Rivera v. Wainwright
Decision Date | 17 January 1974 |
Docket Number | No. 73-2982. Summary Calendar.,73-2982. Summary Calendar. |
Citation | 488 F.2d 275 |
Parties | Ramon Luis RIVERA, #033341, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellee. |
Court | U.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.
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:
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:
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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