Minerva v. Singletary

• Decision Date: 23 August 1993
• Docket Number: No. 93-1221-Civ-J-20.,93-1221-Civ-J-20.
• Citation: 830 F. Supp. 1426
• Parties: Michael J. MINERVA, Capital Collateral Representative, and Judith J. Dougherty, Assistant Capital Collateral Representative, as Next Friends to Michael Alan Durocher v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections.
• Court: U.S. District Court — Middle District of Florida

830 F. Supp. 1426

Michael J. MINERVA, Capital Collateral Representative, and Judith J. Dougherty, Assistant Capital Collateral Representative, as Next Friends to Michael Alan Durocher v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections.

No. 93-1221-Civ-J-20.

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

August 23, 1993.

COPYRIGHT MATERIAL OMITTED

Martin J. McClain, Office of Capital Collateral Representative, Tallahassee, FL, for petitioners.

Richard Martell, Office of Atty. Gen., Tallahassee, FL, for respondent.

OPINION AND ORDER

SCHLESINGER, District Judge.

This action is brought in this Court by the Capital Collateral Representative ("CCR"), which purports to act on behalf or as "next friend" of putative Petitioner Michael Durocher. Durocher is presently scheduled to be executed by the State of Florida on August 25, 1993, pursuant to a warrant signed by the Governor on May 26, 1993. It appears beyond doubt to this Court that Durocher neither has solicited nor authorized any representation by CCR in this matter, and that he does not wish to pursue any further challenge to his sentence.

CCR initially filed a Petition for Extraordinary Relief and for a Writ of Habeas Corpus, Motion for Stay of Execution, Petition for a Writ of Mandamus, and Request for Extension of Rule 3.851 Time Limit in the Florida Supreme Court on June 25, 1993. On August 12, 1993, the Florida Supreme Court held that "CCR has no duty or right to represent a death row inmate without that inmate's permission." Durocher v. Singletary, 623 So.2d 482 at 485 (Fla.1993). However, the Supreme Court, mindful of the state's obligation to ensure that the waiver of collateral counsel is knowing, intelligent and voluntary, directed the trial judge to conduct an inquiry pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and to determine whether Durocher "understands the consequences of waiving collateral counsel and proceedings." Id. On August 16, 1993, the Honorable William A. Wilkes, Circuit Judge of the Fourth Judicial Circuit, in and for Clay County, Florida, conducted a hearing at which he addressed Durocher personally and in open court. Upon concluding his colloquy with Durocher, Judge Wilkes found that Durocher "knowingly, intelligently and voluntarily waived the right to be represented by the Capital Collateral Representative, as well as he's waived the right to any further proceedings in this case." Transcript of August 16, 1993 Hearing at 11. Subsequently, Judge Wilkes certified this finding to the Supreme Court, which subsequently dismissed the Petition for Writ of Habeas Corpus. Durocher v. Singletary, No. 81,986 (Aug. 17, 1993) (dismissal Order).

CCR now seeks similar extraordinary relief in this Court in the form of a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1, filed August 23, 1993). The state of Florida filed a Response in opposition (Doc. No. 7, filed August 23, 1993). CCR filed a Reply to the Response at 7:01 P.M. (Doc. No. 8, filed August 23, 1993).

(1) The right to collateral counsel

Essentially, and despite Durocher's protestations to the contrary, CCR asserts that it is authorized to represent Durocher and to file the instant Petition. CCR's position is premised on an argument, previously rejected by the Florida Supreme Court, supra, at 484-85, that the Florida statute creating CCR not only provides for the representation of death row state defendants, but imposes mandatory representation upon such individuals, presumably irrespective of the prisoner's own wishes. In relevant part, the enabling statute of CCR provides:

The capital collateral representative shall represent, without additional compensation, any person convicted and sentenced to death in this state who is without counsel and who is unable to secure counsel due to his indigency or determined by a state court of competent jurisdiction to be indigent for the purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against such person in the state courts, federal courts in this state, the United States Court of Appeals for the Eleventh Circuit, and the United States Supreme Court.... Representation by the capital collateral representative shall commence upon termination of direct appellate proceedings in state or federal courts, ...

Fla Stat. ch. 27.702(1) (1992 Supp.) (emphasis supplied). Thus, under this section, "each defendant under sentence of death is entitled, as a statutory right, to effective legal representation by the capital collateral representative in all capital relief proceedings." Spalding v. Dugger, 526 So.2d 71, 72 (Fla. 1988) (emphasis supplied).

The subsection of the enabling statute entitled "Legislative intent" states, in relevant part:

It is the intent of the Legislature to create CCR to provide for the representation of any person convicted and sentenced to death in this state who is unable to secure counsel due to indigency, so that collateral proceedings to challenge such conviction may be commenced in a timely manner and so as to assure the people of this state that the judgments of its courts may be regarded with the finality to which they are entitled in the interests of justice.

Id. ch. 27.7001 (1991). By providing this statutory right, the legislature also intended to "avoid the attendant problems of determining the need to appoint counsel and the utilization of volunteer counsel, including the resulting delays in that process." Spalding, 526 So.2d at 72.

Thus, the Florida legislature, mindful of the risks and complexities inherent in obtaining post-conviction relief for death row inmates, decided to provide for this one class of Florida prisoners a right not otherwise available under either the Florida or United States Constitutions, namely, the right to counsel for collateral proceedings. That which must be stated, however, is the plain fact that this "right" to counsel is possessed by the Florida death row prisoner, not by CCR. Thus, it is the prisoner's right to be represented by CCR, not CCR's right to represent the prisoner.

Therefore, to possess the right to be represented by CCR in collateral proceedings, a Florida inmate must demonstrate the following: (1) that he has been convicted and sentenced to death; (2) that he is without counsel; (3) that he is unable to secure counsel; (4) that he is indigent, as demonstrated by himself or as determined by a state court; and (5) that the inability to secure counsel is due to this indigency. See id.

The third factor is particularly determinative, for it implies that the prisoner has made some attempt to be represented for collateral proceedings, and thus wants to be represented, yet is "unable" to secure counsel. That the inability to secure counsel must be due to indigency is but one further criterion which must be established. The central point, however, is that the prisoner first must desire to pursue a collateral attack, which desire may also manifest an "inability" to secure counsel.

Thus, the Court rejects CCR's argument that, as a matter of Florida statutory law, it must represent all indigent death row inmates upon termination of their direct proceedings. Instead, the Court finds that CCR exists merely to represent those inmates who desire to pursue a collateral attack on their conviction and who have been unable to secure counsel for this purpose due to their indigency. What the statute did, quite clearly, was to make collateral representation mandatorily available if wanted, not compulsory and involuntarily imposed without regard for the desires and intentions of the convicted.

Additionally, merely from a practical standpoint, it is at least slightly absurd to suggest that the Florida legislature would have established CCR if that agency's goal was to represent every inmate and challenge every death sentence. This would run contrary to the legislature's clearly stated intent of "assuring the people of this state that the judgments of its courts may be regarded with the finality to which they are entitled in the interests of justice." Id. ch. 27.7001.¹

Nevertheless, even if the Court were to accept CCR's theory of mandatory representation which would commence at the moment the direct appeals end, irrespective of an inmate's desire vel non to seek post-conviction remedy, no "mandatory representation" can continue against the desires of the alleged represented. In fact, no representation should properly continue — in any legal context — where the alleged represented expressly renounces the representation. Of course, jurisprudential safeguards exist to insure that rights such as these are not unwittingly waived. Thus, assuming that the right to collateral representation by CCR is subject to the same waiver standard as that imposed under the Sixth Amendment for the right to trial counsel, then an inmate such as Durocher cannot waive the right to be represented by CCR unless he does so "competently and intelligently." Godinez v. Moran, ___ U.S. ___, ___, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993) (citing Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461 (1938)). But where an individual can make such a competent, voluntary and intelligent waiver, this Court neither will "imprison a man in his own privileges," Adams v. United States ex rel. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), by forcing an unwanted lawyer upon him, nor countenance any efforts to undermine that individual's choice.²

The United States Supreme Court addressed an analogous situation in Faretta, supra. The Court there held that where a defendant voluntarily and freely elects to defend himself without counsel, a state may not force him to accept a court-appointed attorney against his will. Id. 422 U.S. at 817, 95 S.Ct. at 2532. In so holding, the Court stated:

The

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