Arnold v. Wainwright

Decision Date04 August 1975
Docket NumberNo. 74-2724,74-2724
PartiesCarl Everett ARNOLD et al., Petitioners-Appellants, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Bruce S. Rogow, Miami, Fla. (Court appointed), Louis Jepeway, Jr., Miami, Fla., for petitioners-appellants.

Phillip A. Hubbart, Public Defender, Eleventh Judicial Circuit, Bennett H. Brummer, Asst. Public Defender, Miami, Fla., amicus curiae.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., William L. Rogers and Linda C. Hertz, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.

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

Before WISDOM, SIMPSON and RONEY, Circuit Judges.

SIMPSON, Circuit Judge:

This case is before us on appeal for the second time. The district court initially denied the petitioners' requests for habeas corpus relief without conducting an evidentiary hearing, from which rulings the petitioners took separate appeals. We consolidated the appeals and remanded for a hearing to determine the answers to specific questions. Wells v. Wainwright, 5 Cir. 1973, 488 F.2d 522. Before us now are the answers found by the district court at the required hearing, upon which we may decide whether the prior denial of habeas corpus relief was correct. 1 We conclude that it was and affirm.

Each of the four petitioners was tried by jury upon a not guilty plea and convicted of a felony offense in a Dade County, Florida court. 2 Subsequently to their convictions the Florida Supreme Court decided that the jury selection system which had been in operation in Dade County at the time of the petitioners' trials was unconstitutional. State v. Silva, Fla.1972, 259 So.2d 153, 158. 3 The Florida court also ruled, however, that relief under its holding would not be available to those who had failed to comply with the provisions of Fla.R.Crim.P. 3.290, which requires that challenges to the jury panel be made prior to the questioning for service of any prospective juror. The rule states:

Rule 3.290 Challenge to Panel

The state or defendant may challenge the panel. A challenge to the panel may be made only on the ground that the prospective jurors were not selected or drawn according to law. Challenges to the panel shall be made and decided before any individual juror is examined, unless otherwise ordered by the court. A challenge to the panel shall be in writing and shall specify the facts constituting the ground of the challenge. Challenges Admittedly, the appellants-petitioners, each represented by counsel prior to and during trial, each failed timely to challenge their trial jury panels in compliance with the Florida procedural rule. They seek federal habeas corpus under Title 28, U.S.C., § 2254 to avoid the effect of the Florida Supreme Court Silva holding barring relief.

to the panel shall be tried by the court. Upon the trial of a challenge to the panel the witnesses may be examined on oath by the court and may be so examined by either party. If the challenge to the panel is sustained, the court shall discharge the panel. If the challenge is not sustained, the individual jurors shall be called.

The issue is whether state prisoners alleging that concededly unconstitutional methods were used in the selection of their petit jury arrays may be barred from federal habeas relief because of failure to comply with state procedural law. Our analysis proceeds in two steps. First we must determine whether, applying federal standards, failure to comply with state procedural law constitutes a waiver of the right to challenge the petit jury composition on federal habeas corpus. Second, we must determine whether, in the event waiver is found, appellants are entitled under any theory to be relieved of the preclusive effect of their failure to comply with state law.

On the waiver issue, petitioners contend that they cannot be held to have waived their right here to challenge the composition of their respective petit jury panels because there is no showing of deliberate by-pass of available state procedures. Fay v. Noia, 1963, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837, 869. The appellee disputes the applicability of the deliberate by-pass standard in the context of this case, asserting that the question of statutory waiver must be decided under the failure to object standard enunciated in Davis v. United States, 1973, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216. The choice between the two approaches is no longer an open one in this circuit. In Rivera v. Wainwright, 5 Cir. 1974, 488 F.2d 275, we held: (i) that the failure to object standard is to be applied in determining waiver vel non under the same Florida procedural rule involved in this case; and (ii) that failure to comply with the provisions of the rule did indeed constitute a waiver for purposes of federal habeas corpus proceedings. We have followed the Rivera approach in a succession of cases. 4 Under our recent decisions appellants have waived their rights to raise the jury selection issue absent some finding of cause to excuse the waiver. 5

The question before us then is whether the appellants are entitled to relief from the preclusive effect of their waiver under any established theory of law. Under the analogous federal rule, 6 Our decisions teach that a petitioner may be relieved of the effect of his waiver where he is able to demonstrate actual prejudice to his rights from the unconstitutional proceedings of which he complains. See, e. g., Newman v. Henderson, 5 Cir. 1974, 497 F.2d 544, cert. granted sub nom. Francis v. Henderson, 1975, --- U.S. ---, 95 S.Ct. 1674, 44 L.Ed.2d 99. These appellants do not allege actual prejudice arising from the jury selection system and the district court expressly found on remand that they suffered no prejudice. 8

                the courts are expressly permitted to excuse failure to make timely challenges to the grand jury array for "cause shown".  There is no such relief clause in the Florida statute, however, and Florida courts insist upon compliance with the Rule's timeliness requirements.  7  In these circumstances this court has interpreted its duty under Fay v. Noia, supra, as one to provide relief from the waiver in limited circumstances.  Dumont v. Estelle, 5 Cir. 1975, 513 F.2d 793, at 797
                

What is not clear from our prior holdings is whether a petitioner may be relieved of the effect of his waiver by virtue of a state procedural rule where he demonstrates "cause" but makes no showing that he was actually prejudiced by the unconstitutional jury selections system. 9 Since we find that the appellants The appellants address the cause shown issue in terms of the question, which we directed to the district court on remand, of whether their trial attorneys could have uncovered the fact of unconstitutional jury selection in a timely fashion through the exercise of reasonable diligence. The district court found that the attorneys had failed to exercise reasonable diligence inasmuch as the information, available upon request, was undiscovered for want of inquiry.

have failed to demonstrate cause to excuse their waiver under the state rule, we do not reach that question.

Appellants contend that the cause issue must be viewed with reference to the fact that the jury selection system in operation in Dade County consistently produced apparently racially representative arrays. Attorneys, judges, and other responsible court officials had no reason against this backdrop to suspect the existence of the defect in the selection system. It was in fact only by accident that the peculiar unconstitutionality condemned in State v. Silva, supra, was uncovered at all. 10 Because the discriminatory selection system had no readily apparent effect, appellants contend that their cases are factually distinguishable from earlier waiver cases where cause was not found to have been demonstrated, but where the fact of discrimination was characterized as "notorious", e. g., Shotwell Mfg. Co. v. United States, 1963, 371 U.S. 341, 363, 83 S.Ct. 448, 461, 9 L.Ed.2d 357, 372. On this basis they urge that we find cause here.

Appellants assert also that their attorneys, in failing to challenge the jury selection system, performed in accord with the norm for criminal defense attorneys in Dade County when they were tried because no one had thought to challenge the system during the six years of its operation. They rely in this connection upon language in Tollett v. Henderson, 1973, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235:

We hold that after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity. A state prisoner must, of course, prove that some constitutional infirmity occurred in the proceedings. But the inquiry does not end at that point, as the Court of Appeals apparently thought. If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, supra (397 U.S. 759) at 771 (90 S.Ct. 1441 at 1449, 25 L.Ed.2d 763). Counsel's failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof. Thus, while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief.

Id. at 266-67, 93 S.Ct. at 1607-08, 36 L.Ed.2d at 243. The argument proceeds that an attorney...

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