Howard v. State of Florida

• Decision Date: 17 October 1966
• Docket Number: 66-855.,Civ. No. 66-854
• Parties: Leonard Robert HOWARD, Petitioner, v. The STATE OF FLORIDA, Respondent.
• Court: U.S. District Court — Southern District of Florida

259 F. Supp. 499

Leonard Robert HOWARD, Petitioner, v. The STATE OF FLORIDA, Respondent.

Civ. Nos. 66-854, 66-855.

United States District Court S. D. Florida.

October 17, 1966.

Leonard Robert Howard, in pro. per.

Herbert P. Benn, and Barry N. Semet, Asst. Attys. Gen., Miami, Fla., for the State.

OPINION AND ORDER

FULTON, Chief Judge.

Petitioner has filed two Petitions for Writs of Habeas Corpus under 28 U.S.C. § 2254. He is presently imprisoned at Glades Detentional Institute for convictions arising from his pleas of guilty in two separate cases, and alleges the following grounds for relief:

1. That Petitioner was illegally arrested without a warrant (both cases).

2. That coercion was employed to force Petitioner to make a confession (robbery case).

3. That petitioner was detained for ten days after his arrest before being taken before a Justice of the Peace for preliminary hearing (both cases).

4. That Petitioner was denied assistance of counsel at the preliminary hearing (both cases).

5. That Petitioner was inadequately represented by court-appointed counsel.

6. That coercion was employed to force Petitioner to plead guilty (robbery case).

The transcript of the Criminal Court proceedings discloses that in 1963 an information was filed against Petitioner, charging him with breaking and entering with intent to commit a misdemeanor therein and petit larceny. At arraignment, after the Court appointed counsel for him, he pleaded guilty and was subsequently convicted. He was sentenced on the breaking and entering conviction and was placed on probation for the petit larceny conviction, sentencing being postponed.

About two years later, Petitioner was charged with violation of his probation, and another information was filed against him, this time for robbery. Once again he appeared at arraignment with court-appointed counsel and pleaded guilty to both charges. His probation was then revoked, and he was sentenced on the petit larceny conviction, as well as on the robbery conviction.

Those facts upon which the specific claims for relief are based will be set forth in conjunction with our disposition of the matters raised.

1. Petitioner first asserts that he was illegally arrested without a warrant. A naked allegation of illegal arrest is not grounds for the discharge of a state prisoner under 28 U.S.C. § 2254 unless Petitioner further claims that such arrest in some way deprived him of a fair trial. Fernandez v. Klinger, 346 F.2d 210 (9th Cir. 1965); Green v. Yeager, 223 F.Supp. 544 (D.C., N.J. 1963), aff'd, 332 F.2d 794 (3rd Cir. 1964); Madison v. Tahash, 249 F.Supp. 600 (D.C.Minn.1966); Nelson v. Hancock, 210 F.Supp. 60 (D.C.N.H.1962).

2. The requisite deprivation of a fair trial allegedly stems from the use of coercion to force Petitioner to make a confession. However, if there was a coerced confession, it was never used as evidence against the Petitioner —his convictions were upon pleas of guilty. A judgment on a plea of guilty which has been entered voluntarily on advice of counsel is not rendered invalid because Petitioner had made a confession which might have been inadmissible in evidence had Petitioner pleaded not guilty and gone to trial. The conviction in such a case is based upon the guilty plea and therefore cannot be collaterally attacked on this basis. The plea, if voluntarily and understandingly made, is conclusive as to Petitioner's guilt, admitting all facts charged and waiving all non-jurisdictional defects in prior proceedings against him. Therefore the confession cannot be the basis of collateral attack. Busby v. Holman, 356 F.2d 75 (5th Cir. 1966).

This determination should not be taken as a ruling that there was, in fact, a coerced confession. This Court holds only that the alleged coerced confession did not deprive Petitioner of a fair trial because it was never used as evidence against him. Using the same reasoning, Petitioner's contention that he was deprived of a fair trial by the use of his alleged coerced confession as evidence against his co-defendant must likewise be rejected.

3. Detention for ten days after his arrest before being taken to a Justice of the Peace for preliminary hearing is the third leg upon which Petitioner stands. Although the federal rule requires an arrested person to be taken without unnecessary delay before a committing magistrate, this rule has no application to a petitioner arrested on a state charge and in the custody of state officers. Merritt v. State of Florida, 359 F.2d 793 (5th Cir. 1966), Order, United States District Court, Southern District of Florida, June 3, 1966.

4. Next, Petitioner urges that he was denied assistance of counsel at his preliminary hearing. Complete lack of a preliminary hearing not being grounds for habeas corpus relief under 28 U.S.C. § 2254, a fortiori, lack of counsel to assist Petitioner at such hearing is not a proper basis for such relief unless something occurs at the preliminary hearing which operates to deprive the accused of a fair trial. (i. e., If a confession obtained from the accused at preliminary hearing, the accused not having assistance of counsel, is used as evidence against him at trial, then lack of counsel would properly support habeas corpus relief. Cf. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 1964).

5. Petitioner alleges that he was inadequately represented by court-appointed counsel in the breaking and entering and petit larceny cases in that he did not have sufficient time to confer with counsel, counsel did not advise him of his rights, counsel showed no interest in the case, and counsel did not seek evidence or cross-examine witnesses.

At Petitioner's request, counsel was appointed by the Court at arraignment. When counsel responded to the Court that he wished to confer with Petitioner, the arraignment proceedings were continued in order to give them an opportunity to confer.

Upon resumption of the arraignment proceedings later that morning, Petitioner was asked by the Court whether his counsel had "explained his rights" to him. Petitioner responded in the affirmative and the information was then read to him. He pleaded guilty, but before acceptance of the plea, the following questions were propounded to him by the Court and prosecutor:

MR. PALERMO: Has anyone promised you anything, or threatened you in any way to get you to plead guilty to these two counts?

THE DEFENDANT: No.

MR. PALERMO: You are pleading guilty because you did break in and you did take the goods?

THE DEFENDANT: Yes, sir.

THE COURT: All right, Leonard, you know you could receive up to five years in the State Prison on this charge? Mr. Giglio (Petitioner's counsel) explained that to you, didn't he?

THE DEFENDANT: Yes.

THE COURT: All right. This plea is being entered with your approval, Mr. Giglio?

MR. GIGLIO: Yes, your Honor.

THE COURT: All right, the Court will accept your plea under those conditions.

A petition for writ of habeas corpus challenging the competency of counsel must clearly allege a factual situation which, if established by competent evidence, would show that the trial was a farce or mockery of justice which shocks the conscience of the Court, or that the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. Busby v. Holman, supra; Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). Absent such an allegation, the petition should be dismissed.

Petitioner's charge that he was inadequately represented by counsel stands as a bald accusation, totally unsubstantiated by the transcript of the arraignment proceedings. He contends that he had insufficient time to confer with counsel, yet the record reflects that the proceedings were recessed to afford him just that opportunity. Furthermore, he alleges no facts to support his claim that the time afforded him was insufficient to confer and prepare for the arraignment.

He tells this Court that counsel did not advise him of his rights, yet he affirmatively testified to the Criminal Court that counsel had "explained his rights" to him. He urges that counsel failed to "seek evidence and cross examine witnesses," yet Petitioner pleaded guilty at arraignment, unabashedly admitting that he committed the acts charged, and never attempted to change the plea. In such a case, counsel is patently under no duty to seek evidence and cross-examine witnesses.

Lastly, Petitioner charges that counsel showed no interest in the case, and here again, he alleges no facts to support his accusation.

Not only has Petitioner failed to allege facts supporting his allegations, but the transcript, as cited above, reveals that even at the arraignment, Petitioner considered himself to be adequately advised and represented. This Court cannot allow him to now take an unfounded contradictory position, flagrantly ignoring his prior unequivocal statements which were made under oath. It is obvious that Petitioner has failed to sustain his burden of alleging facts showing that the representation by counsel was only perfunctory, in bad faith, a sham or even without adequate opportunity for conference and preparation.

Petitioner further alleges that he was inadequately represented by court-appointed counsel in the robbery and revocation of probation matters in that he did not have sufficient time to confer with counsel, counsel advised him to withdraw his plea of not guilty and plead guilty, and counsel was not acting in Petitioner's best interests.

Once again, Petitioner was carefully questioned by the Criminal Court and the prosecutor before his plea was accepted:

MR. ALLBRITTON: Has sic any make this plea of your own free will and accord?

DEFENDANT HOWARD: Yes, sir.

MR. ALLBRITTON: Has sic any promises or threats been made to you in order to get you to enter this plea?

DEFENDANT HOWARD: No, sir.

MR. ALLBRITTON: Have you talked this over with your attorney, Mr. Spicola,

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