Record and brief — Wainwright v. Perez

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81-417

1 . AUG 28 198!

SUPREME COURT OF THE UNITED \S®PATBS&.. srevas,

OCTOBER TERM, 19B1 CLERK

NO.

LOUIE L. WAINWRIGHT, Secretary,

FLORIDA DEPARTMENT OF

CORRECTIONS ,

Petitioner,

vs.

ANTONIO PEREZ,

Respondent.

xx enereknernee*ke%*ke#*ewee%*k*k#k# ke

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

. © 2 2.87 2-82 83828 8. @ 82 @

JIM SMITH

Attorney General

Tallahassee, Florida

ANTHONY C. MUSTO

Assistant Attorney General

Chief Counsel, Miami

Suite 820

401 N. W. 2nd Avenue

Miami, Florida 33128

(305) 377-5441

Counsel for Petitioner

elke

QUESTION PRESENTED FOR REVIEW

(A) WHETHER A STATE PRISONER IS ENTITLED

TO FEDERAL HABEAS CORPUS RELIEF ON A CLAIM

OF INEFFECTIVE POST-TRIAL REPRESENTATION

BY A PRIVATELY RETAINED ATTORNEY IN THE

ABSENCE OF A SHOWING OF THE EXISTENCE OF

AN ISSUE OF AT LEAST ARGUABLE MERIT AND/

OR ONE WHICH CASTS DOUBT UPON THE PRISON-

ER'S GUILT, AND; (B) WHETHER THE OPINION

OF THE FIFTH CIRCUIT COURT OF APPEALS IN

THE PRESENT CASE CONFLICTS WITH THE OPIN-

ao oie UNITED STATES V. DECOSTER, — F.

d z.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW....... i

TABLE OF CONTENTS... cccccccccces ii

ee Ge Bs occ cc ceece cesses iv

PRD Ds cc cess ccesecneesceses 1

JURISDICTIONAL STATEMENT............ 3

CONSTITUTIONAL PROVISIONS

RPP ch ccc es er teccneccsonesecess 4

STATEMENT OF THE CASE............... 5

REASONS FOR GRANTING THE WRIT....... 11

Gs cece ccccccsencoseeeesecne 30

iii

TABLE OF CITATIONS

CASES PAGE

Bonds v. Wainwright,

564 F.2d 1125 (5th Cir. 1977),

vacated et. banc on other grounds

579 F.2d 317 (5th Cir. 1978)....... 21

Cuyler v. Sullivan,

446 U.S. 335 (1980)................ 10,11,14,

16 ,22,23

Dozier v. State,

361 So.2d 727 (Fla. 4th DCA 1978). 19

Ennis v. Le Fevre,

509 F.2d 1072 (2d Cir. 1977)...... 28

Estelle v. Dorrough,

2 2 ee 8: errr Te 15,16

Hill v. United States,

2k ee fC rrr rr ee 27

Kaufman v. United States,

Ff te fl ere 26

Mc Kayne v. Durston,

Ee ee EB eee eee 15,16

O'Neal v. State,

308 So.2d 569 (Fla. 2d DCA 1975)..19

Perez v. Wainwright,

440 F.Supp. 1037 (S. D.Fla.1977).

Perez v. Wainwright,

594 F.2d 159 (5th Cir. 1979) rehearing

denied 599 F.2d 1054 (5th Cir.1979).1

TABLE OF CITATIONS

CASES PAGE

Perez v. Wainwright,

447 U.S.932,100 S.Ct.3032,65 L.Ed.2d

Be GU 6 6606660 ce veccascssececes 1,

Perez v. Wainwright,

627 F.2d 742 (5th Cir. 1980)........ 2

Perez v. Wainwright,

640 F.2d 596 (5th Cir. 1981)........ 2

Rose v. Mitchell,

ee Walle St COE 6 60600 cecceeucees 26

Sanders v. State,

386 So.2d 256 (Fla. 5th DCA 1980)...19

Schneckloth v. Bustamonte,

ee ee ee Ce be ccesecoccseess 26

Skinner v. State,

366 So.2d 486 (Fla. 3d DCA 1979)....19

United States v. DeCoster,

624 F.2d 196 (D.C.Cir.1979)

ee ee ee ee 25,28, 30

United States ex rel. Barksdale v.

Blackburn,

616 F.2d 254 (5th Cir. 1981)........ 26

United States v. Timmrick,

a ee eS Tre 27

Young v. State,

177 So.2d 345 (Fla. 2d DCA 1965)....19

TABLE OF CITATIONS

OTHER AUTHORITIES

PAGE

Florida Statutes (1973)§813.011...... 5

Florida Rule of Criminal Procedure

Ke MOPITTTrrrrrirt tri 6

BD U.S.G. BeOER pc ccvncccccscoescneas 3

30 Southwestern Law Journal 801...... 18

38 U.Chi.L.Rev. 142 (1970)........... 27

65 Cornell L.Rev. 1123 (1980)........ 27

OPINIONS BELOW

The orders of the United States Dis-

trict Court for the Southern District of

Florida granting relief and denying re-

hearing are reported as Perez v. Wain-

wright, 440 F. Supp. 1037 (S.D. Fla.

1977).

The opinion of the United States

Fifth Circuit Court of Appeals reversing

the district court is reported as Perez

v. Wainwright, 594 F.2d 159 (5th Cir.

1979), rehearing denied 599 F.2d 1054

(5th Cir. 1979).

The order of this Court remanding

the case for reconsideration by the

Fifth Circuit is reported as Perez v.

Wainwright, 447 U.S. 932, 100 S.Ct.

3032, 65 L.Ed. 2d 1127 (1980).

The opinion of the Fifth Circuit on

remand is reported as Perez v. Wainwright,

627 F.2d 762 (5th Cir. 1980). The

order denying rehearing is reported as

Perez v. Wainwright, 640 F.2d 596 (5th

Cir. 1981).

JURISDICTIONAL STATEMENT

The judgment of the Fifth Circuit

Court of Appeals was ertered on October 8,

1980. Rehearing was denied by the court

on March 23, 1981. Rehearing en banc was

denied by that court on April 30, 1981.

The time for filing this petition was

twice extended by this court.

This court's jurisdiction is invoked

pursuant to 28 U.S.C. 1254 (1).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Sixth

Amendment :

In all criminal prosecutions,

the accused shall enjoy the

right...to have the assistance

of counsel for his defence.

United States Constitution, Four-

teenth Amendment:

No State shall...deprive any

person of life, liberty, or

property without due process

of law...

STATEMENT OF THE CASE

Respondent 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 Sta-

tutes (1973) §813.011. On August 14,

1975, he was adjudged guilty and sen-

tenced to be imprisoned for a period

of seven years.

Respondent was insolvent at all times

and was therefore originally represented

in the trial court by the Office of the

Public Defender. Subsequently, however,

Respondent's representation was under-

taken by private counsel who had been

retained by Respondent's parents. It

was by this privately retained counsel

the Respondent was represented at trial.

Following the conviction, no appeal was

instituted.

On October 29, 1975, Respondent,

represented by a second privately re-

tained counsel, filed a motion in the

trial court, which was styled as "POST-

CONVICTION RELIEF," and which was ap-

parently 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 pro-

tect the Defendant to his rights to

appeal." This motion was denied on

November 12, 1975. (The order of the

district court is in error in stating

that this motion was denied on Sep-

tember 15, 1975.) The denial of this

motion was not appealed.

On February 17, 1976, Respondent

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 re-

lied upon his counsel to pursue the

appeal. This petition was denied on

February 19, 1976, due to the fact that

Respondent was represented by private

counsel at the time of trial.

Respondent 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 Southe~n 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,

Petitioner filed a memorandum of law

and motion to dismiss, in which it was

contended that Respondent had not ex-

hausted his state remedies. In an order

filed September 1, 1977, setting an

evidentiary hearing, Judge Sidney M.

Aronovitz rejected that argument. Sub-

sequently, on October 27, 1977, Judge

Aronovitz entered an order which con-

cluded that although the fact that

Respondent was not able to appeal was

not due to state action, Respondent was

entitled to relief hecause the conduct

of his counsel was "so grossly deficient

as to render the proceedings fundamen-

tally unfair." This finding was based

primarily on the fact that Respondent's

counsel at sentencing in seeking super-

sedeas bond announced to the court that

a notice of appeal had already been

filed, although this was not the case.

Petitioner timely sought rehearing, or,

in the alternative, a stay pending

appeal. On December 1, 1977, an order

was entered denying rehearing and grant-

ing a stay pending appeal.

Petitioner appealed to the United

States Fifth Circuit Court of Appeals,

which reversed the district court, hold-

ing that Respondent had exhausted state

remedies, but finding that fundamental

unfairness had not occurred.

Respondent sought review in this

Court, which vacated the Fifth Circuit's

judgment and remanded the case for recon-

sideration in light of Cuyler v. Sullivan,

446 U.S. 335 (1980).

On remand, the Fifth Circuit, with-

out calling for further briefs affirmed

on the authority of Cuyler v. Sullivan.

On rehearing, the court allowed the

filing of additional briefs and in

denying rehearing, rejected the posi-

tions taken by Petitioner that a dis-

tinction exists between appointed and

retained counsel on appeal and that when

a claim of ineffectiveness is not direct-

ed to trial representation, the existence

of an issue of at least arguable merit

must be demonstrated to entitle a

federal habeas corpus petitioner to

relief.

REASONS FOR GRANTING THE WRIT

In Cuyler v. Sullivan, 446 U. S.

335 (1980), this Court dealt with a claim

of ineffective representation due to an

allegation that the defendant's attor-

neys had a conflict of interest when they

represented him at his state court trial.

This Court made it quite clear that

in order for Sullivan, the defendant in

the case, or any other state defendant

to be entitled to federal habeas corpus

relief, he must show the existence of

state action.

A state prisoner can win a

federal writ of habeas corpus

onl on a showing that the

State participated in the de-

nial of a fundamental right

protected by the Fourteenth

Amendment .

447 U.S. at 342-343

(emphasis added).

Since Sullivan'a lawyers were pri-

vately retained, and since Sullivan did

not allege that state officials knew or

should have known that his lawyers had

a conflict of interest, this Court noted

that the question that had to be initial-

ly dealt with was "whether the failure

of retained counsel to provide adequate

representation can render a trial so

fundamentally unfair as to »“_olate the

Fourteenth Amendment."" 446 U.S. at 343

(emphasis added).

In answering this question in the

affirmative, this Court noted and relied

upon the fact that "a state criminal

trial, a proceeding initiated and con-

ducted by the State itself, is an action

of the State within the meaning of the

Fourteenth Amendment ."' 100 S.Ct. at 1715.

Accordingly, this Court concluded that

"[sJince the State's conduct of a crim-

inal trial itself implicates the State

in the defendant's conviction, we see no

basis for drawing a distinction between

retained and appointed cousel. ™

446 U.S. at 344-345 (emphasis added).

In short, this court found inherent

state action in ineffective trial repre-

sentation.

The present case deals with the

question of whether the reasoning of

Cuyler v. Sullivan should also extend

to claims of post-trial ineffectiveness. 1l

Numerous factors support the conclusion

that is should not.

Ithe Fifth Circuit did not consider this

claim, finding that since no appeal was

taken, the ineffectiveness here occurred

at the trial level. This reasoning is

a invalid. The thrust of the argu-

ment that Cuyler v. Sullivan applies only

First of all, the State does not

initiate an appeal from a conviction,

as is the case with a trial, a factor

upon which the Court in Cuyler v. Sulli-

van relied. Thus, a defendant on appeal

is not embroiled in a proceeding in which

he has no desire to participate or choice

not to participate. Rather, the proceed-

ing is one the institution of which the

State has no control over whatsoever.

Second, while it is true that a State

"conducts" an appeal in the sense that

to trial representation is based on, as

will be subsequently detailed, the nature

of the trial itself, not the level of the

court. Obviously, once the trial is over,

the considerations set forth herein by

Petitioner come into play, regardless of

whether the challenged act or omission

occurs in the trial court or in the

appellate court.

the appellate court is a state agency

or department, it must also be consi-

dered that the State conducts appeals

only as an added benefit to defendants

convicted in the state trial courts.

It is under no obligation to hear appeals

at all, as the Supreme Court has held

that review by an appellate court is not

a necessary element of due process.

McKayne v. Durston, 153 U.S. 684 (1894).

Accordingly, the Court has recognized

that there is no federal constitutional

right to state appellate review of state

criminal convictions. Estelle v. Dor-

rough, 420 U.S. 534 (1975). Since the

State is not required to do anything at

all in this regard, the mere fact that

it "conducts" the appeal in one sense

of the word cannot in itself establish

state action. In the present case, the

lack of state action is even more clear

than in most claims of ineffective appel-

late counsel. Since here no appeal was

even instituted, there was no proceeding

for the State to conduct. Thus, even this

factor is absent in the present case.

The third point to consider is that

in Cuyler v. Sullivan, the Court required

a showing of state action in the denial of

a fundamental right. As noted previously,

an appeal is not a constitutional right at

all, much less a fundamental one. Estelle

v. Dorrough, supra; McKayne v. Durston,

supra. Moreover, even putting aside the

precedential factors, the differences be-

tween a claim of ineffective trial counsel

and one of ineffective appellate counsel

are of such a nature that the latter situa-

tion clearly presents a much less funda-

mental issue.

The right to a fair trial is one of

the most fundamental constitutional rights,

protected in various ways by numerous pro-

visions of the Constitution. No portion

of the Constitution, however, even mentions

specifically the rights of a defendant on

appeal.

At trial, every defendant is bathed

in apresumption of innocence and the bur-

den of proof rests with the prosecution.

Ineffective representation at that point

must therefore be dealt with strictly, in

light of the posture in which a case must

be viewed at that stage of the proceedings.

On appeal, the opposite is true. It is

presumed that no error has occurred and it

is the obligation of the defendant to

demonstrate error.

As a result, the number of criminal

appeals in which a defendant is successful

is not great, regardless of the quality of

appellate counsel. Therefore incompetent

representation will seldom have a detri-

mental effect. In this regard, it should

be noted that in a law review article a-

dopted by the Fifth Circuit as an addendum

to its internal operating procedures man-

ual, Judge John C. Godbold, of that court,

cited statistics from the court's 1975-76

court year which presumably reflect approxi -

mate percentages of reversals of appel-

late courts in general. Those statistics

showed that only 10.8 percent of criminai

appeals resulted in reversal. Godbold,

Twenty Pages and Twenty Minutes-Effective

Advocacy on Appeal, 30 Southwestern Law

Journal 801 at 803. In addition, of that

10.8 percent, undoubtedly a reasonable num-

ber would involve fundamental error, for ¢

which relief can be obtained by post-con-

viction collateral attack, regardless of

what happened on onal.” thus allowing

a defendant to achieve the same result.

There is also another crucial dis-

tinction between representation at trial

and on appeal regarding the effect of in-

competent representation. When an attor-

ney at trial incompetetently represents

his client, whether by failing to raise

a defense or an objection, raising an im-

proper defense, failing to prepare ade-

quately, or for whatever other reason, the

result is generally that the evidence that

is presented to the trier of fact almost

compels a conviction. On appeal, however,

no matter how badly an attorney handles a

case, the court will reach its conclusions

2 This is Clearly true in Florida. See

O'Neal v. State, 308 So.2d 569 (Fla. 2d

. ee also Sanders v. State, 386

So.2d 256 (Fla. 5th DCA 1980); Skinner v.

State, 366 So.2d 486 (Fla. 3d DCA 1979);

Dozier v. State, 361 So.2d 727 (Fla. 4th

DCA 1978); Young v. State, 177 So.2d 345

(Fla. 2d DCA LL

based on the law. Briefs end ergunents

are merely methods by which parties to an

appeal call the court's attention to those

theories and precedents that they feel ap-

ply to the facts of the case. An appellate

court will adopt those positions it finds

to be legally correct, regardless of how

well written a brief may be or how eloquent

an oral argument may be presented. More-

over, an appellate court may employ a line

of reasoning not advanced by either party

if it finds such action to be appropriate.

This is in contrast to the role of the

trier of fact at trial, who may not go

beyond the evidence presented in reaching

a verdict.

The sum of these distinctions is that

the role of counsel on appeal is of much

less importance than is the role of coun-

sel at trial. Where counsel does a com-

petent job in handling an appeal, certainly

things are easier for the court and jus-

tice is expedited. But where counsel

fails to do so, the system is such that

the appellate judges will often compen-

sate for counsel's shortcomings, slowing

down the process, but ending up with the

same conclusion, one based on the law and

not just on what is presented to the court.

The less fundamental nature of effec-

tive appellate counsel was implicitly re-

cognized in Bonds v. Wainwright, 564 F.2d

1125 (5th Cir. 1977), vacated en banc on

other grounds 579 F.2d 317 (5th Ci.. 1978),

in noting that "while we might hesitate to

give effect to a waiver that purported to

permit counsel to fail to prepare a de-

fense, a waiver of effective assistance

on appeal is far less drastic." 564 F.2d

at 1131.

Therefore, given the nature of the

role of counsel on appeal, the non-

fundamental nature of the rights

involved, the reversal of the presump-

tions and burdens that exist at trial

and the fact that in very few cases will

incompetent representation on appeal com-

pel a different result than that which

would otherwise be obtained, Petitioner

submits the “inherent state action" con-

cept of Cuyler v. Sullivan to appeals

would be unwarranted.

It is of course true that while an

appeal is not a fundamental right, it is

a vehicle by which violations of such

rights may be remedied. It must be re-

membered, however, that declining to

extend Cuyler v. Sullivan to appeals

would not preclude relief for such vio-

lations, since as noted in footnote one,

they can be raised by collateral attack.

It is hard to imagine how "fundamental

unfairness" can be found when a defend-

ant does not receive an appeal when what-

ever fundamental claims he might have can

still be considered. To do otherwise

would be to ignore the import of the

word "fundamental," a word used in Cuyler

v. Sullivan to describe the rights in-

volved that compelled the Court's con-

clusion. Such a conclusion is plainly

not supportable and it should therefore

be held that Cuyler v. Sullivan does not

apply to a situation such as that present-

ed here in which a claim is made of in-

effective appellate representation.

Given these factors, it is clear that

a substantial question exists as to

whether the rationale expressed by this

court in Cuyler v. Sullivan should ex-

tend to assertions of post-trial

ineffectiveness. Until this Court

answers that question, significant

confusion will exist. This Court

should thus grant certiorari to deal

with the issue.

Even if it is assumed that Cuyler v.

Sullivan does apply to post-trial repre-

sentation, a substantial question exists

as to what standard should apply to re-

view claims of ineffective representation,

as this Court has never dealt with this

issue when counsel's performance is

" "untrammelled and unimpaired' by state

action." United States v. DeCoster,

624 F.2d 196, 202 (D.C. Cir. 1979) (en

banc). Perhaps the most significant

aspect of this question is whether a

state prisoner is entitled to a relief

on a claim of ineffective post-trial

representation in the absence of a show-

ing that there exists an issue of at

least arguable merit and/or one which

casts doubt upon the prisoner's guilt.

It is true that ordinarily such a

showing is not required. In the situa-

tion dealt with here, however, no actual

state action is present and the prisoner

has available, as noted previously, other

avenues to correct any fundamental error

that may have occurred. (See footnote

two, supra).

The Fifth Circuit noted the existence

of numerous minority views calling for

such requirement in even the less com-

pelling circumstances than are presented

here. See Rose v. Mitchell, 443 U.S. 545,

574-588 (1979) (Stewart, J., concurring;

Powell, J., concurring); Schneckloth v.

Bustamonte, 412 U.S. 218, 250 (1973)

(Powell, J., concurring); Kaufman v.

United States, 394 U.S. 217, 231 (1969)

(Black, J., dissenting). See also

United States ex rel. Barksdale v. |

Blackburn, 616 F.2d 254 (5th Cir. 1981)

(en banc); Friendly, Is Innocence Irrele-

vant? Collateral Attack on Criminal

Judgments, 38 U.Chi.L.Rev. 142 (1970).

See generally Note, Guilt, Innocence and

Federalism in Habeas Corpus, 65 Cornell

L. Rev. 1123 (1980).

Other cases have also expressed sim-

ilar sentiments. See United States v.

Timmrick, U.S. , 99 S.Ct. 2085 (fail-

ure to inform defendant of minimum manda-

tory parole term upon accepting guilty

plea not cognizable on collateral attack

when claim is only as to technical viola-

tion of rule requiring that a defendant

be so informed and not that defendant was

actually unaware of term); Hill v. United

States, 368 U.S. 424 (1962) (failure to

ask defendant whether he has anything to

say before sentencing not cognizable on

habeas corpus as it is not fundamental or

constitutional right and claim regarding

such failure does not attack sentence

itself); Ennis v. Le Fevre, 509 F.2d

1072 (2d Cir. 1977) (lawyer's decision

not to raise identification issue on

appeal rendered harmless error in failing

to provide transcript relevant to issue,

but ineffective assistance might have

been found had argument had "obvious

merit.'' 509 F.2d at 1076).

The Fifth Circuit's conclusion that it

need not be shown that there exists an

issue of at least arguable merit also con-

flicts with the holding of United States

v. DeCoster, 624 F.2d 196 (D.C.Cir. 1979)

(en banc), which requires a showing of

probable prejudice to warrant relief on

a claim of ineffective representation.

624 F.2d at 206. Obviously, if the exist-

ence of an issue of at least arguable

merit is not shown, it cannot be said

that such probable prejudice exists,

particularly given, as noted previously,

the low percentage of reversals in crimi-

nal appeals and the availability of

relief if fundamental error was com-

mitted. The conflict between the present

case and DeCoster is thus quite real and

should be resolved by this court.

CONCLUS ION

There exists a significant question

as to whether a state prisoner may obtain

federal relief based on a claim of inef-

fective post-trial representation by

retained counsel. If such a prisoner

can obtain such relief, the standards

to be applied need to be established and

the question of whether a showing of pre-

judice, in the sense of the existence of

an issue of arguable merit and/or of one

relating to guilt, is necessary needs to

be answered. Similarly, the conflict

between the opinion in the present case

and that in United States v. DeCoster,

624 F.2d 196 (D.C. Cir. 1979) (en banc)

needs to be resolved. This Court should

therefore grant certiorari to deal with

these matters.

Respectfully submitted,

JIM SMITH

Attorney General of

the State of Florida

ANTHONY C. MUSTO

Assistant Attorney

General

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and

correct copy of the foregoing Petition

for Writ of Certiorari was furnished by

mail to KAREN GOTTLIEB, Assistant Public

Defender, 1351 Northwest 12 Street, Miami,

Florida 33125 on this 28th day of August,

1981.

ANTHONY C. MUSTO

Assistant Attorney

General

TABLE OF CONTENTS

APPENDIX

PAGE

Order Setting Evidentiary Hearing

Filed September 1, 1977............ App.

Order--Filed October 27, 1977...... App.

Order--Filed December 1, 1977...... App.

Opinion-May 1, 1979, Rehearing and

Rehearing En Banc denied July 13,

PPT, TUTTO TTT TOE TTT TTT ee App.

POS, TEP Bg BTM se ccccccccccsce App.

Judgment, October 8, 1980.......... App.

Opinion - March 23, 1981........... App.

Judgment on Remand from the

United States Supreme Court........ App.

1-16

17-26

27-38

39-56

57-58

59-60

61-74

75-76

APP. 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 76-2219-CIV-SMA

ANTONIO PEREZ, PETITIONER

vs.

LOUIE L. WAINWRIGHT, Secretary

Department of Offender Rehabilitation,

RESPONDENT

ORDER SETTING EVIDENTIARY HEARING

Filed Sept. 1, 1977

Antonio Perez brings this Petition for

Habeas Corpus attackiny a seven year sen-

tence imposed by the Circuit Court of the

Eleventh Judicial Circuit in and for Dade

County, Florida on August 14, 1975. Sen-

tence was imposed pursuant to a jury ver-

dict of guilty to the offense of robbery.

Petitioner is presently in the custody

of the Respondent, Louie L. Wainwright,

Secretary, Department of Offender Rehabi-

litation, State of Florida.

As the sole ground for relief, Peti-

tioner alleges that his privately retained

APP. 2

counsel failed to timely invoke the juris-

diction of the appropriate Florida appeals

court after promising Petitioner to do so,

rendering counsel's assistance ineffec-

tive and depriving Petitioner of due pro-

cess of law.

The record reveals that Petitioner

never appealed his conviction. Petition-

er filed a Motion to Vacate and Set Aside

Judgment pursuant to Rule 3.850 of the

Florida Rules of Criminal Procedure, which

was denied on September 15, 1975. There-

after, Petitioner filed a Petition for

Writ of Haheas Corpus or in the Alterna-

tive Motion to Treat as Timely Notice of

Appeal with the Florida District Court

ef Appeals, Third District. Such peti-

tion was denied on February 19, 1976.

The issue presented in the instant

petition was not included in Petitioner's

Motion to Vacate in the trial court, but

APP. 3

was the gist of Petitioner's habeas peti-

tion in the Third District Court of Ap-

peals. The Court of Appeals order dis-

missing the Petition stated: ". . .it is

ordered that the said petition is denied

as the petitioner was represented by pri-

vate counsel at the time of trial."' (Case

No. 76-277).

Ill

It is no secret that the Florida courts

are not receptive to a claim of ineffec-

tive private counsel. U.S. ex rel. Reis

v. Wainwright, 525 F.2d 1269 (5th Cir.

1976). Nevertheless, Respondent asserts

that the Petitioner has failed to exhaust

state remedies and should do so via a peti-

tion for habeas corpus in the Florida Supreme

Court. Respondent argues that the Florida

Supreme Court has not had the opportunity

to rule on this question since Capetta v.

Wainwright, 203 So.2d 609 (1967). The

court notes that the Court in Capetta

relied on a Fifth Circuit decision, King

APP. 4

Wainwright, 368 F.2d 57 (1966), for the

proposition that a private counsel's

failure to perfect an appeal for his

client did not constitute a denial of

due process. However, as pointed out in

a later Fifth Circuit case, the majority

of decisions for sometime made no distinc-

tion between private and court-appointed

counsel in considering ineffectiveness

of counsel questions. Breedlove v. Beto,

404 F.2d 1019, 1020 (1968). As early as

1962, the Fifth Circuit had articulated

the majority position. Porter v. United

States, 298 F.2d (5th Cir. 1962). Thus,

while the Fifth Circuit's position was in

doubt at the time of the Capetta decision,

the Florida Supreme Court decision was

against the weight of authority. Moreover,

At any rate, the decisions of the

Fifth Circuit do not bind the Florida

state courts. See 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. App. 1970).

APP, 5

the Florida Appellate courts continue to

deny the firmly established Fifth Circuit

law which recognizes claims of ineffec-

tive private counsel at both the trial

and appellate stage. U.S. ex rel. Reis

v. Wainwright, supra.

The case of Lamberti v. Wainwright, 513

F.2d 277 (Sth Cir. 1975) does not patent-

ly vitalize Respondent's exhaustion argu-

ment. In that case, the court stated at

283:

“Lamberti only urged the state

courts to see that the trial

judge had deprived him of his

— by misleading his coun-

sel; he never suggested a theory

on which the state courts could

afford him relief from the ef-

fects of any errors of his pri-

vately retained counsel. Since

his ineffective assistance of

retained counsel theory is not

the substantial equivalent of

his ‘judicial thwarting’ ground

"In an uninterrupted line of cases

Florida has steadfastly refused to recog-

nize incompetence of privately retained

counsel as a valid basis for post-convic-

tion relief." "d. at 1272.

APP. 6

comity compels us to the con-

clusion that the district court

Godlsuties soueel sngames be-

fore it had been adequately pre-

sented to the state courts."

Unlike Lamberti, the Petitioner in the

instant case clearly presented the issue

of ineffective private counsel in his

habeas petition filed with the Florida

District Court of Appeals. In fact, the

decision denying his petition, as previous-

ly mentioned, was based on the fact that

he was represented by private counsel at

trial. The only logical conclusion is

that the issue presented herein was ade-

quately presented to the Florida appellate

court but rejected as an unrecognized

ground for post-conviction relief.

In addition, remanding for further

exhaustion poses the danger that the

Florida Supreme Court would dismiss a

petition for habeas corpus on grounds of

res judicata. As stated in Jenkins v.

APP. 7

Wainwright, 322 So.2d 477, 478 (Fla.

1975):

ss .[O]Jnce a petitioner seeks

relief in a particular court by

means of a petition for extra-

ordinary writ, here habeas cor-

pus, he has picked his forum.

He is not entitled to a second

or third opportunity for the

some relief by the same writ in

a different court. Once he has

gg his forum, his remedy is

y the appropriate enagee pro-

cess and not by another petition

for an extraordinary writ."

See also Lamberti v. Wainwright, 284 So.

2d 202 (Fla. 1973). Under these circum-

stances, "[nJleither the statute nor the

spirit of needed comity behind it require

such a formalistic waste of precious judi-

cial energy, state or federal." Reed v.

Beto, 373 F.2d 723, 725 (5th Cir. 1965).

Every convicted person has an absolute

right to appeal. Coppedge v. United

States, 369 U.S. 438, 82 S.Ct. 917, 8 L.

Ed.2d 21 (1961). The Supreme Court later

mandated that every convicted person has

APP. 8

the right to counsel on appeal. Douglas

v. California, 372 U.S. 353, 83 S.Ct. 814,

8 L.Ed.2d 811 (1963). The Sixth Amendment

right to counsel and the Sixth Amendment

incorporated into the Fourteenth Amendment

Due Process Clause guarantee each defendant

the right to effective assistance of coun-

sel. Id. For a long time a distinction

was made between privately retained and

court-appointed counsel for purposes of

claims of ineffective assistance of coun-

sel. See e.g., King v. Wainwright, supra;

Breedlove v. Beto, supra. However, in

recent years the Fifth Circuit has abol-

ished the distinction, although different

standards have been maintained. Fitzgerald

v. Estelle, 505 F.2d 1334 (1975).

Although no attempt at harmo-

nizing these lines has been

previously made, they are not

necessarily at odds. Our re-

conciliation stresses the im-

portance of recognizing the

constitutional framework upon

which the particular claim of

ineffective assistance of counsel

APP. 9

in a state court is to be based.

The first question to be asked

must be whether the case invol-

ves the Fourteenth Amendment due

process clause standing alone,

or the Sixth Amendment right to

counsel incorporated in Fourteenth

Amendment due process.1 The con-

viction of a defendant after a

trial that is fundamentally un-

fair, whatever the cause of such

unfairness, violates Fourteenth

Amendment due process. See e.g.,

the mob domination cases: Frank

v. Man , 237 U.S. 309, 35 S.Ct.

582, 59 L.Ed. 969 (1915) (Holmes,

Bate ee and Moore v.

oe. 261 U.S. 86, 43 S.Ct.

265° 67 L.Ed. 543 (1923); the

conviction of an accused person

while he is legally incompetent:

Pate v. Robinson, 383 U.S. 375,

388, 86 S.Ct. 836, 838, 15 L. Ed.

2d 815 (1966) and a conviction

predicated upon no evidence at

all: Thompson v. City of Louis-

ville, 362 U.S. 119, 80 S.Ct.

624, 4 L.Ed.2d 654 (1960). When

ever a defendant has been con-

victed as the result of such a

ross malfunction, the result

s that the state's criminal

justice system has operated to

deny due process. Requisite

Fourteenth Amendment state ac-

tion is present, not because

a state official knew the par-

ticulars of the unfairness or

+Gideon v. Wainwr , 372 U.S. 335, 83

$.Ce. , L.Ed.2d 799 (1963).

App. 10

because retained counsel is

deemed a state official, but

because the system has failed,

and the state's consequent im-

prisonment or fine of the de- 2

fendant is fundamentally wrong.

In the same manner, whenever a

lawyer's ineffectiveness has

rendered a trial fundamentally

unfair, whether he be retained

or appointed and whether his ac-

tion or inaction was known or

unknown to state trial officials,

a deprivation of Fourteenth Amend-

ment due process results from en-

forcement of the resultant judg-

ment.

Moving from the Fourteenth Amend-

ment alone to the incorporated Sixth,

our decisions established that the

“Porter v. United States, supra, from

the first line of decisions, is a good

example of this type of case. There the

attorney retained by the defendant repre-

sented conflicting interests. His alle-

age to the defendant was divided by

is attempt to protect an adverse witness

in another proceeding. Holland v. Hender-

son, supra, involved facts similar to

Porter. In Bell v. Alabama, supra, the

petitioner averred that his counsel in-

duced him to produce him to present no

defense at all and that his "trial" con-

sisted only of an appearance in court,

and "introduction to the jury” and the

pronouncement of a 25 year sentence.

APP. 11

standard of reasonably effec-

tive assistance of counsel,

most recently delineated in

Herring v. Estelle, 491 F.2d

125 (5th Cir. 1974), covers a

greater range of counsel errors

than does the fundamental fair-

ness standard of the due process

concept solely embodied within

the Fourteenth Amendment. The

circumstances in which the state

will be bound by retained coun-

sel's failure to meet the Sixth

Amendment standard of effective-

ness (when the resulting trial

cannot be characterized as fun-

damentally unfair) must be as-

sessed more strictly lest we

place a procedurally intolerable

and practically impossible bur-

den upon trial judges, who have

no control over the selection of

counsel employed by a defendant.

The only reasonable judicial

checkrein--questioning of the

tactics and strategy of retained

counsel throughout a trial--would

freight the bench and bar alike

and many times would be counter-

productive for the defendant. With-

out such interrogation of the de-

fendant's lawyer, the court could

never know whether his actions or

inactions were deliberate or for-

getful, brilliant or inept.

To find state involvement in re-

tained counsel's conduct which is

adjudged to be less than reasonably

effective, yet not so grossly defi-

cient as to render the proceedings

fundamentally unfair, it must be

shown that some responsible state

APP. 12

official connected with the

criminal proceeding who could

have remedied the conduct failed

in his duty to accord justice to

the accused. That the trial judge

and the prosecutor have such a ca-

pacity and duty is unquestionable.

Therefore, if the trial judge or

the prosecutor can be shown to

have actually known that a parti-

cular defendant is receiving in-

competent representation and takes

no remedial action, the state ac-

tion requirement is satisfied. If

they directly participate in the

incompetency, it is even more so.

Furthermore, if the incompetency

of a retained attorney's repre-

sentation is so apparent of the

state should have been aware of

and could have corrected it then

again the state action require-

ment is satisfied.3

Id. at 1336-37

It is well established that failure of

counsel to perfect an appeal is a denial

7 :

The factual situation in most of the

second line of cases set out above are not

detailed in the court's opinions. To the

extent that such factual situation could

stand for the rationale that even retained

counsel action which rendered the trial

fundamentally unfair could not be reached

absent some showing of state knowledge or

eee, those cases are here over-

ruled.

APP. 13

of constitutionally effective counsel.

Arrastia v. United States, 455 F.2d 736

(5th Cir. 1972); Atilus v. United States,

406 F.2d 697 (5th Cir. 1969); Cantrell v.

State of Alabama, 546 F.2d 652 (5th Cir.

1977). See also, Malone v. Alabama, 514

F.2d 77 (5th Cir. 1975); and Kallie v.

Estelle, 515 F.2d 588 (5th Cir. 1975).

These latter two cases have interpreted

the duties of retained counsel with re-

spect to appeals in light of Fitzgerald,

supra.

In his petition, Petitioner asserts

that private counsel informed him that an

appeal would be perfected by the filing

of a notice of appeal, and that at all

times Petitioner relied on private coun-

sel to perfect his appeal. Petitioner

contends he was never contacted by coun-

sel, although Petitioner was at all times

desirous of pursuing his appeal. Respon-

dent, on the other hand, alleges that

APP. 14

private counsel informed the Petitioner

that no appeal would be taken of his con-

viction unless he was compensated for

the legal services already rendered for

trial. Petitioner, further states through

an affidavit of his parents that they in

fact paid private counsel for services

rendered. Thus a factual dispute is mani-

fest and in order to resolve this case in

light of the above cited law, an eviden-

tiary hearing is required. Townsend v.

Sain, 372 U.S. 293 (1962).

Accordingly, it is

ORDERED AND ADJUDGED that an eviden-

tiary hearing be held in this cause before

the Honorable Peter R. Palermo, United

States Magistrate on October 12, 1977 at

the U.S. Courthouse and Post Office, 300

N.E. lst Avenue, Miami, Florida (COURT-

ROOM 253) at 10:00 AM.

It appearing from the petition for

writ of habeas corpus that the Petitioner,

APP. 15

Antonio Perez is confined in the Union

Correctional Institution at Raiford,

Florida, and that it is necessary for

said defendant to be before this Court

for said proceeding;

NOW THEREFORE, this is to command the

Respondent, Louie L. Wainwright, Secretary,

Department of Offender Rehabilitation that

you have the body of said Antonio Perez

now detained in custody as aforesaid, un-

der safe and secure conduct, before this

Court at Miami, Florida by or before

10:00 A.M. on October 12, 1977 for purpose

of an evidentiary hearing. It is further

ORDERED that Petitioner Antonio Perez

be brought to Dade County, Florida at least

five (5) days prior to said evidentiary

hearing so that he may have time to confer

with his counsel.

Upon competition of said proceedings

you will return subject with all convenient

APP. 16

speed, under safe and secure conduct to

the custody of the Warden of the aforesaid

penal institution.

DONE AND ORDERED at Miami, Florida, this

1 day of September, 1977.

/s/ Sidney M. Aronovitz

United States District

Judge

cc: Karen M. Gottlieb

Assistant Public Defender

Sidney M. Pertnoy

Assistant Attorney General

Louis L. ere Secretary,

Department of Offender Rehabilitation

APP. 17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 76-2219-CIV-SMA

ANTONIO PEREZ, PETITIONER,

vs.

LOUIE L. WAINWRIGHT, Secretary,

Department of Offender Rehabilitation,

RESPONDENT,

ORDER--FILED Oct. 27, 1977

Antonio Perez brings Petition for

Habeas Corpus attacking a seven year

sentence imposed by the Circuit Court

of the Eleventh Judicial Circuit in and

for Dade County, Florida on August 14,

1975. Sentence was imposed pursuant to

a jury verdict of guilty to the offense

of robbery.

Petitioner is presently in the custody

of the Respondent, Louie L. Wainwright,

Secretary, Department of Offender Rehabi-

litation, State of Florida.

As the sole ground for relief, Peti-

tioner alleges that his privately retained

APP. 18

counsel failed to timely invoke the juris-

diction of the appropriate Florida appeals

court after promising Petitioner to do so,

rendering counsel's assistance ineffective

and depriving Petitioner of due process of

law.

The record reveals that Petitioner nev-

er appealed his conviction. Petitioner

filed a Motion to Vacate and Set Aside

Judgment pursuant to Rule 3.850 of the

Florida Rules of Criminal Procedure, which

was denied on September 15, 1975. There-

after, Petitioner filed a Petition for

Writ of Habeas Corpus or in the Alterna-

tive Motion to Treat as Timely Notice of

Appeal with the Florida District Court of

Appeal, Third District. Such petition

was denied on February 19, 1976.

The issue presented in the instant

petition was not included in Petitioner's

Motion to Vacate in the trial court, but

was the gist of Petitioner's habeas

APP. 19

petition in the Third District Court of

Appeal. The Court of Appeal order dis-

missing the Petition state: ". . .it is

ordered that the said petition is denied

as the petitioner was represented by pri-

vate counsel at the time of trial."(Case

No. 76-277). Based on these facts and

the history of the Florida courts’ treat-

ment of the post-conviction claim of in-

effective private counsel, this court, in

its previous order signed on September l,

1977, rejected the respondent's contention

that petitioner should be required to fur-

ther exhaust state remedies. The court

relied on U.S. ex rel. Reis v. Wainwright,

525 F.2d 1269 (5th Cir. 1976) for this

position. The court further ordered that

an evidentiary hearing be held before

Magistrate Peter R. Palermo on October

12, 1977 in order to resolve factual dis-

putes evident from the record. Signifi-

cant to the court's determination,

APP. 20

examination of the record and the find-

ings of fact reveal that petitioner's

privately retained counsel indicated to

the state trial court at the sentencing

proceeding that a notice of appeal had

Been filed, and further indicated to the

petitioner subsequent to that proceeding

that he would be prosecuting petitioner's

appeal for him. No further contact was

had between petitioner and his attorney,

and no action was ever taken by counsel

to perfect or prosecute petitioner's ap-

peal. Petitioner was at all time indi-

gent, albeit managed to obtain a private

attorney at trial only through the assis-

tance of his parents. He at all times

relied on his attorney to perfect and

prosecute his appeal.

Petitioner contends that his attorney's

representation in open court that he had

already filed a notice of appeal was suf-

ficient to constructively notify the

APP. 21

judge, the prosecutor or the clerk of

counsel's ineffectiveness so as to imbue

his subsequent deprivation of appellate

rights with state action. Petitioner

relies on Cantrell v. Alabama, 546 F.2d

652 (5th Cir. 1977) and Flanagan v.

Henderson, 496 F.2d 1274 (5th Cir. 1974)

to support his position. We cannot agree.

Clearly, Cantrell involved a substantially

greater degree of state involvement than

present in the case at bar:

"The highest legal officer of

the state, by a written motion,

called to the attention of the

Supreme Court and the appel-

lant's retained counsel a de-

fect which under Alabama law,

if unremedied, would require

that the appeal be dismissed

without consideration of its

merits. The Attorney General

asked for and secured dismiss-

al of the appeal because of the

mistake."" Id. at 654.

In Flanagan,

". . .{S]lince the default

of one of his attorneys in

properly perfecting a full

appeal was promptly made

APP. 22

known to the trial a in

the form of a request

extension of time to perfect

a regular appeal, state in-

volvement unquestionably is

present here."' Id. at 1278.

In the instant case, suffice it to say

that the attorney's announcement is open

court that he has filed a notice of ap-

peal is insufficient to constructively

apprise the court that a defendant's ap-

pellate right may not be perfected at all

in the future.

However, the landmark case of Fitzgerald

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

1974) provides that privately retained

counsel may be ineffective within the

purview of the Fourteenth Amendment's

protections in another manner:

". . .[W]henever a lawyer's

ineffectiveness has rendered

a trial fundamentally unfair,

. . .Whether his action or

inaction was known or unknown

to state trial officials, a

deprivation of Fourteenth

Amendment due process results

from enforcement of the re-

sultant judgment."

APP. 23

Postal v. Beto, 508 F.2d 679 (5th Cir.

1975) was the first case to interpret

Fitzgerald standards as applied to claims

of ineffective privately retained appel-

late counsel. Petitioner in that case

claimed that the failure of his counsel

to appear at sentencing and advise him of

his right to appeal rendered his assis-

tance ineffective. The Court held to the

contrary:

"([Wje have carefully exa-

mined the record and deter-

mined that the District

Court had le basis for

concluding that the actions

of retained counsel did not

operate to deprive the trial

of fundamental fairness as

required by the Fourteenth

Amendment."

In Malone v. Alabama, 514 F.2d 77 (5th

Cir. 1975), the court felt compelled by

Postel to hold that counsel's conduct was

not "so grossly deficient as to render

the proceedings fundamentally unfair,

“Fitzgerald, supra, 505 F.2d at 1337."

APP. 24

In Malone, retained counsel gave oral

notice of appeal but failed to file a

brief, resulting in the dismissal of his

client's appeal without opinion. Finally,

in Kallie v. Estelle, 515 F.2d 588 (5th

Cir. 1975), retained counsel gave notice

of appeal in open court but failed to

pursue his client's appeal without notice

when he realized he would not be paid

what he considered a reasonable fee.

Petitioner's appeal was dismissed as a

result of counsel's failure to file an

appellate brief. The court in Kallie

felt bound by the decision in Malone to

find that the petitioner was not denied

fundamental fairness in the proceedings.

In the instant case counsel announced

in open court that a written notice of

appeal had already been filed,” although

——+——

Florida Appellate Rule 6.4 mandates

that an appeai may be taken only by fil-

ing with the clerk of the lower court a

APP. 25

no such notice was ever filed. This

court finds this to be a crucial distinc-

tion from Postel and its progeny. Such

an active course of conduct on the part

of private counsel, can only be charac-

terized, at the very least, as a wilful

disregard for the responsibility placed

upon him by the system, which served only

to insure the deprivation of petitioner's

appellate rights. Such unconscionable

actions languish to the level of conduct

of counsel "so grossly deficient as to

render the procedings fundamentally unfair

notice in writing that the appellant ap-

peals from a judgment, order, ruling, or

sentence, as the case may be.

Such a notice would be untimely as pre-

ture under Florida Appellate Rule 6.2 which

provides :

Any appeal by the defendant from

the judgment or sentence shall be

taken within 30 days after the

sentence is entered, provided

that the defendant may take an

appeal from the judgment with-

in 30 days after the judgment

is entered. (Emphasis added).

APP. 26

For these reasons, it is

ORDERED AND ADJUDGED that unless the

state appellate court grants Petitioner

belated appeal of his conviction within

ninety (90) days of this order, this

Court will grant Petitioners Writ of

Habeas Corpus.

DONE AND ORDERED at Miami, Florida,

this 26 day of October, 1977.

/s/ Sidney M. Aronovitz

United States District

Judge

APP. 27

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

NO. 76-2219-Civ-SMA

ANTONIO PEREZ, PETITIONER,

vs.

LOUIE L. WAINWRIGHT, Secretary,

Department of Offender Rehabilitation,

RESPONDENT

ORDER--Filed Dec. 1, 1977

Antonio Perez filed a Petition for

Writ of Habeas Corpus pursuant 28 U.S.C.

§2254. In accordance with this Court's

order of September 1, 1977, an eviden-

tiary hearing was held on October 12,

1977 before United States Magistrate

Peter R. Palermo. The petitioner and

his father testified at the hearing. Pet-

itioner's state court trial counsel, the

subject of alleged incompetence, did not

testify. The Magistrate set out his

findings of fact and recommendation,

which in substance reflected that pri-

vate counsel advised the state trial

APP. 28

court at sentencing that a notice of

appeal had been filed, and further ad-

vised petitioner that he would represent

him on appeal of his conviction. In addi-

tion, it was found by the Magistrate that

no notice of appeal was ever filed, al-

though petitioner continued to rely on

private counsel to pursue the appeal, and

at all times desired to appeal. Peti-

tioner only found out that no notice of

appeal had even been filed subsequent to

the requisite filing period. Petitioner

has never been granted an appeal of his

conviction by the State of Florida, and

was indigent at all times subsequent to

his conviction. Based on these findings,

the Magistrate recommended to the under-

signed that counsel's conduct rendered

the proceedings fundamentally unfair, en-

titling petitioner to habeas corpus relief,

as outlined in Baggett v. Wainwright, 229

So.2d 239 (Fla. 1969). The undersigned

APP. 29

after an independent review of the record

and applicable law in this Circuit, or-

dered on October 26, 1977 that unless the

state appellate court grants petitioner

a belated appeal within ninety days, the

Writ of Habeas Corpus will issue. Respon-

dent has now filed a Petition for Rehear-

ing or Alternatively, Motion for Stay

Pending Appeal.

Respondent presents two factors for

this Court's consideration. First, respon-

dent contends that Williams v. State, 324

So.2d 74 (Fla. 1975) colors private coun-

sel's representation to the state court at

sentencing in a different light than de-

scribed in this Court's previous order.

Specifically, respondent argues that coun-

sel's representation should be viewed sim-

ply as a case of "mistaken impression."

The Court is unpersuaded by this argument.

Initially, the Court notes that Williams

v. State, supra was decided on December

APP. 30

3, 1975 while the proceeding at which

private counsel asserted a notice of ap-

peal had been filed was held on August

14, 1975. Moreover, suffice it to say

that "premature" as utilized in the con-

text of Williams, supra is inapposite

to the case at bar. Herein, counsel's

assertion implied that a notice of appeal

had been filed prior to the adjudication

of guilt and pronouncement of sentence.

Williams, supra, even if applicable, does

not illustrate that if counsel had filed

the notice of appeal prior to the senten-

cing proceeding, it could have been

treated as timely filed.

More importantly, counsel's conduct

only served to insure that the petitioner

would be denied his right to appeal his

conviction. The sentencing transcript

reveals that immediately following the

court's adjudication of guilt and pro-

nouncement of sentence, private counsel

APP. 31

stated the following:

THE COURT: . . .I'1ll adju-

dicate the defendant guilty,

sentence him to seven years

in the State prison.

MR. NEGRETTI: Your Honor,

at this time, Judge, we al-

ready filed a notice of ap-

peal. We ask for a superse-

deas bond.

The transcript goes on to reveal that the

trial judge never informed the petitioner

concerning his rights of appeal, contrary

to Florida Rule of Criminal Procedure

3.670.+ In this Court's view, counsel, by

his misrepresentation, foreclosed what-

ever potential may have then existed for

In pertinent part, Rule 3.670 provides:

"When a judge renders a final judgment of

conviction, withholds adjudication of guilt

after a verdict of guilty, imposes a sen-

tence, grants probation »%r revokes proba-

tion, he shall forthwith inform the defen-

dant concerning his rights of appeal there-

from, including the time allowed by law

for taking an appeal."" As to the effect

of noncompliance with this rule, see Nichols

v. Wainwright, 243 So.2d 430 detiuas T

1971); compare with Baker v. State, 224

APP. 32

compliance by the trial judge with Rule

3.670. As a practical matter, any likeli-

hood of inquiry by the court or manifesta-

tion of indigency and desire to appeal by

the petitioner necessary to invoke the

mandate of Douglas v. California, 373 U.

S. 353 (1963) was substantially lessened

by this false representation. The sensi-

tive and crucial nature of the stage of

the proceedings at which counsel's misre-

presentation occurred needs no further

elaboration. For these reasons, the

Court concludes that counsel's conduct

was indicative of a wilful or, at least,

reckless disregard of petitioner's rights,

and the responsibility placed upon an

attorney by the system. As we previously

stated, "such unconscionable actions lan-

guish to the level of conduct of counsel

So.2d 331 (3d Dist. 1969). The Supreme

Court of Florida has not taken a stand

on the substantive effect of a literal

noncompliance with 3.670 Robinson v.

Wainwright, 245 So.2d 867 (Fla. I97I).

APP. 33

‘so grossly deficient as to render the

proceedings fundamentally unfair.'" See

Fitzgerald v. Estelle, 505 F.2d 1334 (5th

Cir. 1975).

Secondly, respondent contends that pe-

titioner can only be granted relief if the

State was apprised of the deficiency of

counsel's representation, citing Malone

v. Alabama, 514 F.2d 77 (5th Cir, 1975).

Again, respondent's argument is without

merit.

This Court's ruling is based on

the law in the Fifth Circuit as establish-

ed in Fitzgerald v, Estelle, supra at

1336:

. .whenever a lawyer's in-

effectiveness has rendered a

trial fundamentally unfair,

whether he be retained or ap-

pointed and whether his action

or inaction was known or unknown

to state officials, a depriva-

tion of Fourteenth Amendment due

process results from enforcement

of the resultant judgment."

(emphasis supplied)

Malone, supra, did not alter the standard

articulated in Fitzgerald.

PP, 34

Finally, respondent has requested this

Court to reconsider its ruling on the

merits in light of a ruling by another

judge in this district on a case similar

to this one. In Taylor v. Wainwright,

Case No. 77-373-CIV-JLK, Judge Lawrence

King dismissed a federal habeas petition

alleging ineffective private appellate

counsel so that petitioner could further

exhaust state remedies by seeking relief

in the Florida Supreme Court. However,

the instant case is distinguishable from

the Taylor case, At page 5 of his order,

Judge King stated that "although petitioner

attempted to litigate the question of in-

effective private counsel in his petition

filed with the Third District, the response

by the State and the findings of the Com-

missioner indicated that only the ques-

tion of a state action denial of peti-

tioner's right to appeal was ever seri-

ously considered." Judge King therefore

APP. 35

concluded that the problem of res judi-

cata would not present itself if Taylor

presented his claim to the Florida

Supreme Court. See Jenkins v. Wainwright,

322 So.2d 477 (Fla. 1975). However, in

the instant case the District Court of

Appeal summarily denied petitioner's Peti-

tion for Habeas Corpus based on the fact

that petitioner was represented by pri-

vate counsel at trial. In addition, the

decision of the District Court reaffirms

the position that the Florida courts have

taken in regard to claims of ineffective

private counsel since 1967 in Capetta v.

Wainwright, 203 So.2d 609 (1967). In

U.S. ex rel. Reis v. Wainwright, 525 F.2d

1269 (1976), the Fifth Circuit, although

giving weighty consideration to principles

of comity, would not require the petition-

er therein to bring his claim of incompetent

trial counsel before the Florida appellate

courts. Similarly, given the posture of the

APP. 36

case at bar, this Court cannot countenance

what in all likelihood amounts to a waste

of judicial energy, both state and federal.

Petitioner's Petition for Rehearing is

therefore denied.

The question of whether to grant a stay

of this Court's order pending an appeal of

the merits rest on a consideration of four

factors: 1) the likelihood of success on

the merits; 2) whether the movant will

suffer irreparable injury if a stay is not

granted; 3) whether other parties will be

substantially harmed if a stay is granted;

and 4) the dictates of the public interest.

Belcher v. Birmingham Trust National Bank,

395 F.2d 685 (5th Cir. 1968); Virginia

Petroleum Job Ass'n v. Federal Power Com-

‘mission, 104 U.S. App. D.C. 106, 259 F.

2d 921 (1958). These factors apply when

a stay is sought, as in this case, pur-

suant to Rule 8 of the Federal Rules of

APP. 37

Appellate Procedure. Beverly v. United

States, 468 F.2d 732 (5th Cir. 1972). As

to the first factor, there appears to be

a reasonable chance of success on appeal.

Without compromising on what this Court

considers to be a sound distinction from

prior Fifth Circuit law on the subject,”

the Court notes that the Fifth Circuit has

not yet granted habeas relief on a claim

of ineffective appellate private counsel

without a demonstration of "state action."

Postel v. Beto, supra; Malone v. Alabama,

supra; Kallie v. Estelle, supra. Second-

ly there is no question that if the stay

is not granted the respondent will be pre-

cluded from appealing this decision on the

merits, due to the time limitation imposed.

Thirdly, the harm to other parties does

not appear to be substantial, as petitioner

Postel v. Beto, 508 F.2d 679 (5th Cir.

1975); Malone v. Alabama, 514 F.2d 77 (5th

Cir. 1975); Kallie v. Estelle, 515 F.2d

588 (5th Cir. 1975).

APP. 38

is not without appropriate remedy to

counterbalance any harm he may suffer

from a delay pending appeal. Finally,

the dictates of the public interest man-

date that the state be permitted an ap-

peal of this case.

For the above stated reasons, it is

ORDERED AND ADJUDGED that the Petition

for Rehearing is DENIED, and the Motion

for Stay Pending Appeal is GRANTED. This

Court's previous order signed on October

26, 1977 is in all respects reaffirmed.

DONE AND ORDERED at Miami, Florida,

this 1 day of December, 1977.

/s/ Syndey M. Aronovitz

United States District

Judge

cc: Karen Gottlieb, Esq.

Assistant Public Defender

1351 N.W. 12th Street

Anthony C. Musto, Esq,

Assistant Attorney General

8585 Sunset Drive, Suite 75

Miami, Florida 33143

APP. 39

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

NO. 78-1346

ANTONIO PEREZ, Petitioner-Appellee

vs.

LOUIE L. WAINWRIGHT, Secretary,

Department of Offender Rehabilitation,

State of Florida, Respondent-Appellant,

OPINION--May 1, 1979

Rehearing and Rehearing En Banc

Denied July 13, 1979

State prisoner filed petition for ha-

beas corpus. The United States District

Court for the Southern District of Florida,

at Miami, Sidney M. Aronovitz, J., 440 F.

Supp. 1037, granted relief, and respondent

appealed. The Court of Appeals, Alvin B.

Rubin, Circuit Judge, held that: (1) peti-

tioner had exhausted available state reme-

dies; (2) privately retained counsel's

representation in open court at time of

sentencing that he had filed notice of

APP. 40°

appeal when, in fact, no notice of ap-

peal had been filed was not so clear a

warning to the trial court of possibility

of dereliction as to result in state ac-

tion, even though notice of appeal filed

prior to sentencing would not have been

effective, and thus failure of the appeal

did not entitle defendant to relief under

the Six. Amendment on ground of incompe-

tence of counsel, and (3) under control-

ling precedents, conduct of counsel did

not result in such fundamental unfairness

as to amount to a denial of due process

under the Fourteenth Amendment.

Reversed.

Rober* L. Shevin, Atty. Gen., Anthony

C. Musto, Margarite Esquiroz, Asst. Attys.

Gen., Miami, Florida, for respondent-

appellant.

Karen M. Gottlieb, Asst. Public Defen-

der, Bennett H. Brummer, Public Defender,

Miami, Fla., for petitioner-appellee.

APP. 41

Appeal from the United States District

Court for the Southern District of Florida.

Before MORGAN, FAY and RUBIN, Circuit

Judges.

ALVIN B. RUBIN, Circuit Judge:

This case requires us to consider once

again the constitutional standards by which

the actions of counsel retained to defend

the accused in a state court proceeding

are to be measured when the lawyer has

been shown to have been derelict in his

duties. Antonio Perez brought this habeas

corpus petition attacking a seven year sen-

tence imposed after a jury verdict in a

Florida court. The sole ground of error

alleged is that retained counse1! failed

to perfect his appeal, after promising

Perez was originally represented by the

public defender. However, his family re-

tained private counsel, who represented

Perez at trial. The public defender has

represented Perez in this federal colla-

teral proceeding.

APP. 42

Perez to do so and falsely stating in

open court at the time of sentencing

that a notice of appeal had already been

filed.

After failing to secure habeas relief

in the Florida District Court of Appeal,

Perez filed a petition with the United

States District Court, alleging that he

had been denied the reasonably effective

assistance of counsel, guaranteed by the

sixth amendment, and that the proceeding

was rendered fundamentally unfair by his

lawyer's failure to perfect an appeal, in

violation of his right to due process under

the fourteenth amendment. The district

court, after finding that Perez had ex-

hausted the available state remedies, held

that Perez's sixth amendment rights had

not been violated because the state nei-

ther knew of counsel's failure nor was

involved in his dereliction; however, the

court agreed that Perez had been denied

APP. 43

due process of law under the fourteenth

amendment, and granted habeas corpus on

that basis.

The State has appeal from the order

granting habeas corpus, contending that

Perez did not exhaust available state

remedies and that, under the law of this

circuit, counsel's failure to appeal his

conviction did not render the proceedings

fundamentally unfair. While we agree that

Perez exhausted the available state reme-

dies, and that he was not entitled to the

protection of the sixth amendment, we are

procedent-bound to reverse the grant of

habeas corpus.

The court's finding that Perez exhaust-

ed available state remedies is manifestly

correct. The state pointed out that the

Supreme Court of Florida has not had an

opportunity to review its 1967 decision

in which it rejected incompetence of re-

tained counsel as a valid basis for post

APP. 44

conviction relief. Cappetta v. Wainwright,

Fla. 1967, 203 So.2d 609. The premise of

the argument is that the Supreme Court of

Florida might be disposed to change its

view after considering later decisions by

this and other courts in which similar

claims have been recognized; but we have

already considered and rejected this the-

sis in United States ex rel. Reis v.

Wainwright, 5 Cir. 1976, 525 F.2d 1269.

We there held that a Florida prisoner was

not required to seek any collateral relief

in the state appellate system before pre-

senting a claim of incompetent private

counsel to the district court. After re-

viewing Florida authority, we noted that

there was no indication that a Florida

court would depart from its line of deci-

sions that refused to recognize claims

based on the incompetence of retained

counsel. The speculation of the State

concerning what the Florida Supreme Court

APP. 45

might or might not do if it were presented

with Perez's claim,” is insufficient reason

for us to abandon our decision in Reis.

Having found that it was proper to examine

the petition, we now review the district

court's resolution of the constitutional

claims.

In an en banc decision, the circuit

examined the relationship between claims

based on counsel's dereliction brought