Paulson v. State of Florida, Civ. No. 73-126.

Decision Date14 June 1973
Docket NumberCiv. No. 73-126.
PartiesJames William PAULSON v. The STATE OF FLORIDA.
CourtU.S. District Court — Southern District of Florida

Barrett, Diliberto & Estrumsa by Shaya Estrumsa, Miami, Fla., for petitioner.

Robert L. Shevin, Atty. Gen., by Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent.

ORDER OF DISMISSAL

KING, District Judge.

JAMES LAWRENCE KING, District Judge.

James William Paulson's petition for habeas corpus relief from his Florida conviction and sentence presents the question of whether the use as evidence in his felony trial of fingerprints taken after his allegedly invalid arrest on the misdemeanor charge of public intoxication violated the fourth and fourteenth amendments.

The state trial court found that the warrantless arrest petitioner challenges was justifiably delayed some five hours after the arresting officer witnessed the misdemeanor because he was in the midst of, and unavoidably detained by, an emergency late-night mission to aid a young woman who was seriously ill. It is undisputed that if the trial court should have suppressed the fingerprints as the poisonous fruit of an invalid arrest, habeas relief must be granted because petitioner would not otherwise have been convicted. The fingerprints provided the sole corroboration for the testimony of an accomplice upon which the State based its felony case against Paulson, and corroboration of an accomplice's testimony is required by Florida law.

PROCEDURAL HISTORY

Following his conviction for grand larceny and breaking and entering, petitioner was sentenced on June 9, 1971, by the Criminal Court of Record in and for Dade County to three years of confinement on each of the two counts for which he is now serving concurrent terms. His timely appeal to the Third District Court of Appeal, which raised the issues he reasserts here, was denied on February 1, 1972. Paulson v. State, 257 So.2d 303 (Fla.App.1972). Petitioner then promptly sought federal habeas relief in this division which was denied without prejudice for failure to exhaust state remedies. Paulson v. State, Civil No. 72-455-Civ-JLK (S.D.Fla. June 9, 1972).

Paulson now returns with this action pursuant to 28 U.S.C. § 2254 (1970), having been denied permission without explanation to pursue the remedy contemplated by our prior order to the state's highest court. Thus, to withhold federal habeas corpus relief on a deliberate bypass theory cannot now be justified, since petitioner's initial failure to pursue his direct appeal in the state courts can hardly be deemed an intelligent and understanding waiver under these circumstances. Fay v. Noia, 372 U.S. 391, 399, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Piazzola v. Watkins, 442 F.2d 284, 286 (5th Cir. 1971) cf. Wynn v. Smith, 446 F.2d 341, 345 & n.5 (5th Cir. 1971).

This present record also compels the conclusion that Paulson has exhausted all available state remedies. He has "had his claims considered by the highest court of the state on direct appeal" possible under Florida law. McCluster v. Wainwright, 453 F.2d 162, 164 & n.4 (5th Cir. 1972); Williams v. Wainwright, 452 F.2d 775 (5th Cir. 1971); Bartz v. Wainwright, 451 F.2d 663 (5th Cir. 1971). Moreover, if the state courts have not here "made it clear . . . that they are unreceptive to petitioner's claims" sufficiently to obviate the § 2254 requirement that he reiterate them in such collateral state proceedings as are open to him, 453 F.2d at 164 & n.3, it is clear that the federal habeas exhaustion requirement does not apply where further state relief is in reality unavailable. Williams v. Wainwright, 452 F.2d 775, 777 (5th Cir. 1971); Wynn v. Smith, 446 F.2d 341, 345 (5th Cir. 1971); Piazzola v. Watkins, 442 F.2d 284, 286-287 (5th Cir. 1971). Consequently, where, as here, the questions presented have been fully discussed and decided on direct appeal in the Florida courts and will be held res judicata under state law in a collateral proceeding, Jones v. Wainwright, 252 So.2d 570, 571 (Fla.1971), petitioner will not be remitted to the state courts to pursue an illusory remedy, thereby leaving him without a practical forum in which to assert his substantial constitutional claims. McCluster v. Wainwright, 453 F.2d 162, 164 & n.5 (5th Cir. 1972); Wynn v. Smith, 446 F.2d 341, 345, 347 (5th Cir. 1971).

LEGALITY OF ARREST

Petitioner contends that his arrest on the misdemeanor charge was invalid under Fla.Stat. § 901.15(1), (1971) because it was made, not "immediately or in fresh pursuit" as the statute commands, but some five hours after the arresting officer had witnessed his public intoxication. Where the validity of a warrantless arrest by state officers for a state offense is challenged in a habeas corpus proceeding, state law governs so long as it comports with constitutional standards. Johnson v. Middlebrooks, 383 F.2d 386, 387 (5th Cir. 1967); Rodrigues v. Hanchey, 359 F.2d 724 (5th Cir. 1966); Lawrence v. Henderson, 344 F.Supp. 1287, 1290 & n.7 (E.D.La.1972); see Ker v. California, 374 U.S. 23, 37, 83 S.Ct. 1623, 10 L.Ed. 2d 726 (1963); Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Johnson v. United States, 333 U.S. 10, 15 n.5, 68 S.Ct. 367, 92 L. Ed. 436 (1948); United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); cf. Lathers v. United States, 396 F.2d 524, 529-531 & n.5 (5th Cir. 1968).

But we have no occasion here to impose upon the courts of Florida our analysis of their law. The trial court found the facts and decided the state law question adversely to petitioner in ruling on his motion to suppress. Petitioner does not object to the completeness or fairness of the state court hearing and resultant findings of fact, although he disagrees factually with the result. Under these circumstances, a state court's findings and their application to state law is "presumed to be correct" on federal habeas corpus review pursuant to 28 U.S.C. § 2254(d). Hill v. Dutton, 440 F.2d 34 (5th Cir. 1971), cert. denied 404 U.S. 845, 92 S.Ct. 145, 30 L.Ed.2d 81 (1971); Braxton v. Wainwright, 473 F.2d 1371 (5th Cir. 1973).

SUFFICIENCY OF TRIAL COURT HEARING

Application of the § 2254(d) presumption is not necessarily affected by the fact that this court has not been provided with the trial court record on the motion to suppress. Although a state appellate court's narrative recital of facts may not be the equivalent of findings made by the trial court, Beck v. Ohio, 379 U.S. 89, 93, 85 S.Ct. 223, 226, 13 L.Ed.2d 142 (1964), we think it may sometimes provide, if only in the rare case, a sound basis "for the District Court to reconstruct the findings of the state trier of fact" without the necessity of conducting a de novo hearing. Townsend v. Sain, 372 U.S. 293, 314, 83 S.Ct. 745, 758, 9 L.Ed.2d 770 (1963).

In ruling on petitioner's direct appeal, the Third District Court of Appeals held that "the record supports the view of the trial court that the arrest for public drunkenness was postponed because it was impractical at the time the offense was committed in the presence of the officer, due to the emergency situation." Paulson v. State, 257 So.2d 303, 305 (Fla.App.1972). The fact that the court proceeded immediately to differentiate its own alternative holding emphasizes the reliability of its report of the trial court's decision. Further support derives from the nature of petitioner's factual disagreement with the trial court's findings. He suggests only that the indicia of his intoxication were insufficient to justify his arrest and that the emergency was too short-lived to prevent his prompt detention—precisely the issues adverted to by the appellate report of the trial court's ruling. If he does not in fact concede it, petitioner nowhere disputes the fact that his "claim was rejected on the merits" and that the trial court "actually reached and decided the issues of fact tendered" by him. Townsend v. Sain, 372 U.S. at 314, 83 S.Ct. at 757. Thus, we conclude by clear implication from the appellate report and the pleadings that the state court actually found the material facts in ruling on the motion to dismiss.

A hearing might nonetheless be necessary were it not for the circumstance that reconstruction of the trial court's findings of fact is here unobscured by the possibility that its ruling resulted instead from error in applying constitutional standards. The trial court had first to confront the question of the legality of the arrest under Fla. Stat. § 901.15(1), 1971. Assuming that the facts showed it to be illegal, there would have been no occasion to inquire whether such an arrest might nonetheless be constitutionally permissible. To assume, conversely, that constitutional standards are more demanding than those of the Florida law would be to presume unnecessarily that the state statute is unconstitutional on its face, contrary to the general rule that state statutes are presumptively constitutional. Cf. Wells v. Hand, 238 F.Supp. 779 (M.D.Ga.1965) affirmed sub nom. Wells v. Reynolds, 382 U.S. 39, 86 S.Ct. 160, 15 L.Ed.2d 32 (1965); Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963).

Assuming therefore, without deciding, that the statute is constitutional on its face, the question narrows to whether its application in this instance passed outside constitutional bounds. Yet even if it did, reconstruction of the trial court's findings is in no way blurred by the possible application of an erroneous standard: the fact findings made by the state court as it passed beyond the limits of constitutionality had still to accord with the prerequisites of the state statute. Because the Florida law requires the actual commission of a misdemeanor in the presence of the arresting officer, the state court's refusal to suppress required a finding that petitioner was actually intoxicated in the presence of the police. See e.g. City of Miami v. Clarke, 222 So.2d 214 (Fla.App.1969). The trial judge...

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