Huffman v. Wainwright, No. 80-5237

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore TUTTLE, RONEY and VANCE; PER CURIAM
Citation651 F.2d 347
Decision Date20 July 1981
Docket NumberNo. 80-5237
PartiesDavid HUFFMAN, Petitioner, v. Louie L. WAINWRIGHT, Secretary, The Department of Offender Rehabilitation, etal., Respondents. . Unit B

Page 347

651 F.2d 347
David HUFFMAN, Petitioner,
v.
Louie L. WAINWRIGHT, Secretary, The Department of Offender
Rehabilitation, etal., Respondents.
No. 80-5237.
United States Court of Appeals,
Fifth Circuit.
Unit B
July 20, 1981.

Page 348

David Huffman, pro se.

Claude H. Tison, Jr., Tampa, Fla., for petitioner.

Jim Smith, Atty. Gen., Tallahassee, Fla., Michael A. Palecki, Michael J. Kotler, Asst. Attys. Gen., Tampa, Fla., for respondents.

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

Before TUTTLE, RONEY and VANCE, Circuit Judges.

PER CURIAM:

David Huffman was probably convicted by an unconstitutionally selected jury. At issue on this appeal is whether the federal courts are barred from reviewing Huffman's conviction in habeas corpus proceedings under the law governing waiver as stated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and cases of this Circuit. Because the record is not sufficient on certain determinative points, we reverse and remand the denial of habeas corpus relief for the district court to hold an evidentiary hearing and determine

Page 349

(1) whether there was an adequate challenge to the jury venire before trial; (2) whether the challenge was waived on the state appeal; (3) whether, if the challenge was inadequate, there was cause for the failure to challenge; and (4) if so, whether prejudice resulted from the asserted constitutional defect. Undergirding habeas corpus relief, of course, would be a decision that Huffman's jury venire was drawn in the same manner found unconstitutional in Jordan v. State, 293 So.2d 131 (Fla.App.1974).

Huffman was convicted by a Sarasota County, Florida jury in 1972 on charges of rape and breaking and entering with intent to commit a felony. He petitioned the district court for a writ of habeas corpus alleging that blacks were systematically excluded from the jury venire thereby depriving him of his right to trial by an impartial jury chosen from a representative cross section of the community. The district court denied the petition for the reason that Huffman had failed to raise this claim on direct appeal and had therefore waived his right to litigate the issue in a federal habeas corpus proceeding.

The law is clear. Even if Huffman's jury was unconstitutionally selected, that fact alone will not invalidate his conviction if he accepted the jury without making the proper constitutional challenge. See Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Evans v. Maggio, 557 F.2d 430 (5th Cir. 1977); Marlin v. Florida, 489 F.2d 702 (5th Cir. 1974); Rivera v. Wainwright, 488 F.2d 275 (5th Cir. 1974). A defendant's failure to comply with established state procedures can cause him to waive his right to complain about a constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The state can restrict the time within which the constitutional attack must be made, after which the defendant will be deemed as a matter of law to have waived his right to attack the defect, or, in other words, the defendant will be deemed to have accepted the jury. See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955); Ratcliff v. Estelle, 597 F.2d 474 (5th Cir. 1979).

An exception to this waiver-by-failure-to-challenge rule exists, however, where the failure was for cause and the defendant can show that prejudice resulted from the constitutional defect and affected his conviction. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Jiminez v. Estelle, 557 F.2d 506 (5th Cir. 1977). The application of this "cause and prejudice" exception to the present case is discussed in detail below.

The first question always in this kind of case is whether the defendant did in fact sufficiently challenge the jury venire within the time required. Uncertainty here is present because although the attorney did timely question the all-white jury venire, he did not pursue it, and there is some question whether his challenge was specific enough for Florida law.

A concededly timely challenge was made to the trial court by an oral motion to strike the panel, after the jury panel was selected by the jury commissioners but before the jurors for Huffman were called. Defense counsel noted the defendant was black, the rape victim was white, and the entire panel was white. He noticed the same characteristics of the jury panel two weeks prior while preparing for another trial. He offered to interrogate the jury commissioners to determine whether there was systematic exclusion of blacks from juries in Sarasota County. He wanted the selection of the jury reserved as a question for purposes of the record. He said he had not filed a written motion because it was not until that day that he had seen the jury panel.

The prosecutor noted that the proper means for making the challenge was by written motion setting forth the grounds and facts upon which the challenge is made. He indicated that any inherent prejudice, bias, or feelings of racial enmity could be brought out during the voir dire examination.

Page 350

The court asked if the defense counsel would like to question the Supervisor of Elections, indicating that "she can speak for them for your record." Huffman's attorney refused, saying he knew that the Supervisor would say "that they are extracted from the voting rolls without imputing anything to color." The court agreed that it was sure that would be the case. Counsel said he was prepared to proceed with the understanding that he had placed on the record that the jury panel was white. Florida Rule of Criminal Procedure 3.290 requires that: "A challenge to the panel shall be in writing and shall specify the facts constituting the ground of the challenge."

The Florida Supreme Court in Dykman v. State, 294 So.2d 633 (Fla. 1973), and Rojas v. State, 288 So.2d 234 (Fla. 1973), stated that before a court is required to permit an investigation of its jury pool there must be a sufficient factual showing to raise reasonable suspicion that the panel was improperly drawn. An allegation that the jury panel is white in a trial involving a black person is an insufficient factual showing standing alone. See Reliford v. State, 241 So.2d 871 (Fla.App.1970). If Huffman's challenge to the jury venire was inadequate, he waived the defect of the improper jury venire by proceeding to trial. State v. Silva, 259 So.2d 153 (Fla. 1972); Johnson v. State, 268 So.2d 544 (Fla.Dist.Ct.App.1972). The only way for Huffman to obtain relief from his waiver would then be to show cause for the waiver and prejudice affecting the conviction. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).

Even if counsel did not comply with the requirements of Florida Rule of Criminal Procedure 3.290, he thought he had made an adequate challenge. Huffman's attorney made it clear he wanted the question reserved. It is doubtful that either counsel could have shown at that time the method of jury selection later found to be unconstitutional. The district court must determine whether under these circumstances Huffman sufficiently complied with the Florida procedural rule.

A second question as to waiver involves the appeal. A defendant can waive a defect by failing to assert the point on appeal. State v. Matera, 266...

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45 practice notes
  • Morgan v. Zant, No. CV 182-055.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • February 8, 1984
    ...the proper constitutional challenge. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Huffman v. Wainwright, 651 F.2d 347, 349 (5th Cir. Unit B 1981); Evans v. Maggio, 557 F.2d 430, 432-33 (5th Cir.1977); Marlin v. Florida, 489 F.2d 702 (5th Cir.1974). A failure t......
  • Hollis v. Davis, No. 88-7477
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 18, 1991
    ...latter outcome, finding much less probability that racial bias had affected it. This principle was recognized in Huffman v. Wainwright, 651 F.2d 347, 350 (5th Cir. Unit B July 1981): Huffman was a black man accused of raping a white woman. A mixed-race jury might clearly have a special perc......
  • Birt v. Montgomery, No. 82-8156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 11, 1983
    ...the composition of a grand jury, Francis v. Henderson has been applied to traverse jury attacks as well. See, e.g., Huffman v. Wainwright, 651 F.2d 347 (5th Cir.1981); Evans v. Maggio, 557 F.2d 430, 434 n. 6 (5th Cir.1977); Cunningham v. Estelle, 536 F.2d 82, 83-84 (5th Cir.1976). "Absent c......
  • Norris v. U.S., No. 79-1673
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 13, 1982
    ...deliberate bypass standard of Kaufman had been superseded by the cause and prejudice standard of Wainwright. Cf. Huffman v. Wainwright, 651 F.2d 347, 350 (5th Cir. 1981). Two district court decisions in this circuit take the same approach as the Fifth Circuit in Sincox : the decision below;......
  • Request a trial to view additional results
45 cases
  • Morgan v. Zant, No. CV 182-055.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • February 8, 1984
    ...the proper constitutional challenge. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Huffman v. Wainwright, 651 F.2d 347, 349 (5th Cir. Unit B 1981); Evans v. Maggio, 557 F.2d 430, 432-33 (5th Cir.1977); Marlin v. Florida, 489 F.2d 702 (5th Cir.1974). A failure t......
  • Hollis v. Davis, No. 88-7477
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 18, 1991
    ...latter outcome, finding much less probability that racial bias had affected it. This principle was recognized in Huffman v. Wainwright, 651 F.2d 347, 350 (5th Cir. Unit B July 1981): Huffman was a black man accused of raping a white woman. A mixed-race jury might clearly have a special perc......
  • Birt v. Montgomery, No. 82-8156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 11, 1983
    ...the composition of a grand jury, Francis v. Henderson has been applied to traverse jury attacks as well. See, e.g., Huffman v. Wainwright, 651 F.2d 347 (5th Cir.1981); Evans v. Maggio, 557 F.2d 430, 434 n. 6 (5th Cir.1977); Cunningham v. Estelle, 536 F.2d 82, 83-84 (5th Cir.1976). "Absent c......
  • Norris v. U.S., No. 79-1673
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 13, 1982
    ...deliberate bypass standard of Kaufman had been superseded by the cause and prejudice standard of Wainwright. Cf. Huffman v. Wainwright, 651 F.2d 347, 350 (5th Cir. 1981). Two district court decisions in this circuit take the same approach as the Fifth Circuit in Sincox : the decision below;......
  • Request a trial to view additional results

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