Johnson v. State of Florida, 68-278-Civ-CA.
Decision Date | 05 April 1968 |
Docket Number | No. 68-278-Civ-CA.,68-278-Civ-CA. |
Citation | 283 F. Supp. 494 |
Parties | Otis JOHNSON, Petitioner, v. STATE OF FLORIDA, Respondent. |
Court | U.S. District Court — Southern District of Florida |
No appearance for petitioner.
Earl Faircloth, Atty. Gen., State of Florida, Tallahassee, Fla., and Arden M. Siegendorf, Asst. Atty. Gen., Miami, Fla., for respondent.
Otis Johnson, on March 6, 1968, filed a petition for writ of habeas corpus in this Court. He contends that his trial counsel, a Public Defender, failed to advise him of his right to appeal and failed to perfect an appeal. The Petitioner also asserts that he was denied the right of counsel because his attorney was incompetent. Several instances of alleged incompetency are set forth in the petition. The petition is denied.
The record reflects that Otis Johnson was tried and convicted in the Criminal Court of Record, Dade County, for the crime of Second Degree Murder. He was sentenced by that court on June 18, 1964, to life imprisonment. Thereafter, he filed a motion pursuant to Florida Criminal Procedure Rule 1.850, 33 F.S.A. (formerly Rule One) to vacate the judgment and sentence. The motion was denied on September 22, 1964. A second and third motion were denied on July 26, 1965 and January 17, 1966, respectively. On April 7, 1966, the court on rehearing vacated and set aside its last order. Full evidentiary hearings were held on July 6, 1966 and September 30, 1966. The motion was denied at the conclusion of the hearings. An appeal was taken to the District Court of Appeal of Florida, Third District. The trial court was affirmed. Johnson v. State, 204 So.2d 224 (Fla.App. 3rd Dist.1967) cert. denied, Johnson v. State, Case No. 36,997 (Fla. February 15, 1968).
Otis Johnson in his petition has named the "State of Florida" as respondent. No other designation of respondent is given.
Title 28, U.S.C. Section 2242 provides in part: "It the application for a writ of habeas corpus shall allege the * * * name of the person who has custody over him and by virtue of what claim or authority, if known." It has been held that failure to do so is fatal to the right to a writ of habeas corpus. Gaito v. Strauss, 368 F.2d 787 (3rd Cir. 1966); Mihailoviki v. State of California, 364 F.2d 808 (9th Cir. 1966); King v. State of California, 356 F.2d 950 (9th Cir. 1966); Morehead v. State of California, 339 F.2d 170 (9th Cir. 1964); Roseborough v. People of State of California, 322 F.2d 788 (9th Cir. 1963); United States ex rel. Lyle v. Carney, 277 F.Supp. 250 (W.D.Pa.1967); Osborn v. Commonwealth, 277 F.Supp. 756 (W.D. Pa.1967). See also Jones v. Biddle, 131 F.2d 853 (8th Cir. 1942). This requirement imposed by the United States Congress and followed by the courts is important to the orderly administration of justice. It is the person who has custody of the petitioner who makes the return certifying the true cause of detention and it is he who carries out the order of the court if the writ is granted. Petitioner's writ is defective in this particular and it should be dismissed for this reason.
The Court, aside from this pleading defect — a curable defect which indubitably resulted from the Petitioner's lack of knowledge, notes a second reason of a more substantial nature that warrants a dismissal of the petition without an evidentiary hearing. It unequivocally appears from the transcript of the evidentiary hearings held by the Criminal Court of Record and the briefs filed on appeal from that court's order denying relief that the questions presented in the instant petition were presented and fully considered in the state court.
Title 28, U.S.C. Section 2244, as amended by Congress in 1966, provides:
Section 2254, as amended by Congress in 1966, in compliment with Section 2244, provides:
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