Moore v. Wainwright, 79-3329

• Decision Date: 22 December 1980
• Docket Number: No. 79-3329,79-3329
• Citation: 633 F.2d 406
• Parties: Carlos E. MOORE, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 406

633 F.2d 406

Carlos E. MOORE, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent-Appellee.

No. 79-3329.

United States Court of Appeals Fifth Circuit.

Dec. 22, 1980.

David J. Busch, Asst. Public Defender, Michael J. Minerva, Public Defender, Tallahassee, Fla., for petitioner-appellant.

Raymond Marky, David P. Gauldin, Asst. Attys. Gen., Tallahassee, Fla., for respondent-appellee.

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

Before RONEY, HILL and FAY, Circuit Judges.

RONEY, Circuit Judge:

Petitioner Carlos Moore, presently serving a life sentence in Florida for robbery, appeals from the district court's denial of habeas corpus relief. The issue on appeal is whether he is entitled to a free, complete transcript of all the trial court proceedings, even though neither his trial or appellate counsel sufficiently complied with the Florida procedure to obtain a transcript of the portions of the trial court proceedings relevant to an appeal. The district court held that the state procedures followed by the trial court for determining whether a defendant should receive a complete transcript did not violate the right of petitioner to due process and equal protection of the law. We affirm.

The problem in this case, as demonstrated by the following facts, is created by the failure of petitioner's counsel to file assignments of error on appeal and the attempt by the public defender's office which tried the case to pass the appeal to a public defender's office which did not participate in the trial.

In 1973, petitioner, represented by a public defender of the Eighth Judicial Circuit of Florida, was found guilty of robbery and sentenced to life imprisonment.

Petitioner's trial counsel filed a motion for a new trial, alleging that the judge erred in giving a certain jury instruction over the petitioner's objection, and that the verdict was contrary to the law and the weight of the evidence. This motion was denied. Trial counsel then filed a timely notice of appeal.

The trial judge appointed trial counsel to continue to represent petitioner on appeal. Trial counsel thereupon requested the Public Defender's Office of the Second Judicial Circuit of Florida to handle the appeal, as permitted by Florida law. See section 27.51(4), Florida Statutes (1973). We hereinafter refer to this counsel as appellate counsel to differentiate between counsel from this public defender's office and the office of trial counsel.

Appellate counsel then filed with the trial court a motion for an order directing the court reporter to transcribe "all proceedings in this cause including the arraignment, any hearings on the motions, trial (including closing argument of the prosecution) and sentencing." The court held that petitioner was only entitled to these portions of the transcript to which the assignments of error related. Since no assignments of error had been filed, the court denied the motion with leave to amend upon the filing of such assignments.

The same counsel then filed the same motion in the Florida District Court of Appeal, First District. In a written opinion in three consolidated cases all attacking the Florida procedure, that court denied relief. Moore v. State, 298 So.2d 561 (Fla.App.1974). A petition for a writ of mandamus from the Florida Supreme Court proved similarly unsuccessful.

At this juncture, trial counsel filed a motion to withdraw as counsel of record, and also submitted an affidavit stating that he could not in good faith file any assignments of error. The trial court denied the motion, holding that, pursuant to a Florida administrative order, trial counsel may not withdraw until he files assignments of error. Trial counsel has therefore never been relieved of his representation of petitioner, although all subsequent proceedings in both state and federal court have been handled by other counsel.

The direct appeal of petitioner's conviction went forward without any portion of the trial transcript appearing in the appellate record. The sole issue argued on appeal was the refusal of the trial court to supply appellate counsel with the complete transcript. Petitioner's conviction was summarily affirmed. Moore v. State, 322 So.2d 88 (Fla.App.1975), cert. dismissed, 336 So.2d 1183 (Fla.1976), cert. denied, 429 U.S. 1046, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977).

Appellate counsel then brought this action on behalf of petitioner for a federal writ of habeas corpus. The district court denied relief.

It is important to specify at the outset the precise issue presented to this Court. Petitioner contends that he has been denied due process and equal protection of the laws because the state has prevented him from obtaining a complete transcript of the trial proceedings for an appeal. Petitioner has not argued, either in the state courts or in the federal district court, that he has been denied a meaningful appeal because of the failure of trial counsel to file assignments of error or otherwise comply with the procedures mandated by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Court is generally limited, of course, to consideration of those issues presented to the district court, and the district court is limited to consideration of those issues exhausted through state proceedings. 28 U.S.C.A. § 2254 (1977).

Under Florida law, an indigent defendant is entitled at state expense to only those portions of the transcript which relate to the assignments of error filed with the trial court. Cueni v. State, 303 So.2d 411 (Fla.App.1974), cert. denied, 310 So.2d 738 (Fla.1975), cert. denied, 423 U.S. 837, 96 S.Ct. 64, 46 L.Ed.2d 56 (1975). To ensure that court-appointed counsel promptly file the assignments of error, thereby setting the appeal into motion, the Florida courts by administrative order provide that counsel will not be permitted to withdraw from a case until the assignments have been filed, together with other documents not relevant here. General Administrative Order No. 5 (1974). This administrative order has since been incorporated, with minor changes, into Rule 9.140 of the Florida Rules of Appellate Procedure. See In re Rule 9.140, 376 So.2d 844 (Fla.1979). It is these procedures, followed by the trial court, which petitioner must show unconstitutionally deny him an effective appeal.

While it is clear that an indigent defendant is entitled to a free transcript on appeal, see Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the state is not obligated to automatically supply a complete verbatim transcript. In Draper v. Washington, 372 U.S. 487, 495-96, 83 S.Ct. 774, 779, 9 L.Ed.2d 899 (1963), the Supreme Court stated:

(P)art or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. If, for instance, the points urged related only to the validity of the statute or the sufficiency of the indictment upon which conviction was predicated, the transcript is irrelevant and need not be provided. If the assignments of error go only to rulings on evidence or to its sufficiency, the transcript provided might well be limited to the portions relevant to such issues. Even as to this kind of issue, however, it is unnecessary to afford a record of the proceedings pertaining to an alleged failure of proof on a point which is irrelevant as a matter of law to the elements of the crime for which the defendant has been convicted. In the examples given, the fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review (footnote omitted).

See also Mayer v. Chicago, 404 U.S. 189, 194-95, 92 S.Ct. 410, 414-15, 30 L.Ed.2d 372 (1971).

In Mack v. Walker, 372 F.2d 170 (5th Cir. 1966), cert. denied, 393 U.S. 1030, 89 S.Ct. 641, 21 L.Ed.2d 573 (1969), a habeas corpus proceeding involving Louisiana state prisoners, this Court upheld the denial of a complete transcript to indigent petitioners under circumstances similar to the present case. The petitioners in Mack contended they were entitled to a "complete, word by word transcript." Id. at 172. The Louisiana courts had denied their requests because petitioners had not shown that any portion of the transcript was related to the bills of exception filed. This Court affirmed the denial of habeas corpus relief, holding that petitioners had not alleged any violations of their constitutional rights which would require a complete transcript. See also Bradley v. Texas, 470 F.2d 785 (5th Cir. 1972); Rim v. Florida, No. 75-193 (N.D.Fla. May 1, 1977).

On the basis of these decisions, it is apparent that the Florida procedures, which limit a defendant's right to a free transcript to only those portions pertinent to the assignments of error, are not in themselves unconstitutional.

Petitioner argues, however, that the Florida procedures deny him an effective appeal because he is represented on appeal by new counsel not present at trial. Petitioner contends that appellate counsel is unable to determine what are the appealable issues without a transcript.

This argument is flawed because it overlooks the role in the appellate...