Oliver v. Wainwright, s. 84-5821

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: PER CURIAM
• Citation: Oliver v. Wainwright, 795 F.2d 1524 (11th Cir. 1986)
• Decision Date: 11 August 1986
• Docket Number: 84-5911,Nos. 84-5821,s. 84-5821
• Parties: Edgar E. OLIVER, Petitioner-Appellant, v. Louie L. WAINWRIGHT and Jim Smith, Respondents-Appellees.

Page 1524

795 F.2d 1524

Edgar E. OLIVER, Petitioner-Appellant, v. Louie L. WAINWRIGHT and Jim Smith, Respondents-Appellees.

Nos. 84-5821, 84-5911.

United States Court of Appeals Eleventh Circuit.

Aug. 11, 1986.

Margaret S. Brodsky, Miami, Fla., for petitioner-appellant.

Davis G. Anderson, Asst. Atty. Gen., Tampa, Fla., and Calvin L. Fox, Asst. Atty. Gen., Miami, Fla., for respondents-appellees.

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

Before FAY, CLARK and NIES ^*, Circuit Judges.

PER CURIAM:

Edgar Oliver appeals from the denial of his petition for habeas corpus on the ground that his ineffective assistance of counsel claim is barred by his procedural default during Florida post-conviction proceedings and that his prosecutorial misconduct claims lack merit. We affirm the denial with respect to Oliver's ineffective assistance of counsel claim, but for reasons other than those advanced by the district court. We also affirm the denial with respect to the prosecutorial misconduct claims.

I. FACTS

On April 30, 1975, Oliver was convicted in the Twentieth Judicial Circuit Court of Florida of first degree murder. He was later sentenced to life in prison. Oliver appealed his conviction to Florida's Second District Court of Appeal ("Second DCA"), ¹ which issued a per curiam summary affirmance on February 6, 1976.

In July of 1976, Oliver instituted his first request for collateral post-conviction relief by filing a pro se motion to vacate, set aside or correct his sentence pursuant to Fla.R.Crim.P. 3.850 ("3.850 motion") in the Twentieth Judicial Circuit Court of Florida. As grounds for his motion, he questioned the sufficiency of the evidence against him and the prosecutor's alleged attempt to influence the testimony of defense witnesses by threatening prosecution for perjury. His motion was denied, and this denial was summarily affirmed by the Second DCA. Oliver's petition to the Florida Supreme Court for a writ of habeas corpus (apparently raising the same grounds for relief) was denied in September, 1977.

Oliver next filed a motion for post-conviction relief pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Southern District of Florida in December, 1977. He raised the same arguments that had been presented in his 3.850 motion as well as a few new theories, including an ineffective assistance of counsel claim. This petition was dismissed for failure to exhaust state remedies. Oliver's appeal from the dismissal was itself dismissed for failure to prosecute because Oliver never filed an appellate brief. The United States Supreme Court declined to grant certiorari.

In May, 1980, Oliver filed his second 3.850 motion pro se in Florida circuit court, commencing the state processes leading to the Sec. 2254 petition at issue on this appeal. In this motion he alleged he was denied the effective assistance of counsel by virtue of his trial attorney's failure (1) to challenge identifications central to the state's case, (2) to challenge the jury composition (apparently on racial grounds), (3) to investigate certain unspecified facts and (4) to object to certain statements made by the prosecutor in closing argument. He also argued that he was denied due process of law by the prosecutor's improper statements in closing argument. He specifically objected to twenty-three quoted statements that included (1) references to Oliver's prior criminal activity, (2) a suggestion that Oliver suborned perjured testimony from his alibi witnesses, (3) the (allegedly false) assertion that Oliver supported the child of one of his alibi witnesses and (4) remarks about the keen powers of observation of prosecution witness Sergeant Charlie Sanders.

The trial court appointed counsel and held a hearing at which witnesses testified only with respect to the issue whether Oliver's trial counsel failed effectively to challenge the identifications of prosecution witnesses. The court orally denied Oliver's motion at the close of the hearing, which took place on October 13, 1980. Although the denial was recorded in the court's minute book, it was never otherwise recorded. Oliver never received written notice of the denial informing him of his appeal rights as is required by Rule 3.850.

Appointed counsel informed Oliver that he had thirty days to appeal the denial of his motion and declined to represent Oliver on appeal. Acting pro se, Oliver mailed a "Petition for Writ of Habeaus [sic] Corpus" to the Second DCA on November 12, 1980. It was filed with the clerk of that court on November 18, 1980. This petition raised the same arguments that had been presented to the trial court and stated that his motion for post-conviction relief had been denied on October 13, 1980. On November 20, 1980, 392 So.2d 78, the Second DCA denied the petition without opinion. Oliver attempted to appeal this denial by filing a petition for writ of habeas corpus with the Florida Supreme Court. This petition was denied in January, 1981.

Oliver filed his second Sec. 2254 petition in the Southern District of Florida, raising the same grounds for relief that had been raised throughout his second quest for post-conviction relief in the Florida courts. The district court again determined that Oliver had failed to exhaust his state post-conviction remedies and dismissed the petition without prejudice.

The district court reasoned that the Second DCA must have denied Oliver's petition/appeal pursuant to the following language of Rule 3.850:

An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

The court concluded that Oliver's allegations "on appeal" were never considered on the merits. The court noted that Florida decisional law provides a mechanism for requesting a "belated" appeal on the ground the appellant's right to appeal has been frustrated by state action. In Baggett v. Wainwright, 229 So.2d 239 (Fla.1969), the court held that relief from an alleged deprivation of the right to appeal may be sought through a petition for habeas corpus to the district court of appeal empowered to grant ultimate relief in the matter in which appeal has been frustrated. The district court directed Oliver to petition for a belated appeal pursuant to Baggett to exhaust his state remedies.

Oliver did petition the Second DCA for a belated appeal. The commissioner ² appointed to investigate the facts relevant to the petition issued a report on May 4, 1984 finding that Oliver had access to the materials necessary to appeal from the October 13, 1980 denial of his second 3.850 motion and was aware that he had thirty days to appeal. Assuming the petition for writ of habeas corpus could be treated as a notice of appeal, the commissioner concluded it was nevertheless not timely filed. As Oliver's right to appeal had not been denied, the commissioner recommended that Oliver's petition for belated appeal be rejected. The Second DCA accordingly denied the petition on May 8, 1984.

Back in federal district court after successfully petitioning the court to reinstate his petition for habeas corpus, Oliver found his petition submitted to a magistrate, who recommended that the petition be denied. With respect to the ineffective assistance of counsel claim, the magistrate found consideration on the merits to be barred by Oliver's failure timely to appeal the denial of his second 3.850 motion. The magistrate found that the state court "imposed a procedural default" when it "ruled, after an evidentiary hearing [on Oliver's Baggett petition], that Petitioner had not timely filed his appeal and had not been hindered in any way from doing so" and reasoned that it must defer to the state court's ruling on procedural default absent a showing by Oliver of cause for the default and prejudice from the court's failure to reach the merits, citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Finding no cause for the late filing, the magistrate concluded that he was not free to review the merits of the ineffective assistance claim.

Without explaining why Oliver's prosecutorial misconduct claim would not similarly be barred, the magistrate proceeded to address the merits of that claim. The magistrate dismissed most of the challenged remarks as not colorably improper. Addressing the statements about Sergeant Sanders, the magistrate found they did not amount to an expression of the prosecutor's opinion, a personal attestation to the credibility of a witness, or an implication that extra-record evidence supported the state's case. They were not, therefore, improper. The magistrate also concluded that the evidence linking Oliver to the murder, apart from Sanders' testimony, was "strong," implying that any impropriety was not prejudicial.

The district court adopted the magistrate's report and recommendation and dismissed Oliver's petition. ³ Oliver filed notice of appeal from the denial, and we appointed counsel to represent Oliver before this court.

II. ISSUES

On appeal from the denial of his ineffective assistance claim, Oliver asks us to find that no procedural default occurred under Florida law and argues, in the alternative, that he meets the cause and prejudice requirements of Wainwright v. Sykes. As for the prosecutorial misconduct claim, Oliver argues that the prosecutor's remarks were improper and prejudicial and so violated his right to a fair trial. We conclude that Wainwright v. Sykes should not be applied in the peculiar circumstances of this case and affirm the denial of Oliver's petition on the ground his claims lack merit.

III. ANALYSIS

A...