Opposition — Wainwright v. Pressley

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. 76-1208

LOUIE L. WAINWRIGHT,

Secretary, Florida Department

of Offender Rehabilitation,

Petitioner,

vs.

NATHANIEL PRESSLEY,

Respondent.

ON PETITION FUR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF RESPONDENT IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit of Florida

800 Metropolitan Justice Building

1351 N. W. 12 Street

Miami, Florida 33125

(305) 547-4922

PAGE

QUESTION PRESENTED 1

INTRODUCTION 2

STATEMENT OF THE CASE 2

ARGUMENT 7

THE COURTS BELOW PROPERLY

GRANTED HABEAS CORPUS RELIEF

WHERE THE PETITIONER HAD BEEN

DENIED THE RIGHT TO FILE A

PETITION FOR CERTIORARI IN

THE SUPREME COURT OF FLORIDA

AS A DIRECT CONSEQUENCE OF THE

OPERATION OF A FLORIDA RULE OF

COURT COUPLED WITH THE FAILURE

OF PETITIONER'S COURT-APPOINTED

| COUNSEL TO TIMELY INVOKE THE

CERTIORARI JURISDICTION OF THE

SUPREME COURT OF FLORIDA, AND

PETITIONER HAD THUS BEEN DEPRIVED

OF DUE PROCESS OF LAW AND EQUAL

PROTECTION OF THE LAWS. 8

A. The Application Of Florida

Appellate Rule 4.5 By

The Supreme Court Of Florida

So As To Foreclose Petitioner's

Right To Petition For Certiorari

Review Deprived Petitioner Of Due

Process And Equal Protection As

Guaranteed By The Fourteenth

Amendment To The Constitution Of

The United States. 8

B. The Failure If Petitioner's

Court-Appointed Counsel To Timely

Invoke The Certiorari Jurisdic-

tion Of The Supreme Court Of

Florida, After Agreeing To Do So

With The Petitioner Rendered Said

Counsel's Assistance Ineffective

And Deprived The Petitioner Of Due

Process Of Law And Equal Protection

Of The Laws. 14

Cc. The Failure Of The State To

Provide A Means Of Relieving

' The Petitioner From The Con-

sequences Of Court-Appointed

Counsel's Failure To Timely

Perfect Petitioner's Right

To Petition For Certiorari

Review, While Providing Relief

From Similar Derelictions Of

Counsel Relating To Direct

Appeals And Appeals From

Denials Of Post-Conviction

Relief, Deprived The Petitioner

Of Equal Protection Of The Laws. 17

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CONCLUSION

Florida's Argument That The

District Court Erred In Grant-

ing Habeas Relief Because The

Record Fails To Establish A

Deprivation Of A Constitutional

Right And That The Decision Of

The Court Below Conflicts With

Ross v. Moffitt, Is Without

Foundation In The Law Or Fact. 20

24

-i]-

-ii-

CITATIONS

CASES

ANDERS v. CALIFORNIA,

386 U.S. 783 (1967)

ATILUS v. UNITED STATES,

t r. 1969)

BAGGETT v. WAINWRIGHT,

229 So.2d 239 (Fla. 1969)

BRASWELL v. WAINWRIGHT,

t r. 1972)

CIPRIANO v. CITY OF HOUMA,

395 U.S. 701 (1969)

DANIELS v..STATE OF ALABAMA,

- t r. )

DOUGLAS v. CALIFORNIA,

372 U.S. 353 (1963)

EISENSTADT v. BAIRD,

ENTSMINGER v. 19693

386 U.S. 748 (1967

ESTELLE v. DORROUGH,

420 U.S. 534 (1975)

FITZGERALD v. ESTELLE,

t ir. en banc 1975)

FLORES v. WAINWRIGHT,

240 So.2d 816 (Fla.App.2d 1970)

GOLDBERG v. KELLY

307 U.S. 254 (1970)

GOSS v. LOPEZ,

; (1975)

HALL v. WAINWRIGHT,

th Cir. 1971)

HOOKS v. WAINWRIGHT,

352 F.Supp. 163 (M.D.Fla. 1972)

JOHNSON v. AVERY,

‘ 69)

KING v. NEW ROCHELLE- MUNICIPAL HOUSING AUTHORTIY,

F. -

LACAZE v. UNITED STATES,

457 F.2d 1075 (5th Cir. 1972)

LANE v. BROWN,

(1963)

-st{§@-

-iii-

PAGE

13,15,16

15

14,17,24

11

18

24

15,

19

13,16

11,16

LUMPKIN v. SMITH,

th Cir. 1971)

MacKENNA v. ELLIS,

th Cir. 1960)

MAYER v. CITY OF CHICAGO,

404° U.S. 189 (1971)

MORRISEY v. BREWER,

O'MALLEY v. WAINWRIGHT,

Oo. a.App.2d 1975)

POWE v. STATE,

216 So.2d 446 (Fla. 1968)

PRESSLEY v. STATE,

oO. a.App.3d 1972)

PRESSLEY v. BATNWRIGHT..

F. t 1974)

540 F.2d 818 (5th Cir. 1976)

PROCUNIER v. MARTINEZ,

416 U.S. 396 (1974)

RHYMES v. STATE,

Oo. Fla.App.3d 1972)

RINALDI v. YEAGER,

: 6)

ROBERTS v. LaVALLEE,

389 U.S. 40 (1967)

ROE v. WADE,

3 (1973)

ROSS v. MOFFITT,

3. 974)

SCHREINER v. UNITED STATES,

404 U.S. 67 (1971)

SHAPIRO v. THOMPSON,

394 U.S. 618 (1969)

STATE v. REYNOLDS,

238 So.2d 600 (Fla. 1970)

STATE v. WOODEN,

oO. Fla. 1971)

THOMPSON v. DILLEY,

oO. a. 1973)

WEST v. STATE OF LOUISIANA,

478 F.2d 1026 (5th Cir. 1973)

-iy-

15,24

22

18

22

“17,24

17

3,10

8,10,14

8,14

18,19,22

13

18

20

23

18

10

17

14

22

IN THE SUPREME COURT OF THE UNITED STATES

WILLIAMS v. ILLINOIS,

399 U.S. 235 (1970)

19 CCTOBER TERM, 1976

WOLFF v. McDONALD,

a 4) 22 NO. 76-1208

MISCELLANEOUS LOUIE L. WAINWRIGHT, etc.,

FLORIDA CONSTITUTION (1885) Petitioner,

Article V § 3(b) (3) 9 vs.

V § 4(2) 9 ; NATHANIEL PRESSLEY,

FLORIDA APPELLATE RULES ; Respondent.

2.1(a) (5) (5) 4

4.5(c) (6) 9,10

SUPREME COURT RULE 22 23 ON PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF RESPONDENT IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

QUESTION PRESENTED

WHETHER THE COURTS BELOW PROPERLY

GRANTED HABEAS CORPUS RELIEF WHERE

THE APPLICANT HAD BEEN DENIED THE

RIGHT TO FILE A PETITION FOR CERT-

IORARI IN THE SUPREME COURT OF

FLORIDA AS A DIRECT CONSEQUENCE OF

THE OPERATION OF A FLORIDA RULE OF

COURT COUPLED WITH THE FAILURE OF

APPLICANT'S COURT-APPOINTED COUN-

SEL TO TIMELY INVOKE THE CERTIORARI

JURISDICTION OF THE SUPREME COURT

OF FLORIDA, AND PETITIONER HAD THUS

BEEN DEPRIVED OF DUE PROCESS OF LAW

AND EQUAL PROTECTION OF THE LAWS.

INTRODUCTION

The Secretary of Florida's Department of Offender

Rehabilitation has requested this honorable Court to issue

its writ of certiorari to review the affirmance by the court

below of a judgment granting habeas corpus relief to a state

prisoner. Unless otherwise indicated, the term "petitioner"

will be used herein to refer to the state prisoner in the

context of the litigation in the courts below.

STATEMENT OF THE CASE

On February 17, 1970, the petitioner was charged

by indictment with the offense of murder in the first degree.

(R. 24).

The petitioner was adjudged insolvent and the

court appointed counsel to represent him. The petitioner

was tried and the jury returned a verdict of guilty of

murder in the first degree with a recommendation of mercy.

The petitioner was adjudged guilty and sentenced to life

imprisonment in the state penitentiary. (R. 25).

The petitioner was adjudged insolvent for the

purpose of appeal and the court appointed counsel to represent

him. (R. 26). In an opinion filed on May 2, 1972, the

District Court of Appeal of Florida, Third District, affirmed

the conviction. (R. 27-34, 116). The Honorable Tillman

Pearson dissented, and cited two Florida appellate cecisions

in support of his conclusion that the trial court had committed

reversible error. (R. 34). A petition for rehearing was

denied on May 24, 1972, and the mandate issued forthwith.

(R. 35).

The petitioner, on May 31, 1972, wrote to the

Public Defender, Dade County, Florida, at the suggestion

of his court-appointed counsel, and requested that the Public

- Jo

Defender obtain the petitioner's records from his court-

appointed counsel and seek review of the District Court's

decision. (R. 36). The Public Defender advised the petitioner

that certiorari would be sought on his behalf. (R. 18, 116).

Petitioner's court-appointed counsel delivered the

petitioner's files to the Public Defender. A stipulation for

substitution of counsel was entered between the petitioner's

court-appointed counsel and the Public Defender. (R. 38). On

June 28, 1972, the stipulation was filed in the state appellate

court in support of a motion to substitute counsel. (R. 37).

The motion and stipulation requested that court-appointed

counsel be allowed to withdraw, and that the Public Defender

be substituted as counsel for petitioner for the purpose of

filing a petition for a writ of certiorari in the Supreme

Court of Florida on behalf of the petitioner. (R. 37, 38).

On July 3, 1972, the state appellate court entered its order

accepting the aforementioned stipulation and appointing

the Public Defender to represent the petitioner. (R. 39).

Neither petitioner's court-appointed counsel nor

the Public Defender filed a timely petition for a writ of

certiorari in the Supreme Court of Florida.

On August 9, 1972, the Public Defender filed a

petition for a writ of habeas corpus in the Supreme Court of

Florida requesting as relief solely that the Court “permit

the filing of a belated petition for certiorari." Pressley

v. Wainwright, Case # 42, 684. (R. 40). This petition was

denied on November 28, 1972. (R. 43).

the respondent has noted that the petitioner's

co-defendant filed a petition for writ of certiorari which was

denied by the Supreme Court of Florida. Petition at 3. The

co-defendant's case is not in any way relevant to this case.

The co-defendant's appeal did not involve the same issues as

were presented by the petitioner's appeal, and resulted in a

unanimous affirmance by the same appellate panel which split

regarding the eneeees see of the “997 gy | Ss case. Compare

Rhymes v. State, 261 So.2d 527 (Fla. App. 3d 1972); Pressley

Vv. State. 261 So.2d 522 (Fla. App. 3d 1972).

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-35-

On April 30, 1973, the petitioner filed an

application for habeas corpus relief in the United States

District Court for the Southern District of Florida. The

federal petition was based upon essentially the same grounds

as were contained in the state habeas petition. This petition

was denied on the merits.

The petitioner appealed this denial to the United

States Court of Appeals for the Fifth Circuit. The Fifth

Circuit affirmed the denial of the federal habeas petition

on the ground that state remedies had not been exhausted.

Pressley v. Wainwright, 493 F.2d at 894, 895 (5th Cir. 1974);

(R. 117).

In light of the Fifth Circuit's opinion, the

petitioner, on June 12, 1974, filed a motion. for leave to

file a belated application for certiorari in the Supreme

Court of Florida. (R. 44-47). On July 22, 1974, that motion

was denied. (R. 48).

On March 19, 1975, the petitioner returned to

federal court and filed the petition sub judice. (R. 1-48).

The district court issuedits rule to show cause and the

respondent filed a motion to dismiss and memorandum of law.

(R. 49, 53-110). The positions taken by the petitioner and

respondent were similar, if not identical, to the positions

taken in the initial habeas proceedings. The petitioner

fied a second memorandum in support of his petition and in

reply to the motion to dismiss. (R. 111-115).

On June 30, 1975, the district court entered an

order granting the ubeteteuse habeas corpus relief. (R. 116-

118). The district court made the following findings of

fact and conclusions of law:

a. The Fifth Circuit, on appeal, had affirmed the

initial habeas judgment against the petitioner on exhaustion

~ Y¥-

aie

grounds. (R. 117).

b. The petitioner had utilized one of the

alternatives for exhaustion of state remedies suggested by

the Fifth Circuit and had adequately exhausted his state

remedies. (R. 117).

c. The Fifth Circuit had elucidated the petitioner's

claim and the district court had not fully understood the

claim when it was initially presented. (R. 117).

d. "States are not required to

establish avenues of appellate

review, but once established, these

avenues must be kept free of unreason-

able distinction that can only impede

open and equal access to the Courts."

(R. 118).

e. "Petitioner's failure to

file the certiorari petition

within the time prescribed by

law was not occasioned by him.

It was occasioned by the State

of Florida. Because of his

indigency petitioner was forced

to rely upon court-appointed

counsel. Petitioner expressly

manifested his desire to avail

himself of the opportunity for

the further review of his state

court conviction and the failure

of the state system to timely

act and the resultant frustration

of petitioner's right to petition

for certiorary (sic) constitutes

ineffective assistance of counsel

and denied petitioner due process

of law and the equal protection

of laws as guaranteed by the Fourt-

teenth Amendment of the United

States Constitution." (R. 118).

Accordingly, the district court ordered thet the

State of Florida permit the petitioner to belatedly apply

for certiorari review, or in the alternative set aside the

petitioner's eunvtevion and grant him a new trial. (R. 118).

The district court stated that, if the State failed to

comply, the court would be obligated to release the petitioner

from the custody resulting from the adjudication and sentence

imposed in this case. (R. 118).

-I-

of

On July 10, 1975, the respondent moved for re-

hearing, which was denied. (R. 119-122, 123). The respondent

then appealed to the United States Court of Appeals for the

Fifth Circuit. (R. 124).

The Fifth Circuit affirmed the grant of habeas

corpus relief. Pressley v. Wainwright, 540 F.2d 818. After

reviewing the facts and circumstances of the case, the court

below rejected as hypotheti al the argument which Florida

again relies upon in the petition before this Court:

The keystone of this argument

is the statement that "if" Prisoner's

motion to substitute counsel had been

denied, he would have been in the same

situation as Moffitt. With these two

structural points identified, the con-

struction of the state's theory proceeds

by arguing that no later than from the

time Prisoner received notice of his

court-appointed counsel's intention to

withdraw from further representation,

May 31, until the completed substitu-

tion of counsel on July 3, Prisoner was

without an attorney. As a consequence,

regardless of the substitution of counsel

motion on June 28, Prisoner's predicament

is identical to Moffitt's: He was without

counsel during the filing time and no

duty to appoint counsel existed on the

state of Florida for discretionary review.

As an arch falling when its keystone

is removed, likewise, the State's argu-

ment fails. Because Prisoner's motion to

substitute was granted, the binding to-

gether factor of this argument is non-

existent. Furthermore, the base of the

argument gives way under close scrutiny.

No issue regarding failure to provide

discretionary review exists. The record

indicates that Prisoner's court-appointed

recommended that he ask the Public Defender

to undertake his representation and that

the Public Defender agreed to do so within

the thirty day period in question. Realiza-

tion of these two defects in the argument

relegates it to the status of a "whims of

fate" argument relying on the remaining

proposition that Prisoner was without an

attorney from at least May 31 to July 3.

Unlike Shakespear's epithet "Let wyrd be

done", adequate representation by counsel

requires more than the unknown path fate

provides. 540 F.2d at 820-821. (Footnotes

omitted.) ccd

i

The findings of fact and conclusions of law

which were the basis for the relief afforded by the district

court were outlined by the court below as follows:

(1) Prisoner's failure to timely

petition for certiorari was not

occasioned by him.

(2) The failure was occasioned by

the State of Florida.

(3) Because of his indigency, Prisoner

was forced to rely on court-appointed

counsel.

(4) Prisoner expressed his desire to

seek fiirther review of his conviction.

(5) Failure of the State system to

timely act and the resulting frustration

of Prisoner's right to seek a writ of

certiorari constitutes ineffective

assistance of counsel denying Prisoner

due process and equal protection of

the laws under the Fourteenth Amendment

of the United States Constitution. 540

F.2d at 821 n. 11.

In affirming the judgment of the district court, the

Fifth Circuit found that the record reflected sufficient evidence

to support the district court's determination that the petitioner-

appellee had been denied effective assistance of counsel. 540

F.2d at 821.

ARGUMENT

THE COURTS BELOW PROPERLY GRANTED

HABEAS CORPUS RELIEF WHERE THE PETI-—

TIONER HAD BEEN DENIED THE RIGHT TO

FILE A PETITION FOR CERTIORARI IN

THE SUPREME COURT OF FLORIDA AS A

DIRECT CONSEQUENCE OF THE OPERATION

OF A FLORIDA RULE OF COURT COUPLED

WITH THE FAILURE OF PETITIONER'S

COURT-APPOINTED COUNSEL TO TIMELY

INVOKE THE CERTIORARI JURISDICTION

OF THE SUPREME COURT OF FLORIDA,

AND PETITIONER HAD THUS BEEN DE-

PRIVED OF DUE PROCESS OF LAW AND

EQUAL PROTECTION OF THE LAWS.

Reasonable access to the courts is a constitutional

imperative. It is a fundamental principle that “access of

prisoners to the courts for the purpose of presenting their

complaints may not be denied or obstructed." Johnson v. Avery,

393 U.S. 483, 485 (1969). Hooks v. Wainwright, 352 F.Supp.

163, 168 (M.D. Fla. 1972).

{I]t is clear that unless

an indigent inmate can reach the

very threshold of the courts, all

of the normal guarantees of due

process do not come into play.

Although he may have a claim which

would entitle him to relief, absent

the invocation of the judicial

machinery the potential relief is

merely a hollow promise. Thus, the

inadequacy and insufficiency of the

legal services provided indigent

inmates effectively denies them

the due process of law.

As repeatedly recognized by the court of appeals,

the instant claim arises from a denial by the State of petitioner's

right to file a petition foc a writ of certiorari in the Supreme

Court of Florida. Pressley v. Wainwright, 540 F.2d 818; 493

F.2d at 896. This denial is a direct consequence of the operation

of a Florida rule of court coupled with the failure of petitoner's

court-appointed counsel to timely act on his client's behalf.

A. The Application Of Florida Appellate Rule 4.5 By The

Supreme Court Of Florida So As To Foreclose Peti-

tioner's Right To Petition For Certiorari Review Deprived

Petitioner Of Due Process And Equal Protection As Guaran-

teed By The Fourteenth Amendment To The Constitution Of

The United States.

-3-

-8-

cent EE on

The jurisdiction of the Supreme Court of Florida

to review decisions of district courts of appeal is established

by Article V of the Florida Constitution. Florida Appellate

Rules 2.1(a)(5)(b) and 4.5(c)(6), promulgated by the Florida

Supreme Court, parallel the provisions of Article V.

Article V § 4(2) of the Florida Constitution

(1885), which was in effect at the time of the petitioner's

application, provided in pertinent part:

The supreme court may review by

certiorari any decision of a

district court of appeal that

affects a class of constitutional

or state officers, or that passes

upon a question certified by

the district court of appeal

to be of great public interest,

or that is in direct conflict

with a decision of another

district court of appeal or of

the supreme court on the same

point of law, and may issue

writs of certiorari to commis-

sions established by law. 2

Rule 4.5(c)(6), Fla.App.R., provides in pertinent

part:

Where any decision of a district

court of appeal (1) affects a

class of constitutional or state

officers, or (2) passes upon

a question certified by such dis-

trict court to be of great public

interest, or (3) is in direct con-

flict with a decision of another

district court of appeal or of the

Supreme Court on the same point of

law, petition may be filed with the

Supreme Court to issue a writ of

certiorari to review such decision.

2article V was amended effective January 1, 1973.

Section 3(b)(3) relating to certiorari jurisdiction now pro-

vides for review by the Supreme Court of a decision which con-

flicts with "a decision of any district court." This modifica-

tion does not, however, have any bearing on the outcome of

the case at bar.

Dietary wes - — ‘ 7 4

The petition for certiorari

under this rule shall be filed

in the Supreme Court within 30

days from the rendition of the

order, decision or judgment of

the district court of appeal.

to the Constitution of the United States .*

The present case is controlled by a long line of

decisions of the Supreme Court of the United States in which

* * * the Court held constitutionally invalid a wide range of

The Supreme Court shall con- state procedures which denied indigent defendants the benefit

— sme: ml ig od of an existing system of appellate review. In Lane v. Brown,

att ba aoaeake pol = pang 372 U.S. 477 (1963), the Court held violative of the Equal

came chall be denied or dismissed. Protection Clause, an Indiana procedure which permitted the

_

Thus, the Florids Appellate Rules allow a Peew public defender at will to deprive an indigent of the right

file a petition for a writ of certiorari in the Florida to appeal from the denial of a writ of coram nobis. The

~~ woe

Supreme Court to review "any decision of a district court of Court in Lane, reviewed its previous decisions:

appeal", provided that such petition is filed with the In Griffin v. Illinois, 351

f U.S. 12, 76 S.Ct. 585, 100 L.Ed.

thirty day time limit. The right is absolute except for 891, me ed Court held that a State

with an appellate system which

this time limitation. ray made available trial transcripts

The Florida Appellate Rules do not establish a - me to those who could afford them was

constitutionally required to pro-

vide “means of affording adequate

and effective appellate review

to indigent defendants." Id., at

20, 76 S,Ct. 591. "Destitute

prerequisite showing of jurisdiction or merit to the filing

of a petition for a writ of certiorari.> If, after consideration

of a petition, the Supreme Court of Florida finds itself to defendants," the Court held, "must

be afforded as adequate appellate

be without jurisdiction or the petition to be without merit, the review as defendants who have ‘

money enough to buy transcripts.

: _App.R. 4.5 Id., at 19, 76 S.Ct. 591. In Burns

petition is dismissed or the writ is discharged. Fla.App v. Ohio, 360 U.S. 252, 79 S.C. 1164,

; a! ; ; ; 0). 3 L.Ed.2d 1209, involving a $20 fee

(c)(6). See, €.g.. State v. Reynolds, 238 So.2d 600 (Fla. 1970) for filing = motion for leave to

's a : ' fil appeal a felony conviction to the

The State's denial of petitioner's right to ea Supreme Court of Ohic, this Court re-

petition for certiorari review due to the failure of his affirmed the Griffin doctrine, saying

that “once the State chooses to estab-

court-appointed counsel to file within the thirty day limit lish appellate review in criminal cases,

it may not foreclose indigents from

established by a Florida rule of court constituted a violation access to ay phase of that procedure

because of their poverty. This

' fl d 1 pro- principle is no less applicable where

of the petitioner's right to due process of law an equal p the State has afforded an indigent

tection of the laws as guaranteed by the Fourteenth Amendment defendant access to the first phase

of its appellate procedure but has

effectively foreclosed access to the

second phase of that procedure solely

because of his indigency." Id., at

257, 79 S.Ct. 1168. In Smith v.

3The petitioner's attempt to invoke the certiorari

jurisdiction of the Supreme Court of Florida was in "good

faith." 493 F.2d 895. The dissent to the affirmance of

petitioner's conviction expressly sets forth two decisions

of other district courts of appeal, which decisions, in the

opinion of the dissentin Sulina, conflicted with the affirmance. 4cf. Braswell v. Wainwright, 463 F.2d 1148 (5th

aay the decision itself indicates that the state certiorari Cir. 1972).

petition would have been meritorivus. Pressley v. State,

‘supra at 527. nate —i/-

x\e

-10-

Bennett, 365 U.S. 708, 81 S.Ct. 895,

6 L.Ed.2d 39, the Court made clear

that these principles were not to be

limited to direct appeals from criminal

convictions, but extended alike to state

post-conviction proceedings. "Respecting

the State's grant of a right to test their

detention," the Court said, “the

Fourteenth Amendment weighs the

interests of rich and poor criminals

in equal scale, and its hand extends

as far to each." Id., at 714, 81

S.Ct. 898. In Eskridge v. Washington

Prison Board, 357 U.S. 214, 78 S.Ct.

1061, 2 L.Ed.2d 1269, the Court held

invalid a provision of Washington's

criminal appellate system which con-

ferred upon the trial judge the power

to withhold a trial transcript from an

indigent upon the finding that “justice

would not be promoted .. . in that de-

fendant has been accorded a fair and

impartial trial, and in the Court's

opinion no grave or prejudicial errors

occurred therein,” Id., at 215, 78

S.Ct. 1062. There it was said that

"[t]he conclusion of the triai judge

that there was no reversible error in

the trial cannot be an adequate sub-

stitute for the right to full appellate

review available to all defendants in

Washington who can afford the expense

of a transcript." Id., at 216, 78 S.Ct.

1062.

The present case falls clearly

within the area staked out by the

Court's decisions in Griffin, Burns,

Smith and Eskridge. To be sure,

this case does not involve, as did

Griffin, a direct appeal from a

criminal conviction, but Smith makes

clear that the Griffin principle

also applies to state collateral

proceedings, and Burns leaves no

doubt that the principle applies

even though the State has already

provided one review on the merits.

In Eskridge the Court held con-

stitutionally invalid a provision

which permitted a trial judge to

prevent an indigent from taking an

effective appeal. The provision

before us confers upon a state

officer outside the judicial

system power to take from an

indigent all hope of any appeal

at all. Such a procedure, based

on indigency alone does not meet

constitutional standards. 372

-/2-

» -12-

U.S. at 483- 485, 83 S.Ct. at

772-773. (Emphasis added.)

See also Anders v. California, 386 U.S. 783 (1967); Entsminger

v. Iowa, 386 U.S. 748 (1967); Roberts LaVallee, 389 U.S. 40 (1967).

Petitioner's right to file a petition for a writ

of certiorari in the Florida Supreme Court stands on no

less footing than Smith's right of access to state pest-

conviction proceedings and Lane's access to appellate

review thereof, Burn's right of access to the second phase

of state appellate procedure, and Griffin's and Eskridge's

right to a trial transcript for appellate review.

On May 31, 1972, following affirmance of petitioner's

conviction by the District Court of Appeal of Florida on

May 24, 1972, and within the thirty day time period provided

by Florida Appellate Rule 4.5, petitioner wrote to the Public

Defender for the Eleventh Judicial Circuit of Florida, and

requested that Public Defender represent him in seeking review

of the District Court's decision. (R. 36). The letter stated

that the petitioner had been referred to the Public Defender

for this purpose by his court-appointed counsel. Petitioner

had been previously adjudged insolvent for the purpose of

appeal and, therefore, had to rely upon court-appointed counsel

in order to take advantage of the opportunity to have the

decision of the District Court reviewed by the Supreme Court

of Florida. (R. 26). The Public Defender advised the petitioner

that certiorari would be sought on his behalf. (R. 18, 116).

It was not until after the thirty day limit

established by Rule 4.5 had elapsed that the Public Defender

substituted as counsel for petitioner by order of the Distrcit

Court of Appeal. (R. 39, 117). No petition for a writ of

certiorari had been filed by petitioner's court-appointed

counsel or by the Public Defender within the thirty day period.

(R. 9, 41, 117).

-/3-

-13-

Petitioner's failure to file the certiorari petition

within the time provided by law was occasioned solely by th-

inaction of petitioner's court-appointed counsel, upon whom

petitioner was forced to rely because of his indigency, despite

petitioner's expressly manifested desire tv avail himself of

the opportunity for further state court review of his conviction.

(R. 15, 17, 118). See also 540 F.2d at 821 n. 11; 493 F.2d at

895.

The Public Defender initially undertook to vindicate

petitioner's frustrated right to certiorari review of his con-

viction by filing an original petition for a writ of habeas

corpus in the Florida Supreme Court. This remedy was invoked

in accordance with the decision of the Supreme Court of Florida

in Baggett v. Wainwright, 229 So.2d 239 (1969), which expressly

adopted this method as the appropriate means to secure belated

appellate review which has been frustrated by state action.

See also Thompson v. Dilley, 275 So:2d 234 (Fla. 1973). Subse-

quent to and in accordance with the Fifth Circuit's ruling in

this cause, the petitioner filed a motion for leave to file a

belated application for certiorari in the Supreme Court of

Florida. This motion met the same fate as the petitoner's

initial request to that Court.

Thus, the application by the Supreme Court of

Florida of the thirty day limitation on filing contained in

Rule 4.5 under the circums:ances sub judice constituted a

denial of the petitoner's right to due process of law and

equal protection of the laws.

B. The Failure Of Petitoner's Court-Appointed Counsel To

Timely Invoke The Certiorari Jursidiction Of The Supreme

Court Of Florida, After Agreeing To Do So With The Peti-

tioner, Rendered Said Counsel's Assistance Ineffective

And Deprived The Petitioner Of Due Process Of Law And

Equal Protection Of The Laws.

Indigent defendants in criminal proceedings are

constitutionally entitled to effective assistance from

-/!Gf-

-14-

state-appointed counsel. Anders v. California, supra;

Douglas v. California, 372 U.S 353 (1963).

It is well-established that the failure of counsel

to timely invoke a court's appellate jurisdiction, or place

his client in a position to do so, renders his assistance

ineffective and deprives the accused of his constitutional

rights. Lumpkin v. Smith, 439 F.2d 1084 (Sth Cir. 1971).

In Hall v. Wainwright, 441 F.2d 391 (5th Cir. 1971),

the court affirmed the issuance of a writ of habeas corpus

where petitioner's court-appointed counsel failed to file a

timely notice of appeal. The court noted that the failure of

the Public Defender, a state agency, to act "constituted state

action which effectively denied to the petitioner his constitu-

tionally protected right to appeal.” Id. at 393.

In Atilus v. United States, 406 F.2d 694, 697 (5th

Cir. 1969), the court noted that the failure of non-appointed

counsel to notice an appeal is tantamount to denying an

accused the right to counsel at a vital state of the proceedings :

[W]here the trial ends with

appointed counsel failing to take

the action desired by the accused

by filing a notice of appeal and

the convicted person is therefore

actually without the aid of counsel

when the statutory time of appeal

expires, this court has had no

difficulty in remedying this

defect by permitting a late filing.

In Lumpkin v. Smith, supra, the court reversed a

- denial of a state prisoner's petition for habeas corpus relief

on the basis tht the petitioner had been denied the effective

assistance of counsel. The court noted that it was well-

established that court-appointed counsel must advise a

defendant of “his right to appeal, the procedure and time

limits involved, and of his right to appointed counsel on

appeal." Id. at 1085.

-i£$-

~\=

In the instant case, petitioner had court-appointed

counsel to represent him both a trial and on appeal. Court-

appointed counsel then withdrew from the case, and the Public

Defender was simultaneously appointed to represent the

petitioner. This substitution of counsel was for the

express purpose of filing a petition for a writ of certiorari

in the Supreme Court of Florida. The Public Defender had

advised petitioner that a petition would be filed on his

behalf. Thus, petitioner's reliance on the Public Defender

coupled with counsel's failure to timely invoke the jurisdiction

of the Supreme Court of Florida effectively denied the

petitioner his right to petition for a writ of certiorari.

In Anders v. California, supra at 739-741, and Lane v. Brown,

supra at 485, this Court declared that court-appointed counsel

may not directly deprive an indigent defendant of his right to

appellate review. See also Entsminger v. Iowa, supra at 752.

Logic, as well as the Constitution, requires the conclusion that

court-appointed counsel may not constitutionally do indirectly

that which he may not do directly.

The failure of petitioner's court-appointed counsel

to timely act and the resultant frustration of petitioner's

otherwise absolute right to petition for certiorari review

constituted ineffective assistance of counsel and denied peti-

tioner due process of law and the equal protection of the

laws as guaranteed by the Fourteenth Amendment of the United

States Constitution. (R. 118).

The consequences of petitioner's counsel's failure

to timely invoke the certiorari jurisdiction of the Supreme

Court of Florida are as serious as those flowing from counsel's

failure to timely note appeals in Hall and Atilus. Therefore,

the relief afforded the petitioner by the court below, which

-/<é-

«vs

PT ae ws

relief is equivalent to that granted in Hall and Atilus, is

entirely appropriate.

Cc. The Failure Of The State To Provide A Means Of Relieving

The Petitioner From The Consequences Of Court-Appointed

Counsel's Failure To Timely Perfect Petitioner's Right

To Petition For Certiorari Review, While Providing

Relief From Similar Derelictions Of Counsel Relating To

Direct Appeals And Appeals From Denials Of Post-Con-

viction Relief, Deprived The Petitioner Of Equal Pro-

tection Of The Laws.

The petitioner's equal protection claim, in essence,

was that Florida must provide a means to relieve him from the

consequences of court-appointed counsel's failure to timely

perfect petitioner's right to seek certiorari review because

Florida provided relief from similar derelictions of counsel

relating to direct appeals and appeals from denials of post-

conviction motions. The federal district court, in its order

granting habeas relief, held that the petitioner had been denied

equal protection of the laws, as well as due process. In

affirming the district court, the Fifth Circuit only discussed

the due process factor, but reiterated the two bases relied upon

by the district court. 540 F.2d at 821 n. 11.

In addition to the federal courts, the Supreme

Court of Florida has recognized and applied the Douglas

principle, and established that habeas corpus is the appro-

priate remedy for the deprivation of indigent defendants’

appellate rights by the State. Baggett v. Wainwright, 229

So.2d 239, 241 (Fla. 1969); Powe v. State, 216 So.2d 446 (Fla.

1968). See also State v. Wooden, 246 So.2d 755 (Fla. 1971).

Although these three cases relate to belated direct appeals,

Florida courts have declared that the same procedure is appro-

priate where the defendant has been deprived of an appeal from

post-conviction proceedings. Flores v. Wainwright, 240 So.2d

816 (Fla. App. 2d 1970); O'Malley v. Wainwright, 237 So.2d 813,

817 (Fla. App. 2d 1970).

-/7-

x) *™

The State has established a means of relieving

defendants from the consequences of court-appointed counsel's

failure to timely perfect their right to direct appeals and

appeals from denials of post-conviction petitions pursuant

to Fla.R.Crim.P. 3.850. However, the State has refused to

relieve the petitioner from the consequences of his court-

appointed counsel's failure to timely perfect the petitioner's

right to petition for certiorari review. This refusal by the

State creates two classes of defendants seeking appellate review

of criminal proceedings: 1) those defendants seeking relief

from the ineffective assistance of counsel resulting in the denial

of a direct appeal or an appeal from post-conviction pro-

ceedings and, 2) those defendants seeking relief from the

ineffective assistance of counsel resulting in the denial of

certiorari review. The State discriminates by withholding

habeas corpus relief, in the form of belated appellate review,

from the second class while extending such relief to the first.

In that these classifications touch upon the

fundamental right of effective assistance of counsel, and

right of access to courts, the classifications must promote

a compelling state interest. Mayer v. City of Chicago, 404

U.S. 189 (1971); Cipriano v. City of Houma, 395 U.S 701 (1969);

Shapiro v. Thompson, 394 U.S. 618 (1969); King v. New Rochelle

Municipal Housing Authority, 442 F.2d 646 (2d Cir. 1971). Cf.

Roe v. Wade, 410 U.S. 113 (1973). However, these classifications

fail to promote any legitimate state interest whatsoever.

Even if the less stringent equal protection standard

of rationality were applicable in the case at bar, these classi-

fications would still fail to pass constitutional muster. In

Rinaldi v Yeager, 384 U.S 305 (1966), this Court struck down

a New Jersey statute which required that an incarcerated indigent

-—/ J-

-18-

defendant reimburse the state for the cost of a trial transcript,

but which statute did not impose this requirement upon those

defendants who paid a fine or were placed on probation. In

striking down the statute, the Court noted that the Equal Pro-

tection Clause requires “some rationality in the nature of the

class singled out" and that “distinctions that are drawn have

"some relevance to the purpose for which the classification is

made’. Id. at 309. Clearly these standards are not met when

the State requires applicants for certiorari review to bear the

consequences of the deprivation of a fundamental right, such

as the right to the effective assistance of counsel, while re-

lieving applicants for direct appeal or post-conviction

appellate review of this burden. This discrimination is not

rational and bears no relationship to any constitutionally

acceptable purpose. See also Eisenstadt v. Baird, 405 U.S 438,

446-447, n. 7 (1972); Williams v. Illinois, 399 U.S. 235 (1970).

The claim sub judice is a direct result of precisely

the type of "unreasoned distinction" to which the Court referred

in Rinaldi, supra at 310-311:

This Court has never held

that the States are required to

establish avenues of appellate

review, but it is now fundamental

that, once established, these

avenues must be kept free of

unreasoned distinctions that

can only impede open and equal

access to the courts. Griffin

v. People of State of Illinois,

351 U.S. 12, 76 S.Ct. 585, 100

L.Ed. 891; Douglas v. People of

State of California, 372 U.S. 353,

83 S.Ct. 768, 9 L.Ed.2d 892;

Draper v. State of Washington,

372 U.S. 487, 83 S.Ct. 77h, 9

L.Ed.2d 899.

The relief afforded the petitioner by the courts below is

appropriate because it had the salutary effect of eliminating

this invidious discrimination and infringement upon the

—-/19-

-19-

petitioner's fundamental rights.

D. Florida's Argument That The Courts Below Erred In

Granting Habeas Relief Because The Record Fails To

Establish A Deprivation Of A Constitutional Right

And That The Decision Of The Court Below Conflicts

With Ross v. Moffitt Is Without Foundation In Law

Or Fact.

In contrast with the Secretary's argument, this

case presents no issue regarding the right to the appointment

of counsel or the failure of counsel to advise his client of

the possibility of discretionary review. Petition at 9-10.

The Secretary recognizes that, in contrast with Moffitt's case,

counsel was appointed for the petitioner. Petition at 7.

The Secretary, however, attempts to dismiss this crucial fact

by stating that this difference creates no distinction at all.?

Petition at 7.

The findings of fact and conclusions of law which

were the basis for the relief afforded by the district court

were outlined by the court below as follows:

(1) Prisoner's failure to timely

petition for certiorari was not

occasioned by him.

(2) The failure was occasioned by

the State of Florida.

(3) Because of his indigency, Prisoner

was forced to rely on court-appointed

counsel.

(4) Prisoner expressed his desire to

seek further review of his conviction.

(5) Failure of the State system to

timely act and the resulting frustration

of Prisoner's right to seek a writ of

certiorari constitutes ineffective

assistance of counsel denying Prisoner

due process and equal protection of the

laws under the Fourteenth Amendment of

the United States Constitution. 540

F.2d at 821 n. 11.

‘

+The petition is misleading insofar as it indicates

that Moffitt's counsel was unable to secure "permission to file"

a petition for certiorari. Petition at 9. Moffitt reflects

that the North Carolina courts refused to provide appointed

counsel to represent Moffitt on certiorari. 417 U.S. at 600,

603-604 (1974). ie

-20-

In affirming the judgment of the district court, the court

below found that the record reflected sufficient evidence

to support the district court's determination that the

petitioner-appellee had been denied effective assistance of

counsel. 540 F.2d at 821. |

7 This case involves a question of effective

assistance of counsel, rather than a question of the right

to the appointment of counsel. The petitioner was represented

by court-appointed counsel at all times relevant to the case

sub judice. As averred and demonstrated to the satisfaction

of the courts below, the state trial court appointed counsel

to represent the petitioner at trial and then for purposes

of appeal. (R. 8, 26). Petitioner's counsel then requested

the state appellate court to permit him to withdraw and to

substitute the local public defender as counsel for the

petitioner for the explicit purpose of filing a writ of

certiorari in the Supreme Court of Florida. (R. 37-38).

The state appellate court entered an order which Onn aa es

granted leave to withdraw and substituted the public defender

as counsel for the petitioner. (R. 39). Thus, the finding of

the courts below is quite adequately supported by the record.

The issue here is whether the petitioner may be

deprived of his state created right to file a petition seeking

to invoke the certiorari jurisdiction of the Supreme Court of

Florida as a direct result vf the ineffectiveness of appointed

counsel and the enforcement by the Supreme Court of Florida

of its procedural rules. It is the petitioner's position

that the courts below properly resolved this issue in the

negative. This is especially apparent in light of the

assurances the petitioner received from appointed counsel

that the petitioner's right to review would be protected

- 2/-

x

and exercised, and the petitioner's good faith reliance on

those assurances. ® The assistance rendered by counsel was

clearly ineffective. See West v. State of Louisiana, 478

F.2d 1026, 1033 (5th Cir. 1973); MacKenna v. Ellis, 280 F.2d

592, 599 (Sth Cir. 1960).

The Due Process Clause limits the circumstances

under which an individual may be deprived of any entitlement,

even though the entitlement may be a mere privilege. Goldberg

v. Kelly, 397 U.S. 254, 262 (1970). The entitlement certainly

need not be based upon a constitutional right in order to be

afforded due process protection. See, e.g., Goss v. Lopez,

419 U.S. 565, 95 S.Ct. 729, 735-736 (1975); Wolff v. McDonald,

418 U.S. 539 (1974); Morrisey v. Brewer, 408 U.S. 471 (1972);

Goldberg v. Kelly, supra.

“[T]here is no federal constitutional right to

State appellate review of state criminal proceedings."

Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 1175 (1975).

This proposition applies with equal force to direct appeals

and to discretionary procedures.

Once Florida established certiorari as an avenue

of appellate review, however, Florida became responsible for

keeping that avenue free of unreasoned distinctions that can

7

ee

only impede open and equal access to the courts.

Cf. Rinaldi

2 ee > Re nna ety

oe enn

when this case was initially before the court below,

that court explicitly recognized that the problem was not the

fault of the petitioner, and had occurred because of a belated

court order appointing counsel and despite the good faith in-

tention of the petitioner to seek review. 493 F.2d at 895.

The second time this case was before the court below, the court

expressly relied upon findings of fact made by the district court,

which findings reemphasize that the petitioner was without blame

and the state system was responsible for the frustration of the

petitioner's rights. 540 F.2d at 821 n..11.

7Although Florida may not have been constitutionally

obligated to provide certiorari review, it has chosen to do so.

Pursuant to the Constitution of the State of Florida and the

Florida Appellate Rules, the petitioner had an unconditional

right to file a timely petition requesting the Supreme Court of

Florida to exercise its certiorari jurisdiction. Fla. Const.

Art. V § 3(b)(3); Fla.App.R. 2.1(a)(5)(b), 4.5(c).

~2 /-

-22-

v. Yeager, supra at 310-311. Florida's denial of the

petitioner's right to file for certiorari review through

ineffective assistance of counsel, and Florida's subsequent

refusal to remove the obstacles created by its rules, con-

trary to what the State has done in similar situations,

constitutes a denial of due process and equal protection.

Cf. Fitzgerald v. Estelle, 505 F.2d 1334, 1336 (5th Cir. en

bane 1975).

Obstacles to appellate review which might otherwise

have resulted in deprivations of due process have been the

object of remedial action by both the federal and Florida

courts. The Supreme Court Rules anticipate problems in this

area and explicitly provide means to insure that parties are

not arbitrarily denied access to the Court. The normal

period in which a party may file a petition is a reasonable

ninety days, compared with Florida's thirty. Supreme Court

Rule 22(1). Significantly, where good cause is shown, the

normal time for applying may be extended for a period not

exceeding sixty days. Supreme Court Rule 22(1). See also

Supreme Court Rule 22(2). Florida's rule, in contrast, is

written and applied in such a rigid manner that it must from

time to time arbitrarily deny a proper party access to the

Supreme Court of the state.

Also, as noted by the Fifth Circuit, the Supreme

Court, in Schreiner v. United States, 404 U.S. 67 (1971),

remanded the case to the court of appeals with instructions

to re-enter its judgment in connection with efforts to

certiorari review of the judgment in the Supreme Court. 493

F.2d 894, 895 (5th Cir. 1974).

In Lacaze v. United States, 457 F.2d 1075 (5th Cir.

1972), the court exercised its supervisory power to overcome

obstacles in the way of obtaining access to certiorari review

in the Supreme Court of the United States. The court observed:

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-23-

It is by no means unusual for

courts to grant out-of-time relief

to a defendant in order that he

may be allowed to use the appellace

process previously denied him. Id.

at 1079.

The Fifth Circuit has in numerous cases granted

habeas corpus relief to state prisoners who have been

deprived of access to appellate courts by ineffective

assistance of counsel. See, e.g., Daniels v. State of Alabama,

487 F.2d 887 (Sth Cir. 1973); Hall _v. Wainwright, 441 F.2d

391 (Sth Cir. 1971); Lumpkin v. Smith, 439 F.2d 1084 (5th

Cir. 1971).

The Florida courts have fashioned a remedy for the

failure of court-appointed counsel to timely seek review in

cases involving appeals from denials of collateral relief,

as well as from denials of direct appeals. See, e.g.,

Baggett v. Wainwright, 229 So.2d 816 (Fla. App.2d 1970);

O'Malley v. Wainwright, 237 So.2d 813 (Fla. App.2d 1970).

The grant of habeas corpus relief and affirmance

by the courts below was in keeping with the well established

principles recognized in these cases and was eminently correct.

As this Court recently reiterated, "Regulations and practices

that unjustifiably obstruct. . . the right of access to the

courts are invalid." Procunier v. Martinez, 416 U.S. 396, 419

(1974).

CONC.USION

Ross v. Moffitt held that there is no constitutional

right to appointed counsel to seek post-appeal discretionary

review in either a state forum or the Supreme Court of the

United States. Petition at 6. The North Carolina courts had

refused to provide counsel for Moffitt.

In contrast, in the instant case, counsel was

appointed. The courts below have held that the assistance

-24-

rendered by counsel was ineffective and deprived your

respondent of due process of law. There is no conflict

whatsoever between the instant case and Moffitt.

For the foregoing reasons your respondent

respectfully requests this honorable Court to deny the

petition for a writ of certiorari.

Respectfully submitted,

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit of Florida

800 Metropolitan Justice Building

1351 N. W. 12 Street

Miami, Florida 33125

[Panel , poe

Counsel for Respondent

April 13, 1977

- 75°

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