Tifford v. Wainwright, 78-1741

Decision Date31 January 1979
Docket NumberNo. 78-1741,78-1741
Citation588 F.2d 954
PartiesArthur W. TIFFORD, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent-Appellant. Summary Calendar. *
CourtU.S. Court of Appeals — Fifth Circuit

Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.

Robert L. Achor, Lawrence R. Metsch, Shutts & Bowen, Shelby Highsmith, Miami, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before CLARK, GEE, and HILL, Circuit Judges.

PER CURIAM:

A sixty-six count indictment charged S. K. Bronstein with various felonies resulting from his participation in a scheme to cash forged checks. Counts sixty-five and sixty-six of that indictment also charged Arthur Tifford, Bronstein's attorney, with conspiracy to aid Bronstein to avoid detection and arrest, and alleged that Tifford was an accessory after the fact. Bronstein, Tifford, and other co-defendants were tried in a joint trial in Florida state court and were convicted. Tifford subsequently petitioned for a writ of habeas corpus in federal district court, contending that the Florida State courts had denied him due process in refusing to sever his trial from that of his co-defendants. The district court granted his petition and released him, and the State of Florida has appealed. We affirm.

Under 28 U.S.C. § 2254(b), a state prisoner is required to exhaust his state remedies before presenting his claims in a federal habeas corpus petition. Tifford first asserted his misjoinder arguments in the court in which he was tried, contending that the joint trial denied him due process and violated Florida law. Tifford raised the same misjoinder issues in his appeal, and the Florida District Court of Appeals affirmed his conviction, Tifford v. State, 334 So.2d 91 (1976), but addressed only state law issues. The Supreme Court of Florida then denied Tifford's petition for a writ of certiorari. Tifford v. State, 344 So.2d 327 (1977).

The State contends that Tifford did not satisfy the exhaustion requirements. The State urges that Tifford's failure to produce a trial transcript for use in the State appellate process denied the Florida courts the ability to rule on his constitutional claims, and that Tifford's decision to forego a transcript constituted a deliberate bypass of available state remedies.

We reject the State's arguments. Of course, habeas corpus relief is unavailable to state prisoners who have deliberately bypassed state remedies, Evans v. Maggio, 557 F.2d 430, 432 (5th Cir. 1977), but no deliberate bypass occurred here. Tifford's decision to appeal without a trial transcript was based principally on financial considerations. The preparation of a transcript would have required an additional $5,000 expenditure. Moreover, another of the co-defendants, who also appealed, had the proceedings transcribed and that transcript was available to the State appellate courts. The failure to purchase an additional transcript clearly did not constitute a knowing and intentional decision to forestall State consideration of the due process-misjoinder issue. Tifford's constitutional claim was fairly presented to the State courts, and this is sufficient to comply with the exhaustion requirements of § 2254. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438, 443 (1971); Jackson v. Denno, 378 U.S. 368, 369 n.1, 84 S.Ct. 1774, 1777 n.1, 12 L.Ed.2d 908, 912 n.1 (1964).

The State also contends that the district court erred in concluding that the denial of Tifford's motion for severance violated due process. The district court's decision on this issue was based on our opinion in Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970). In Byrd, we held that a failure to grant a severance motion violates due process if the joint trial of all the co-defendants makes the trial fundamentally unfair as to the petitioner. The defendant in Byrd contended that his motion for severance should have been granted because the other defendants in the case would testify for him only if they were tried first. In examining the merits of Byrd's claim, the court set down five factors that are to be considered when the exculpatory nature of a co-defendant's testimony is relied upon to establish a constitutional violation:

(1) Does the movant intend or desire to have the codefendant testify? How must his intent be made known to the court, and to what extent must the court be satisfied that it is bona fide?

(2) Will the projected testimony of the co-defendant be exculpatory in nature, and how significant must the effect be? How does the defendant show the nature of the projected testimony and its significance? Must he in some way validate the proposed testimony so as to give it some stamp of verity?

(3) To what extent, and in what manner, must it be shown that if severance is granted there is likelihood that the codefendant will testify?

(4) What are the demands of effective judicial administration and economy of judicial effort? Related to this is the matter of timeliness in raising the question of severance.

(5) If a joint trial is held, how great is the probability that a codefendant will plead guilty at or immediately before trial and thereby prejudice the defendant, either by cr...

To continue reading

Request your trial
64 cases
  • U.S. v. D'Armond
    • United States
    • U.S. District Court — District of Kansas
    • October 13, 1999
    ...evidence that would be available to a defendant tried alone were unavailable in a joint trial. See, e.g., Tifford v. Wainwright, 588 F.2d 954 (5th Cir.1979) (per curiam). The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not di......
  • U.S. v. Villota-Gomez
    • United States
    • U.S. District Court — District of Kansas
    • January 21, 1998
    ...evidence that would be available to a defendant tried alone were unavailable in a joint trial. See, e.g., Tifford v. Wainwright, 588 F.2d 954 (5th Cir.1979) (per curiam). The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not di......
  • US v. Jackson
    • United States
    • U.S. District Court — District of Kansas
    • March 30, 1994
    ...evidence that would be available to a defendant tried alone were unavailable in a joint trial. See, e.g., Tifford v. Wainwright, 588 F.2d 954 (5th Cir.1979) (per curiam). The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not di......
  • Hutchison v. Bell
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 29, 2002
    ...would be available to a defendant tried alone [is] unavailable in a joint trial." Id. at 539, 113 S.Ct. 933 (citing Tifford v. Wainwright, 588 F.2d 954 (5th Cir.1979)). However, Hutchison has not established how the lawsuit evidence would have been essential to his defense. Hutchison was al......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT