Meagher v. Dugger, 87-5810

• Decision Date: 19 December 1988
• Docket Number: No. 87-5810,87-5810
• Parties: William Joseph MEAGHER, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, and Robert A. Butterworth, Attorney General, State of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1242

861 F.2d 1242

William Joseph MEAGHER, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, and Robert A. Butterworth, Attorney General, State of Florida, Respondents-Appellees.

No. 87-5810.

United States Court of Appeals Eleventh Circuit.

Dec. 19, 1988.

William Joseph Meagher, Sharpes, Fla., pro se.

Marcia J. Silvers, Miami, Fla. (Court-appointed), for petitioner-appellant.

Robert A. Butterworth, Atty. Gen., Dept. of Legal Affairs, Nancy C. Wear, Steven T. Scott, Asst. Attys. Gen., Miami, Fla., for respondents-appellees.

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

Before VANCE and KRAVITCH, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

William Meagher was charged in 1979 in the Circuit Court of Dade County, Florida, with three counts of armed robbery, three counts of kidnapping, and two counts of possession of a firearm during the commission of a felony. During several periods over the next three years he was adjudged incompetent and committed to the Florida Department of Health and Rehabilitative Services. In April 1982, the state circuit court judge found Meagher competent to stand trial.

Pursuant to plea negotiations, Meagher entered into a plea agreement with the State. In exchange for his plea of nolo contendere, the State agreed to nolle prosequi a second information which also had been filed against him, and to enter a nolle prosequi on all charges but the armed robbery count in the instant case. The State further agreed to a sentence of twenty years to run concurrently with a ten year sentence he was currently serving in Broward County and with any time he was to serve as the result of a pending case against him for federal parole violation.

The transcript from Meagher's sentencing hearing reveals an inconsistency in the terms of the plea agreement. During the early part of the hearing, the circuit judge initially stated in his conversation with petitioner that the twenty year sentence would run "concurrent with the time [petitioner] served in Broward County ... and ... concurrent with any other time [he was] given in the Federal Parole on the case pending against [him]." Towards the end of the plea colloquy, however, the judge orally imposed the sentence to run "concurrent to the time that [petitioner] was sentenced in Broward County. In addition, it will be consecutive with any Federal Parole violation that may occur in the near future." (emphasis added). Neither Meagher, who was at the time assisted by counsel, nor the State called attention to this inconsistency. The judge's written judgment and commitment order, dated April 29, 1982, specifically stated that Meagher's sentence was to run concurrent with any pending federal parole violation.

The petitioner timely appealed to the Florida Third District Court of Appeal on the issue of competency, which he had reserved for appeal at the time he entered his nolo contendere plea. The court affirmed per curiam. Meagher v. State, 439 So.2d 296 (Fla.Dist.Ct.App.1983).

In October 1984, Meagher filed pro se his first Motion to Vacate Judgment and Sentence pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, claiming that his plea was involuntary on four grounds unrelated to the issue at bar. ¹ The state trial court denied the motion and denied the motion for rehearing. Meagher appealed the denial of his motion for postconviction relief to the Third District Court of Appeal. Thirteen days after the State's response to the district court's order to show cause on April 3, 1985, the court affirmed per curiam the circuit court's denial of Meagher's first Rule 3.850 motion. Meagher v. State, 469 So.2d 758 (Fla.Dist.Ct.App.1985).

Nearly a year later, on April 3, 1986, Meagher received a Notice of Parole Revocation from the United States Parole Commission, dated January 7, 1985. ² Contrary to the terms of the plea agreement and written judgment and commitment order, the notice of action by the parole commission provided, "Revoke parole; None of the time spent on parole shall be credited. The unexpired portion of your federal sentence shall commence upon your release from state custody or upon federal reparole to your state sentence, whichever comes first."

Based on this new information, Meagher filed a second pro se Rule 3.850 motion on July 31, 1986. He argued in the second motion that his plea was involuntary because the notice of parole violation did not comport with his understanding of the plea agreement, as reflected in the judgment and commitment order. On August 12, 1986, he filed a memorandum in support of his second motion for postconviction relief, restating the issues and facts supporting the motion. The state circuit court denied the motion on October 1, 1986, and Meagher timely appealed. ³ In response to the Third District Court's order to show cause, the State conceded the terms of the plea agreement as petitioner understood it, but asserted a procedural bar to the instant claim on the grounds that Meagher had failed to raise it either on direct appeal or in his first Rule 3.850 motion. In December 1986, Meagher filed a traverse to the State's response, in which he explained again why he did not raise the issue on direct appeal or in his first 3.850 motion. In January 1987, the Third District Court affirmed per curiam the trial court's order denying Meagher's second motion for postconviction relief. Meagher v. State, 501 So.2d 607 (Fla.Dist.Ct.App.1986).

Meagher then turned to the federal courts and filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Southern District of Florida, alleging that his plea was unlawfully induced and involuntary in violation of his fifth and fourteenth amendment rights to due process. In response to yet another show cause order, the State argued that petitioner had failed to exhaust all available state remedies by neglecting to raise the issue on direct appeal or in the first Rule 3.850 motion, thereby creating a procedural bar to the assertion of this ground of relief in the second motion. ⁴ Following the petitioner's motion for summary judgment, the United States magistrate upheld the Florida court's application of a procedural bar to Meagher's claim on the grounds that he did not provide the court with a proffer of cause for his failure to present the issue in his first motion to vacate the judgment and sentence, either while the motion was pending or on rehearing. The magistrate then noted a second, "more cogent" reason for enforcing procedural bar--that the inconsistency of the sentence should have put Meagher or his attorney on notice. Meagher's remedy, according to the magistrate, was to object and withdraw the plea, or to take a direct appeal on the issue, or to raise it collaterally in the first motion to vacate. The district court adopted the magistrate's report and recommendation and dismissed the habeas corpus petition giving rise to this appeal. Because we find that the petitioner's late receipt of the notice of parole revocation prevented him from asserting the plea issue on direct appeal or in the first Rule 3.850 motion, we reverse and remand.

Principles of comity and a concern for the orderly administration of justice preclude a federal district court from entertaining a petition for a writ of habeas corpus without restriction. One such limitation is procedural default. Under the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), a state habeas corpus petitioner who fails to raise his constitutional claim in state court is procedurally barred from pursuing that issue in federal court absent a showing of cause for and actual prejudice from the default. Sykes, 433 U.S. at 87, 97 S.Ct. at 2506, 53 L.Ed.2d at 608. We have held that where the state court correctly applies a procedural default principle of state law, Sykes requires the federal court to abide by the state court's decision. Ratcliff v. Estelle, 597 F.2d 474, 478 (5th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979). This is so even where the state court addresses the merits as an alternate ground for rejecting a claim. ⁵ Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir.1983). The facts in the case sub judice, however, show more than sufficient "cause" for petitioner Meagher's failure to raise his constitutional claim on direct appeal or in his initial Rule 3.850 motion.

Florida law prohibits a motion for postconviction relief when the defendant could have, but did not assert his claim on direct appeal. See, e.g., Jones v. State, 446 So.2d 1059, 1061 (Fla.1984); McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983); Armstrong v. State, 429 So.2d 287, 288 (Fla.1983); Ford v. State, 407 So.2d 907, 908 (Fla.1981). Moreover, Rule 3.850 imposes a procedural bar to successive motions for such relief where the movant could have raised the issue in a previous motion:

A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or his attorney to assert those grounds in a prior motion constitutes an abuse of the procedure governed by these rules. ⁶

Meagher's present claim did not become ripe until his receipt of the Parole Commission's notice of action on April 3, 1986, some four years after his direct appeal in 1982. He was entitled to rely on the trial court's written judgment and commitment order of April 29, 1982, which was fully consistent with his understanding of the plea agreement. The State's argument that Meagher and his counsel were aware of his status as a federal parole violator during the taking of the nolo contendere plea, and that this status "was made a part of the state...