Reynolds v. Wainwright, 30848 Summary Calendar.
| Decision Date | 20 April 1972 |
| Docket Number | No. 30848 Summary Calendar.,30848 Summary Calendar. |
| Citation | 460 F.2d 1026 |
| Parties | Benny REYNOLDS, Jr., Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David M. Foster, Jacksonville, Fla. (Court-appointed), for petitioner-appellant.
Charles Corces, Jr., Asst. Atty. Gen., Earl Faircloth, Atty. Gen., Lakeland, Fla., for respondent-appellee.
Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.
Petitioner appeals from the District Court's refusal to grant § 2254 habeas corpus relief from his 1967 Florida conviction for assault with intent to commit rape. The District Court dismissed the petition for failure to exhaust available state remedies and we affirm.
No direct appeal or other action to obtain post-conviction review was under-taken until the indigent petitioner filed his pro se "Motion to Vacate Judgment and Sentence" in the Circuit Court of Hillsborough County, Florida, on April 29, 1968. Thereafter, on July 22, 1968, petitioner filed a "Motion for Transcript". The Florida Rule 1.850 now 3.850 33 F.S.A., Motion to Vacate was denied on August 22, 1968, but the Motion for Transcript was not and has never been acted upon. No appeal was taken from this action.
On December 23, 1968, petitioner filed a second 1.850 Motion to Vacate in the Hillsborough County Circuit Court. After 10 months had passed with no disposition of this motion, petitioner filed his § 2254 application for Federal habeas relief on October 6, 1969. Thereafter, on November 25, 1969, the Florida Circuit Court entered its order denying 1.850 relief, but no appeal was taken to the Florida District Court of Appeals.
Admitting that he has not presented his allegations to any Florida court of appellate review, petitioner nonetheless insists that comity requirements of exhaustion of state remedies have been fulfilled in this case since at the time he filed his habeas petition, he had no effective avenues of State appellate review available, the Circuit Court having refused to issue an appealable order in his case.
Clearly, inordinate delay in the State post-conviction process can, in an appropriate case, render the state remedy ineffective to protect a prisoner's rights, thereby relieving him of the necessity for making further efforts to present his claims to the State courts. Dixon v. Florida, 5 Cir., 1968, 388 F.2d 424; Morgan v. Tennessee, E.D.Tenn., 1969, 298 F.Supp. 581. Indeed, 28 U.S.C.A. § 2254 by its express terms excuses failure to exhaust state remedies where there are "circumstances rendering such process ineffective to protect the rights of the prisoner." Unreasonable delay in passing upon a State post-conviction motion may provide such special circumstances. Alternatively, a state of exhaustion can be reached by lapse of time alone at some point, as is implicit in the statement from Fay v. Noia, 1963, 372 U.S. 391, 401-402, 83 S.Ct. 822, 9 L.Ed. 2d 837, 846, that the function of Federal habeas corpus relief is to provide applicants with "a prompt" remedy.
On the other hand, the substantive issues urged by petitioner in this case are...
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