Appendix — Wainwright v. Sykes

APPENDIX w, Supreme Court, U. S.

P Phe F I r. ke D

| NOV 24 1976

IN THE

MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES ~~

October Term, 1975

No. 75-1578

LOUIE L. WAINWRIGHT, Secretary,

Department of Offender Rehabili-

tation, State of Florida,

Petitioner,

vs.

JOHN SYKES, #003316,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CERTIORARI GRANTED

OCTOBER 12 1976

APPENDIX

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No, 75-1578

LOUIE L. WAINWRIGHT, Secretary,

Department of Oirender Rehabili-

tation, State of Florida,

Petitioner,

vs.

JOHN SYKES, #003316,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI FILED APRIL 28, 1976

CERTIORARI GRANTED OCTOBER 12, 1976

INDEX

Chronological List of Relevant

DOGMOS TRCCAGR. ccc cccccesereseces

Opinion of the Court of Appeals,

filed February 25, 1976...........

Judgment of the Court of Appeals,

filed February 25, 1976...........

Denial of Petition for Rehearin

en bane, dated March 22, 1976.....

Order of the United States District

Court, Tampa Division,

2 SR Ree ree err eee

Supplementary Order of the United

States District Court, Tampa

Division, dated January 30,

os SP Fats Pe ree op rae

Petition for Writ of Habeas Corpus

SELES GUD Bie BOCM es bi ntencsecsus

Personal Waiver of John Sykes,

filed November 30, 1973...........

28 U.S.C.A. § 2254(a) (b) (c)..........

Constitution of the United States,

Amendments V and XIV..............

Florida Rules of Criminal Procedure,

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CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

June 26, 1973 — Respondent's original

Petition for Writ of Habeas Corpus filed

in U.S. District Court, Middle District,

Tampa Division.

November 30, 1973 — Personal Waiver of

John Sykes re ineffective assistance of

counsel at trial or on appeal.

January 23, 1975 — Order of U.S.

District Court, Middle District, Tampa

Division.

January 30, 1975 — Supplementary Order

of U.S. District Court, Middle District,

Tampa Division.

February 25, 1976 — Opinion of the

Court of Appeals, Fifth Circuit.

February 25, 1976 — Judgment of the

Court of et Fifth Circuit.

March 22, 1976 — Denial of Petition

for Rehearing in bane by the Court of

Appeals, Fifth Circuit.

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sare 7A) GE Sieh

Se Wasa fard

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on 25 ‘patent

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: TIMES Ti

WAINWRIGHT v. SYKES 2202

Louie L. WAINWRIGHT, Director,

Division of Corrections,

Petitioner-Appellant,

v.

John SYKES, Respondent-Appellee.

No. 75-1781.

United States Court of Appeals,

Fifth Circuit.

~

Feb. 25, 1976.

State appealed from an interlocuto-

ry order of the United States District

Court for the Middle District of Florida,

at Tampa, Wm. Terrell Hodges, J., in a

habeas corpus case requiring it to con-

duct an evidentiary hearing to supple-

ment the record and providing, in the

alternative, that the Court would deter-

mine the issues on the state record as

transmitted, if a supplemental evidentia-

ry hearing were not held. The Court of

Appeals, Simpson, Circuit Judge, held

that if the trial judge had questioned the

admissibility of statements made by de-

fendant at the time of his arrest and had

required the prosecution to show they

were admissible, the defendant, who

failed to cbject at or before trial to the

introduction of the statements, would

have been on notice as to the waiver of

his rights, and pertinent Florida rule

might row foreclose him, on petition for

A-1

federal habeas relief, from bringing ad-

ditional or subsequent arguments re-

garding the admissibility of the state-

ments; but since the judge did not as-

sure himself of the admissibility of the

statements, the rule would not be con-

strued as foreclosing defendant's oppor-

tunity to challenge their voluntariness

and the concomitant waiver of his Mi-

randa rights.

Affirmed.

1. Criminal Law 412.2(5)

Any incriminating statement made

by the defendant absent a knowing and

intelligent waiver of his right to counsel

and his right not to incriminate himself

must be excluded from the evidence at

trial. 33 West's F.S.A. Rules of Criminal

Procedure, rule 3.190(i).

2. Criminal Law 412.2(5)

A defendant might be too drunk to

give a knowing and intelligent waiver of

his right to counsel and his right not to

incriminate himself and, in such a case,

out-of-court statements made by him

would be inadmissible at trial as evi-

dence against him. 33 West's F.S.A.

Rules of Criminal Procedure, rule

3.190(i). ¢

3. Criminal Law 414

Before an admission or confession

may be introduced in evidence against a

defendant, it is incumbent on the trial

judge to determine the voluntariness of

the statements involved, and the defend-

A-2

ant's knowing and intelligent waiver of

his constitutional rights. 33 West's

F.S.A. Rules of Criminal Procedure, rule

3.190¢i).

4. Constitutional Law 266.1(5)

As a matter of procedural due proc-

ess, a defendant is entitled to a hearing

on the issue of the voluntariness of an

admission or confession made by hin.

5. Criminal Law 1144.12

Waiver of Miranda rights will not

be presumed from a silent record.

6. Criminal Law 671

Burden is on the state to secure a

hearing outside the presence of the jury,

not on the defendant to demand it, to

determine the voluntariness of any state-

ments made by the defendant and pro-

posed to be used as evidence against

him. 33 West's F.S.A. Rules of Criminal

Procedure, rule 3.190(i).

7. Habeas Corpus 25.1(8)

If trial judge had questioned the ad-

missibility of statements made by de-

fendant at time of his arrest and had

required the prosecution to show they

were admissible, the defendant, who

failed to object at or before trial to the

introduction of the statements, would

have been on notice as to the waiver of

his rights, and pertinent Florida rule

might foreclose him, on petition for fed-

eral habeas relief, from bringing addi-

tional or subsequent arguments regard-

A-3

ing the admissibility of the statements;

but since the judge did not assure him-

self of the admissibility of the state-

ments, the rule would not be construed

as foreclosing defendant's opportunity to

challenge their voluntariness and the

concomitant waiver of his Miranda

rights. 33 West's F.S.A. Rules of Crimi-

nal Procedure, rule 3.190(i).

Appeal from the United States Dis-

trict Court for the Middle District of

Florida.

Before GEWIN, BELL* and “SIMPSON,

Circuit Judges.

SIMPSON, Circuit Judge:

The respondent below, Wainwright,

(appellant, or occasionally, "the State"),

appeals from an interlocutory order of

the district court in a state habeas cor-

pus case. That order required the state

to conduct an evidentiary hearing to sup-

plement the record before the district

court, and provided that in the alterna-

tive, if such a hearing is not held, the

district court will determine the issues

on the state record as transmitted. The

effect of the order was stayed for 90

days to permit this appeal. At issue is

the petitioner-appellee's conterftion that

statements made by him at the time of

his state arrest were unconstitutionally

* Judge Bell participated fully in the de-

cision of this case and concurred in this

opinion prior to the effective date of

his resignation, March 1, 1976.

A-4

used as evidence against him at trial,

because,,conceding that he received his

Miranda ~ warnings as testified by sher-

iff's deputies, he was drunk at the time

of his arrest and the making of the

statements used, and thus incapable of a

knowing waiver of the underlying consti-

tutional rights involved. The respondent

counters that appellee Sykes' failure to

object to the introduction in-evidence of

the out of court statements at or before

trial, required by Rule 3.190(i), Fla.R.

Crim.Proc. 1972 “, waived his opportunity

to challenge the voluntariness of the in-

criminating statements.

1. Miranda v. Arizona, 1966, 384 U.S.

436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

2. (i) Motion to Suppress a Confession or

Admissions Illegally Obtained.

(1) Grounds. Upon motion of the de-

fendant or upon its own motion, the court

shall suppress any confession or admis-

sion obtained illegally from the defen-

dant.

(2) Time for Filing. The motion to

suppress shall be made prior to trial

unless opportunity therefor did not

exist or the defendant was not aware of

the grounds for the motion, but the

court in its discretion may entertain

the motion or an appropriate objection

at trial.

(3) Hearing. The court shall receive

evidence on any issue of fact necessary

to be decided in order to rule on the

motion.

A-5

Appellee was arrested and charged

with second degree murder. On June 5,

1972, he was tried before a jury, and

convicted of third degree murder, Fla.

Stat. 782.04, in a Florida court. The

conviction was affirmed on direct appeal.

Subsequently, he unsuccessfully sought

habeas corpus relief in the state courts.

Thereafter he sought habeas corpus relief

in the court below. In an unpublished

order of January 23, 1975, the district

court found that appellee's trial tran-

script and the state record was too meager

a basis for findings as to the voluntari-

ness of the waiver of the Miranda rights

involved. Consequently,.the court ordered

that a Jackson v. Denno 3 type evidentiary

hearing be held in the Florida court to

determine the voluntariness of the out of

court statements used as evidence against

Sykes. The court later modified its order

to permit an interlocutory appeal pursuant

to Title 28, U.S.C. § 1292(b), and we

accepted the appeal.

At issue then are two distinct waiver

problems: (1) did Sykes knowingly and

voluntarily waive his Miranda rights when

he made inculpatory statements at the time

of his arrest? (2) did appellee, by fail-

ing to object to the introduction of the

statements into evidence, as provided by

procedural State law, waive the yight to

bring this objection on appeal or in sub-

sequent proceedings? The purpose of the

evidentiary hearing the district court

ordered is to determine the factual basis

of the underlying waiver issue, or sub-

3. 1964, 378 U.S. 368, 84 S.Ct. 1774,

12 L.Ed.2d 908.

A-6

stantive issue, to determine if Sykes was

in fact so drunk he could not understand

his Mtranda rights, and thus could not

knowingly waive them, Our inquiry, in

determining the propriety of the district

court's order, must focus on the second,

or procedural, waiver.

I. NATURE OF THE RIGHT

[1,2] Both appellee and the state rec-

ognize that any incriminating statement

made by a defendant absent a knowing

and intelligent waiver by him of his

right to counsel and his right not to in-

criminate himself must be excluded from

the evidence at trial. Miranda v. Arizo-

na, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16

4. The trial transcript shows affirmatively

that Sykes was advised of his rights at

the jailhouse. The conversation in which

Sykes made incriminating statements took

place, however, at the scene of the shoot-

ing, shortly after the police had arrived.

The record is not clear as to whether

Sykes was informed of his Miranda rights

before these initial statements were giv-

en. These initial inculpatory state-

ments made by Sykes, while in the custody

of the police, were inconsistent with

Sykes' self defense theory at trial. The

prosecution called sheriff's deputies

who testified to Sykes" statements dur-

ing the case in chief. The testimony of

three separate witnesses indicates Sykes

had been drinking at the time he made

those statements, and raises the possi-

bility that even if Sykes had been read

his rights, he might not have been able

to comprehend them, and might therefore

have been unable to knowingly waive them.

A-7

L.Ed.2d 694, The state does not appear

to object to the proposition, in the ab-

Sstract, that a defendant might be too

drunk to give such a knowing and intelli-

gent waiver, and that, in such a case, out

of court statements made by him would

be inadmissible at trial as evidence

against him.

The Supreme Court in Miranda, in rec-

ognition of the importance of the de-

fendant's Fifth and Sixth Amendment

rights, stated that "(t]he warnings re-

quired and the waiver necessary in ac-

cordance with our opinion today are, in

the absence of a fully effective equiva-

lent, prereauisite to the admissibility of

any statement made by a defendant”.

384 U.S. at 476, 86 S.Ct. at 1629, 16

L.Ed.2d at 725. The state asserts that

the protections and prerequisites Miran-

da set out as necessary to the introduc-

tion of a defendant's out of court state-

ments might themselves be waived by

the failure of the defendant to object to

their introduction.

[3-6] Before an admission or confes-

sion may be introduced into evidence

against a defendant, it is incumbent

upon the trial judge to determine the

voluntariness of the statements involved,

and the defendant's knowing and intelli-

f

5. Cf£. United States v. Taylor, 5 Cir.

1975, 508 F.2d 761, 763: "The evidence

must show the defendant was so affected

as to make the statement, after appro-

priate warnings, unreliable or involun-

tary". [regarding the admissibility

of statements made by a defendant while

under the influence of drugs].

A-8

gent waivei of his constitutional rights.

Johnson tv. Zerbst, 1938, 304 U.S. 458, 88

S.Ct. 1019, 82 L.Ed. 1461. A defendant is

entitled to a hearing on the issue of vol-

untariness as a matter of procedural due

process. Jackson v. Denno, supra. The rule

set out in Jackson v. Denno is that “a jury

is not to hear a confession unless and un-

til the trial judge has determined that it

was freely and voluntarily given." Sims v.

Georgia, 1967, 385 U.S. 538, 543-544, 87

S.Ct. 639, 643, 17 L.Ed.2d 593, 598, “Al-

though the judge need not make formal find-

ings of fact or write an opinion, his con-

clusion that the confession is voluntary

must appear from the record with unmis-

takable clarity". Id., 385 U.S. at,544,

87 S.Ct. at 643, 17 L.Ed.2d at 598.© Long

before Jackson v. Denno the Florida prac-

tice was to require the trial judge to

hold a hearing outside the presence of the

jury to determine the voluntariness of any

statements by the defendant proposed to be

used as evidence against him.’ The bur-

6. The waiver of Miranda rights will not

be presumed from a silent record. Miranda

v. Arizona, 384 U.S. at 475, 86 S.Ct. at

1628, 16 L.Ed.2d at 724, citing Carnley v.

Cochran, 1962, 369 U.S. 506, 82 S.Ct. 884,

8 L.Ed.2d 70.

7. "While we think it is best for counsel

to interpose objections to the introduc-

tion of evidence of admissions pr con-

fessions, in order that the court may make

the preliminary investigation to deter-

mine its admissibility, that does not

relieve the trial judge of the duty

when evidence of this character is

sought to be introduced to satisfy

himself that the admissions were freely

and voluntarily made before admitting

A-9

den is on the state to secure this prima

facie determination of voluntariness, not

upon the defendant to demand it. McDole

v. State, Fla. 1973, 283 So.2d 553;

Reddish v. State, Fla.1964, 167 So.2d 858;

feung v. State, Fla.1962, 140 So.2d 97;

Smith v. State, 3rd Fla.D.C.A.1974, 288

So.2d 522; Dodd v. State, 4th Fla.D.C.A.

1970, 232 So.2d 235.

II. WAIVER

Appellee argues that not only did the

state fail to carry its burden in showing

affirmatively, on the record, that the

statements introduced were voluntarily

made, but that the waiver principles

enunciated in Fay v. Noia® make it

plain that constitutional rights of such

them. It is a duty which the law im-

poses upon the court in order that the

prisoner's constitutional right to a

fair and impartial trial may be protected

and preserved, and this right should not

be made to depend on the skill and alert-

ness of counsel, otherwise courts, in-

stead of being the forum in which jus-

tice alone is the object to be attained,

would become games played by the respec-

tive counsel and won or lost according to

their skill in playing the game according

to the rules." Stiner v. State, 1919,

78 Fla. 647, 83 So. 565.

¢

8. “We therefore hold that the federal

habeas judge may in his discretion deny

relief to an applicant who has deliber-

ately bypassed the orderly procedure of

the state courts and in so doing has

forfeited his state court remedies.

A-10

fundamental importance as those con-

sidered here may only be waived by the

defendant hinself, deliberately, and not

by his attorney without his personal

knowledge, or through a procedural for-

feit. The state, however, recites to us a

"But we wish to make very clear that

this grant of discretion is not to be

interpreted as a permission to introduce

legal fictions into federal habeas corp-

us. The classic definition of waiver

enunciated in Johnson v. Zerlist — ‘an

intentional relinquishment or abandon-

ment of a known right or privilege’ —

furnishes the controlling standard. If

a habeas applicant, after consultation

with competent counsel or otherwise,

understandingly and knowingly forewent

the privilege of seeking to vindicate

his federal claims in the state courts,

whether for strategic, tactical, or any

other reasons that can fairly be describ-

ed as the deliberate bypassing of state

procedures, then it is open to the fed-

eral court on habeas to deny him all re-

lief if the state courts refused to en-

tertain his federal claims on the merits

—though of course only after the feder-

al court has satisfied itself, by holding

a hearing or by some other means, of the

facts bearing upon the applicant's de-

fault. At all events we wish it clearly

understood that the standard here put

forth depends on the considered choice of

the petitioner. A choice made by counsel

not participated in by the petitioner

dees not automatically bar relief. Nor

does a state court's finding of waiver

bar independent determination of the

A-11

litany of cases purporting to show that

in instances such as this a purely proce-

dural waiver would bind the defendant,

notwithstanding the fact that he had no

personal knowledge of the rights waived.

The state sees this as a case control-

led by Henry v. Mississippi, 1965, 379

U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408,

which held that it is up to the federal

courts to determine whether the enforce-

ment of a state procedural rule serves a

legitimate interest so as to preclude a

state prisoner from raising questions of

constitutional right by federal habeas

corpus. Florjda Rule of Criminal Proce-

dune 3.190(i)* is a contemporaneous ob-

jection rule analogous to that considered

in Henry. Their function is the same; "By

immediately apprising the trial judge of

the objection, counsel gives the court the

opportunity to conduct the trial without

using the tainted evidence." Henry v. Mis-

sisstppt, supra, 408 U.S. at 448, 85 S.Ct.

at 567, 13 L.Ed.2d at 413. The facts of

this case, however, are not such as to re-

quire that federal courts, from any prin-

ciple of comity, refrain from determining

the underlying constitutional claim of

Sykes.

question by federal courts on habeas,

for waiver affecting federal rights is

a federal question. (citations omitted

throughout). Fay v. Nota, 1963,

372 U.S. 391, 438-439, 83 S.Ct. 822,

849, 9 L.Ed.2d 837, 869.

9. See Note 2, supra.

A-12

Henry dealt with the admissibility of

a police officer's testimony as to evi-

dence which had been illegally obtained.

Counsel for the defendant in that case

did not object at trial to the testimony,

and therefore did not comply with the

state's contemporaneous objection rule.

The Court remanded the case to the state

court to determine whether the defendant

was “to be deemed to have knowingly waived

decision of his federal claim when timely

objection was not made to the admission of

illegally seized evidence." Id., 408 U.S.

at 446, 85 S.Ct. at 566, 13 L.Ed.2d at 412.

The Supreme Court stated that there was no

question but "that a litigant's procedural

defaults in state proceedings do not pre-

vent vindication of his federal rights un-

less the State's insistence on compliance

with its procedural rule serves a legiti-

mate state imterest." JId., 408 U.S. at

448, 85 S.Ct. at 567, 13 L.Ed.2d at 413.

As already noted, the contemporaneous ob-

jection rule considered in Henry, and pre-

sumably the one at bar, serve a legitimate

state interest. The Supreme Court did not

find a waiver in Henry, but remanded the

case to the state courts, because the

Court thought a motion for a directed

verdict, made at the close of the State's

evidence might have windicated the state's

interest in having the rwle followed by

alerting the trial judge to the objections

of the defendant, and therefore ghe rule

might have been reduced to mere form.

The court felt this determination, and

other evidentiary questions relating to

whether or not error in admitting the

evidence was subsequently cured, or

whether the defense had engaged in a

A-13

deliberate by-pass of the Mississippi

rule, would be more properly decided in

the state courts, As to this later pos-

sibility, the Court opined that a delib-

erate by-pass of the Mississippi proced-

ural rule would constitute a waiver

binding on the defendant. ~

In Davis v. United States, 1973, 411

U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216,

the Supreme Court held the failure of a

federal defendant to assert, before trial,

a claim of unconstitutional racial dis-

crimination in the composition of the

grand jury which had indicted him, as

provided for by Rule 12(b)(2) of the Fed-

eral Rules of Criminal Procedure, consti-

tuted a waiver of his rights. The waiver

foreclosed habeas corpus consideration of

the issues raised. A major tenet o* the

Davis decision was that no prejudice was

shown to petitioser through the loss, or

waiver, o his rights to challenge jury

composition. In Newman v. Henderson,

5 Cir. 1974, 496 F.2d 896, we held, in a

habeas corpus action brought by a state

prisoner to challenge the racial composi-

tion of the grand jury which had indicted

him, that absent a showing of actual pre-

judice, the principles of Davis would

10. Rule 12(b)(2), F.R.Crim.P., provides

for the waiver of claims to defects in

the institution of criminal proceedings

if not asserted before trial. The de-

fendant may be relieved of this waiver

“for cause shown". In Shotwell Mfg. Co.

v. United States, 1963, 371 U.S. 341,

83 S.Ct. 448, 9 L.Ed.2d 357, and in

Davis, supra, the Court indicated actual

prejudice would be a factor in "cause

shown". —

A-14

bind the petitioner to a waiver predicated

upon state procedural requirements, How-

ever in a case such as the present one,

involving the admissibility of a con-

fession or incriminating statement, pre-

judice to the defendant is inherent.

The state pursues its claim of waiver

by citing Winters v. Cook, 5 Cir. 1973,

489 F.2d 174 (En Banc). In that case we

held that the defendant had waived his

right, by his guilty plea to a murder

charge, to subsequently challenge by

writ of habeas corpus the racial composi-

tion of the grand jury that had indicted

him. The record of that case indicated

Winter's attorney fully considered the

possibility of raising constitutional ob-

jections on behalf of his client, but re-

jected this option for tactical reasons in

favor of a plea of guilty (which the state

was induced: to accept by the "pry-bar"

effect of the threat of the possible con-

stitutional objection) which avoided the

possibility of a death sentence. The

court held that despite the fact the de-

fendant had not been consulted with on the

waiver of the grand jury issue, he was

bound by that waiver. The court held how-

ever, as had the Supreme Court in Henry v.

Misstssippi, that some “exceptional” cir-

cumstances would preclude the waiver by

counsel of certain rights without the de-

fendant's knowledge. We are confident

that Miranda rights, in a situation such

as this, might constitute such “exception-

al" circumstances, see Developments in

the Law—Federal Habeas Corpus, 83

Harv.L.Rev. 1038, 1111 n. 102 (1970), but

~efrain from basing our holding on this

rationale alone.

A-15

In a case somewhat similar, factually,

to this one, the Seventh Circuit in Unit-

ed States ex rel, Allum v. Twomey, 7

Cir. 1970, 484 F.2d 740,.considered the

juxtaposition of Fay v. Wotia and Davis

v. United States in relation to a state

prisoner's assertion that he did not

"knowingly: and deliberately” waive his

rights to object to the admissibility of

an in custody statement made by him. The

court found that the state defendant

should be held to a waiver by his failure

to object even though it was not a per-

sonal waiver, but one attributable to his

attorney. In evaluating the facts it

found persuasive in reaching this conclu-

sion, the court found "there was a rea-

sonable tactical basis for counsel's fail-

ure to object to the statement." JId., at

745. |

The failure to object in this case can-

not be dismissed as a trial tactic, and

thus a deliberate by-pass. Aside from

the state's bare allegation that such was

the case, without the suggestion of the

slighted tactical benefit, there is noth-

ing here present upon which to speculate

that the defense's failure to object to

the introduction of Sykes' statement was a

strategic decision. We can find no possi-

ble advantage which the defense might

have gained, or thought they might gain,

from the failure to conform with Florida

Criminal Procedure Rule 3.190(i).

III. CONCLUSION

The burden is on the state to introduce

a proper predicate for the admission of a

confession or statement against interest

A-16

into evidence. The trial judge, before

receiving the admissions or confessions

of a defendant must hold an evidentiary

hearing outside the presence of the jury

to determine if it was voluntarily made.

Jackson v. Denno, supra. This is a pre-

requisite to the introduction of the evi-

dence; and the opportunity to have such

a hearing is a pre-requisite to any asser-

tion of waiver because of the defend-

ant’s failure to object.

[7] The state's interest then, if not

to be reduced to mere form, in having Flo-

rida Criminal Procedure Rule 3.190(i) fol-

lowed, must be co-extensive.with the es-

tablished burden on the state. If the

trial judge had questioned the admissibil-

ity of the statements, required the prose-

cution to show they were admissible, ap-

pellee would have been on notice as to

the waiver of his rights, and Rule

3.190(i) might now foreclose him from

bringing additionai or subsequent argu-

ments regarding the admissibility of the

statement in question. Because the trial

afforded appellee in this case did not

conform to procedural requirements,

long established, that the trial judge

must assure himself of the admissibility

of the criminal defendant's statements,

we refuse to construe Rule 3.190(i) as

foreclosing Sykes" opportunity to chal-

lenge the voluntariness of the state-

ments admitted, and the concomitant

waiver of Miranda rights.

The actual prejudice to appellee stem-

ming from enforcing a waiver of Miran-

da rights, as well as the total absence of

any indication that his failure to object

A-17

is attributable to trial tactics, persuade

us that the district court should be af-

firmed. Justice requires it.

The state will have ninety days from

the time our mandate issues to conduct an

evidentiary hearing to determine whether

Sykes was properly apprised of his Miranda

rights, and understood and knowingly

waived those rights at the time he made

the incriminating statements used against

him. If the state does not initiate a

hearing before the expiration of that

time, the district court may determine the

issues on the record as transmitted.

The order appealed from is in all

respects

Affirmed.

A-18

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1975

No. 75-1781

D. C. Docket No. CA73-316-T-H

LOUIE L. WAINWRIGHT, Director,

Division of Corrections,

Petitioner-Appellant,

versus

JOHN SYKES,

Respondent-Appellee.

Appeal from the United States District

for the Middle District of Florida

Before GEWIN, BELL* and SIMPSON, Circuit

Judges. f

JUDGMENT

This cause came on to be heard on the

transcript of the record from the United

States District Court for the Middle

A- 19

District of Florida, and was argued by

counsel;

ON CONSIDERATION WHEREOF , It is now

here ordered and adjudged by this Court

that the judgment of the said District

Court in this cause be, and the same is

hereby, affirmed.

| February 25, 1976

Issued as Mandate:

* sn Bell port Saipesad fully in the de-

cision of this case and concurred in this

opinion prior to the effective date of

his resignation, March l, 1976.

A- 20

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

600 Camp Street

New Orleans, La. 70130

Telephone 504-489-5614

EDWARD W. WADSWORTH

Clerk

March 22, 1976

TO ALL COUNSEL OF RECORD

No. 75-1781 - Louie L. Wainwright,

Director, Division of

Corrections v. John Sykes

Dear Counsel:

This is to advise that an order has this

day been entered den “7. the ag )

for rehearing, and the Court having been

olled at the request of one of the mem-

ers of the Court and a majority of the

Circuit Judges who are in regular active

service not having voted in favor of it,

(Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12)

the petition( ) for rehearing en banc

has also been denied.

See Rule 41, Federal Rules of Appellate

Procedure for issuance and stay of the

mandate,

A- 21

Very truly yours,

EDWARD W. WADSWORTH, Clerk

by/S/ Susan M. Gravois

Deputy Clerk

/sng

CC: Mr. Charles Corces, Jr.

Mr. William F. Casler, Sr.

A- 22

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOHN SYKES,

Petitioner,

Vs. No, 73-316-Civ.T.H.

LOULE L. WAINWRIGHT,

Director, Division of

Corrections, State of

Florida,

‘

Respondent.

SS

ORDER

On April 25, 1973, Petitioner, a

state prisoner, filed with the Clerk his

pro se petition for habeas corpus relief

pursuant to 28 U.S.C. §2254. In accor-

dance with a General Order of Assignment,

the petition was referred to the United

States Magistrate for his Report and

Recommendation. The Magistrate, on June

26, 1973, authorized the commencement of

the action without prepayment of costs

or fees; and, on August 14, 1973, he

appointed counsel for Petitioner pursuant

to the Criminal Justice Act of 1964, 18

U.S.C. § 3006A. Issue was then joined,

and counsel presented briefs concerning

the legal and factual issues involved.

Thereafter, on August 23, 1974, the

A-23

Magistrate entered his Report and

Recommendation, recommending that an

evidentiary hearing be conducted. See,

Wingo v. Wedding, __—s U.S. se, «94 S.Ct,

. (1974). ~

Accordingly, the Court ordered the

ae of a pre-evidentiary hearing sti-

pulation, ordered the production of Peti-

tioner in Tampa, and scheduled a pre-

evidentiary hearing and evidentiary hear-

ing. Pursuant to stipulation of counsel,

the pre-evidentiary hearing was cancelled

and the cause came on for evidentiary

hearing on January 9, 1975. —

While the file in this cause is

sketchy at best, counsel for Petitioner

summarized the undisputed facts of the

case at the January 9 hearing:

In 1972, Petitioner was charged with

second degree murder in the Twelfth Judi-

cial Circuit Court, DeSoto County,

Florida. Following a jury trial, Peti-

tioner was convicted of third degree mur-

der and was sentenced to a term of

ten years incarceration. An appeal

ensued, and his conviction was affirmed

by the Second District Court of Appeal.

Certiorari was denied by the Florida

Supreme Court. Im addition, a motion to

vacate, set aside or correct sentence

addressed to the trial court pursuant to

Rule 3.850, Fla. R.Crim.P., was denied,

as were petitions for writ of habeas cor-

pus filed in the Second District Court of

Appeal and the Florida Supreme Court.

Petitioner now presents two claims to

this Court. First, Petitioner asserts

A~24

that certain statements made by him to

sheriff's deputies were improperly admit-

ted at trial since Petitioner was intox-

icated at the time he made them and,

therefore, was incapable of understand-

ing the Miranda warnings which were |

supposedly given. Second, Petitioner

asserts that improper instructions were

given to the trial jury. With respect to

these claims, counsel for Petitioner

stated at the January 9 hearing that

Petitioner would stand on the trial

transcript made in state court and the

official documents and papers in the

court file. He called no witnesses.

Likewise, Respondent presented no

additional testimony or evidence.

I. MIRANDA CLAIM

Dealing first with the Miranda claim,

-it is mndlenenet that counsel for Peti-

tioner made no motion to suppress the

statements prior to the trial in state

court, made no objection to the intro-

duction of them at trial, and did not

assign as error on appeal the fact that

the statements had been received in

evidence. However, Petitioner did

present his argument to the state

courts in his post-conviction motions

and petitions, and the Court finds that

Petitioner has exhausted his state reme-

dies as to this claim as required by 28

U.S.C. § 2254(b). ©

Respondent argues that Petitioner's

failure to raise this issue in the state

courts by motion to suppress, objection,

or appeal constitutes waiver of his claim,

A- 25

and he should not be heard to raise it

in this Court. The waiver issue has been

the subject of much discussion . the

authorities, and the law is now fairly

settled. In exceptional circumstances,

some strategic decisions at trial can

preclude an accused from later asserting

a constitutional claim on federal habeas

corpus. Henry v. Mississippi, 379 U.S.

443, 451- , 85 S.Ct. 564, 569 (1965);

iO AF Noia, 372 U.S. 391, 439. 83 S.Ct.

, 849 (1963) ; Winters v. Cook, 489 F.2d

174, 176-180 (5th Cir. 1973). Other than

the bald assertion, however, Respondent

has pointed to nothing in the record and

has adduced no evidence here that would

demonstrate the kind of exceptional

circumstance recognized in the authori-

ties as constituting a waiver. Clearly,

therefore, it would be error for the

Court to give effect to Respondent's

contention on this record, See, e.z.,

Collier v, Estelle, F.2d t

Cir. 1975) Sie: oe. F. 2312, Bo. 74-2474,

Jan, 9, 1975); Bailey v. Alabawe, F.2d

_ (Sth Cir. 1 slip op. p 2159,

No. 74-2104, Jan 6, 1975},

Turning to the merits of Petitioner's

claim that he was intoxicated and incap-

able of understanding the Miranda warn-

ings given him, the authorities are clear

that Miranda v. Arizona, 384 U.S* 436, 86

S.Ct. 1602 (1966), requires that certain

warnings or cautions be given to a suspect

in a custodial situation and that the

suspect fully understand the substance of

his constitutional rights as explained in

those warnings.

Thus, it is said in the fountainhead

case itself:

"If the interrogation con-

tinues without the presence

of an attorney and a statement

is taken, a heavy burden rests

on the government to demonstrate

that the defendant knowingly

and intelligently waived his

privilege against self-incrimi-

nation and his right to re-

tained or appointed counsel

. . . . This Court has always

set high standards of proof

for the. waiver of constitution-

al rights,. . ., and we re-

assert these standards as applied

to in-custody interrogation.

Since the State is responsible

for establishing the isolated

circumstances under which the

interrogation takes place and

has the only means of making

available corroborated evidence

of warnings given during in-

communicado interrogation,

the burden is rightly on its

shoulders."

Miranda v. Arizona, supra, at 475, 86

S.Ct. at 1628 [citations omitted].

¢

Consequently, the issue presently

before the Court, as it is in all -

habeas cases presenting the Miranda

issue, is: has the prosecution sustained

its "heavy burden" of demonstrating that

the defendant was effectively advised of

his rights, and did he knowingly and under-

A-27

standingly decline to exercise them? Hill

v. Whealon, 490 F.2d 629, 630 (6th Cir.

1974); Hughes v. Swenson, 452 F.2d 866,

868 (8th ir 1971). CE. Hamilton v.

Smith, 450 F.2d 922, 923 (5th Cir. 1971);

Goodwin v. Smith, 439 F.2d 1180, 1182

(5th Cir. 1971). As to that issue, the

only evidence before the Court is that

developed in the state trial itself,

neither party having presented any

testimony or evidence at the January 9

hearing.

The transcript of the proceedings and

testimony taken before the Hon. John D.

Justice, Circuit Judge, at Petitioner's

June 5, 1972’ trial is markedly void of

the facts and information required by

this Court to make a determination of

the issue now before it.* The witness,

Neil Tyree, testified that he remembered

hearing someone advise Petitioner of his

"constitutional rights" at the scene of

the homicide, Transcript at 16 and 23, but

he further testified that he did not

remember who it was who gave Petitioner

his "rights," Transcript at 23. No

testimony at all was given by this wit-

ness concerning the substance of any

warnings given Petitioner or Petitioner's

* Under no circumstances shouldrthis ob-

servation be taken as a criticism of the |

trial judge. He was given no opportunity

to pass on the matter. It should also be

observed that Petitioner has withdrawn

his claim of ineffective assistance of

counsel.

A-28

ability to understend any such warnings.

The witness did testify, however, that

Petitioner smelled of alcohol, Transcript

at 19 and 24. Another witness, Gus Gre-

than, a DeSoto County Deputy Sheriff,

testified that he and G. H. Skinner, also

a Deputy Sheriff, read Petitioner's rights

to him from a card later at the jail,

Transcript at 35, and that, at the time

the officers arrived at the scene of the

homicide, Petitioner was sufficiently

intoxicated to be arrested for being

drunk, Transcript at 39. Again, no testi-

mony at all was given by this witness, or

by any other, concerning the substance of

any warnings given Petitioner or Peti-

tioner's ability to understand any such

warnings. Thus, were it proper for this

Court to directly pass upon the suffi-

ciency of the evidence adduced at trial

to sustain the prosecution's “heavy bur-

cen," the Court would be constrained

to hold that the evidence wassnot suffi-

cient. However, such a determination at

this point would be improper.

A review of the state court proceedings

at trial, on appeal, and on post-trial

collateral attack reveals that at no time

has Petitioner received a hearing on the

issue of the voluntariness of his state-

ments pursuant to Jackson v. Denno, 378

U.S. 368, 391, 84 S.Ct. 1774, 1778 (1964).

Jackson requires such a hearing; and, fur-

ther, it requires that the hearing be held

in the state courts, rather than in federal

court on habeas corpus. Jackson v. Denno,

supra, at 393, 84 S.Ct. at 1789-1790;

oaRr ee v. Parker, 396 U.S. 482, 484, 90

Ct. 667, 609 (1970). Accordingly, this

A- 29

Court will stay proceedings in this cause

for a period of 90 days from the date

hereof to allow the state courts a reason-

able opportunity to afford Petitioner a

hearing on the voluntariness issue. At

the expiration of that period of time, the

Court will continue to stay this proceed-

ing if a hearing is then pending in state

court. If one is not, the Court will then

be required to determine whether or not

the state carried its burden on the basis

of the record as it presently exists.

Before leaving Petitioner's Miranda

claim, two additional comments need to be

made. First’ no distinction can be drawn

between the Jackson case, which deals with

confessions, and the subsequent Miranda

case, which deals with mere statements.

For Miranda makes it clear that "the priv-

ilege against self-incrimination protects

the individual from being compelled to

incriminate himself in any manner; it does

not distinguish degrees of incrimination."

384 U.S. at 476, 86 S.Ct. at 1629.

Second, the fact that 28 U.S.C. §

2254(d) places the burden upon Petitioner

in this proceeding to show by clear and

convincing evidence that the state court's

determination was erroneous, does not

assist Respondent in these circumstances.

By pointing to the transcript of, the state

trial, Petitioner has succeeded in demon-

strating that the merits of the factual

dispute were not resolved in a state court

hearing and that the material facts were

not adequately developed there. Accord-

ingly, the burden has shifted to Respon-

dent. 28 U.S.C. §2254(d)(1) and (3).

A- 30

II. IMPROPER JURY INSTRUCTIONS

Petitioner's second claim for habeas

corpus relief relates to allegedly improper

jury instructions given at Petitioner's

trial in state court. Specifically,

Petitioner attacks the instruction re-

lating to justifiable homicide. The Court

has reviewed the instructions given,

Transcript at 121, and the applicable state

law, § 782.02, Fla. Stat.. The Court finds

that the instructions given at trial were

adequate, and, to the extent they differ in

small part from the statute,- that differ-

ence does not constitute a claim rising

to constitutional proportions. Accord-

ingly, Petitioner's request for relief

with respect to this claim is hereby

DENIED. ,

IT IS SO ORDERED.

DONE and ORDERED at Tampa, Florida,

this 22nd day of January, 1975.

/S/ Wm. Terrell -Hodges

N

JUDGE

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOHN SYKES,

Petitioner,

vs. No. 73-316-Civ-T-H

)

)

)

)

LOUIE L. WAINWRIGHT, )

Director, Division of)

Corrections, State of)

Florida,

Respondent.

a oe

SUPPLEMENTARY ORDER PURSUANT

TO 28 U.S.C. § 1292(b)

THIS CAUSE came on before the Court

upon Respondent's Petition for Order

Amending the Court's Order of January

23, 1975.

The January 23 Order stayed sco-

ceedings in this cause for a period

of 90 days to allow the state courts

A-32

a reasonable opportunity to afford

Petitioner a hearing on the issue of

the voluntariness of certain statements

made by him and introduced into evidence

against him at his 1972 state criminal

trial. Respondent argues, however, that

the record, as it presently exists,

requires that the Court conclude, as

a matter of law, that Petitioner

waived his right to raise this issue

on federal habeas corpus. Therefore,

Respondent seeks to take an inter-

locutory appeal pursuant to 28 U.S.C.

§ 1292(b).

So that Respondent can promptly and

expeditiously petition the Court of

Appeals to permit an appeal from the

order of January 23, the Court will

grant Respondent's instant petition,

Accordingly, the Court hereby makes the

A-33

required findings and certifications in

accordance with the statute, The Court

will not, however, stay proceedings in

this cause beyond the 90 days announced

in the prior order, Pursuant to the

statute, of course, Respondent may

direct a request for stay to the Court

of Appeals.

IT IS SO ORDERED.

DONE AND ORDERED at Tampa, Florida,

this 30th day of January, 1975.

ist Wm. Terrell Hoo Ae

JUDGE

A-34

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PETITION FOR WRIT OF HABEAS CORPUS

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

PERSONS IN STATE CUSTODY

John Sykes #003316

ull name and prison number

(if any) of petitioner

7#3-83-Mise-F

73-316-Civ.T.H.

The State of Florida

Name of Respondent

INSTRUCTIONS - READ CAREFULLY

In order for this petition to receive

consideration by the District Court it

shall be in writing (legibly) (handwritten

or typewritten), s i by the petitioner

and verified (notarized), and it shall

set forth in concise form the answers

to a particular question on the reverse

side of the page or an additional blank

page. Petitioner shall make it clear to

= question any such continued answer

refers.

Since every such petition for habeas

corpus must be sworn to under oath, any

false statement of a material fact there-

in may serve as the basis of prosecution

and conviction for perjury. etitioners

should therefore exercise care to assure

that all answers are true and correct.

A-35

If the petition is taken in forma

auperis it shall include an affidavit

Cattaskee at the back of the form)

setting forth information which estab-

lishes that petitioner will be unable

to pay the fees and cost of the habeas

he ponerse When the petition

sc

eted, the original and one co

shail be oniiel co. CLERK, UNITED STATES,

DISTRICT COURT, MID f& DISTRICT OF FLORIDA,

P. 0. Box 3270, Tampa, Florida 33601.

1, Place of detention Union County Cor-

rectional Institution at Raiford,

Florida

2. Name and location of Court which im-

posed sentence Twelfth Judicial Cir-

cuit Court, County of DeSoto, Arcadia,

Florida

3. The indictment number or numbers (if

known) upon which and the offense or

offenses for which sentence was imposed:

(a) Case No. 2683

(b)

(c)

4. The date upon which sentence was im-

posed and the terms of the sentence:

(a) June 5th, 1972, (Ten Years)

A-36

(b)

(c)

Check whether a finding of guilty was

made :

(a) After a plea of guilty

(b) After a plea of not guilty xX

(c) After a plea of nolo contendere

If you were found guilty after a plea

of not guilty, check whether that

finding was made by:

(a) A jury X

(b) A Judge without a jury

Did you appeal from the judgement of

conviction or the imposition of

sentence: yes.

If you answered "yes" to (7), list

(a) The name of each court to which

you appealed:

i Second District Court of

Appeal, Lakeland, Florida,

ii State Supreme Court of Florida

iii

A-37

(b) The result in each such court to

(c)

(d)

which you appealed,

i Judgment Affirmed.

ii denied due to lack of juris-

diction.

iii

The date of each such result:

i Case No. 72-592, opinion filed,

12-20-72.

id re

iii

if known, citations of any written

opinion or orders entered pur-

suant to such results:

i not known

{i not known

iii

. If you answered "no" to (7), state your

reasons for not so appealing:

(a)

(b)

(c)

A-38

10, State concisely the grounds on which

Ll,

12.

-_ base your allegation that you are

eing held in custody unlawfully.

(a)Deniai of procedural Due Process of

Law.

(b)Denial of equal Protection of the

Law.

(c)Violation of Constitutional Rights.

State concisely and the same order the

facts which support each of the grounds

set out in (10).

(a)

(b)

(c)

Prior to this petition have you filed

with respect to this conviction

(a) Any petition in a state of Florida

Court under the provisions of

Florida Rules of Criminal Pro-

cedure 1.850(1968) (previously

Criminal Procedure Rule 1) of

the Florida supreme Court yes

(b) Any petitions in State or Federal

Courts for habeas corpus? yes

(c) Any petitions in the United States

Supreme Court for certiorari other

than petitions, if any, already

specified in (8) No.

A-39

13.

(d) Any other petitions, motions or

applications in this or any other

Court? Yes

If you answered “yes" to any — of

912, list with respect to eac

petition, motion or application.

(a) The specific nature thereof:

i Motion to Vacate (1.850) (3.850)

ii Petition for a Writ of Habeas

Corpus.

iii Petition for a Writ of Habeas

Corpus.

(b) The name and location of the Court

in which each was filed.

i. Circuit Court DeSoto County,

Arcadia, Fla.

ii.2nd District Court of Appeal,

Lakeland, Florida.

iii.Supreme Court of Florida,

Tallahassee, Fla.

(c) The disposition thereof:

i. denied

ii,Affirmed

A-40

iii, denied

(d) The date of each such disposition:

i.

(Appeal)

ii.(20th day of February, 1973.)

(First Cert,)

iii(January 19, 1973)

(e) if known citations of any written

opinions or orders entered pur-

suant to each such disposition

i. WKNOWN

ii.

iii.

14. Has any ground set forth in (10) been

15.

previously presented to this or any

other Court, State or Federal, in

any petition, motion or application

which you have filed? yes

If you answered "yes" to (14), identify

(a) Which grounds have been previously

presented:

i. The Same Grounds presented

herein

ii.

iii,

A-41

(b) The proceedings in which each

ground was raised:

i.

ii.

iii.

16. If any ground set forth in (10) has

not previously been presented to any

Court, state or federal, set forth

the ground, state concisely the

reasons why such ground has not

previously been presented:

(a)

(b)

(c)

17 Were you represented by an attorney

at any time during the course of:

(a) Your arraignment and plea? yes

(b) Your trial, if any? yes

(c) Your sentencing? yes

(d) Your appeal, if any, from the

judgement of conviction or the

imposition of sentencing? yes

(e) Preparation, presentation or

consideration of any petitions,

motions, or application with

respect to this conviction,

A-42

Wb wey

18.

19.

which you filed?

(£f) did you waive your right of

representation by an attorney for

any of the above proceedings?

NO.

If you answered "yes" to one or more

parts of (17), list:

(a) the name and address of each

attorney who represented you:

SB.

ii.

(b) The proceedings at which each such

attorney represented you:

i.

ii.

If you are seeking leave to proceed

in forma pauperis, have you completed

the sworn affidavit setting forth

the required information (see in-

structions, Page I of this form?

X John Sykes

Signature of petitioner

A-43

SS

i a a

John Sykes , being first sworn

under oath, presents that he has sub-

scribed to the foregoing petition and

does state that the information therein

is true and correct to the best of his

knowledge and belief.

X John Sykes

Signature of Affiant

SUBSCRIBED AND SWORN to before me this 23

day of April ni

(undecipherabie)

Notary Public

My Commission expires

Notary Public State of Florida at Large

My Commission expires Feb. 26, 1975

General Insurance Underwriters, Inc.

(Date)

A-44

€

FORMA PAUPERIS AFFIDAVIT

(SEE INSTRUCTIONS, PAGE I OF THIS FORM)

x John Sykes

Signature of Petitioner

(Thumb Print)

SS

ZS NS”

John Sykes Being first sworn under

oath, presents that he has subscribed to

the above and does state that the in-

formation therein is true and correct to

the best of his knowledge and belief.

x John Sykes

Signature of Affiant

SUBSCRIBED AND SWORN to before me

this 23 day of April “me

A-45

(undecipherable)

otary ic

~ Commission expires

NOTARY PUBLIC STATE OF FLORIDA AT LARGE

MY COMMISSION EXPIRES FEB. 26, 1975

GENERAL INSURANCE UNDERWRITERS, INC.

A-46

ee

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOHN SYKES, #003316,

Petitioner,

vs. No, 73-316Civ.T.H.

LOUIS L. WAINWRIGHT,

Director, Division of

Corrections, State of

Florida,

Respondent.

WAIVER

The Petitioner, JOHN SYKES, hereby

waives any contention or allegation as

regards ineffective assistance of counsel

at trial in the Twelfth Judicial Circuit

of Florida or on eee" to the Second

District Court of Appeals of Florida,

pertaining to a Third Degree Murder

Conviction for which he is presently

confined in Union Correctional Insti-

tution at Raiford, Florida.

Dated this 20 day of November, 1973.

/S/ John Sykes

A-4/

WITNESSES :

/S/ Calvin C. Campbell

/S/ John H. Henninger

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of

the foregoing Waiver was mailed to Charles

Corces, Jr., Assistant Attorney General,

419 Stovall Professional Building, 305

Morgan Street, Tampa, Florida, 33602.

11/28/73

Sf William F. Casler

Counsel for Petitioner

502 Florida National

Bank

St. Petersburg, Florida

A- 48

-—™ eee eee, ee

—— — << #2 OO ~SeT

——_— — ee eee eee OO

28 U.S.C.A. § 2254(a) (b) (c)

§ 2254, State custody; remedies in

Federal courts

(a) The Supreme Court, a Justice

thereof, a circuit judge, or a district

court shall entertain an application for

a writ of habeas corpus in behalf of a

person in custody pursuant to the judg-

ment of a State court only on the ground

that he is in custody in violation of the

Constitution or laws or treaties of the

United States.

(b) An application for a writ of

habeas corpus in behalf of a person in

custody pursuant to the judgment of a

State court shall not be granted unless

it appears that the applicant has ex-

hausted the remedies available in the

courts of the State, or that there is

either an absence of available State

corrective process or the existence

of circumstances rendering such process

ineffective to protect the rights of the

prisoner.

(c) An applicant shall not be deemed

to have exhausted the remedies available

in the courts of the State, within the

meaning of this section, if he has the

right under the law of the State to raise,

by any available procedure, the question

presented.

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CONSTITUTION OF THE UNITED STATES

AMENDMENT V.

No person shall be held to answer for a

capital, or otherwise infamous crime, un-

less on a presentment or indictment of a

ny jury, except in cases ——— in the

and or naval forces, or in the militia,

when in actual service in time of war or

public danger; nor shall any person be

subject for the same offence to be twice

“~; in jeopardy of life or limb; nor shall

e compelled in any criminal case to be a

witness against himself; nor be deprived

of life, liberty, or pee erty, without due

rocess of law; nor shall private property

e taken for public use, without just com-

pensation.

AMENDMENT XIV.

SECTION 1. All persons born or natural-

ized in the United States, and subject to

the jurisdiction thereof, are citizens of

the United States and of the State wherein

they reside. No State shall make or en-

force any law which shall abridge the pri-

vileges or immunities of citizens of the

United States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

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FLORIDA RULES OF CRIMINAL PROCEDURE

PRE-TRIAL MOTIONS RULE 3,190 (1972)

(i) Motion to Suppress a Confession or

Admissions Illegally Obtained.

(1) Grounds. Upon motion of the de-

fendant or upon its own motion, the court

shall oprrees any confession or admission

obtained illegally from the defendant.

(2) Time for Filing. The motion to

suppress shall be made prior to trial un-

less opportunity therefor did ot exist or

the defendant was not aware of the grounds

for the motion, but the court in its dis-

cretion may entertain the motion or an

appropriate objection at the trial.

(3) Hedring. The court shall receive

evidence on any issue of fact necessary to

be decided in order to rule on the motion.

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