Schultz v. Wainwright
Decision Date | 28 March 1983 |
Docket Number | No. 82-5633,82-5633 |
Citation | 701 F.2d 900 |
Parties | Francis Jarad SCHULTZ, Petitioner, v. Louie L. WAINWRIGHT and Jim Smith, Respondents. Non-Argument Calendar. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Francis Jarad Schultz, pro se.
Robert J. Landry, Asst. Atty. Gen., State of Fla., Tampa, Fla., for respondents.
Appeal from the United States District Court for the Middle District of Florida.
Before RONEY, VANCE and ANDERSON, Circuit Judges.
Francis Jarad Schultz, a Florida state prisoner convicted of grand theft, appeals the denial of his petition for a writ of habeas corpus, claiming that he lacked effective assistance of counsel at trial because his attorney made an untimely, procedurally defective, oral motion for disqualification of the state court judge, rather than a written motion accompanied by two supporting affidavits as required by Fla.R.Crim.P. 3.230. We affirm.
To obtain habeas relief based on ineffective assistance of counsel, a petitioner must demonstrate prejudice to himself. See Washington v. Strickland, 693 F.2d 1243, 1258 (5th Cir., Unit B, 1982) (en banc). To establish prejudice, a habeas petitioner must show that ineffective counsel "resulted in actual and substantial disadvantage to the course of his defense." Id. at 1262.
Here, Schultz has not shown that a timely, written motion for disqualification would have succeeded. Under Florida law, bare allegations of bias are insufficient for disqualification. State ex rel. Aguiar v. Chappell, 344 So.2d 925, 926 (Fla.Dist.Ct.App.1977); see Wilson v. Renfroe, 91 So.2d 857, 860 (Fla.1956) ( ). The only evidence of bias proferred by Schultz is that prior to his trial he had filed two civil rights suits against the trial judge, who had given Schultz in a previous criminal case a sentence the petitioner considered excessive. The two suits and criminal sentence do not establish personal bias under federal law. See Wilkerson v. United States, 591 F.2d 1046, 1047 (5th Cir.1979) ( ); Hodgdon v. United States, 365 F.2d 679, 686 (8th Cir.1966), cert. denied, 385 U.S. 1029, 87 S.Ct. 759, 17 L.Ed.2d 676 (1967) ( ).
Even if the judge would not have presided had counsel satisfied the procedural requirements for a disqualification motion, Schultz has not alleged how the presence of this particular judge in anyway adversely affected his jury trial. There is not a single claim, let alone any evidence in the record, of any improper action by the judge during trial. See Hodgdon v. United States, 365 F.2d at 686 ( ). Under these circumstances, Schultz has not satisfied his burden to establish that the ineffectiveness of counsel, if any, actually and substantially disadvantaged his case. Washington v. Strickland, 693 F.2d at 1258, 1262.
Schultz claims the district court should have granted him an evidentiary hearing and appointed counsel. An evidentiary hearing is not required where, as here, the district court can determine the merits of the ineffectiveness claim based on the existing record. Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir.1982); see Baldwin v. Blackburn, 653 F.2d 942, 947 (5th Cir.1981), cert....
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