LoConte v. Dugger, 87-3538

Citation847 F.2d 745
Decision Date20 June 1988
Docket NumberNo. 87-3538,87-3538
PartiesDaniel LoCONTE, Petitioner-Appellant, v. Richard DUGGER, Robert A. Butterworth, Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Gwendolyn Spivey Lanier, Orlando, Fla., for petitioner-appellant.

Mark Menser, Asst. Atty. Gen., Tallahassee, Fla., for respondents-appellees.

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

Before RONEY, Chief Judge, ANDERSON, Circuit Judge, and ALLGOOD *, Senior District Judge.

ALLGOOD, Senior District Judge:

The appellant, Daniel LoConte, appeals from the district court's denial of his petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. On June 27, 1975, he pled guilty to and was convicted of the offense of first degree murder, and was sentenced to life in prison subject to Florida's minimum mandatory twenty-five year prison term. The petition for habeas relief filed in the district court and on appeal here asserts two grounds for relief: first, that the petitioner's guilty plea was not knowing, intelligent, and voluntary; and second, that he did not receive effective assistance of counsel because his court-appointed attorney was in an irreconcilable conflict of interest due to his multiple representation of the appellant and his co-defendants. The district court denied relief on July 17, 1987, and this appeal followed.

I. Factual and Procedural Background

Appellant and his three co-defendants, Frank Ignazio, Ignazio's seventeen year old wife, Susan, and Luther (Luke) Creel, were charged with the murder of Gary Lynn Hatcher on March 8, 1975. Although appellant was thirty years of age at the time of the offense and had never been found to be mentally incompetent, he had spent most of his childhood and adolescence being raised in state hospitals and institutions in Pennsylvania. He received no formal education and was unable to read or write at the time of the offense in 1975. As a young adult, appellant became involved in motorcycle clubs, where he met Ignazio two or three months before the murder of Gary Lynn Hatcher.

On the evening of March 7, 1975, the appellant and his three co-defendants, traveling from Louisiana, arrived at the Ft. Walton Beach home of Gary Lynn Hatcher, who then lived with his parents. There, Hatcher, appellant, and the other co-defendants began drinking and using drugs well into the early morning hours of March 8, until Hatcher's parents demanded that they leave. The five left in Ignazio's automobile and drove to a rural wooded area near Destin, Florida. Parked on a rural dirt road near a lake, some of the members of the party fell asleep in the automobile, while others left the car. There is evidence to suggest that Ignazio's wife, Susan, was sleeping in the front seat of the car. The appellant claimed that, after initially leaving the car, he too returned and fell asleep in the back seat of the car. At some point, Ignazio shot Hatcher in the head with a .12-gauge shotgun belonging to appellant, and Creel removed Hatcher's billfold from his lifeless body.

The four were apprehended by police in Tallahassee, Florida later during the evening of March 8, 1975. They were returned to the Okaloosa County Jail in Crestwood, Florida, where all four remained until June 27, 1975. At the time of these events, appellant had a wife and small child, from whom he was separated.

About a month after the arrest of the foursome, they were arraigned on first degree murder charges and Albert Grinsted was appointed by the court to represent appellant, Ignazio, and Ignazio's wife. Creel had separate appointed counsel. While being held in jail, and unbeknownst to his court-appointed lawyer, Ignazio sent a note to an assistant state attorney, indicating that he wished to make a statement. Ultimately Ignazio began to negotiate a plea agreement, still without counsel's knowledge or consent, that would require Ignazio, appellant, and Creel to enter pleas of guilty to first degree murder, in return for the state's promise not to seek the death penalty against the three and to release Ignazio's wife from prosecution on all charges. Ignazio then persuaded the appellant to go along with the plea bargain agreement, convincing the appellant that the guilty pleas could be later challenged and set aside as being involuntary. Ignazio also prevailed upon the appellant to help gain the release of Ignazio's wife, and his affection for her figured into his willingness to participate in the plea agreement. Additionally, Louisiana police authorities contacted appellant during this time. During an interview in the presence of his attorney, appellant was informed that his own wife had been arrested on a charge of first degree murder in Louisiana. Appellant contends that the Louisiana authorities told him that the murder charges against his own wife would be dropped if appellant entered a guilty plea on the first degree murder charge arising from Hatcher's death.

On June 27, 1975, appellant, Frank Ignazio, and Luther Creel were taken before the state trial court where they entered pleas of guilty to murder in the first degree. When attorney Grinsted was informed of the existence of the plea agreement, he unsuccessfully tried to persuade his clients to reject it and go to trial. Twice during the plea hearing, he took appellant aside to attempt to persuade him not to enter the plea and to proceed to trial. Appellant was unrelenting and stood by his decision to plead guilty. 1 Based upon the plea, petitioner was convicted of the offense, and the conviction was affirmed on appeal on May 14, 1976.

Immediately following the loss of his appeal, appellant began filing collateral challenges to his conviction. Ultimately, he filed this petition for habeas corpus pursuant to 28 U.S.C. Sec. 2254 on August 22, 1980. At some point, the habeas petition was referred to a part-time magistrate for the purpose of conducting an evidentiary hearing, which was held on June 30, 1986. The magistrate filed his report and recommendation on November 18, 1986, recommending that the petition be granted on the basis of the appellant's assertion that his guilty plea was not intelligent, knowing, and voluntary. The magistrate found no merit in the appellant's assertion that he did not receive the effective assistance of counsel in violation of his Sixth Amendment rights.

By order dated April 8, 1987, the district court accepted the magistrate's finding with respect to the claim of ineffective assistance of counsel and ordered a rehearing of the appellant's claim that his plea was involuntary. On May 20, 1987, the district judge reheard the testimony of two witnesses who had testified before the magistrate, these being the appellant and attorney Grinsted. Following that hearing, the district court entered an order dated July 16, 1987, denying the petition for writ of habeas corpus.

II. Standard Of Review

The district court has made extensive findings of fact, some following its own hearing on May 20, 1987, and others adopted from the findings of fact suggested by the magistrate. The threshold question presented on this appeal, and which is necessary for a proper analysis of the legal issues, is what standard of review this court is obliged to apply to the district court's findings of fact. Present on this appeal are three different categories of findings: (1) findings of fact made by the magistrate to which the parties did not object; (2) findings of fact made by the magistrate to which the parties did object with the objections being resolved de novo by the district court; and (3) independent findings of fact made by the district court.

Findings of fact made by a United States magistrate under the authority of 28 U.S.C. Sec. 636, and which are accepted and adopted by the district court without objection by any party, may be reviewed on direct appeal only for "plain error or manifest injustice." See Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982) (en banc). In effect, such findings of fact, when adopted by the district court, become the findings of the district court itself and, on appeal, the parties may not challenge those findings of fact except for plain error or manifest injustice. Thus, in the instant case, many findings of fact made by the magistrate were adopted by the district court without objection and, now on appeal, will be treated by this court as the findings of the district court. See also Hardin v. Wainwright, 678 F.2d 589 (5th Cir. Unit B 1982); United States v. Warren, 687 F.2d 347 (11th Cir.1982).

Whenever any party files a timely and specific objection to a finding of fact by a magistrate, the district court has an obligation to conduct a de novo review of the record with respect to that factual issue. See Nettles v. Wainwright, supra. As the use of the phrase de novo implies, the district court's consideration of the factual issue must be independent and based upon the record before the court. To the extent that the magistrate has made findings of fact based upon the testimony of the witnesses heard before the magistrate, the district court is obligated to review the transcript or listen to the tape-recording of those proceedings. After doing so, however, the factual conclusions reached by the district court are subject only to a "clearly erroneous" standard of review on appeal. See F.R.C.P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

Just as with factual conclusions reached by the district court following objections by parties to the findings of the magistrate, the independent factual determinations of the district court are also subject only to a "clearly erroneous" standard of review on appeal. See Anderson v. Bessemer City, supra. As the Supreme Court wrote in that opinion:

If the district court's account of the evidence is plausible in light of the record reviewed in its entirety, the court of appeals may...

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