was not present, or in the alternative, that he was not the person firing the shots. That is, High did not contend that he lacked the required intent; he contended that he did not kill. It, therefore, is “beyond a reasonable doubt that the [Sandstrom] error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (standard for harmless error of constitutional issues).

PROSECUTORIAL ARGUMENT DURING THE GUILT-INNOCENCE PHASE

An allegation remaining for consideration is that the prosecutor made improper comments and arguments to the jury during the guilt-innocence phase of the trial. The Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868 (1974), set forth the standard for reviewing habeas corpus petitions alleging that a state prosecutor’s argument was improper. The allegedly improper remarks must be examined in light of any curative instructions given by the trial court, and it must be determined whether the argument, taken as a whole, rendered the determination of petitioner’s guilt fundamentally unfair. As recently stated by the Eleventh Circuit Court of Appeals, “[t]he Donnelly

decision provides important guidelines for reviewing allegedly improper prosecutorial argument. Of primary importance is the need to examine the entire context of the judicial proceeding. Thus, it is not our duty to ask whether a particular remark was unfair; we are concerned with whether it rendered the entire trial unfair. In this regard, isolated or ambiguous or unintentional remarks must be viewed with lenity. Finally, the giving of a curative instruction by the trial court may remedy effects of improper comments.”

Brooks v. Kemp, 762 F.2d 1383, 1400 (11th Cir.1985) (en banc). Ultimately, it is the question of “fairness” that the Court must address in determining whether a prosecutor’s comments and arguments violated petitioner’s right to due process. In Brooks, the Eleventh Circuit adopted the “reasonable probability” test for “the fundamental fairness inquiry to be undertaken in cases where improper prosecutorial argument is at issue.” Id., 762 F.2d at 1401. The “reasonable probability” test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), dealt with a specific sixth amendment violation. However, the Eleventh Circuit adopted the Strickland test because it presented a useful standard for determining the fundamental fairness of a trial or proceeding. Brooks, 762 F.2d at 1401. As applied to this case, the Strickland test requires “an assessment of errors to determine whether there is a reasonable probability that [improper comments and arguments] changed the outcome of a case” thereby rendering the trial fundamentally unfair. Id., 762 F.2d at 1402. Petitioner has a heavy burden in satisfying the “reasonable probability” test. However,

asking whether the absence of improper argument would have, in reasonable probability, changed the result is consistent with the standards discussed in Donnelly and with subsequent cases applying the fundamental fairness standard. The several factors which those cases have found relevant operate in the same fashion under the “reasonable probability” test. For example, the willingness to tolerate an isolated or ambiguous argument stems from a recognition of its minimal effect upon the jury. Another factor—the degree to which the challenged remarks have a tendency to mislead the jury and prejudice the accused, Hance v. Zant, 696 F.2d [940] at 950 n. 7 [ (11th Cir.1983) ]—is necessarily included within the reasonable probability test. Even argument greatly exceeding the bounds of propriety will not be fundamentally unfair in the guilt phase of a case with overwhelming evidence because of the low probability of the argument’s impact. See, e.g., Cobb v. Wainwrigkt, 609 F.2d 754 (5th Cir.) (given the strength of evidence against the defendant, the prosecutor’s inflammatory argument did not render trial fundamentally unfair), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980); Cronnon v. Alabama, 587 F.2d 246 (5th Cir.) (improper argument not unconstitutional due to overwhelming evidence of guilt), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979). On the other hand, arguments serious enough to satisfy the “reasonable probability” test have been found “fundamentally unfair” under the Donnelly standard. See e.g., Houston v. Estelle, 569 F.2d 372 (5th Cir.1978) (repeated unsupported and inflammatory references to defendant as liar and dealer of drugs, and argument that defense counsel’s objections and motions for mistrial evidenced desire to take case away from the jury, all over objection by defense counsel, so pervaded the trial as to be unconstitutional—even a curative instruction did not mitigate actual prejudice to defendant).

Id., 762 F.2d at 1401-02 (footnotes omitted). In the present case, High lists numerous remarks made by the prosecutor that may be said to be improper. However, by putting these remarks in context and looking at the arguments as a whole, the Court concludes that there is not a reasonable probability that the statements rendered the determination of petitioner’s guilt fundamentally unfair. That is, the prosecutor’s comments did not change the outcome. In my opinion the prosecutor merely argued the logical and reasonable inferences from the facts in evidence. The petitioner supplied the evidence. One who engages in an atrocity of these dimensions might well expect an elected prosecutor to speak ill of such wickedness.

PROSECUTORIAL ARGUMENT DURING THE SENTENCING PHASE

Petitioner High also alleges that the prosecutor made constitutionally improper statements during his argument to the jury during the sentencing phase of the trial. These comments must be viewed using the standard discussed previously in examining comments made during the guilt-innocence phase. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Brooks v. Kemp, 762 F.2d 1383, 1400 n. 25 (1985). Again, by putting these comments in context and looking at the argument as a whole, the Court concludes that there is not a reasonable probability that the statements rendered the sentencing phase of petitioner’s trial fundamentally unfair. That is, the prosecutor’s comments did not change the outcome. My opinion of the prosecutor’s comments at this phase are the same as I stated for the guilt-innocence phase.

JURY INSTRUCTIONS ON MITIGATING AND AGGRAVATING CIRCUMSTANCES

In his petition at paragraphs 71-73, High challenges the constitutional adequacy of the court’s instructions to the jury during the sentencing phase of his trial alleging that the trial court inadequately instructed the jury as to mitigating circumstances and that the trial court improperly instructed the jury as to Georgia’s seventh statutory aggravating circumstance.

This Court recognizes its duty to construe jury instructions as a whole in determining their constitutional adequacy:

[It is a] well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge____ While this does not mean that an instruction by itself may never rise to the level of constitutional error, ... it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.

Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (citations omitted). Even though the Naughten decision considered jury instructions at the conviction phase of an armed robbery trial, the same judicial policy should equally apply to instructions given at the sentencing phase of a murder trial.

In regard to High’s contention that the jury was inadequately instructed as to mitigating circumstances, the Eleventh Circuit has stated:

In light of Lockett, Gregg and Chenault [v. Stynchcombe, 581 F.2d 444 (5th Cir.1978)], we hold that the eighth and fourteenth amendments require that when a jury is charged with the decision whether to impose the death penalty, the jury must receive clear instructions which not only do not preclude consideration of mitigating factors, Lockett, but which also “guid[e] and focu[s] the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender____” Jurek v. Texas, 428 U.S. [262] at 274, 96 S.Ct. [2950] at 2957 [49 L.Ed.2d 929 (1976)]. In most cases, this will mean that the judge must clearly and explicitly instruct the jury about mitigating circumstances and the option to recommend against death; in order to do so, the judge will normally tell the jury what a mitigating circumstance is and what its function is in the jury’s sentencing deliberations.

Spivey v. Zant, 661 F.2d 464, 471 (5th Cir. Unit B 1981) (footnote omitted), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982).

At the sentencing phase of High’s trial, the Court instructed the jury:

Mr. Foreman and members of the jury, this, as I have heretofore indicated or stated to you, is the sentencing phase of this trial. It’s very highly necessary that you listen to every word that the Court is now about to speak or to charge you at this time, and even so, Mr. Foreman, it may be well that you, if you are so prepared, to possibly take note if you desire, of some of the things the Court may tell you.

You will not be concerned in anywise in assessing or fixing a penalty as to Counts nos. 2 and 6—you will not fix any penalty whatever as to Count No. 2 which charges possession of firearm during commission of or attempt to commit the crime of armed robbery, nor to Count No. 6 which charges aggravated assault. You will not fix any penalty whatever as to those two counts.

Now, you have found the defendant guilty of the offenses of kidnapping as contained in Counts Nos. 3 and 4 of the bill of indictment and of the offense of murder as contained in Count No. 5 of the bill of indictment. It is now your duty to determine within the limits prescribed by law, the penalty that shall be imposed as punishment for those offenses. In reaching this determination, you are authorized to consider all of the evidence received by you in open court in the first phase of the trial, including all mitigating facts and circumstances, if any, on behalf of the defendant. You are authorized to consider all of the facts and circumstances in the case. Under the law of this State, every person guilty of the offense of murder and/or kidnapping, when the victim is injured, shall be punished by life in the penitentiary or death by electrocution. The law provides, Mr. Foreman and ladies and gentlemen of the jury, for punishment either by death, life imprisonment, or imprisonment for a period of years, insofar as the charge of armed robbery is concerned as is contained in Count No. 1 of the bill of indictment. As to that charge and count, you would fix a sentence only if you find that the defendant should be punished by death or life imprisonment. If you do not find that the defendant should be punished by death or life imprisonment, you should show this by your verdict and the sentence would be then fixed by the Judge. In that case, the form of your verdict would be as to Count No. 1, “We, the jury, find that the defendant should receive less than a life sentence.” In that case, your duty would be ended as to Count No. 1. If this is not your finding as to Count 1, you would apply the remaining instructions, which would be given to you, and determine whether the defendant should be punished by death or life imprisonment. In reaching this determination, you are authorized to consider all of the evidence received by you in open court in the trial of the case. You are authorized to consider all of the facts and circumstances of the case including mitigating facts and circumstances, if any, on behalf of the defendant.

In the event that your verdict is life imprisonment, that is, as it applies to Counts Nos. 3 and 4 relating to kidnapping, the punishment the defendant would receive would be imprisonment in the penitentiary for and during the remainder of his natural life. If that be your verdict, you would add to the verdict already found by you an additional verdict as follows: “And we fix his punishment as life imprisonment.”

As it applies to kidnapping when the victim is injured, you may, however, if you see fit and if that be your verdict, fix his punishment as death, which would require a sentence by the Court of death by electrocution. If that be your verdict, you would add to the verdict already found by you an additional verdict as follows: “And we fix his punishment as death.”

I charge you that before you will be authorized to find a verdict fixing a sentence of death by electrocution, you must find evidence of statutory aggravating circumstances, as I will define to you later in the charge, sufficient to authorize the supreme penalty of the law. I charge you that a finding of statutory aggravating circumstance or circumstances shall only be based upon evidence convincing your minds beyond a reasonable doubt as to the existence of one or more of the following factual conditions in connection with the defendant’s perpetration of the act or acts for which you have found him guilty. They are (1) the offense of murder and/or armed robbery and/or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery; (2) the offense of murder and/or armed robbery and/or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.

Now, the statutory instructions that you are authorized to consider will be submitted in writing to you for your deliberation. If you fix his punishment as death, you must also designate in writing the aggravating circumstances or circumstance which you found beyond a reasonable doubt. Your verdict should be agreed to by all twelve of your members. It must be in writing, entered under the instructions of the Court, dated and signed by your Foreman, and returned into Court for publication.

Now, the Court has prepared the necessary charge which it has referred to, in writing, and in addition to that fact the Court has caused to be placed thereon a verdict of the jury, and you may use this form itself or as your guide. It must be clear, concise, and specific. That is, the verdict—your findings and your recommendations as to these sentences in these eases. It is provided on the form that is prepared by the Court that you specify life imprisonment or specify the death penalty. I would charge you insofar as that is concerned that you specify the counts—whatever counts you may determine that he—If you find that the life sentences should be imposed upon him, you must specify the counts as they are contained in the bill of indictment that he shall be sentenced for life upon. And if you find that he shall be sentenced to death, you must specify that the counts under which you sentence him to death, you would do it in the place provided here for that purpose.

Also, I charge you that if you recommend the death penalty as stated, you must recommend the counts under which you find and recommend the death penalty. You must state and set forth the aggravating circumstances which caused you or compelled you to inflict the death penalty as to whatever count or counts you might see fit to inflict such penalty.

Ample space is left in this form for you to write out and you must detail, if such be your findings, the aggravating circumstances which cause or compel you to affix the death penalty for that count or those counts which you think and determine he is entitled to receive.

After you shall have arrived at your verdict, Mr. Foreman, you would enter the verdict upon this form supplied to you by the Court, together with this charge; you would conform that verdict to the form which has been prepared; you would date it and sign it and you would then return it into Court.

You might now retire and commence your deliberations after you shall have received the indictment, the evidence adduced during the course of the trial—and I assume that it is still in the juryroom—and then determine the penalty or punishment that shall be imposed in this case.

Trial Transcript at 925-30.

The court conferred with counsel, and after bringing the jury back into the courtroom, further charged as follows:

During the course of the charge, the Court overlooked one thing that it should have charged you, and I would now give it to you in charge and add it to what I have heretofore stated during the phase of this charge.
I charge you, members of the jury, that if you find that the State has proved one or more statutory aggravating circumstances beyond a reasonable doubt that you may recommend that the defendant receive a life sentence.
I neglected to tell you that and now I have charged it and now you may return to the juryroom and commence those deliberations.

Trial Transcript at 931. The entire text of the trial court’s jury instructions during the sentencing phase has been set out because these instructions are very similar in critical language to the jury charge found unconstitutional by the court in the case of Ruffin v. Zant, 591 F.Supp. 1136 (S.D.Ga.1984) rev’d on other grounds 767 F.2d 748 (11th Cir. 1985). See also, Spivey v. Zant, 661 F.2d 464 (5th Cir.1981) (Unit B), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982).

While the jury in the present case was instructed that a life sentence may be recommended even if the jury found the existence of one or more aggravating circumstances, the jury was not clearly instructed about the nature and function of mitigating circumstances. Spivey and “[ljater cases have noted that a trial court does not fulfill its responsibility simply by informing a jury that it may consider mitigating circumstances.” Dix v. Kemp, 763 F.2d 1207, 1209 (11th Cir.1985). (citing Morgan v. Zant, 743 F.2d 775 (11th Cir.1984); Finney v. Zant, 709 F.2d 643 (11th Cir.1983); West-brook v. Zant, 704 F.2d 1487 (11th Cir.1983)). As also noted by Dix,

most importantly, the instruction did not explain the function of a mitigating circumstance. The charge never set forth the reasons that a mitigating circumstance might be significant and never explained that mitigating circumstances could lead a jury to recommend mercy. The courts in Morgan and Westbrook both stressed that the failure to explain the function of mitigating circumstances was a serious shortcoming that rendered the instructions “hollow.” 743 F.2d at 779; 704 F.2d at 1503. Likewise in this, case, the court’s charge left the jury without proper guidance in its sentencing deliberations, which amounted to a violation of the Eighth and Fourteenth Amendments.

Dix, 763 F.2d at 1210. Therefore, the trial court’s instructions given during the sentencing phase of High’s trial are unconstitutional under the precedents established by the Eleventh Circuit. Consequently, High’s death sentence for the murder and kidnapping of Bonnie Bulloch must be set aside.

I am constrained to comment that I strongly and thoroughly disagree with the application of the Spivey holding to this case. Here, there was no evidence whatsoever of mitigating circumstances. A rule that a judge must say some “magic words” in a jury charge is one grounded neither in reasonable statutory interpretation, common sense, nor precedent. Even the Spivey court observed that the trial judge “will normally” tell the jury about mitigating circumstances, thus indicating the existence of exceptions to the rule. A jury charge should always be viewed in its entirety and must be adjusted to the evidence. In this case the judge mentioned matters in mitigation and later told the jury they could recommend mercy in any event. The jury chose not to do so. The charge did not stress or explain matters in mitigation. Indeed, if it had, the effect would have been to draw greater attention to the absence of mitigation evidence in this case and thereby create a much sounder ground for reversal of the trial court. The application of the Spivey rule in this case defies tradition and says that a jury charge must be adjusted to non-existent evidence, that it must contain a shibboleth; if not, it is infected with error. However, the cases which follow Spivey require the blind application of its rule in every case. While I disagree with any concept which calls for certain “mumbo jumbo” in every jury charge, it is nevertheless the law of this circuit.

My individual judicial opinion cannot control this case. I took an oath to apply the law, and intellectual honesty demands that the sentence be set aside—nine years after the murder. This is an abuse of the noble writ of habeas corpus. It is an unconscionable insult to the memory of Bonnie Bulloch and to everyone who has loved an eleven-year old. This order, reluctantly entered, is an effrontery to every tax-paying, law-abiding citizen in the land. The legislature of the State of Georgia, the trial judge, the Supreme Court of Georgia and a jury have willed death to the cold-blooded, craven killers of Bonnie Bulloch. The courts have fashioned a triumph of form over function. Guilt is irrelevant and word games assume constitutional proportions. Ignoring the prodding for needed reform by Senator Nunn and a few of his colleagues, the Congress sits idly by and lets it all go on and on.

REMAINING ALLEGATIONS OF ERROR

This Court has thoroughly reviewed petitioner’s remaining claims. All have been carefully considered, and each one is found to be without merit.

CONCLUSION AND ORDER

The petitioner’s death sentence must be set aside due to the instructions given to the jury during the sentencing phase. Within 180 days from the date this decision becomes final because of expiration of time to appeal or the issuance of a mandate affirming this order, whichever is later, the state shall cause petitioner to be retried on the question of what sentence should be imposed for the crime of murder for which the petitioner’s guilt has already been constitutionally established. If the state fails to comply, the petitioner may make a written motion for such relief as may be appropriate. To such extent only the petition for writ of habeas corpus is GRANTED. Otherwise, it is DENIED.

      . Mr. Ruffin testified, regarding the two affidavits that he had reviewed, "I don’t think it would have made any difference for the reason that that trial and the courtroom had an air of tension about it that I have never witnessed before and never since." State habeas corpus transcript at 19.

      . Petitioner does not challenge his counsel’s effectiveness prior to the sentencing phase. This is for good reason since Mr. Ruffin twice successfully challenged the composition of the grand juries which indicted High.

      . That’s the kind of creature we're working with ... [Y]ou’re not dealing with a human being—Don’t you know you’re not dealing with a human being that’s normal and natural as you and I are?
      Tr. 835.
      I’m not going to tell you what verdict to render. You know what you can do—what you want to do. But we’re not dealing with a human here. When you write your verdict, remember you’re not dealing with a human being. You know the Good Lord looks down with a lot of disfavor on this kind of activity. There must be a lot of uncomfortable people around here.
      I say again as I started off, before you write a verdict ask yourself this other question: If my child had been out there or my grandchild or my brother or my sister—what would have happened? At the hands of this man who is inhuman—by his own accounts he’s inhuman. By his own actions he’s inhuman. By his own declarations he’s inhuman.
      Tr. 845.
      ... I thank the Good Lord that he didn’t let me pattern my life to people like that.
      Tr. 831.
      I’ve been in the homes of some of you and you know that I’m not [the] kind of person [to bad-mouth anybody]. And I'm not asking you to do anything wrong. I wouldn’t do that. I never have and I don’t intend to start now. I’ve been here nineteen years and I haven't done it yet.
      Tr. 844 You know the only reason your child wasn’t killed out there at that filling station? Those of you who have children—and I don’t know all of you—some I do—Do you know the reason your children weren’t killed out there—or your child wasn’t kidnapped? Do you know the reason your child wasn’t said to and asked, Are you ready to die? Do you know the reason your child didn’t have to beg for his life? Do you know that? Do I have to tell you that? If there’s any doubt in your mind that that little loved one that you’ve held in your arms—that one that you’ve nurtured and gave birth to—the women—and fathered by the men—and grandchildren by others— The only reason your child wasn’t kidnapped—the only reason he wasn’t taken at gunpoint—the only reason he didn't have to beg for his life was because he wasn't there.
      Tr. 842, 843.
      [T]hey made a circle of our little area here and went back down to Augusta where they could do what? Get ready to plan some more robberies—according to the testimony in the case—more murders.
      Tr. 824.
      [H]e’d killed four and a half, and the ‘half was one that was shot that didn’t die. That’s in evidence. Killed four and a half people.
      Tr. 836.

      . “I think of Hitler's Germany when I think of mass murder as atrocities.” Tr. 910.
      "Another reason why I think you’re authorized to impose the death penalty—I think that we should send out a notice to society, from our society, to people like Jose High." Tr. 914.
      "I knew the circumstances of the case—I knew it was going to be a mean, horrible thing—and you now know it was.” Tr. 915.

      . High also claims, in paragraphs 68-70 of his petition, that the seventh statutory aggravating circumstance has been applied in an unconstitutionally vague and overbroad manner. High cites Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) in support of his claim regarding Ga.Code Ann. § 27-2534.1(b)(7) (Harrison) (currently codified as Ga.Code Ann. § 17-10-30(b)(7)).
      The Georgia Supreme Court has already upheld High’s death sentence pursuant to this seventh statutory aggravating circumstance, specifically stating that it was reviewing the jury’s finding of that aggravating circumstance in light of Godfrey v. Georgia. This Court will not second-guess a state court’s interpretation of its aggravating circumstances statute.

      . Each of these claims has been examined on its merits and none are found to warrant the relief sought. Petitioner neither presented evidence nor addressed these claims when given the opportunity to do so at the hearing before this Court. Even though not seriously urged, and effectively abandoned, the interests of justice are best served by a resolution of the claims on their merits.