Cook v. Florida Parole and Probation Com'n, 83-5786

Decision Date02 January 1985
Docket NumberNo. 83-5786,83-5786
PartiesDennis M. COOK, Petitioner-Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, and Jim Smith, Attorney General, State of Florida, Respondents-Appellees. Non-Argument Calendar.
CourtU.S. Court of Appeals — Eleventh Circuit

Dennis M. Cook, pro se.

Enoch J. Whitney, Tallahassee, Fla., Cailianne P. Lantz, Asst. Atty. Gen., Florida Dept. of Legal Affairs, Miami, Fla., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, HILL and ANDERSON, Circuit Judges.

PER CURIAM:

Appellant/petitioner Cook appeals from the district court's dismissal of his habeas corpus petition for failure to exhaust state remedies. A resolution of this appeal depends on the peculiar circumstances present in this case.

In 1972, Cook was sentenced to life imprisonment after pleading guilty in Florida state court to one count of rape. He was released on parole in 1978. In 1979, he was arrested in New York on rape and sodomy charges, tried and found guilty. He is presently incarcerated in a correctional facility in New York state, where he is eligible for parole in November, 1986. After his 1979 arrest, Florida issued a warrant for retaking Cook as a parole violator. New York lodged this warrant in 1980, indicating that it would make arrangements to return Cook to Florida for a parole revocation hearing when he was released from incarceration in New York.

In July, 1981, Cook filed a motion for post-conviction relief in the Florida circuit court, alleging various constitutional violations leading to his 1972 Florida guilty plea. No action was taken on this motion for over a year, due to an alleged clerical error in failing to calendar the motion. In July, 1982, petitioner filed an application for writ of mandamus with a Florida appellate court to compel the Florida circuit court to render a decision on his original motion. This was denied on the basis that proceedings had commenced in the trial court. In September, 1982, after determining that Cook's presence was necessary for an evidentiary hearing on his motion, the Florida trial court ordered the state to transport him from New York to Florida for a hearing. In October, 1982, New York responded that they could release petitioner only to stand trial for an untried indictment or complaint, and that they would not release petitioner to Florida until he was paroled from New York state. On July 27, 1983, the Florida court entered another order declaring petitioner to be a material witness in post-conviction relief proceedings and requesting his presence at an evidentiary hearing. New York apparently never responded to that order.

In February 1983, Cook filed this pro se habeas petition in federal court in Florida, alleging constitutional violations leading to and arising out of his Florida conviction, and contending that he was being denied access to Florida state courts. A United States Magistrate recommended that the petition be dismissed for failure to exhaust state remedies, finding that Florida was proceeding "belatedly but in good faith" with Cook's pending post-conviction motion. On November 1, 1983, the district court accepted the recommendation and dismissed the petition for lack of exhaustion. Cook appeals, contending that Florida's delay in ruling on his state habeas motion (it has now been almost three and one-half years since the motion was filed) excuses him from the exhaustion requirement.

DISCUSSION

The exhaustion requirement of 28 U.S.C. Sec. 2254(b) is not jurisdictional, and does not restrict a court's power to grant relief in appropriate cases where state remedies ineffectively protect the rights of a prisoner. See St. Jules v. Beto, 462 F.2d 1365, 1366 (5th Cir.1972) (per curiam). State remedies will be found ineffective and a federal habeas petitioner will be excused from exhausting them in the case of unreasonable, unexplained state delays in acting on the petitioner's motion for state relief. Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir.1978); Reynolds v. Wainwright, 460 F.2d 1026 (5th Cir.), cert. denied, 409 U.S. 950, 93 S.Ct. 294, 34 L.Ed.2d 221 (1972); Dixon v. Florida, 388 F.2d 424 (5th Cir.1968). However, we do not think exhaustion should be excused under the peculiar circumstances of our present case.

Save for an initial one year delay allegedly resulting from a clerical error, the state's delay in ruling on Cook's motion cannot be deemed unreasonable or unjustified. The state is not merely dragging its feet, but is trying to hold a fair hearing on the motion. The failure of the motion thus far to be resolved can be blamed on two factors: Florida's desire to grant petitioner a full and fair hearing requiring his presence; and the petitioner's own activities which have resulted in his being incarcerated in New York and unavailable for a hearing. Under these circumstances, we can not say that Florida's delay in ruling...

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  • Hollis v. Davis
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 18, 1991
    ...if the state court has unreasonably or without explanation failed to address petitions for relief. Cook v. Florida Parole and Probation Com'n, 749 F.2d 678, 680 (11th Cir.1985) (per curiam ). St. Jules v. Beto, 462 F.2d 1365, 1366 (5th Cir.1972) (per curiam ). Rheuark v. Wade, 540 F.2d 1282......
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    • U.S. Court of Appeals — Eleventh Circuit
    • September 25, 1990
    ...if the state court has unreasonably or without explanation failed to address petitions for relief. Cook v. Florida Parole and Probation Com'n, 749 F.2d 678, 680 (11th Cir.1985) (per curiam). St. Jules v. Beto, 462 F.2d 1365, 1366 (5th Cir.1972) (per curiam). Mr. Hollis' most recent state pr......
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