Walker v. Dugger
| Decision Date | 22 November 1988 |
| Docket Number | No. 88-3083,88-3083 |
| Citation | 860 F.2d 1010 |
| Parties | Calvin WALKER, Petitioner-Appellee, v. Richard L. DUGGER, Secretary, Department of Corrections and Chester Lambdin, Superintendent, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ellen D. Phillips, Kellie A. Nielan, Asst. Attys. Gen., Daytona Beach, Fla., for respondents-appellants.
John A. Tucker, IV, Caven, Clark & Ray, Jacksonville, Fla., for petitioner-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before VANCE and KRAVITCH, Circuit Judges, and HENDERSON, Senior Circuit Judge.
This is an appeal by Richard L. Dugger, Secretary, Department of Corrections, et al., from the district court's judgment granting Calvin Walker's pro se habeas corpus petition.
Calvin Walker was charged in 1984 with one count of committing a lewd act in the presence of a child under the age of fourteen. He pled no contest and was sentenced on November 15, 1985, to one year's probation. In 1986, during his probation period, Walker was arrested and charged with committing a lewd and lascivious assault on a child under the age of sixteen and with one count of violating probation. Walker pled no contest to both counts.
In sentencing Walker, the trial judge prepared a sentencing guidelines score-sheet pursuant to Florida's revised sentencing guidelines, Fla.R.Crim.P. 3.701 (West Supp.1988). He listed the 1985 conviction as a prior record and the 1986 conviction as a primary offense. The combined score for Walker's offenses resulted in a recommended sentence of seven to nine years for the 1986 charges. Walker was sentenced to seven years' incarceration.
On April 2, 1987, Walker filed a motion pursuant to Fla.R.Crim.P. 3.850 to vacate or correct his sentence. Walker contended that the court had erroneously characterized his 1985 conviction as a prior record rather than an additional offense, that the scoring method the court had utilized constituted double jeopardy, that the court had erred by assessing victim injury points, and that the court had erred by not allowing Walker credit for time served while he was on probation for the 1985 criminal conviction. The court denied the motion and a Florida appellate court affirmed without opinion.
Walker filed a federal petition for writ of habeas corpus on November 16, 1987, raising the same issues that he had presented in his state proceeding. On January 14, 1988, the district court granted Walker habeas relief and ordered the Florida courts to resentence Walker. The court concluded that Walker's 1985 conviction arose from a crime committed before the effective date of Florida's revised sentencing guidelines and therefore the use of these guidelines during Walker's 1986 sentencing violated the ex post facto clause of the United States Constitution. Appellants now contend that Walker did not exhaust his ex post facto claim in state court and because he did not assert the claim in his federal habeas petition, appellants did not have an opportunity to raise the exhaustion defense in the district court.
Appellants are correct in their contention that they were not given a fair opportunity to raise the exhaustion defense. The district court held that because Walker had implicitly raised an ex post facto claim in his federal habeas petition and appellants failed to plead exhaustion, appellants waived the right to raise the defense:
Although the Petitioner did not raise the issue of an ex post facto violation in state court, the Petitioner did present all the facts upon which the ex post facto violation was based. Further, the Respondents have not raised the affirmative defenses of exhaustion or procedural default pursuant to Anderson v. Harless, 459 U.S. 4 [103 S.Ct. 276, 74 L.Ed.2d 3] (1982). Consequently, this Court is not precluded from reaching the merits of the ex post facto issue. A liberal construction of the Petitioner's pro se...
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