Rivera v. Wainwright

Decision Date17 January 1974
Docket NumberNo. 73-2982. Summary Calendar.,73-2982. Summary Calendar.
Citation488 F.2d 275
PartiesRamon Luis RIVERA, #033341, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Ramon Luis Rivera, pro se.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Barry Scott Richard, Joel D. Rosenblatt, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

PER CURIAM:

We affirm the denial of this state prisoner's petition for writ of habeas corpus for the reasons set forth in Chief District Judge Charles B. Fulton's Order of Dismissal attached hereto as an appendix. See Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Ward v. United States, 486 F.2d 305 (5th Cir. 1973) Oct. 18, 1973, No. 73-2049.

APPENDIX

ORDER OF DISMISSAL

Ramon Luis Rivera has filed a Petition for a Writ of Habeas Corpus attacking a twenty year sentence imposed on February 4, 1972, in the Circuit Court in and for the Eleventh Judicial Circuit of Florida, Dade County, Florida. The sentence was imposed after a trial by jury resulted in a guilty verdict for the crime of second degree murder.

As grounds for relief the petitioner alleges as follows:

(1) The petit jury which tried his case was selected pursuant to a procedure which systematically excluded qualified persons solely on the basis of race, religion, sex, age, economic and social factors.
(2) Prospective jurors were excluded from jury service solely on the basis of their general objections to the imposition of the death penalty.

The petitioner's conviction was appealed to the District Court of Appeal, Third District of Florida, which affirmed the conviction. Rivera v. State, 270 So.2d 62 (Fla.App.3rd, 1972). (Examination of the record on appeal reveals that the petitioner's present claims for relief were presented on the direct appeal. Therefore, the petitioner has fully exhausted his state remedies. See McCluster v. Wainwright, 453 F.2d 162 (5th Cir. , 1972).

In State v. Silva, 259 So.2d 153 (Fla., 1972), the Florida Supreme Court ruled that the method employed in Dade County, Florida for the selection of petit juries systematically excluded qualified persons solely on the basis of race, religion, sex, age, economic and social factors. This condemned method was employed at the time that the petitioner's trial jury was selected. The Florida Supreme Court, however, refused to give retroactive effect to its ruling when it stated:

"Although we are required to hold that there were arbitrary exclusions in the selection of the jurors, those who have been convicted can receive no comfort from this decision. A challenge to the panel, or challenge to the array, is used to question the selection or drawing of prospective jurors. Such a challenge must be made and decided before any independent juror is examined, unless otherwise ordered by the Court. FRCrP Rule 3.300, 33 F.S.A. Such an objection comes too late after verdict and has no place in a motion for new trial or in arrest of judgment. By going to trial before a jury without any objections, a defendant waives all irregularity in the drawing, summoning and impaneling of such jurors. Green v. State, 60 Fla. 22, 53 So. 610 (1910); Lake v. State, 100 Fla. 386, 129 So. 833 (1930); 14 F.L.P., Jury, § 111; 20 Fla.Jur., Juries, § 68." Id. at 158.

It is clear from the face of the state court record, that the petitioner did not comply with Florida Criminal Procedure Rule 3.300, 33 F.S.A., and, therefore, under Silva, he waived his right to attack the petit jury selection process. If this waiver meets federal constitutional standards then the petitioner would be precluded from asserting his present claim in this federal habeas corpus proceeding.

Recently in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 decided April 17, 1973 the United States Supreme Court ruled that absent a showing of "cause", the failure of a federal defendant to attack the composition of the federal grand jury that indicted him by motion before trial pursuant to Rule 12(b)(2), Federal Rules of Criminal Procedure constitutes a valid waiver of that claim. Florida's Rule 3.300 is identical to its counterpart, the Federal Rule 12(b)(2). If a federal prisoner is deemed to have waived his...

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14 cases
  • Douglas v. Wainwright
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 19 de setembro de 1983
    ...Sykes, displaced use of deliberate bypass standard), cert. denied, 426 U.S. 908, 96 S.Ct. 2230, 48 L.Ed.2d 833 (1976); Rivera v. Wainwright, 488 F.2d 275 (5th Cir.1974) (same). See also Hockenbury v. Sowders, 620 F.2d 111, 112-13 & n. 1 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. ......
  • Arnold v. Wainwright
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 4 de agosto de 1975
    ...233, 93 S.Ct. 1577, 36 L.Ed.2d 216. The choice between the two approaches is no longer an open one in this circuit. In Rivera v. Wainwright, 5 Cir. 1974, 488 F.2d 275, we held: (i) that the failure to object standard is to be applied in determining waiver vel non under the same Florida proc......
  • Dumont v. Estelle
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 30 de maio de 1975
    ...U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955); Rivera v. Wainwright, 5th Cir. 1974, 488 F.2d 275; Morris v. Sullivan, 5th Cir. 1974, 497 F.2d 544; Wilson v. Estelle, 5th Cir. 1974, 504 F.2d 562; Newman v. Henderson, 5th C......
  • Huffman v. Wainwright
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 20 de julho de 1981
    ...36 L.Ed.2d 216 (1973); Evans v. Maggio, 557 F.2d 430 (5th Cir. 1977); Marlin v. Florida, 489 F.2d 702 (5th Cir. 1974); Rivera v. Wainwright, 488 F.2d 275 (5th Cir. 1974). A defendant's failure to comply with established state procedures can cause him to waive his right to complain about a c......
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