Dorman v. Wainwright

• Decision Date: 09 September 1986
• Docket Number: No. 85-3512,85-3512
• Citation: 798 F.2d 1358
• Parties: Richard T. DORMAN, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Etc., et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1358

798 F.2d 1358

Richard T. DORMAN, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Etc., et al., Respondents-Appellants.

No. 85-3512.

United States Court of Appeals, Eleventh Circuit.

Sept. 9, 1986.

Jim Smith, Atty. Gen., Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, Fla., for respondents-appellants.

James E. Whittemore, Tampa, Fla., for petitioner-appellee.

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

Before JOHNSON and ANDERSON, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

GARZA, Senior Circuit Judge:

Nature of the Case

This habeas corpus appeal involves the denial of petitioner's constitutional right to self-representation as articulated in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Petitioner was charged and convicted of grand theft in the Circuit Court of the 13th Judicial District, Hillsborough County, Florida. After a long complicated procedural history pursuing state relief, petitioner exhausted his state remedies and applied to the federal district court for habeas corpus relief. The United States District Court for the Middle District of Florida found that petitioner's constitutional rights under Faretta had been denied and granted the Great Writ. The State of Florida now appeals from this judgment. Finding a grave violation of petitioner's constitutional rights, we affirm.

I. Facts and Procedural History

A. The State Court Proceeding

On or about January 17, 1978, the State Attorney of Hillsborough County, Florida filed an information charging Richard T. Dorman ("Dorman" or "petitioner") with grand theft in the second degree. From the outset of the prosecution, Dorman asserted his desire to proceed pro se, which was continually denied. The involved procedural history of Dorman's efforts to be his own lawyer is probably best summarized in the following chronology of events:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In petition Number 79-1264, Dorman alleged the following grounds for habeas corpus relief:

1) unconstitutional identification;

2) denial of fair trial due to the prejudice of the trial judge;

3) insufficient evidence to support a conviction.

In petition Number 79-1290, Dorman alleged two other grounds for relief;

4) denial of his right to a speedy trial; and

5) denial of his right to proceed pro se.

In its response to Magistrate Game's show cause order, the state contended that four of the grounds for relief raised by Dorman in the federal forum could have been raised on direct appeal to the state To the claim that Dorman was denied a fair trial due to the prejudice of the trial judge, the state argued that this complaint had not been presented in the state court pursuant to a Rule 3.850 motion. ¹¹ Therefore, Dorman had failed to exhaust his state remedies and this claim could not "be the subject of federal habeas review". 1 Record, doc. 7, para. VII.

                Court of Appeals. 10   Consequently, Dorman's voluntary dismissal of his direct appeal constituted a deliberate bypass of state procedure as mentioned in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) and therefore, Dorman was precluded from raising these issues in federal court
                

In response to the state's motion to dismiss on grounds of deliberate bypass and failure to exhaust state remedies, Dorman contended that the deliberate bypass rule of Fay v. Noia was inapplicable to these facts because the dismissal of his direct appeal was not done "knowingly and understandingly in order to secure some benefit to the Petitioner". 1 Record, doc. 25. Dorman also claimed that it was the state's undue delay in the preparation of the trial transcript that caused him to dismiss the appeal, which resulted in a vain attempt to obtain speedier review of his conviction. He summarized the countless attempts he had made to present every available ground of relief to the state courts, both at the trial and at the appellate level, and to give the state the opportunity to "apply controlling legal principles to the facts bearing upon his constitutional claim". 1 Record, doc. 25 at p. 3. Dorman contends that his efforts more than satisfied any exhaustion defense that the state might raise. Id.

Magistrate Game scheduled an evidentiary hearing to pass on the issues of deliberate bypass and failure to exhaust state remedies. In his report Magistrate Game recommended that Dorman's petition be denied. Specifically, the magistrate found that 1) there was no basis in fact to the claim of an unconstitutional identification of Dorman by the victim because the trial transcript disclosed that the victim was well known by Dorman prior to the crime, 2) the alleged prejudice of Judge Coe against Dorman "relates solely to his dissatisfaction with the judge's (sic) decisions", (3) even if Dorman's factual allegations were true, they were "insufficient to form a basis for disqualification of the judge (sic) nor do the facts asserted establish a basis for habeas corpus relief in this Court", 4) there was sufficient evidence supporting the conviction to pass constitutional muster under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 5) Dorman's denial of his right to a speedy trial under state law did not present facts that would establish denial of his right to a speedy trial under the Constitution; and 6) the alleged denial of Dorman's right to represent himself at trial "is not borne out of the record."

On this last finding the magistrate held that "[a]t no time, at the trial court level, did he [Dorman] waive his right to appointed counsel" and that even though in a letter to Judge Coe he asked to be relieved of appointed counsel Dorman "did not express a desire to represent himself." Magistrate Game concluded that "[p]etitioner has failed to satisfy his burden of proof that he was forced to accept representation of counsel or that he voluntarily and intelligently elected to defend himself without counsel." The magistrate did not reach nor discuss the issue of deliberate bypass, an argument raised by the state in regard to Dorman's voluntary dismissal of his direct appeal. Needless to say, Dorman timely objected to all of the magistrate's findings and conclusions.

The United States District Court, Judge William J. Castagna, rejected the magistrate's report and recommendation in its entirety. ¹² Because the magistrate did not explicitly discuss the issue of deliberate bypass, the district court presumed that this issue had been resolved in Dorman's favor. Ruling that the state had not demonstrated that Dorman's dismissal of his direct appeal was an "intentional relinquishment of abandonment of a known right or privilege [citing Fay v. Noia]", the court reasoned that the appeal was dismissed because of the incorrect advice of a jailhouse lawyer and that Dorman had gained no tactical advantage from the dismissal of his direct appeal. In short, the state had not demonstrated that Dorman had made a "knowing and informed decision to bypass review under state procedures".

On the merits of Dorman's claims, the court found no basis for relief on the first four contentions but noted that the magistrate's factual findings and legal conclusions regarding Dorman's constitutional rights under Faretta were not "realistic". The court rejected the conclusion of the magistrate that Dorman had never explicitly stated that "he wanted to represent himself." The only factor that the district court could find in support of the magistrate's recommendation was Dorman's failure to discharge his second appointed counsel (Timmerman), a private attorney, a fact which could be interpreted as a desire by Dorman to represent himself only if the remaining option was the public defender's office. The district court found that "[s]uch conjecture is not justified on this record" and that "[t]he fact that Tinneman (sic) was not ever discharged and was not a public defender does not negate the fact that the state court trial judge continually denied Petitioner's clear desire to represent himself." The court concluded that Dorman "clearly invoked his right of self-representation sufficient to comply with the teachings of Faretta v. California and that the trial court denied him that significant constitutional right." ¹³

In response to the district court's order, the state filed a "Motion For New Trial or to Alter or Amend Judgment", which raised the "cause and prejudice" doctrine for the first time in these proceedings. ¹⁴ The district court entered a second Order (of June 20, 1985) granting a stay of its first Order pending appeal of the case to the Eleventh Circuit Court of Appeals. The court adhered to its original judgment, however, and entered supplemental findings and conclusions in support of its decision to grant Dorman relief.

In its second Order, the district court addressed several contentions raised by the state in its motion for new trial: 1) that the court had improperly considered Dorman's subjective intent in regard to the dismissal of his direct appeal, 2) that under Wainwright v. Sykes Dorman did not satisfy the requirement of cause and prejudice sufficient to obtain review of his claim by a federal district court, 3) that the disposition of Dorman's federal habeas petition No. 79-528 resolved the issue of Dorman's dismissal of the direct appeal in favor of the state, and 4) that Dorman allegedly waived his right of self-representation when he failed to object to the appointment of private First, the district court noted that it had relied on Buckelew v. United States, 575 F.2d 515, 519 (5th Cir.1978) in making its finding on the deliberate bypass issue and that Buckelew was still good law. Second, in regard to the issue of procedural default under Wainwright v. Sykes, the court concluded that Dorman's case fell within the purview of the cause and prejudice standard "as interpreted by the Eleventh Circuit subsequent to...