Opposition — Perez v. Wainwright

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IN THE SUPREME COURT OF THE UNITED sTATES/AN 14 1999

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ANTONIO PEREZ,

Petitioner By

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LOUIE L 1) cetieocratil OTN

Secretary, Department of Sad

“Corrections,

Respondent.

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BRIEF IN OPPOSITIQN-TO PETITION FOR A WRIT OF

RTIORART TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JIM SMITH

Attorney General

Tallahassee, Florida

ANTHONY C. MUSTO

Assistant Attorney General

Florida Regional Service Center

401 N. W. 2nd Avenue

Suite 820

Miami, Florida 33128

(305) 377-5441

INDEX

OPINIONS BELOW .

STATEMENT OF THE CASE.

SUMMARY OF ARGUMENT.

ARGUMENT... .

CONCLUSION .

CERTIFICATE OF SERVICE .

TABLE OF CITATIONS

Adickes v. S.H. Kress § Co.,

398 U.S. 144, 90 S.Ct. 1598,

26 L.Ed.2d 142 (1970) ....

Ashwander v. Tennessee Valley Authority,

297 U.S. 288, 56 S.Ct. 466,

80 L.Ed. 688 (1936) .

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics,

403 U.S. 388, 91 S.Ct. 1999,

29 L.Ed.2d 619 (1971)

Bonds v. Wainwright,

564 F.2d 1125 (Sth Cir. 1977), vacated

en banc on other grounds, 5 $79 F.

(i> Bs Cm tt err tp

Boyd v. Cowan,

519 F.2d 182 (6th Cir. 1975).

Bradshaw v. State,

286 So.2d 4 (Fla. 1973), cert. denied, 417

U.S. 919, 94 S.Ct. 2626, L.Ed. 25 (1974).

Cappetta v. Wainwright,

203 So.2d 609 (Fla. 1967)

Davis v. Smith,

13

12

15

» 18, 19, 20, 22

430 F.2d i256 (Sth Cir. 1970) 19

Diaz v. Wainwright,

F. Supp. (S.D. Fla. 1979), Case no.

79-2180-CIV-JE, Order filed October 16, 1979 23

Duignan v. United States,

274 U.S. 195, 47 S.Ct. 566, 71 L.Ed. 996 (1927) 8, 10

Durham v. United States,

401 U.S. 480, 91 S.Ct. 858, 28 L.Ed.2d 200

(1971). . . . . . . . . . . . . . . . . . . 11

Edwards v. Louisiana,

520 F.2d 321 (Sth Cir. 1975), cert denied,

423 U.S. 1089, 96 S.Ct. 882, Bs Le Buss she 100

(1976). . . . . . . . . . . . 10

TABLE OF CITATIONS

CONTINUED

Estelle v. Dorrough,

420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d

S77 T2078) s « oO 8 8 ee eee 8

Faretta v. California,

422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d

562 (1975). . . . . . . . . . . . * . . . .

Fay v. Noia,

372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d

837 (1963). o Aree se Oe 8

Fitzgerald v. Estelle,

S05 P.26 1334 (5th Cis. 1974) . «3 ee ee

Gilliam v. Stewart,

291 So.2d 593 (Fla. 1974) . . «- «© «© © we @ «

Griggs v. Duke Power Co.,

401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)

Hamilton-Brown Shoe Co. v. Wof Bros. §& Co

240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. "629 (1916)

Hoffman v. Jones,

280 So.2d 431 (Fla. 1973) .,~. +. «

Husty v. United States,

282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931)

Kallie v. Estelle,

S15 F.2d 588 (Sth Cir. oe cert. denied, 423

U.S. 1019, 96 S.Ct. 455, L:Ed. 2d 391 (1975).

King v. Wainwright,

368 F.2d 57 (Sth Cir. 1966) ....

Layton v. Carson,

479 F.2d 1275 (Sth Cir. 1973) . « « « «© « »

Lawn v. United States,

355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958).

Liverpool, N.Y. 4& P.S,S. Co. v. Emigration Comrs.,

113 U.S. 33, 5 S.Ct. 352, 28 L.Ed. 899 (1885)

McKane v. Durston,

153 U.S. 684, 14 S.Ct. 913, 38 L.Ed.2d 867 (1894)

Magnum Import Co. v. Coty,

262 U.S. 159, 43 S.Ct. 531, 67 L.Ed. 922 (1923)

Malone v. Alabama,

514 F.2d 77 (Sth Cir. 1975), cert denied, 423

U.S. 990, 96 S.Ct. 403, 46 L.Ed.2d 309 (i975)

o44-

PAGE

-1l

19

.10

.10

16, 18

10

12

TABLE ONTT on CITATIONS TABLE OF CITATIONS

NULD 2 cae “bed nd

partis es 25 CONTINUED

PAGE

| pie PAGE

Miree v. DeKalb County, Ga., /

433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557

(1977). snag Ne tg gaan Sg oe eee Sane 10 Wisconsin v. Federal Power Comm.

373 U.S. 294, 83 S.Ct. 1266, 10 L.Ed. 357

Perez v. Wainwright, >.) Poe ee ie ee ae ek Sb, 8

440 F.Supp. 1037 (S.D. Fla. COTTE 6g Soe ae -ee

Perez v. Wainwright. ,

594 F.2d 159 (Sth Cir. 1979), reh. denied, TABLE OF OTHER AUTHORITIES

ee | eee ee ee ee ee .7

Picard v. Connor, Florida Statutes (1973) §813.011 . . »- «© «© © © © es 1

O97. 270, eligemctees: a tae Florida Rule of Criminal Procedure 3.850... ++ + 1

Postel v. Beto, Supreme Court Rule 19, . 2.2 ss se ee een ees 11

508 F.2d 679 (5th Cir. 1975) cert. denied

423 U.S. aoe ee S.Ct. +e “eT T 78. Supreme Court Rule 40 oe eC) See ee eee 9

PV ER a6 ee ee ee i <ae

Rice v. Soux City Memorial Park Cemetery,

349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897

(1958). . + « © . Sid aT: Met e: sa eee Re

Ross v. Mofitt,

417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341

(1974). . . poet te ah” Ge lao eae ane ee eae

St. Jules v. Savage,

512 F.2d 881 (Sth Cir. 1975). . »+ +++ ees .19

State v. Lott, |

286 0.24 S65 (Fla. 1973) ~ «+ «= es es we @ 2 .19

State of Maryland v. Baltimore Radio Show,

338 U.S. 912, 79 S.Ct. 252, 94 L.Ed. 562

(1950) . . . . . . . . . . . . . . . . . . . . . 16

Stonom v. Wainwright,

235 So.2d 545 (Fla. 1st DCA 1970) .. +++: .19

Tennessee v- Dunlap,

426 U.S. 312, 96 S.Ct. 2099, 48 L.Ed. 2d

Ey PN rms er Be Ra, see a te 8

The Monrosa v. Carbon Black Export, Inc.,

359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723

(1959), reh. denied, 359 u.S. 999, 79 S.Ct.

SIRE. Vases Cees 6 Nake 9 0 eee ee ae

Vagner v. Wainwright,

597 F.2d 770 (Sth Cir. 1979). . »- + es 22s A >|

Vagner v. Wainwright,

599 F.2d 1053 (Sth Cir. 1979) ..- + + + ee > oad

Vagner v. Wainwright,

473 F.Supp. 436 (M.D. Fla. TRIO). 6 chee ee Oe

Washington v. Davis,

426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed. 2d

$97 (1976) . . . . . . . . . . . . . . . . . . . 9

-iv-

OPINIONS BELOW

The order of the United States District Court for the

Southern District of Florida granting habeas corpus relief

is reported as Perez v. Wainwright, 440 F.Supp. 1037 (S.D.

Fla. 1977). The opinion of the Fifth Circuit Court of

Appeals reversing the district court is reported as Perez

v. Wainwright, 594 F.2d 159 (Sth Cir. 1979), rehearing

denied, 599 F.2d 1054.

STATEMENT OF THE CASE

Petitioner was convicted in the Circuit Court of the

Eleventh Judicial Circuit in and for Dade County, Florida,

before the Honorable George Orr, of robbery, in violation

of Florida Statutes (1973) $813.011. On August 14, 1975,

he was adjudged guilty and sentenced to be imprisoned for

a period of seven years. (Respondent's Appendix, p. 54).

Petitioner was insolvent at all times and was there-

fore originally represented in the trial court by the Office

of the Public Defender. Subsequently, however, Petitioner's

representation was undertaken by private counsel who had

been retained by Petitioner's parents. It was by this

privately retained counsel that Petitioner was represented

at trial. Following the conviction, no appeal was instituted.

On October 29, 1975, Petitioner, represented by a

second privately retained counsel, filed a motion in the

trial court, which was styled as "POST-CONVICTION RELIEF,"

and which was apparently intended to function as a motion

to vacate pursuant to Florida Rule of Criminal Procedure

3.850. In this pleading, it was asserted that "the attorney

for the Defendant failed to file the necessary motions as to

protect the Defendant to his rights to appeal." This motion

was denied on November 12, 1975. (Respondent's Appendix, p.

55). (The order of the district court is in error in stating

that this motion was denied on September 15, 1975.) The

denial of this motion was not appealed.

On February 17, 1976, Petitioner filed a petition in

Florida's Third District Court of Appeal seeking a writ of

habeas corpus or, in the alternative, that the petition be

treated as a timely notice of appeal. In this petition, he

asserted that he at all times desired that an appeal be

undertaken, that his counsel had informed him at sentencing

that he would take the necessary steps to institute an appeal

and that he relied upon his counsel to pursue the appeal.

This petition was denied on February 19, 1976, due to the

fact that Petitioner was represented by private counsel at

the time of trial. (Respondent's Appendix, p- 55).

Petitioner instituted the proceeding from which this

case arises by filing a petition for writ of habeas corpus

on December 9, 1976, in the United States District Court

for the Southern District of Florida, in which he made

essentially the same assertions as in the petition filed

in the Florida appellate court. Pursuant to an order to

show cause, Respondent filed a memorandum of law and

motion to dismiss, (Respondent's Appendix, pp- 91-100),

in which it was contended that Petitioner had not exhausted

his state remedies. In an order filed September 1, 1977,

setting an evidentiary hearing, Judge Sidney M.

Aronovitz rejected that argument. Subsequently, on

October 27, 1977, Judge Aronovitz entered an order which

concluded that although the fact that Petitioner was not

able to appeal was not due to state action, Petitioner was

entitled to relief because the conduct of his counsel was

"so grossly deficient as to render the proceedings funda-

mentally unfair."' This finding was based primarily on the

fact that Petitioner's counsel at sentencing in seeking

supersedeas bond announced to the court that a notice of

appeal had already been filed, although this was not the

case. Respondent timely sought rehearing, or, in the

alternative, a stay pending appeal. On December 1, 1977,

an order was entered denying rehearing and granting a stay

pending appeal.

Respondent appealed to the United States Fifth Circuit

Court of Appeals, which reversed the district court, holding

that Petitioner had exhausted state remedies, but finding

that fundamental unfairness had not occurred. This proceeding

follows.

SUMMARY_OF ARGUMENT

Respondent asserts four reasons in opposition to the

petition for a writ of certiorari.

Respondent initially contends that since Petitioner,

in the lower courts, claimed only that he was entitled to

relief under the standard adopted by the United States

Fifth Circuit Court of Appeals for reviewing claims of the

nature dealt with by this case, a position which he now

concedes is incorrect, his present attack, which is directed

to the standard itself, should not be considered. This argu-

ment is based primarily on cases which stand for the propos-

ition that issues not raised in the lower courts will not be

considered by this Court.

The second aspect of Respondent's argument is con-

cerned with the fact that this case deals with a claim of

ineffective appellate counsel, a claim involving a right

which, while certainly significant, is not as fundamental

a right as is that regarding trial counsel. It is Respon-

dent's position that this Court should not establish a

standard to be applied to the circumstances here until

such time as it has adopted a standard to be applied to

representation by trial counsel. Respondent's reasoning

is that whatever standard is to be applied to claims of

the sort presented by Petitioner would be a less stringent

standard than would apply to the trial situation. Thus,

a decision in this case would have the effect of creating

an exception to a general rule, even before the general

rule is adopted, and would create a precedential impediment

to a full analysis of the broader issue when it is ultimately

considered. In this regard, Respondent also notes that

consideration of the mmre basic standard in this proceeding

would not be proper, as such consideration would be contrary

to this Court's long established policy of not formulating a

rule of constitutional law broader than is required by the

precise facts to which it is to be applied.

Respondent also maintains that the issue presented by

this case should not be considered by this Court until such

time as the lower courts have had an opportunity to consider

the effect on the appropriate standard of the sentiments

expressed by this Court in Faretta v. California, 422 U.S.

806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), a case which

has not been considered as it relates to this issue by any

of the courts which decided the cases cited by Petitioner

as conflicting with the opinion here. Respondent contends

that the fact that a defendant, by choosing to represent

himself, waives his right to claim that he received inef-

fective representation, the principle of Faretta with which

Respondent's argument is concerned, must be considered in

determining what standard is applicable in reviewing claims

of ineffective assistance of, as here, private counsel.

This conclusion is based on the fact that in either of

these situations the representation is that chosen by the

defendant and the fact that the state is equally powerless

in either case to insist that the defendant do other than

what he has chosen. Given these facts, questions arise as

to what effect a defendant's decision to engage a given

attorney should have on the applicable standard. These

questions have not been considered by the lower courts

and therefore Respondent suggests that review by this Court

of this issue would presently be premature, as this Court

would be setting a standard without the benefit of assessment

by any appellate court of this issue in light of all the

ry a ey Pe ae an eee

relevant precedent of this Court and would be doing so ina

situation in which a conflict of standards might not even

exist after due consideration of the subsequent precedent

at the appellate level.

Finally, Respondent submits that a development in the

law of the state of Florida, which occurred subsequent to

the filing of the opinion sought to be reviewed, mandates

the conclusion that Petitioner has failed to exhaust his

state remedies and is therefore not entitled to federal

habeas corpus relief. Respondent has consistently main-

tained throughout the lower court proceedings that Peti-

tioner should be required to present his claims to the

Florida Supreme Court, since, under the circumstances of

this case, that is the only state court with the authority

to grant the relief sought. Recently, it has become ap- ,

parent that that court is indeed willing to review the

sort of issue presented here, as it has undertaken a reas-

sessment of the position it took in 1967, the last time it

considered this issue, that such claims would not form a

basis for relief. This reassessment has been undertaken

following dismissal on exhaustion grounds of a federal

habeas corpus action alleging error similar to that alleged

here, and a request by the state that such reconsideration

occur. It has thus become apparent that Petitioner has not

exhausted state remedies. Indeed, the federal court's dis-

missal of the case now before the Florida Supreme Court was

affirmed by the very appellate court which held that Peti-

tioner had exhausted state remedies. Given this change in

the law, it is apparent that review on the merits would only

lead to a finding that exhaustion has not occurred. Therefore,

certiorari would not be appropriate.

ARGUMENT

It is Respondent's position that there exist four

reasons why certiorari should not be granted in this case.

A

PETITIONER'S FAILURE TO RAISE

HIS PRESENT CLAIMS IN THE LOWER

COURTS SHOULD ACT TO PRECLUDE

THEIR CONSIDERATION AT THIS TIME.

Petitioner has conceded that under the facts of this

case, the decision of the Fifth Circuit Court of Appeals,

Perez v. Wainwright, 594 F.2d 159 (Sth Cir. 1979), reh. denied,

599 F.2d 1054, was "compelled by the [prior] decisions of"

that court. (Petitioner's petition [hereinafter referred

to as "P"], p. 13). This fact is also apparent from the

opinion itself, in which the court noted that it was "pre-

cedent-bound" to rule in the manner it did, although if it

was “approaching the issue for the first time," it would

hold differently. 594 F.2d at 160-161, 165.

In presenting his argument in the lower courts, however,

Petitioner did not make this same concession. Rather, he

argued that applying the standard which the Fifth Circuit

adopted in Fitzgerald v. Estelle, 505 F.2d 1334 (Sth Cir.

1974) (en banc), he was entitled to relief. (See Petition

for Writ of Habeas Corpus and Exhibits and Memorandum in

support thereof, Petitioner's Appendix, Exhibit E, and

Petitioner's brief on appeal, Respondent's Appendix, pp.

1-46.) At no time did Petitioner challenge the propriety

of the standard itself, arguing instead only that its appli-

cation entitled him to relief. This fact is true even as

regards Petitioner's Petition for Rehearing and Suggestion

for Rehearing En Banc, (Petitioner's Appendix, Exhibit C),

in which it would have been clearly appropriate to raise

+

such a challenge if the standard was to be questioned. In

this regard, it is significant to realize that given the

previously noted sentiments of the panel which decided the

case, this case was one in which the likelihood of success

had a challenge been made to the standard was clearly much

greater than it would be in most situations. Yet, Petitioner

still chose not to make such an argument.

In the present proceeding, Petitioner, as noted, con-

cedes the propriety of the circuit court's ruling under the

accepted law of the circuit, but attacks, for the first time,

the standard itself. Such an approach is an inappropriate

manner in which to bring this matter before this Court and

for that reason, certiorari should be denied.

It is well established that an issue not raised in the

lower courts will not be considered by this Court. See Miree

v. DeKalb County, Ga., 433 U.S. 25, 33-34, 97 S.Ct. 2490, 2496, 53

L.Ed.2d 557, 565-566 (1977); Tennessee v. Dunlap, 426 U.S. 31?

316, 96 S.Ct. 2099, 2101, 48 L.Ed. 2d 660, 665, n. 3 (1976); Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388, 397-398, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619, 627 (1971);

Adickes v. S.H. Kress and Company, 398 U.S. 144, 147, 90 S.Ct.

1598, 1602-1603, 26 L.Ed.2d 142, 148, n. 2 (1970); Wisconsin v.

Federal Power Comm., 373 U.S. 294, 307, 83 S.Ct. 1266, 1274, 10 L.Ed.

2d 357, 367 (1963); Lawn v. United States, 355 U.S. 339, 362-

363, 78 S.Ct. 311, 324-325, 2 L.Ed.2d 321,327,n.16 (1958); Husty

v. United States, 282 U.S. 694, 701-702, 51 S.Ct. 240, 241-242,

75 L.Ed, 629, 633 (1931); Duignan v. United States, 274 U.S.

195, 200, 47 S.Ct. 566, 568, 71 L.Ed, 996, 1000 (1927).

There can be little doubt that the broad attack on the

Fifth Circuit's standard and the narrow question of whether

the facts here required the granting of releif under that

von

standard are two different and distinct issues. This Court

recognized such a distinction in Washington v. Davis, 426

U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), in which it

noted that the petition for certiorari presented issues going

only to the question of whether the circuit court there had

misapplied a previous decision of this Court, Griggs v. Duke

Power Co., 491 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971),

and distinguished those claims from the issue as to the

legal standards applicable to the type of case in question.

1

In Washington v. Davis, supra, this Court did consider

the issue regarding the legal standards, but it did so under

the authority of Supreme Court Rule 40 (1)(d)(2), which pro-

vides that this Court "may notice a plain error not presented"

in a jurisdictional statement or a petition for certiorari.

This provision is inapplicable here, since this case deals

with a failure to raise the claim in the lower courts, not

with a failure to present it to this Court, the situation

dealt with by the rule.

In any event, it is clear that the present case does

not present a "plain error" situation. It does not deal with

a situation in which a uniform standard has been adopted,

making it more or less "plain" whether that standard has been

misapplied. Rather, it deals with an area in which various

standards have been employed and in which the facts of the case

so clearly warrant the conclusion reached under at least one of

those standards, that of the Fifth Circuit, that Petitioner has

conceded that the court's result was "compelled" when measured

in that context. (P. 13).

Thus, in order to find error, this Court would have to

conclude that the standard applied is incorrect and that the

facts of the present case would call for relief under the new,

as yet undefined, standard. Any process which would lead to

such a result would obviously involve substantial and careful

evaluation of the various constitutional considerations, and,

certainly, given the very breadth and nature of this process,

any error fond could hardly be termed "plain."

This nclusion is also supported by the fact that the remedy

sought by Petitioner, direct review in the state courts of his

state criminal conviction, is not even a matter which is a neces-

Sary element of due process, McKane v. Durston, 153 U.S. 684,

14 S.Ct. 913, 38 L.Ed. 867 (1894), and which is not a matter to

which an individual has a federal constitutional right. Estelle

v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377

Tt is thus difficult to see how an issue relating to this sub-

ject could rise to level of “plain error."

While the policy of not reviewing claims not presented’

to the lower courts is not absolute, it is only in "exceptional

cases" that the approach is not followed. Lawn, supra, 555 U.S.

at 362, 78 S.Ct. at 324, 2 L.Ed.2d. at 337, n. 16; Duignan, supra,

274 U.S. at 200, 47 S.Ct. at 568 , 71 L.Ed. at 1000, and cases

cited therein. Here, as in Lawn, there exist no "exceptional

circumstances," 355 U.S. at 362, 78 S.Ct. at 324, 2 L.Ed.2d at

337, n. 16, which would remove this case from the general rule.

Indeed, the facts of this case are quite similar to those of

numerous other cases. See Edwards v. Louisiana, 520 F.2d 321

(Sth Cir. 1975), cert. denied, 423 U.S. 1089, 96 S.Ct. 882, 47

L.Ed.2d 100 (1976); Kallie v. Estelle, 515 F.2d 588 (Sth Cir. 1975),

cert. denied, 423 U.S. 1019, 96 S.Ct, 455, 46 L.Ed.2d 391 (1975);

Malone v. Alabama, 514 F.2d 77 (Sth Cir. 1975), cert. denied,

423 U.S. 990, 96 S.Ct. 403, 46 L.Ed.2d 309 (1975); Postel v.

Beto, 508 F.2d 679 (Sth Cir. 1975), cert. denied, 423 U.S.

853, 96 S.Ct. 100, 46 L.Ed.2d 78 (1975). See also those

cases asserted by Petitioner as being in conflict with the

present case. It this seems quite apparent that this case

is not "exceptional," and that it therefore presents an issue

which should be reviewed by this Court, if it all, only ina

case in which it has been properly presented to and passed

on by, the lower courts.

Certiorari "jurisdiction was not conferred upon this

court to give the defeated party in the circuit court of ap-

peals another hearing," Magnum Import Co. v. Coty, 262 U.S.

1589, 163, 43 S.Ct. $31, 532, 67 L.Bd. 922, 924 (1923), at

which he can raise a new challenge after his first has failed.

The issue asserted here not having been raised below, the

petition for certiorari should be denied.

-10-

CONSIDERATION OF THE ISSUE PRESENTED

HERE WOULD CONSTITUTE THE ESTABLISH-

MENT OF AN EXCEPTION TO A GENERAL

STANDARD WHICH HAS NOT YET BEEN ES-

TABLISHED AND WHICH WOULD BIND THIS

COURT TO A CONCLUSION WHICH MIGHT

OR MIGHT NOT BE DESIRABLE WHEN TIE

BROADER UNRESOLVED ISSUE IS ULTI-

MATELY CONSIDERED.

Even if Petitioner had previously raised his present

claims, however, the conclusion would still be called for

that certiorari should not be granted in this case.

As Petitioner has noted, various circuit courts have

adopted differing standards to be applied when a claim is

made regarding ineffective representation of counsel. This

fact does not, however, mean that certiorari should automa-

tically be granted simply because a given circuit court

opinion deals, as here, with such a claim.

The question of whether certiorari should be granted is

of course purely a discretionary one, Supreme Court Rule 19:

Durham v. United States, 401 U.S. 480, 91 S.Ct. 858, 28 L.Ed.

2d 200 (1971), which depends on "numerous factors other than

the perceived correctness of the judgment. . .[this Court is]

asked to review," Ross v. Moffitt, 417 U.S. 600, 616-617, 94

S.Ct. 2437, 2447, 41 L.Ed.2d 341, 354 (1974), and which is

exercised only "sparingly." Hamilton-Brown Shoe Company v.

Wolf Bros. §& Co., 240 U.S. 251, 258, 36 S.Ct. 269, 271, 60

L.Ed. 629,633 (1916).

Petitioner's argument in support of his petition is

essentially an attack on the correctness of the lower court's

opinion in light of other standards employed by other circuits.

o1%-

His assertions, which Respondent does not concede, should not

be considered a sufficient basis for the granting of the peti-

tion here, as the present case presents a factual situation

which should not be considered by this Court until such time

as this Court has dealt with and established general standards

to be applied in this area of the law.

The present case deals with an allegation of ineffective

appellate counsel. It therefore is concerned with a right

which, although certainly not unimportant, is clearly not as

basic as is the right to the effective assistance of trial

counsel.

Indeed, the right to a fair trial is one of the most

fundamental constitutional rights, protected in various

manners by numerous provisions of the Constitution. No

portion of the Constitution, however, specifically mentions

the rights of a defendant on appeal. Quite to the contrary,

in fact, this Court has, as noted in Section A of this brief,

long held that there is no federal constitutional right to

State appellate review of state criminal convictions. Estelle

Dorrough, supra; McKane v. Durston, supra.

Clearly, therefore, the right to effective appellate

counsel does not assume the same significance as does the

right to effective trial counsel. This less fundamental

nature of effective counsel on appeal was recognized in

Bonds v. Wainwright, 564 F.2d 1125 (Sth Cir. 1977), vacated

en_ banc on other grounds, 579 F.2d 317 (Sth Cir. 1978), in

which, dealing with a question regarding waiver of the right

to effective counsel, the court noted that while it might

hesitate to give effect to a waiver that purported to permit

a trial counsel to fail to prepare a defense, a waiver of

effective assistance on appeal "is far less drastic." 564

F.2d at 1131.

°12-

It may thus be said that whatever standard is to be

applied in reviewing a claim of ineffective trial counsel,

a less stringent standard would apply to the situation pre-

sented here, a claim regarding appellate counsel.

Yet, this Court has never established the appropriate

basic standard, the standard to be applied to a claim of in-

effective trial counsel, a claim dealing with the most basic

of rights in this area of the law. Respondent submits that

such a standard should first be established before the ques-

tion of what the more lenient standard regarding appellate

representation should be. To do otherwise would be to carve

out an exception to a rule which has not yet been determined

and to therefore put this Court in a situation in which it

would be, at the time it ultimately considers the basic

standard in an appropriate case, bound by a preexisting

precedential impediment to a full analysis of the issue.

It would be a classic case of "putting the cart before the

horse."

It would not be appropriate to consider the larger

issue in the context of this case, since the facts here do

not present the issue. It is well established that this

Court will not formulate a rule of constitutional law broader

than is required by the precise facts to which it is to be

applied. Liverpool, N.Y. & P.S.S. Co. v. Emigration Comrs.,

113 U.S. 33, 5 S.Ct. 352, 28 L.Ed. 899 (1885); Ashwander v.

Tennessee Valley Authority, 297 U.S.288,346-347,56 S.Ct. 466,

483 , 80 L.Ed. 688, 711 (1936), Brandeis, J., dissenting in

part. Similarly, the'’special and important reasons'" needed

to support a grant of certiorari “imply a reach to a problem

beyond the academic or the episodic 'especially' where the

aS

issues involved reach constitutional dimensions, for then

there comes into play regard for the Court's duty to avoid

decision of constitutional issues unless avoidance becomes

evasion."' Rice v. Sioux City Memorial Park Cemetery, 349

U.S. 70, 74, 75 S.Ct. 614, 616, 99 L.Ed. 897, 901 (1955).

Resolution of the more basic question involved would

therefore be inappropriate here and should "await a day when

the issue is posed less abstractly." The Monrosa v. Carbon

Black’ Export, Inc., 359 U.S. 180, 184, 79 S.Ct. 710, 713, 3

L.Ed.2d 723, 726 (1959), reh. denied, 359 U.S. 999, 79 S.Ct.

1115, 3 L.Ed.2d 986.

It may therefore be said that since consideration of

the issue Petitioner urges at this time would, no matter how

it is decided, hamstring this Court when it considers the

question of the greatest importance as regards the right to

effective representation, and since that question would not

be a proper one to resolve in this proceeding, policy reasons

indicate that the issue presented here should be considered

only at such time as there exists a basic standard against

which this less fundamental nature of the right involved here

can be weighed and that certiorari should be denied.

THE STANDARDS DISCUSSED IN THE CASES

CITED BY PETITIONER HAVE NOT DEALT

WITH THE ISSUE PRESENTED HERE IN

LIGHT OF A SUBSEQUENT DECISION BY

THIS COURT AND RESOLUTION OF THE

ISSUE HERE SHOULD AWAIT SUCH CON-

SIDERATION BY THE LOWER COURTS.

Petitioner has asserted that conflict exists between

the opinion in the present case and those in other cases,

decided by other federal appellate courts, alleging that a

contrary result might have been reached under the standards

adopted in the other cases.

»1@e

It is important to realize that in none of the cases

cited by Petitioner was the influence of the sentiments

expressed by this Court in Faretta v. California, 422 U.S.

806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), taken into account

2

in molding the standard to be employed.

In Faretta, this Court dealt with the issue of whether

a defendant has the right to represent himself at a criminal

trial. In reaching an affirmative answer to this question,

this Court noted that "whatever else may or may not be open

to him on appeal, a defendant who elects to represent himself

cannot thereafter complain that the quality of his own defense

amounted to a denial of ‘effective assistance of counsel.'"

422 U.S. at 834, 95 S.Ct. at 2541, 45 L.Ed.2d at 581, n. 46.

This statement raises a number of questions regarding

challenges, such as that raised here, to representation pro-

vided by privately retained attorneys. A defendant under

such circumstances chooses the person to represent him just

as much as does a defendant in the situation dealt with by

Faretta. Likewise, the state is as powerless to insist that

an attorney not be employed, even when he is known to be

incompetent, as it is to insist that a defendant accept

appointed representation. Thus, the question of whether

a defendant who engages private counsel also waives his

right to consideration of a claim of ineffectiveness is

one which must be considered in light of Faretta. If a

complete waiver is not found, then the question that must

be considered is what effect a defendant's decision in this

regard has on the standard to be employed. Surely, the

exercise of a right by a defendant regarding a matter over

Bach of the cases cited by Petitioner as being in conflict

were decided prior to Faretta, except for Boyd v. Cowan, 519

tran 182 te Cir. 1975), na was decided two days after

aretta. t is apparent, however, from the opinion in Boyd,

that the court did not take Faretta into account.

o18-

which the state has no control is a matter which must be

taken into account in establishing the standard to be employed,

particularly when, as here, the alleged infirmity in the rep-

resentation was not known to the State. 594 F.2d at 162.

Yet, this factor, and the questions raised by Faretta

as regards private counsel, were not considered in the cases

cited by Petitioner as conflicting with the present case.

Moreover, it does not appear that any of the courts which

decided those cases have subsequently assessed the —

of the matters discussed here on the standard adopted.

Respondent submits that consideration of this issue at

this time should therefore be considered premature. This

Court would be reviewing the issue in light of standards

adopted prior to a decision of this Court that is of signi-

ficant import. Such review would by its very nature be

undertaken without benefit of assessment by any appellate

court of the proper standard in light of all the relevent

precedent of this Court. Moreover, it would anticipate a

conflict of standards that might not even exist after due

consideration of the issue at the appellate level.

In an opinion respecting the denial of the petition

for writ of certiorari in State of Maryland v. Baltimore

Radio Show, 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562 (1950),

Mr. Justice Frankfurter expressed sentiments regarding some

of the reasons for which this Court might choose to deny

Ki

In the present case, Respondent argued to the circuit

court that the standard it adopted for considering claims of

ineffective representation by private counsel when no state

action is shown, a requirement that "fundamental unfairness"

be demonstrated, Fitgerald v. Estelle, supra, is no longer

valid in light of Faretta. (See Respondent's brief on appeal,

Respondent's Appendix, pp. 47-90 at 77-80).

In its opinion the court found that such unfairness did

not occur and thus did not discuss the effect of Faretta.

-16-

certiorari in a given case, including that with which this Subsequent to the decision of the Fifth Circuit in the

discussion is concerned, present case, a development in Florida law has established

another reason why certiorari should be denied. The signifi-

Pertinent considerations oi judicial cance of this development can best be shown in the context

policy here come into play. . . It

may be desirable to have different of the arguments Respondent has advanced in the lower courts.

aspects of an issue further illumi-

nated by the lower courts. Wise

adjudication has its own time for

ripening. 1. General Background

338 U.S. at 918, 70 S.Ct. at

255, 94 L.Ed. at 566.

Respondent has consistently maintained throughout the

Similarly, this Court has stated that "in the absence lower court proceedings that Petitioner has not exhausted his

of compelling reason, we should not risk inconclusive and state remedies. (See Memorandum of Law and Motion to Dismiss

>

, ey ee ; E

divisive disposition of a case when time may further illumine filed in district court, Respondent's Appendix, pp. 91-100,

or completely outmode the issues in dispute." Rice v. Sioux and Respondent's brief on appeal, Respondent's Appendix, pp.

City Memorial Park Cemetery,supra, 349 U.S. at 77, 75 S.Ct. 47-90). It is of course axiomatic that when such exhaustion

at 618, 99 L.Ed. at 903 has not occurred, federal habeas corpus relief is inappropriate.

> . ° .

Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438

In addition, it is important to remember that this (1971); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d

Court's "function in resolving conflicts among the Courts 837 (1963).

of Appeals is judicial, not simply adminstrative or managerial."

’ Thi i

The Monrosa v. Carbon Black Export, Inc., supra, 359 U.S. at his argument has been based on the assertion that

184, 79 S.Ct. at 713, 3 L.Ed.2d at 726. This judicial function Petitioner should be required to present his claims to the

; Florida Supreme Court f i i ion.

is best served by review undertaken only after assessment by, P ae Ee ER eer reer

, , ‘ last discussed i i :

the appellate courts of the question involved, and a determina- ssed the treatment to be given to claims of inef

fective private representation in 1967, in Cappetta v.

tion at that time of a need for this Court to act. Since the

‘ectdiead :

lower courts have not had the opportunity to make the necessary Wainwright, 203 So.2d 609 (Fla. 1967), concluding that such

: (eee eae one a claim di j ; ; :

assessment, this Court should decline to accept jurisdiction. d not set forth a basis for relief, and relying in

part on a decision of the Fifth Circuit, King v. Wainwright,

368 F.2d $7 (Sth Cir. 1966), which had utilized a standard

D

which is no longer accepted by that court. Compare Fitzgerald

A DEVELOPMENT IN FLORIDA LAW SUB- ‘ P

SEQUENT TO THE OPINION SOUGHT TO v. Estelle, supra, in which the court established the present

BE REVIEWED HERE DEMONSTRATES THAT standard in an en banc opinion.

PETITIONER HAS NOT EXHAUSTED HIS

STATE REMEDIES AND THAT HE IS

THEREFORE NOT ENTITLED TO FEDERAL

HABEAS CORPUS RELIEF. The Florida Supreme Court is the only state court in

Florida with the authority to modify or overrule its own

#47

-18-

decisions. Gilliam v. Stewart, 291 So.2d 593 (Fla. 1974).

Both the Florida appellate and trial courts are bound by the

pronouncements of the Florida Supreme Court until the latter

court reconsiders an issue in a subsequent case. State v.

Lott, 286 So.2d 565 (Fla. 1973); Hoffman v. Jones, 280 So.2d

431 (Fla. 1973). On the other hand, the Florida courts are

not bound by decisions of federal appellate courts. Bradshaw

v. State, 286 So.2d 4 (Fla. 1973), cert. denied, 417 U.S. 919,

94 S.Ct. 2626, 41 L.Ed.2d 225 (1974); Stonom v. Wainwright,

235 So.2d 545 (Fla. Ist DCA 1970).

Thus, ever since the decision in Cappetta, the only

state court in Florida which could grant relief on a claim

such as that presented by Petitioner has been the Florida

Supreme Court. Yet, Petitioner has never sought relief

from that court.

Respondent is certainly aware that a petitioner who

seeks federal habeas corpus relief is not required to exhaust

his state remedies when doing so would be futile. St. Jules

v. Savage, 512 F.2d 881 (Sth Cir. 1975); Layton v. Carson,

479 F.2d 1275 (Sth Cir. 1973); Davis v. Smith, 430 F.2d 1256

(Sth Cir. 1970). Indeed, in Layton v. Carson, supra, the

court noted that a federal district court need not dismiss

a habeas corpus petition for lack of exhaustion of the highest

court of a state has recently rendered a decision adverse to

the petitioner in an identical case "and if there is no reason

to believe that the state court will change its position."

479 F.2d at 1276.

Thus, Respondent has not contended that a Florida

prisoner is always required to seek relief in the Florida

Supreme Court when that court has previously decided a given

issue in a manner contrary to the position taken by the

prisoner. Rather, Respondent has maintained that such

presentation should have been required here because of the

unique circumstances of this case which do give reason to

-19- |

believe that the state court will change its position.

A full discussion of these circumstances is contained

in Respondent's appellate brief, Respondent's Appendix, pp.

64-75, and will not be repeated here, since Respondent's

position at this time is based primarily on developments

which took place subsequent to the decision which Petitioner

seeks to have reviewed. Briefly summarized, however, Respon-

dent's argument as to the circumstances has been based on

the passage of time since the Florida Supreme Court last

dealt with the issue, the changes in the federal law that

have occurred over that period of time, the previous history

of the Florida Supreme Court in adopting constitutional posi-

tions taken by the federal courts, the indications by the

Florida appellate courts of a desire to change the standard

and the changing composition of the Florida Supreme Court.

2. The Recent Development

It has recently become apparent that the Florida

Supreme Court is indeed willing to undertake a reevalua-

tion of its reasoning in Cappetta, thus demonstrating that

Petitioner has in fact failed to exhaust his state remedies.

This fact, as will be demonstrated, became clear

after the filing of the Fifth Circuit's opinion in the

present case, which was filed on May 1, 1979.

On January 26, 1979, Chief Judge George C. Young of

the United States District Court for the Middle District

of Florida, in the case of Vagner v. Wainwright, 473 F.Supp.

436 (M.D. Fla. 1979), dismissed the case for failure to

adequately exhaust state remedies, concluding that the pet-

itioner there should be required to present his claims of

ineffective private representation to the Florida Supreme

Court, basing the conclusion on essentially the same rationale

as that asserted by Respondent in the lower courts in this

case.

-20-

On Feruary 8, 1979, Vagner filed a petition for habeas Also on July 16, 1979, the Florida Supreme Court entered

corpus relicf in the Florida Supreme Court. (Respondent's a formal order (Respondent's Appendix, p. 127) granting rehearing,

Appendix, pp. 101-111) On February 26, 1979, that court appointing counsel for Vagner, and setting a briefing schedule

’ ° e ’

issued an order denying relief. (Respondent's Appendix, p. and a date for oral argument. In compliance with this sche-

112). The state then filed a pleading entitled "Extra- dule, the state filed a brief (Respondent's Appendix, pp.

129-146) in which it took the position that Cappetta should

ordinary Motion for Rehearing," (Respondent's Appendix, pp.

113-115), pointing out the circumstances by which the case be reconsidered,

reached the court and the need to determine whether Cappetta

Respondent, on behalf of the State

of Florida in this case, suggests

that there are valid reasons for

revisiting the earlier law. [Cappetta].

Following the Florida Supreme Court's denial of his a @ @

is stiil. valid.

ras . , ‘ Ri

petition, but before its ruling on the state's extraordinary Since various courts are actuslly

examining the adequacy of privately

retained counsel on their indivi-

dual merits, without guidance from

this [Florida Supreme] Court as to

the standard to be applied, a re-

view of Cappetta seems almost

necessary.

In addition to the legal arguments

presented, Respondent suggests another

reason to evaluate this Court's

s. , : : : c : prior decision. That reason is the

pp. 116-117; Vagner v. Wainwright. 597 F.2d 770 [Sth Cir. natives od Dedadiivahatn eateitesh te

dealing with this issue, particularly

in habeas corpus matters.

motion for rehearing, Vagner instituted an appeal to the

Fifth Circuit Court of Appeals from the order dismissing

his federal habeas corpus petition. Acting on a motion to

expedite appeal and for appointment of counsel, that court,

on June 1, 1979, filed an opinion (Respondent's Appendix,

1979]) remanding the case for consideration on the merits,

, : : ; :

holding that in light of the Florida Supreme Court's denial Respondent's Appendix, pp. 157,138.

of his petition, Vagner had exhausted his remedies. The

ay : y ,

state filed a petition for rehearing, (Respondent's Appendix, Argument was had in Vagner on November 6, 1979, and, as of the

a ee : on

pp- 118-119), pointing out that Vagner's state petition was date this writing, has not, to counsel's knowledge, yet been

still pending on the state's request for rehearing. While decided.

that petition was pending, the clerk of the Florida Supreme

Court sent a letter to Vagner, (Respondent's Appendix, p. 120), S,. tect an Richountiun Argument

informing him that that court had granted rehearing. The

i i by a supplement to

eee MAFeULE WER SRTOTMOS OF the Fact SY vF It has thus become apparent from the proceedings in

; P - .

the state's petition for rehearing, (Respondent's Appendix, Vagner that the Florida Supreme Court is amenable to considera-

pp. 121-124), and on July 16, 1979, filed an opinion on tion of claims of ineffective private representation and that

rehearing, (Respondent's Appendix, pp. 125-126; Vagner v.

Petitioner has therefore not exhausted his state remedies. This is

Wainwright, 599 F.2d 1053 [Sth Cir. 1979]), withdrawing the Regarding the fact that no decision has yet been reached

in Vagner, it should be noted that the case by its very nature

involved not just the question of whether Cappetta is still good

law, but also the question of what standard shoull be applied if

it is not so considered and whether Vagner would be entitled to

relicf under that standard.

prior opinion and affirming the district court's dismissal on

exhaustion grounds.

-22-

“21-

claims pressed by the petitioner there would have been an

“the very conclusion reached by Judge Joe Eaton of the United States adjudication under circumstances not promotive of the social

District Court for the Southern District of Florida, the same consideration which inspired the Iowa legislature to pass

court from which this case arose, in Diaz v. Wainwright, the statute in question, 349 U.S. at 77, 75 S.Ct. at 618,

F.Supp.__—((S.D. Fla. 1979), case no. 79-2180-CIV-JE, order 99 L.Ed. at 902. Likewise, in the present case, adjudica-

filed October 16, 1979. (Respondent's Appendix, pp. 146-150). tion of Petitioner's claims would hardly promote the con-

Judge Eaton stated: siderations underlying the Florida Supreme Court's reassess-

ment of its prior precedent and the state's urging that court

Because of the Vagner proceedings and to revisit its earlier opinion in the name of, among other

the imminent review of the issue of

ineffective assistance of privately reasons, federal-state relations. These considerations also

retained counsel by the Florida Supreme

Court, the Respondent here contends call for the conclusion that Petitioner has not exhausted

that principles of comity require that

the instant petition be dismissed for

failure to exhaust state remedies.

This court agrees that the exhaustion

doctrine must now be invoked where

Sixth Amendment claims of privately

retained counsel are raised, until

such time as it becomes clear that

the Florida courts will again refuse

his state remedies and that consideration on the merits would

only lead to such a finding. It would therefore be inappro-

priate to grant certiorari regarding the merits of claims

of the nature presented by Petitioner under the facts of this

to afford relief on this issue. case.

t * ®

Here, resort to the state courts would CONCLUSION

not plainly be futile in light of the

procedural history of the Vagner case

and the Florida Supreme Court's apparent

willingness to re-examine the position Respondent submits that for the reasons set forth in

it took one dozen years ago in Cappetta.

y ~ Appel == this brief, the petition for a writ of certiorari in this

Respondent's Appendix . 148,149,

. ve ae ; cause should be denied.

Given the status of the law in Florida regarding the issue Respectfully submitted,

with which this case is concerned, Respondent contends that this JIM SMITH

Attorney General

Court should reach a conclusion similar to that reached in Rice i

~jferi

v. Sioux City Memorial Park Cemetery, supra, a case in which . cf . Mor

the state of lowa passed a statute which was brought to this Assistant Attorney General

Florida Regional Service Center

Court's attention on a petition for rehearing filed after this aot hans 2nd Avenue

uite

Court was evenly divided on the case and which had not been Miami, Florida 33128

(305) 377-5441

suggested as ground for opposing the grant of certiorari.

This statute cast the issue of the case in a different light.

This Court dismissed the writ of certiorari as improvidently

granted, noting that any adjudication of the constitutional

-24-

«@3-