Tifford v. Wainwright, No. 78-1741

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before CLARK, GEE, and HILL; PER CURIAM
• Citation: 588 F.2d 954
• Parties: Arthur W. TIFFORD, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent-Appellant. Summary Calendar. *
• Docket Number: No. 78-1741
• Decision Date: 31 January 1979

Page 954

588 F.2d 954 Arthur W. TIFFORD, Petitioner-Appellee,
v.
Louie L. WAINWRIGHT, Secretary, Department of Offender
Rehabilitation, Respondent-Appellant. No. 78-1741
Summary Calendar. ^* United States Court of Appeals,
Fifth Circuit.
Jan. 31, 1979.

Page 955

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

Page 956

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...