Whitney v. State of Florida, 68

• Citation: 389 U.S. 138,88 S.Ct. 314,19 L.Ed.2d 343
• Decision Date: 01 October 1967
• Docket Number: No. 68,68
• Parties: Dennis Manaford WHITNEY, petitioner, v. STATE OF FLORIDA
• Court: United States Supreme Court

389 U.S. 138

88 S.Ct. 314

19 L.Ed.2d 343

Dennis Manaford WHITNEY, petitioner,

v STATE OF FLORIDA.

No. 68.

Supreme Court of the United States

October Term, 1967.

November 13, 1967

Richard A. Kanner, Miami, Fla., for petitioner.

James T. Carlisle, Vero Beach, Fla., for respondent.

On Writ of Certiorari to the District Court of Appeal of Florida, Third District.

PER CURIAM.

The writ is dismissed as improvidently granted without prejudice to an application for a writ of habeas corpus in the appropriate United States District Court.

Mr. Justice DOUGLAS, dissenting.

The question presented here is whether Florida has deprived petitioner of equal protection or due process of law by summarily dismissing his collateral attack on a state criminal conviction without conducting an evidentiary hearing. Because of the increasing tide of habeas corpus petitions brought by prisoners (see Price v. Johnston, 334 U.S. 266, 293, 68 S.Ct. 1049, 92 L.Ed. 1356)—many of whom find they must turn to federal courts to obtain a hearing—the question is of considerable importance.

I assume that the Federal Constitution does not compel the States to provide any remedy for collateral attack of criminal convictions. Cf. Townsend v. Sain, 372 U.S. 293, 313, n. 9, 83 S.Ct. 745, 9 L.Ed.2d 770; Griffin v. People of State of Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891. But when a State makes available a means for review, it is held to a 'constitutional requirement of substantial equality and fair process.' Anders v. State of Claifornia, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. It may not discriminate arbitrarily between persons applying for relief (e. g., Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209), and it must adhere to the requirements of due process. Swenson v. Bosler, 386 U.S. 258, 260, 87 S.Ct. 996, 18 L.Ed.2d 33. Though these rules were primarily developed with reference to appellate review, we have held them applicable with equal force to state post-conviction proceedings. Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39.

By Rule 1 of the Florida Rules of Criminal Procedure, F.S.A., ch. 924 Appendix, Florida has provided a means of collateral attack.

In his application petitioner alleged that extensive pretrial publicity—including television broadcasts of confessions given by him—prevented selection of a fair and impartial jury. Petitioner further alleged that he asked his trial counsel to request a change of venue, but counsel refused to do so. The Florida District Court of Appeal held that no evidentiary hearing was necessary because venue objections could only be raised at trial and because venue was res judicata under the judgment in a prior collateral attack by petitioner (see Whitney v. Cochran, 152 So.2d 727, 730 (Fla.)) that representation by trial counsel was adequate and not a farce or sham.

But this characterization and disposition of petitioner's allegations avoid the basic issue presented. Under Entsminger v. State of Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501, a defendant who specifically asked his attorney to take a plenary appeal was denied a constitutional right when the attorney took only a truncated appeal. The allegations of petitioner here clearly constitute a prima facie case of violation of this principle.

My Brother HARLAN characterizes this crime as 'a particularly brutal murder'—and so it was. But that does not alter the underlying constitutional question whether the atmosphere of the community had been so saturated by adverse publicity as to deprive the state trial of the constitutional requirement of due process. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. My Brother HARLAN states that from this record it is 'inescapable' that petitioner's trial counsel 'deliberately' chose to try the case before a jury that may have been exposed to petitioner's televised confessions. But with all respect, that is no answer to the present constitutional claim. Until we know the extent and degree of saturation of the public mind with the TV films, it is impossible to say whether or not counsel's failure to obtain a change of venue was harmless error under the ruling of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Far more than mere trial tactics and strategy is involved. In such a case the denial of the defendant's rights is not cured by outstanding representation by counsel during the balance of proceedings. It is no answer for the Florida courts to say counsel never moved at trial for a transfer to a county not saturated with pretrial publicity; for this failure of counsel is the very heart of the wrong allegedly done to petitioner. Nor are res judicata principles applicable, for as I read Whitney v. Cochran the Entsminger right-to-counsel issue was neither raised nor decided.

I would vacate the judgment and remand to the Florida courts so that the State may give petitioner the evidentiary hearing to which he is entitled. We needlessly burden the federal regime^* when we do not insist that Florida, which has provided a remedy, have the evidentiary hearing which will determine the nature and extent of the pretrial publicity and whether it was trivial or potentially damaging.

Mr. Justice HARLAN...