Joensen v. Wainwright, No. 78-3072

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore SIMPSON, TJOFLAT and HILL; SIMPSON
Citation615 F.2d 1077
PartiesRobert Otto JOENSEN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, as Secretary, Department of Offender Rehabilitation, State of Florida, Respondent-Appellee.
Decision Date23 April 1980
Docket NumberNo. 78-3072

Page 1077

615 F.2d 1077
Robert Otto JOENSEN, Petitioner-Appellant,
v.
Louie L. WAINWRIGHT, as Secretary, Department of Offender
Rehabilitation, State of Florida, Respondent-Appellee.
No. 78-3072.
United States Court of Appeals,
Fifth Circuit.
April 23, 1980.

Bennett H. Brummer, Public Defender, Eleventh Judicial Circuit of Fla., Elliot H. Scherker, Asst. Public Defender, Miami, Fla., for petitioner-appellant.

James H. Greason, Asst. Atty. Gen., Dept. of Legal Affairs, Miami, Fla., for respondent-appellee.

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

Before SIMPSON, TJOFLAT and HILL, Circuit Judges.

SIMPSON, Circuit Judge:

This appeal is from the district court's denial of habeas corpus relief to Joensen, a Florida prisoner presently serving a life sentence pursuant to his May 1953 conviction for murder in the first degree. We affirm.

Page 1078

Notice of appeal from the judgment and sentence was timely filed in August 1953. Thereafter, on November 9, 1953, counsel for petitioner and counsel for the State of Florida entered into a stipulation for dismissal of the appeal, and the Supreme Court of Florida accordingly dismissed the appeal on November 19, 1953.

In 1973 Joensen sought the right to a belated appeal by habeas proceedings in the Southern District of Florida, and that court on March 21, 1974 granted the relief sought. The Florida 3rd District Court of Appeal on May 6, 1974 ordered that an out of time direct appeal be afforded Joensen. The Public Defender of the 11th Judicial Circuit of Florida was appointed to represent the petitioner in the state appellate proceedings. These were duly instituted and proceeded in orderly fashion 1 through the filing of the State's brief on November 20, 1975. Oral argument was scheduled for February 3, 1976.

Unknown at that time to his counsel, Joensen escaped from the custody of Florida authorities on November 9, 1975. By a report filed with the District Court of Appeal on January 28, 1976, Joensen's counsel, the Public Defender, informed the court of petitioner's escape. The following day, January 29, the District Court of Appeal summarily dismissed the pending appeal. 2

Joensen was recaptured in New York City on April 21, 1976, and returned to the respondent's custody on May 7. His counsel on June 28, 1976 filed a motion to reinstate the appeal, which motion was denied on July 9, 1976. Petitioner's motion to reinstate the appeal was filed June 28, 1976 and denied July 7, 1976.

Following the federal district court's dismissal of a petition for habeas corpus for failure to exhaust state remedies, the petitioner was denied habeas corpus relief by the Supreme Court of Florida.

The instant habeas petition was then filed below in April 1978. A United States Magistrate issued a show cause order to the respondent, and after considering the petition, the response, and a reply Memorandum by the petitioner, pursuant to Title 28, U.S.C. § 636(b)(1) recommended that the petition be denied. Following filing by petitioner of objections to the recommendation, the court below entered its final judgment denying habeas corpus relief. After granting a rehearing, the lower court again denied habeas relief by the entry of the final judgment from which this appeal was taken. 3

Appellant argues that the Florida appellate court violated his Fourteenth Amendment procedural due process rights by dismissing his belated appeal without giving him notice and an opportunity to be heard and by denying his motion for reinstatement of the appeal without finding that he knowingly abandoned or waived his right to appeal.

A criminal defendant has no federal constitutional right to state appellate review of criminal convictions. See for example Estelle v. Dorrough, 420 U.S. 534, 536-37, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975) and cases cited therein. Florida law grants a right to appeal from criminal conviction. Fla.Stat. § 924.06 (1979). Once a state grants the right to appeal the Fourteenth Amendment places some constraints upon the denial of the right. See e. g., Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9

Page 1079

L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). But the right to appeal from a state court conviction is not a constitutional right in and of itself. For...

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22 practice notes
  • Lynn v. U.S., No. 02-15521.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 14 Abril 2004
    ...upon the court to adjudicate his claim." Id. at 246, 113 S.Ct. at 1206 (internal quotations omitted).29 In Joensen v. Wainwright, 615 F.2d 1077, 1078-80 (5th Cir.1980), our predecessor court affirmed the district court's denial of the § 2254 petition of a state prisoner whose state dir......
  • Dobbert v. Strickland, No. 82-84-Civ-J-B.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 30 Enero 1982
    ...Estelle v. Dorrough, 420 U.S. 534, 536-37, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975); 532 F. Supp. 561 Joensen v. Wainwright, 615 F.2d 1077, 1078 (5th Cir. 1980). Thus, petitioner's claim fails to rise to constitutional dimensions, and no relief can be accorded under this ground of the E. ......
  • Taveras v. Smith, No. 03 Civ. 1875(SHS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 13 Septiembre 2005
    ...represented by counsel in state appeal as reflected in State v. Branch, 811 S.W.2d 11, 11-12 (Mo.App.1991)); Joensen v. Wainwright, 615 F.2d 1077, 1078 (5th Cir.1980). In any case, what is important is that the Supreme Court has never limited Evitts or Douglas to hold that the right to coun......
  • State v. Ruple, No. 82
    • United States
    • Court of Appeal of Louisiana (US)
    • 5 Enero 1983
    ...v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Rheuark v. Shaw, 628 F.2d 297 (5th Cir.1980); Joensen v. Wainwright, 615 F.2d 1077 (5th Cir.1980); Martin v. Blackburn, 521 F.Supp. 685 (E.D.La.1981); and State v. Fletcher, 341 So.2d 340 (La.1976). As long as the appellate proce......
  • Request a trial to view additional results
22 cases
  • Lynn v. U.S., No. 02-15521.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 14 Abril 2004
    ...upon the court to adjudicate his claim." Id. at 246, 113 S.Ct. at 1206 (internal quotations omitted).29 In Joensen v. Wainwright, 615 F.2d 1077, 1078-80 (5th Cir.1980), our predecessor court affirmed the district court's denial of the § 2254 petition of a state prisoner whose state dir......
  • Dobbert v. Strickland, No. 82-84-Civ-J-B.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 30 Enero 1982
    ...Estelle v. Dorrough, 420 U.S. 534, 536-37, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975); 532 F. Supp. 561 Joensen v. Wainwright, 615 F.2d 1077, 1078 (5th Cir. 1980). Thus, petitioner's claim fails to rise to constitutional dimensions, and no relief can be accorded under this ground of the E. ......
  • Taveras v. Smith, No. 03 Civ. 1875(SHS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 13 Septiembre 2005
    ...represented by counsel in state appeal as reflected in State v. Branch, 811 S.W.2d 11, 11-12 (Mo.App.1991)); Joensen v. Wainwright, 615 F.2d 1077, 1078 (5th Cir.1980). In any case, what is important is that the Supreme Court has never limited Evitts or Douglas to hold that the right to coun......
  • State v. Ruple, No. 82
    • United States
    • Court of Appeal of Louisiana (US)
    • 5 Enero 1983
    ...v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Rheuark v. Shaw, 628 F.2d 297 (5th Cir.1980); Joensen v. Wainwright, 615 F.2d 1077 (5th Cir.1980); Martin v. Blackburn, 521 F.Supp. 685 (E.D.La.1981); and State v. Fletcher, 341 So.2d 340 (La.1976). As long as the appellate proce......
  • Request a trial to view additional results

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