Lamberti v. Wainwright

• Decision Date: 22 May 1975
• Docket Number: No. 74-2164,74-2164
• Parties: Louis D. LAMBERTI, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 277

513 F.2d 277

Louis D. LAMBERTI, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections,

Respondent-Appellant.

No. 74-2164.

United States Court of Appeals, Fifth Circuit.

May 22, 1975.

Robert L. Shevin, Atty. Gen., Linda C. Hertz, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.

Andrew Hall, Miami, Fla. (Court-appointed), for petitioner-appellee.

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

Before GOLDBERG and RONEY, Circuit Judges, and LYNNE, District Judge.

GOLDBERG, Circuit Judge:

In an act of judicial rarity, we remand for exhaustion of state remedies after a United States District Court has granted the writ of habeas corpus.

Louis D. Lamberti, convicted of robbery by a jury of the Criminal Court of record in and for Dade County, Florida, was sentenced to 20 years in prison. His direct appeal was dismissed, apparently on account of untimely filing. Subsequently maintaining in habeas corpus proceedings before the appellate courts of Florida that the tardiness of his appeal was caused by the state court judge who tried and sentenced him, and that he was thus entitled to a belated appeal, Lamberti obtained no relief. He then initiated this habeas corpus suit in the United States District Court for the Southern District of Florida, still asserting primarily that the state trial judge had thwarted his direct appeal, but also claiming that the privately retained counsel who handled his post-trial motions had rendered him ineffective assistance. The district court below granted Lamberti the limited relief he sought, on the basis of his ineffective counsel argument and the State of Florida appeals. We are reluctantly compelled to the conclusion that petitioner Lamberti failed to exhaust his state remedies; thus we reverse and remand.

The able trial judge's supererogation and impatience for ultimate justice is understandable even though it was impermissible in this case. Our decision is based not on ad hoc factual distinctions, but on compelling precedent. By remanding for exhaustion, we respect comity, yet we also reserve our commission to draw the precious writ from its sheath if a federal judicial remedy proves necessary and proper in the final disposition of Lamberti's lamentations. Our remand is not only technically and precedentially required, it is an exercise of judicial restraint appropriate to the traditions of our revered federalism. It is a salutary rule that requires a petitioner for the writ of habeas corpus to pass through the state's curative filters before applying to the federal judicial chambers. That the quest for the writ be so structured not only assures the State a power of redemption before federal judgment is brought to bear, but it also assures that our federal courts' perspective will not be blurred and obscured by an excess of petitions filed here in the first instance.

I

Lamberti, represented at trial by privately retained counsel, was convicted and sentenced during the late evening hours of January 21, 1971. During the next day or two he retained new counsel, Harvey Silverman, to prepare his post-trial motions and to prosecute his appeal. On January 25, 1971, Silverman filed a notice of appearance and a motion requesting "an extension of the 4 day period (in which to move for a new trial) to 15 days pursuant to Rule 1.590(a) of the Criminal Rules of . . . Procedure." No action was ever taken on this motion. The following day Lamberti's trial counsel, Richard Bergstresser, evidently oblivious to the solicitation of Silverman, also filed a motion for an extension of the period in which to move for a new trial to the maximum 15 days permitted in the Rules. ¹

Bergstresser's motion was granted on January 26. Silverman then proceeded to take over the representation of Lamberti. Finding Bergstresser unwilling to cooperate in preparation of Lamberti's motion for a new trial, Silverman was forced to rely on the transcript to reveal whatever errors might be claimed as grounds for a new trial. Unfortunately, preparation of the transcript was delayed beyond the 15 days allowed for presentation of the motion.

The state court record reflects that nothing further of any relevance transpired until February 27, 1971. On that date the trial judge entered an order reciting that there had been a delay in transcription of the trial and that it would be "impossible to make a proper motion for a new trial or to file an appeal" until the transcript was prepared, and extending the deadline for filing a motion for a new trial until 15 days after the complete transcript was in the hands of the defendant's attorney. Though it was evidently not so perceived at the time, this order was invalid, for the trial court possessed no authority to extend the motion period beyond 15 days from the entry of the verdict. See note 1 supra.

On March 19, 1971, Silverman filed a written motion for a new trial on Lamberti's behalf. This motion came within the time limits set in the February 27 order, but (after two amendments) it was ultimately denied on the merits in an order entered July 20, 1971. On August 2, 1971, a notice of appeal was filed. The State opposed Lamberti's appeal as untimely, arguing that his notice of appeal was not filed within 30 days of the entry of judgment as required under Florida Appellate Rule 3.2(b), and that the invalid February 27 order and subsequent trial court proceedings had no tolling effect on the 30 day limitation. The appeal was dismissed without opinion, apparently on the grounds raised by the State. Lamberti v. State, Fla.Dist.Ct.App., 3d Dist. 1972, 256 So.2d 422.

Lamberti then proceeded to petition the Florida District Court of Appeal on habeas corpus for a belated appeal. Acquiescent in the State's conclusion that his notice of appeal was untimely, Lamberti asserted chiefly ² that his tardiness was caused by the trial court's unauthorized and allegedly misleading extension of time in which to file a motion for a new trial, and that the trial court had thus thwarted his appeal. Evidently unmoved by this claim, the Florida Court dismissed the petition without opinion. State ex rel. Lamberti v. Wainwright, Fla.Dist.Ct.App., 3d Dist. 1972, 270 So.2d 785. A second petition on the same theory was likewise dismissed without explanation. State ex rel. Lamberti v. Wainwright, Fla.Dist.Ct.App., 3d Dist. 1973, 276 So.2d 565. Thereafter Lamberti petitioned pro se before the Florida Supreme Court, urging basically the same points for the same relief. The Supreme Court denied relief on grounds of res judicata. Lamberti v. Wainwright, Fla.1973, 284 So.2d 202. ³

Disappointed in the Florida Courts, Lamberti filed his habeas corpus petition in the federal district court below in October, 1973. That petition stated the same grounds for relief as were asserted before the state courts. In a subsequent memorandum, however, counsel for Lamberti advised the district judge below that "(t)he record establishe(s) a second ground for relief, ineffective assistance of counsel. Therefore, in the event the Court finds against the Petitioner on the ground raised (judicial thwarting of the appeal), the Petition should be stayed pending exhaustion on the second ground in State courts." The State responded immediately by letter contending that since Lamberti had not raised his ineffective counsel claim in the state courts, his entire petition should be dismissed without prejudice for failure to exhaust state remedies.

The able district judge pretermitted consideration of the issue chiefly contested in the state habeas proceedings. Instead, after a hearing, the court concluded that Lamberti's direct appeal had been frustrated by the ineffective assistance of his counsel, and judged that this deficiency was of constitutional proportions despite the fact that Lamberti's counsel was privately retained. Addressing the question of Lamberti's exhaustion of state remedies regarding the ineffectiveness of counsel claim, the district court reasoned:

Even though none of the state courts have ever considered whether under the facts presented petitioner was deprived of the effective assistance of counsel, those courts were certainly given a fair opportunity to do so. This . . . is all that comity, the gist of the exhaustion doctrine, requires.

The district judge then entered an order providing that unless Lamberti were afforded a belated appeal in the Florida courts within a reasonable time, a writ of habeas corpus would issue releasing him from all restraint under his robbery conviction.

II

Petitioner Lamberti urges, and the State disputes, that his ineffective assistance of counsel claim was subsumed within the "judicial thwarting" position argued in the state courts, and thus that the Florida courts were afforded a fair opportunity to pass on the claim now pressed in the federal courthouse. It is true of course that the basic facts upon which Lamberti grounds his ineffective counsel argument were laid before the state courts. ⁴ The question is whether the exhaustion provision of 28 U.S.C. § 2254(b) requires that Lamberti should have presented his legal argument before the state judiciary as well.

Analysis begins with Picard v. Connor, 1971, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438. Connor, indicted for murder by a Massachusetts grand jury under a "John Doe" warrant procedure authorized by Massachusetts legislation, was convicted in the state courts. In his state court trial proceedings and on direct appeal in the state courts he urged that the "John Doe" warrant technique offended his constitutional rights by denying him the protections of a grand jury indictment in a state felony proceeding. Connor sought federal habeas corpus relief, but the writ was refused by the district court. On appeal the First Circuit assumed the continuing inapplicability of the Fifth Amendment's Grand Jury clause to the states, but proceeded to...