Brown v. Navarro
| Citation | 650 F. Supp. 657 |
| Decision Date | 22 December 1986 |
| Docket Number | No. 85-6382-Civ.,85-6382-Civ. |
| Parties | Sidney BROWN, Petitioner, v. Nick NAVARRO, Sheriff, and Jim Smith, Attorney General, Respondents. |
| Court | U.S. District Court — Southern District of Florida |
Blaise Picchi, Fort Lauderdale, Fla., for petitioner.
Penny Brill, Asst. Atty. Gen., W. Palm Beach, Fla., for respondents.
FINAL ORDER
THIS MATTER is before the Court upon the Petition For Writ Of Habeas Corpus filed by Sidney Brown pursuant to 28 U.S.C. Section 2254, wherein the Petitioner attacks the constitutionality of his conviction obtained by a plea of nolo contendre for one count of child abuse. The Petitioner was adjudicated guilty by the Honorable Patti L. Englander in the County Court, in the Seventeenth Circuit, in and for Broward County, Florida, and sentenced to one year reporting probation with a special condition that he serve ninety (90) days in the Broward County Jail, that he have no contact with his daughter, and that he undergo a psychological evaluation.
On August 29, 1983, the Petitioner filed Motions to set aside his sentence and to withdraw his plea on the grounds that he did not knowingly and intelligently waive his right to counsel before entering the plea. A hearing was held on the Motions on August 29, 1983 before Judge Englander and an evidentiary hearing was held on August 31, 1983, wherein the Petitioner testified. Judge Englander then entered a written Order denying the Motions. On May 10, 1985, the Circuit Court for the Seventeenth Judicial Circuit, in and for Broward County, Florida, affirmed the trial court's denial of the post-conviction Motions.
On May 14, 1985, the Petitioner filed the present Petition For Writ of Habeas Corpus. The Petition was referred to Chief United States Magistrate Peter R. Palermo for a Report and Recommendation. On August 20, 1985, the Magistrate recommended that the Petition be dismissed without prejudice because the Petition was "mixed" in that it asserted both exhausted and unexhausted claims. On June 23, 1985, the Petitioner filed a Notice of Waiver as to relief for his unexhausted claim, i.e., that he was denied due process and equal protection of the law due to the trial court's alleged failure to determine a factual basis for the plea and to follow Rule 3.111 of the Florida Rules of Criminal Procedure. Having waived his right to the unexhausted claim, the Petitioner presents only one issue which this Court must consider: whether the Petitioner knowingly, intelligently and competently waived his right to counsel before entering his plea.
The question of an effective waiver of a federal constitutional right is governed by federal standards. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The ultimate question of waiver is not one of historical fact but one that requires application of constitutional principles to the historical facts. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Such mixed questions of law and fact are not governed by the statutory presumption of correctness in Section 2254(d). Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); Allen v. State, 728 F.2d 1384 (11th Cir.1984); King v. Strickland, 714 F.2d 1481 (11th Cir.1983); Goodwin v. Balkcom, 684 F.2d 794 (11th Cir.1982, cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983). Thus, state findings concerning waiver are not accorded the statutory presumption. This Court, then, must look to the totality of circumstances to determine whether, in truth and in fact, a knowing waiver occurred. Jurek v. Estelle, 623 F.2d 929 (11th Cir.1980).
Under the proper constitutional standard, the state must prove "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The state points to the record as evidence of the Petitioner's relinquishment of his right to counsel. The record shows that the Petitioner was advised of his right to remain silent, his right to trial by judge or jury, the right to require the state to prove the charges beyond a reasonable doubt, the right to call defense witnesses and the right to an attorney. He was advised that if he could not afford an attorney, he had the right to have an attorney appointed. The record shows...
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