Wynn v. Smith

• Decision Date: 12 July 1971
• Docket Number: No. 30004.,30004.
• Citation: 446 F.2d 341
• Parties: Harris Percy WYNN, Petitioner-Appellant, v. Samuel L. SMITH, Warden, Georgia State Prison, Reidsville, Ga., Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 341 (1971)

Harris Percy WYNN, Petitioner-Appellant, v. Samuel L. SMITH, Warden, Georgia State Prison, Reidsville, Ga., Respondent-Appellee.

No. 30004.

United States Court of Appeals, Fifth Circuit.

July 12, 1971.

COPYRIGHT MATERIAL OMITTED

Harris P. Wynn, pro se.

J. Stephens Jenkins, Jr., Atlanta, Ga. (court appointed), for petitioner-appellant.

Arthur K. Bolton, Atty. Gen., William R. Childers, Jr., Dorothy T. Beasley, Asst. Attys. Gen., Atlanta, Ga., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Before WISDOM, Circuit Judge, DAVIS^*, Judge, and GOLDBERG, Circuit Judge.

DAVIS, Judge.

Appellant Harris Percy Wynn was convicted, in July 1960 in the Superior Court of Muscogee County, Georgia, on his plea of guilty to robbery-by-force, and was sentenced to life imprisonment.¹ In November 1968 he filed a petition for habeas corpus in the Superior Court of Tattnall County, Georgia, primarily on the grounds that he had been denied his right to the assistance of counsel, either appointed or retained, in the criminal proceedings, and that his guilty plea was the product of physical coercion by law enforcement officers. The state habeas judge denied the petition on January 14, 1969, after a hearing at which appellant appeared pro se. Wynn then filed, also pro se, a notice of appeal to the Supreme Court of Georgia. In March 1969 he wrote to the Clerk of that court asking if the hearing record had been received. The Clerk replied by returning appellant's letter with a notation, dated March 20, 1969, that the record had not been received. On May 6, 1969 Wynn petitioned the United States District Court, pro se, for habeas corpus relief under 28 U.S.C. § 2254 (Supp. IV, 1965-68). However, he later received a form postcard from the Clerk of the Georgia Supreme Court informing him that his appeal had been docketed on May 21, 1969, and was "assigned for argument (orally or by briefs) to the calendar beginning on Jul 14 1969." On June 13, 1969 he wrote to the Clerk of the United States District Court, requesting that his petition for habeas corpus be withdrawn without prejudice so that he might pursue his remedy in the Georgia Supreme Court. While the letter was filed by the District Court Clerk, no action was taken on it.

The form docket card which appellant received from the state court clerk required him to make a number of actions to continue prosecution of his appeal: (1) He was to see Rules 15-23 for requirements as to preparation, service and filing of briefs, and the payment of costs due the state; (2) enumeration of errors and briefs were to be under separate covers; and (3) the name and number of the case were to appear in certain places on certain documents. These things were not done, and the appeal was dismissed for want of prosecution on July 14, 1969. Appellant apparently filed no brief in the Georgia Supreme Court.

In June 1969 appellee responded to the habeas petition in the court below. In September 1969, after the dismissal of his appeal by the state Supreme Court, appellant filed a new petition in the District Court on which no action was ever taken. The District Court dismissed the original petition in October 1969, on the basis of the state court record (including the state hearing transcript); the order stated that none of the exceptions necessary to overcome the presumption of correctness of state factual determinations under 28 U.S.C. § 2254(d) (Supp. IV, 1965-68) was present.² The judge denied a certificate of probable cause for appeal, but this court granted one. Leave was also granted by this court to proceed in forma pauperis and counsel was appointed.

I

The first issue is opened by the state's contention that we must dismiss the petition because of the appellant's failure to exhaust his state remedies under 28 U.S.C. § 2254(d) (Supp. IV, 1965-68),³ since his appeal from the lower state court's denial of habeas corpus was still pending when he filed his original federal application. Because the general question of exhaustion is a troublesome one we have canvassed the recent case law on that subject in this circuit (none of which is directly in point) to guide us in the resolution of the particular problem presented on this appeal.

The remedies that must be exhausted under § 2254(b) are those which are still open at the time the petitioner files his federal application. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837, 867 (1963). Technically, when appellant filed his first federal petition in May 1969 his state remedy of appeal was still available. But that circumstance does not automatically compel dismissal. The exhaustion principle is founded on comity rather than jurisdiction; failure to exhaust does not deprive a federal court of the power to consider the petitioner's claims on the merits, but is an important (and often determinative) factor bearing on the proper exercise of the federal power. Fay v. Noia, supra, 372 U.S. at 426, 83 S.Ct. at 842, 9 L.Ed.2d at 861-862; Wainwright v. Simpson, 360 F.2d 307, 309 (C.A.5 1966); Whippler v. Balkcom, 342 F.2d 388, 390 (C.A.5 1965).⁴ In applying the doctrine the court has made an individual assessment, in the specific circumstances, of the need for deference to orderly state procedure, as against the federal interest in providing substantial justice to the applicant. "The exhaustion doctrine should not * * * be applied mechanically without regard to factual setting." Pate v. Holman, 343 F.2d 546, 547 (C.A.5 1965). See, e. g., O'Neal v. Beto, 428 F.2d 1164 (C.A.5 1970); Montos v. Smith, 406 F.2d 1243 (C.A.5 1969); Beto v. Martin, 396 F.2d 432 (C.A.5 1968); Hill v. Beto, 390 F.2d 640 (C.A.5 1968); Cobb v. Balkcom, 339 F.2d 95 (C.A.5 1964); Whitus v. Balkcom, 333 F.2d 496 (C.A.5), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). This close attention to the individual case has, at times, even permitted deferring the assumption of federal jurisdiction, although technical exhaustion may have occurred, where comity demanded that state tribunals be given the first opportunity to review the petitioner's contentions. See Spencer v. Wainright, 403 F.2d 778 (C.A.5 1968); Powers v. Hauck, 399 F.2d 322 (C.A.5 1968); Texas v. Payton, 390 F.2d 261 (C.A.5 1968). See also Irving v. Breazeale, 400 F.2d 231 (C.A.5 1968); Brent v. White, 398 F.2d 503, 507 (C.A.5 1968); Peters v. Rutledge, 397 F.2d 731 (C.A.5 1968).

In the present instance probably the most important factor is that, as of the time of our decision, appellant is without available state remedies, since his state appeal has already been dismissed for want of prosecution. This court has in exceptional circumstances measured the available state remedies as of the time of the appeal. In Bell v. Alabama, 367 F.2d 243 (C.A.5 1966), cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967), the federal habeas petition had been filed while a week still remained of the six months period in which to appeal a state denial of coram nobis relief. The court nevertheless reached the merits. Accord, Lizana v. Alabama, 394 F.2d 512 (C.A.5 1968). We recognize that these are unusual cases, see Ames v. Middlebrooks, 369 F.2d 113 (C.A.5 1966), cert. denied, 386 U.S. 967, 87 S.Ct. 1050, 18 L.Ed.2d 119 (1967), but so is this one in the very same respect. Were we to dismiss the petition for failure to exhaust, appellant would be without any forum in which to assert his substantial constitutional claims. See Harris v. Alabama, 429 F. 2d 1236 (C.A.5 1970). For the court to make that severe choice, we think there would have to be an adequate finding that Wynn "deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies."⁵ Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 849, 9 L.Ed.2d 837, 869 (1963); see also McMann v. Richardson, 397 U.S. 759, 768-769, 90 S.Ct. 1441, 1447-1448, 25 L.Ed.2d 763, 771-772 (1970); Henry v. Mississippi, 379 U.S. 443, 450, 85 S.Ct. 564, 568-569, 13 L.Ed.2d 408, 414 (1965); Graves v. Beto, 424 F.2d 524 (C.A.5) cert. denied, 400 U.S. 960, 91 S.Ct. 353, 27 L.Ed.2d 269 (1970); Burton v. Alabama, 396 F. 2d 755 (C.A.5 1968); Baker v. Lee, 384 F.2d 703 (C.A.5 1967); Burns v. Alabama, 360 F.2d 608 (C.A.5 1966); Smart v. Balkcom, 352 F.2d 502 (C.A.5 1965); Hayes v. Holman, 346 F.2d 991 (C.A.5 1965). No such finding was made below by the District Court (though it mentioned the failure to pursue the appeal) since it dismissed the petition on its merits (as determined in the state habeas proceeding).

We do not remand the case for consideration of that question (see Tarlton v. United States, 429 F.2d 1297 (C. A.5 1970); Burton v. Alabama, 396 F.2d 755 (C.A.5 1968); Brown v. Wainright, 394 F.2d 153 (C.A.5 1968) cert. denied, 393 U.S. 1101, 89 S.Ct. 899, 21 L.Ed.2d 793 (1969); Baker v. Lee, 384 F.2d 703 (C.A.5 1967)) because the facts are sufficiently clear, in our view, to compel the conclusion that there was no deliberate bypass. Appellant was proceeding pro se as an indigent prisoner in the state courts, and his actions negate any conscious attempt to short-circuit his state remedies. He did not file his federal petition until he had been informed by the Clerk of Georgia Supreme Court that his appeal had not been docketed, although some 45 days had elapsed from the filing of his notice of appeal; his federal petition refers directly to this long delay as the reason for the federal application. Moreover, upon learning some time later that his appeal had finally been docketed (after a delay which appears to have violated the time periods prescribed by state law),⁶ he promptly so informed the District Court and requested that his petition be withdrawn (without prejudice) to allow him to exhaust his state appeal. That no action was taken on this request should not serve to deprive him now of a federal forum. See note 5, supra....