Schultz v. Wainwright, No. 82-5633
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
| Writing for the Court | Before RONEY, VANCE and ANDERSON; PER CURIAM |
| Citation | 701 F.2d 900 |
| Parties | Francis Jarad SCHULTZ, Petitioner, v. Louie L. WAINWRIGHT and Jim Smith, Respondents. Non-Argument Calendar. |
| Docket Number | No. 82-5633 |
| Decision Date | 28 March 1983 |
Page 900
v.
Louie L. WAINWRIGHT and Jim Smith, Respondents.
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.
PER CURIAM:
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) (defendant must tender some factual foundation for assertion of fear of judge's being biased). 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) (judge could conduct trial even though he had presided over a prior trial in which defendant was convicted of a felony); 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) (judge could preside over trial even though defendants had filed unrelated litigation against the court).
Even if the judge would not have presided had...
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United States v. Schenk, Case No. 3:07cr90/LC/CJK
...by specifics or contentions that in the face of the record are wholly incredible.") (quotation marks omitted); Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir. 1983) ("An evidentiary hearing is not required where, as here, the district court can determine the merits of the ineffectivenes......
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Antone v. Strickland, No. 82-5120
...for a proper examination of [petitioner's] claims." Winfrey v. Maggio, 664 F.2d 550, 552 (5th Cir.1981). See also Schultz v. Wainwright, 701 F.2d 900 at 901 (11th Cir.1983) (evidentiary hearing not required where the district court can determine merits of claim based on existing Page 1548 H......
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Hall v. Wainwright, No. 82-195-Civ-Oc.
...F.2d at 825 n. 1 (Tjoflat, J., concurring). Therefore, no federal evidentiary hearing was required on this claim.30 Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir. In reviewing ineffective assistance of counsel claims, the courts do not sit to second guess considered professional judgme......
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Connor v. Sec'y, Fla. Dep't of Corr., No. 10–12847.
...probability that, but for counsel's ... errors, the result of the proceeding would have been different”); Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir.1983) (per curiam) (“To obtain habeas relief based on ineffective assistance of counsel, a petitioner must demonstrate prejudice to hi......
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United States v. Schenk, Case No. 3:07cr90/LC/CJK
...by specifics or contentions that in the face of the record are wholly incredible.") (quotation marks omitted); Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir. 1983) ("An evidentiary hearing is not required where, as here, the district court can determine the merits of the ineffectivenes......
-
Hall v. Wainwright, No. 82-195-Civ-Oc.
...F.2d at 825 n. 1 (Tjoflat, J., concurring). Therefore, no federal evidentiary hearing was required on this claim.30 Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir. In reviewing ineffective assistance of counsel claims, the courts do not sit to second guess considered professional judgme......
-
Antone v. Strickland, No. 82-5120
...for a proper examination of [petitioner's] claims." Winfrey v. Maggio, 664 F.2d 550, 552 (5th Cir.1981). See also Schultz v. Wainwright, 701 F.2d 900 at 901 (11th Cir.1983) (evidentiary hearing not required where the district court can determine merits of claim based on existing Page 1548 H......
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Connor v. Sec'y, Fla. Dep't of Corr., No. 10–12847.
...probability that, but for counsel's ... errors, the result of the proceeding would have been different”); Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir.1983) (per curiam) (“To obtain habeas relief based on ineffective assistance of counsel, a petitioner must demonstrate prejudice to hi......