Thames v. Dugger

• Decision Date: 27 June 1988
• Docket Number: No. 87-3265,87-3265
• Parties: Oliver THAMES, Petitioner-Appellant, v. Richard L. DUGGER, Robert A. Butterworth, Attorney General, Lawrence A. Kaden, Assistant Attorney General, Respondents-Appellees. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 149

848 F.2d 149

Oliver THAMES, Petitioner-Appellant, v. Richard L. DUGGER, Robert A. Butterworth, Attorney General, Lawrence A. Kaden, Assistant Attorney General,

Respondents-Appellees.

No. 87-3265

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

June 27, 1988.

Before TJOFLAT, VANCE and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge:

Appellant, Oliver Thames, appeals the district court's judgment denying his petition for a writ of habeas corpus. Because the district court denied Thames's habeas corpus claim without an adequate record or an evidentiary hearing, we reverse the district court's decision and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

In April, 1981, the State Attorney of the First Judicial Circuit of Florida charged Thames with three counts of armed robbery and three counts of possession of a firearm by a convicted felon. Thames On March 9, 1981, Thames went to trial on Counts V and VI (armed robbery and possession of a firearm by a convicted felon). The jury found Thames guilty on both counts, however, the state trial court declared a mistrial due to prosecutorial misconduct.

pleaded nolo contendere to two counts of armed robbery without a firearm (Counts I and III) and two counts of possession of a firearm by a convicted felon (Counts II and IV). The four counts to which Thames pleaded nolo contendere are not at issue in this appeal.

At a second trial, the jury again found Thames guilty of Counts V and VI. Thames received a 75-year sentence under Count V (armed robbery) and a 15-year sentence on Count VI (possession of firearm by a convicted felon) to be served consecutively to Count V. The Court of Appeals for the First District of Florida affirmed Thames's convictions without an opinion. Thames then filed a motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure alleging denial of effective assistance of counsel. The state trial court denied Thames's motion for post-conviction relief.

On appeal, the Court of Appeals for the First District of Florida reversed and remanded the case to the trial court for further proceedings. Again, the trial court denied petitioner's motion for post-conviction relief.

On January 21, 1986, Thames filed a petition for writ of habeas corpus with the United States District Court for the Northern District of Florida. The state moved for summary judgment. A United States Magistrate found that Thames failed to show denial of effective assistance of counsel or that the results of his trial would have been different had a severance been requested. The district court adopted the magistrate's report and denied the petition. This court granted Thames's motion for a certificate of probable cause and his motion to proceed without prepayment of costs.

ISSUES

The issues to be resolved are: (1) whether Thames's motion for a certificate of probable cause filed in the district court may be construed as a notice of appeal, and (2) whether the district court properly denied Thames's claim of ineffective assistance of counsel.

DISCUSSION

Thames filed his notice of appeal more than thirty days after entry of final judgment; it was therefore untimely. "Time limitations for filing notices of appeal are mandatory and jurisdictional." United States v. Eastern Airlines, Inc., 792 F.2d 1560, 1562 (11th Cir.1986); Campbell v. Wainwright, 726 F.2d 702, 703 (11th Cir.1984); see also Fed.R.App.P. 4(a)(1). Nevertheless, Thames did file a motion for a certificate of probable cause in the district court within thirty days of the judgment. In Scott v. Wainwright, 698 F.2d 427, 428 (11th Cir.1983), this court held that although a certificate of probable cause is not a traditional notice of appeal, it does constitute sufficient notice of appeal for jurisdictional purposes. See also Stevens v. Heard, 674 F.2d 320, 322 (5th Cir.1982) (where certificate of probable cause was sufficient for notice of appeal). "While this court has discretion to disregard irregularities in the form or procedure for filing a notice of appeal, we note that the notice of appeal requirement may be satisfied only by a statement that clearly evinces the party's intent to appeal." United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986); Scott, 698 F.2d at 428. As in Scott, Thames's certificate of probable cause filed in the district court clearly evinces an intent to appeal. Indeed, Thames stated he wished to appeal "the denial of a petition for writ of habeas corpus to the Eleventh Circuit Court of Appeals." Because Thames timely filed a certificate of probable cause within thirty days after the district court's judgment, we construe the motion as proper notice of appeal.

Thames's primary claim is that his trial counsel was constitutionally ineffective at his trial, and that he is entitled to an evidentiary hearing to develop material facts relative to this claim. In evaluating a habeas corpus petition, the burden is on the petitioner to establish the need for an evidentiary hearing. Smith v. Wainwright, 777 F.2d 609, 615 (11th Cir.1985), cert. denied, 477 U.S. 905, 106 S.Ct. 3275, 91 L.Ed.2d 565 (1986), reh'g denied, --- U.S. ----, 107 S.Ct. 12, 92 L.Ed.2d 767 (1986); Williams v. Griswald, 743 F.2d 1533 (11th Cir.1984); Birt v. Montgomery, 725 F.2d 587 (11th Cir.1984), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984). The question of whether Thames received ineffective assistance of counsel is a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hence, "we are not bound by the finding of either the state court or the district court that [Thames] received effective assistance of counsel." Smith, 777 F.2d at 616.

Thames contends that the district court improperly denied his ineffective assistance of counsel claim because it did not have a complete record or conduct an evidentiary hearing. The state contends that Thames's claim of ineffective assistance of counsel fails as a matter of law. The state argues that Thames did not have an absolute right to severance and counsel's decision not to sever was a tactical choice. Without the benefit of a complete record, the district court agreed with the state and made a factual determination that Thames's lawyer made a strategical choice not to request a severance. Such a determination is premature. "[F]actual determinations of a state appellate court are to be accorded a presumption of correctness only to the extent that they are 'fairly supported by the record.' " ¹ Dickerson v. State of Alabama, 667 F.2d 1364, 1369 (11th Cir.), cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982) (citing 28 U.S.C. Sec. 2254(d)(8) (1976)); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Ordinarily, a transcript "is indispensable to determining whether the habeas applicant received a full and fair state-court evidentiary hearing resulting in reliable findings." Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963). Absent careful review of the record, a district court has no measure to determine whether a petitioner's constitutional claim received a full and fair hearing. See Townsend, 372 U.S. at 319, 83...