Pressley v. Wainwright
| Decision Date | 15 October 1976 |
| Docket Number | No. 75-3861,75-3861 |
| Citation | 540 F.2d 818 |
| Parties | Nathaniel PRESSLEY, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent-Appellant. Summary Calendar. * United States Court of Appeals, Fifth Circuit |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.
Phillip A. Hubbart, Public Defender, Bennett H. Brummer, Asst. Public Defender, Miami, Fla., for petitioner-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.
Once more Nathaniel Pressley's case comes before this Court for review of the District Court's disposition of this prisoner's petition for a writ of habeas corpus. 1 This time we affirm the District Court's conditional grant of a writ order. 2
In succinct fashion, Prisoner was convicted in Florida of first degree murder. Because of his impecunious nature, Prisoner had court-appointed counsel for his direct appeal to the District Court of Appeals, Third District, which by a split panel affirmed the conviction. 3 Under Florida Appellate Rule 4.5(c)(6), 32 F.S.A., to preserve review by the Florida Supreme Court, Prisoner had to file a petition for certiorari within thirty days of rendition of the applicable order, decision, or judgment of the District Court of Appeals. For Prisoner's certiorari petition, May 24, 1972, the date his motion for rehearing before the Florida District Court of Appeals was denied, is the relevant date under Rule 4.5(c)(6).
On May 31, only seven days after the rehearing denial, Prisoner received a letter from his court-appointed counsel which informed him that he should request the Public Defender for Dade County to represent him for any future review and that the court-appointed counsel would no longer represent him. 4 On the same day, Prisoner wrote to the Public Defender requesting representation. His request was favorably received, but representation was conditioned to begin from the time that the Public Defender would be properly substituted as counsel. Between the time from denial of the rehearing motion, May 24, and the date on which Prisoner received notice that he should request other counsel to represent him for certiorari purposes, May 31, the same day that he made such a request to the Public Defender, only seven calendar days had passed well within the thirty day limit imposed by Rule 4.5(c)(6), Fla.App.Rules, 32 F.S.A. Not until June 28, 1972, was the substitution motion filed with the Florida District Court of Appeals and the motion was not granted until July 3. Both actions were outside the thirty day limit. 5
Despite the record's silence regarding the reason for failure to file the motion for substitution and, more importantly, to protect Prisoner's right to seek certiorari, decision of this dispute does not rest with this silence or with an awakening burst of explanations that have not come forth. The mere failure to act is sufficient. Clearly, Prisoner timely indicated his intention to seek review by the Florida Supreme Court. Within the fateful deadline imposed by Rule 4.5(c)(6), both the court-appointed counsel and the Public Defender were cognizant of Prisoner's desire and the time constraint. In contrast, Prisoner was unaware of this filing time and was relying on the respective attorneys to complete the substitution of counsel and to protect his right to request a writ of certiorari. 6
From this background, the state's brief creates an argument using as its base Ross v. Moffitt, 7 in which the Supreme Court held that Moffitt ". . . was denied no rights secured by the Federal Constitution when North Carolina refused to provide counsel to aid him in obtaining discretionary appellate review." The keystone of this argument is the statement that "if " Prisoner's motion to substitute counsel had been denied, he would have been in the same situation as Moffitt. With these two structural points identified, the construction of the state's theory proceeds by arguing that no later than from the time Prisoner received notice of his court-appointed counsel's intention to withdraw from further representation, May 31, until the completed substitution of counsel on July 3, Prisoner was without an attorney. As a consequence, regardless of the substitution of counsel motion on June 28, Prisoner's predicament is identical to Moffitt's: he was without counsel during the filing time and no duty to appoint counsel existed on the state of Florida for discretionary review. 8
As an arch falling when its keystone is removed, likewise, the State's argument fails. Because Prisoner's motion to substitute was granted, the binding together factor of this argument is nonexistent. 9 Furthermore, the base of the argument gives way under close scrutiny. No issue regarding failure to provide discretionary review exists. The record indicates that Prisoner's court-appointed attorney recommended that he ask the Public Defender to undertake his representation and that the Public Defender agreed to do so within the thirty-day period in question. Realization of these two defects in the argument relegates it to the status of a "whims of fate" argument relying on the remaining proposition that Prisoner was without an attorney from at least May 31 to July 3. 10 Unlike Shakespeare's epithet, "Let wyrd be done", adequate representation by counsel requires more than the unknown path fate provides.
Based on the foregoing, sufficient evidence in the record exists under F.R.Civ.P. 52(a) supporting the District Court's determination that Prisoner's right to petition for certiorari was frustrated denying him effective assistance of counsel. 11
The District Court had ample basis for its order.
AFFIRMED.
* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
1 Prior to this appeal by the State of Florida, Prisoner had sought habeas relief after indirect denial mere refusal to release Prisoner by the Florida Supreme Court on November 28, 1972, of his writ of habeas corpus requesting to file "a belated petition for certiorari". Pressley v. Wainwright, Fla., 1972, No. 42,684. The Prisoner proceeded to petition the federal court system for a similar writ. This petition was dismissed on the merits by the District Court. Pressley v. Wainwright, S.D.Fla., 1973, No. 73-737-CIV-JE. This Court in Pressley v. Wainwright, 5 Cir., 1974, 493 F.2d 894, affirmed the dismissal based on Prisoner's failure to exhaust state remedies. In light of our opinion and subsequent to it, counsel for Prisoner filed before the Florida Supreme Court a motion for leave to file a belated petition for certiorari. By an unilluminating order the Florida Court stated: "The motion for leave to file belated application for certiorari filled by counsel for Nathaniel Pressley is denied." Pressley v. Wainwright, Fla., 1974, No. 42,684. On March 19, 1975, Prisoner returned to the Southern District of Florida seeking habeas relief. In its order of June 30, 1975, the District Court found that the Prisoner had exhausted his state remedies and conditionally granted the writ. Pressley v. Wainwright, S.D.Fla., 1975, No. 75-420-CIV-JE. From this order, Florida appeals.
2 The order requires the State of Florida either to allow a belated application for certiorari or to set aside the conviction and grant a new trial within a reasonable time. Under the order Florida has the option to follow either one of these alternatives.
4 The record does not indicate whether Prisoner had previously requested that his court-appointed counsel represent him for certiorari purposes and that his attorney at that instant responded with the May 31 letter. Nor does the record indicate whether the court-appointed counsel's letter was self-initiated with the two-fold purpose of informing Prisoner of his right to seek...
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Harris v. State
...Circuit took a contrary view where a prisoner sought federal habeas corpus relief from a conviction in state court. Pressley v. Wainwright, 540 F.2d 818 (5th Cir.1976), cert. denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383 (1977). Pressley's conviction had been affirmed by a split panel......
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Pressley v. Wainwright
...into our present appellate rules. Fla.R.App.P. 9.120(b).2 Pressley v. Wainwright, No. 75-420-CIV-JE (S.D.Fla.1975).3 Pressley v. Wainwright, 540 F.2d 818 (5th Cir. 1976), Cert. denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383 (1977).4 Pressley v. State, 261 So.2d 522 (Fla.3d DCA 1972).5 ......
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... ... , 402 F.3d 1136, 1142 (11th Cir. 2005); Atkins ... v. Singletary , 965 F.2d 952, 957 (11th Cir. 1992); ... Francois v. Wainwright , 741 F.2d 1275, 1285-86 (11th ... Cir. 1984). Additionally, appellate counsel cannot be deemed ... ineffective for failing to raise ... right to provide Eagle a new trial within a reasonable period ... of time”), with Pressley v. Wainwright , 540 ... F.2d 818, 819 n.2 (5th Cir. 1976) (ordering the State ... “either to allow a belated application for certiorari ... ...
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