Mattox v. Carson

• Decision Date: 10 January 1969
• Docket Number: 68-371-Civ.-J.,No. 68-370,68-370
• Citation: 295 F. Supp. 1054
• Parties: William Oscar MATTOX, Jr., Petitioner, v. Dale CARSON, as Sheriff of Duval County, Florida, Respondent. Cecil Frederick LOWE, Petitioner, v. Dale CARSON, as Sheriff of Duval County, Florida, Respondent.
• Court: U.S. District Court — Middle District of Florida

295 F. Supp. 1054

William Oscar MATTOX, Jr., Petitioner, v. Dale CARSON, as Sheriff of Duval County, Florida, Respondent.

Cecil Frederick LOWE, Petitioner, v. Dale CARSON, as Sheriff of Duval County, Florida, Respondent.

Nos. 68-370, 68-371-Civ.-J.

United States District Court M. D. Florida, Jacksonville Division.

January 10, 1969.

Walter G. Arnold, Jacksonville, Fla., for petitioners.

Earl Faircloth, Atty. Gen., and David N. Tumin, Asst. Atty. Gen., Tallahassee, Fla., for respondent.

ORDER GRANTING PETITION FOR HABEAS CORPUS

SCOTT, District Judge:

This cause came on for hearing on petition for habeas corpus by William Oscar Mattox, Jr., and Cecil Frederick Lowe, pursuant to 28 U.S.C.A. § 2254, attacking the legality of petitioners' custody. The facts in both cases are identical except for the testimony given by each petitioner before the Duval County Grand Jury, which is the same in substance. Therefore, except for minor variances, the two petitioners for writs of habeas corpus are the same.

Subsequent to their release on bond in State Court and at the time these petitions for habeas corpus were filed, petitioners were confined by Dale Carson, as Sheriff of Duval County, Florida, in the Duval County Jail, Jacksonville, Florida, under separate informations for grand larceny pending against each of them as defendants in the Criminal Court of Record of Duval County, Florida, Division C. Pending final judgment in this cause, this Court entered an order pursuant to Title 28, U.S.C.A., § 2251, staying the proceedings in the Criminal Court of Record of Duval County, Florida, and petitioners were then released on bond in this Court.

After the filing of said informations against them in the Criminal Court of Record, petitioners filed sworn motions to quash in the Criminal Court of Record on the grounds that they were compelled to testify before the Grand Jury of Duval County, Florida, on July 14, 1966, when they were potential defendants to the charges then being investigated by the Grand Jury, and that the alleged waivers of their constitutional privileges and their immunity under Section 932.29, Florida Statutes, F.S.A., were null and void since the waivers were executed without the advice of counsel and the required warnings of their constitutional privileges were not given to them. The State of Florida admitted all the facts in said motions to quash by filing demurrers thereto.

On November 18, 1966, the Criminal Court of Record entered orders sustaining the State's demurrers to the petitioners' motions to quash the informations. Afterwards, petitioners filed suggestions for writs of prohibition in the First District Court of Appeal of Florida, alleging that the Criminal Court of Record of Duval County lacked jurisdiction to try petitioners and that for the State of Florida to continue prosecuting petitioners was a violation of their rights guaranteed to them by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Petitioners' suggestions for prohibition were denied by the First District Court of Appeal of Florida. State ex. rel. Mattox v. Layton, 202 So.2d 206 (Fla.App.1967); State ex. rel. Lowe v. Nelson, 202 So.2d 232 (Fla. App.1967). Petitioners then filed petitions for writs of certiorari to the Supreme Court of Florida, which Court issued writs of certiorari to the First District Court of Appeal of Florida and subsequently affirmed the latter Court's decisions. State ex. rel. Mattox v. Layton, 210 So.2d 199 (1968); State ex. rel. Lowe v. Nelson, 210 So.2d 197 (1968). Petitions for rehearing were denied by the Supreme Court of Florida on June 4, 1968.

Petitioners allege that their custody is unlawful and illegal and contrary to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution based upon the grounds and facts set forth below.

The Spring Term of the Grand Jury of Duval County, Florida, conducted an investigation, inquiry and proceeding into the larcenies of moneys and other personal items from the City of Jacksonville, a municipality, in connection with the fraudulent acquisition of personal items of merchandise from the Harry Finkelstein Company, Jacksonville, Florida, for the personal use of certain individuals, which merchandise was then paid for through the City Recreation Department of the City of Jacksonville. Prior to July 13, 1966, this Grand Jury had heard many witnesses' testimony and had adduced before it many documents in reference to said larcenies. On that day petitioners were definite suspects and potential defendants of the larcenies then being investigated by the Grand Jury and were so considered by the said Grand Jury and the State Attorney of the Fourth Judicial Circuit of Florida in and for Duval County, Florida, by reason of the evidence previously adduced and heard by the Grand Jury.¹ The Grand Jury then ordered and caused to be issued by the Clerk of the Circuit Court of Duval County, Florida, witness subpoenas requiring petitioners to appear before the Grand Jury to testify. Petitioners were each administered the oath and interrogated in reference to the larcenies from the City of Jacksonville. Their testimony disclosed information relevant and material to the transactions forming the basis of the charges of grand larceny subsequently charged in the informations.

While petitioners were in the Grand Jury Room, the State Attorney for the Fourth Judicial Circuit handed to petitioners and requested them to sign a written waiver of the immunity to which petitioners would be entitled under Section 932.29, Florida Statutes, F.S.A., in lieu of the constitutional privilege to remain silent and not incriminate themselves under the Constitution of the United States of America.²

After petitioners went before the Grand Jury the State Attorney requested that the waivers of immunity be signed. Petitioners had not consulted with a lawyer prior to or during their appearances before the Grand Jury, nor had they been advised that they had a right under the United States Constitution or Section 932.29, Florida Statutes, F.S.A., to consult with a lawyer. Petitioners had not been advised about the waiver of any such rights and privileges in reference to their testimony before the Grand Jury. They were not advised that if they did not have the financial ability or resources to employ an attorney that an attorney would be appointed to advise and represent them before and during such interrogation. Petitioners were not advised that they had a right to remain silent under the United States Constitution unless the immunities and privileges under Section 932.29, Florida Statutes, F.S.A., were accorded them; and that if they did not remain silent anything that they said might be and could be used against them, either then or in a subsequent proceeding. Petitioners were not advised that they had the right to exercise any of these rights and privileges at any time during the interrogation or that they were definite suspects and potential defendants to the charges of grand larceny then being investigated by the Grand Jury.

In the absence of any warnings or explanations of their rights and privileges under the United States Constitution, petitioners signed the waivers of immunity before the Grand Jury without the advice of counsel.

Federal jurisdiction in these cases is sought under 28 U.S.C. § 2254 because of the alleged violation by the State of Florida of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. Respondent contends that this Court lacks jurisdiction to entertain the present petitions under 28 U.S.C. § 2254, since petitioners are not held pursuant to any State Court judgment as required to properly confer jurisdiction on this Court. Respondent contends that petitioners' claim for relief is premature, pointing out that petitioners are each in custody merely by operation of a capias for arrest issued pursuant to Section 932.48, Florida Statutes, F.S.A.

Section 2254, U.S.C., Title 28, uses the term "judgment" not "final judgment". Quite obviously the Supreme Court of Florida, by affirming the decision of the First District Court of Appeal on certiorari, has entered its judgment denying the petitioners immunity and holding them for trial. To hold that a "final judgment" is a prerequisite to habeas relief would require petitioners to stand trial. This would be a direct violation of Section 932.29, Florida Statutes, F.S.A., which specifically grants immunity from prosecution. Such a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the incriminating questions related. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); Cf. Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). Under the principles of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the habeas corpus jurisdictional prerequisite is not the judgment of a State Court but "detention simpliciter". The Supreme Court in Fay v. Noia, stated:

"The entire course of decisions in the Supreme Court of the United States elaborating the rule of exhaustion of state remedies is wholly incompatible with the proposition that a state court judgment is required to confer federal habeas jurisdiction. * * * Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined the federal court has the power to release him." Fay, supra, at 430, 83 S.Ct. at 844.

This language has not been altered by the amendment of § 2254 on November 2, 1966. White v. Swenson, 261 F.Supp. 42 (W.D.Mo.1966). The existence of a "judgment" is not a vital ingredient for Federal habeas jurisdiction. See Falgout v. Trujillo, 270 F.Supp. 685 (D.Colo. 1966), aff'd 380 F.2d 376 (10th Cir. 1967); Plummer v. State, 262 F.Supp. 1021, 1023 (E.D.La.1967); Foster v. Gilbert, 264 F.Supp. 209 (S.D.Fla.1967).

Contrary to re...