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Wainwright v. Torna

U.S.
Mar 22, 1982
455 U.S. 586 (1982)

Summary

holding a criminal defendant does not have a constitutional right to counsel to file a petition for discretionary review, so cannot be deprived of the effective assistance of counsel if counsel does not file petition

Summary of this case from United States v. Creighton

Opinion

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 81-362.

Decided March 22, 1982

Held: The Federal District Court properly dismissed respondent state prisoner's habeas corpus petition asserting that he had been denied his right to the effective assistance of counsel because an application for certiorari — filed by his retained counsel in the Florida Supreme Court to review the Florida District Court of Appeal's affirmance of respondent's state conviction — had been dismissed as not having been timely filed. Respondent did not contest the District Court's finding that review by the Florida Supreme Court was discretionary. Since a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals, Ross v. Moffitt, 417 U.S. 600, respondent could not be deprived of the effective assistance of counsel by his retained counsel's failure to file a timely application.

Certiorari granted; 649 F.2d 290, reversed.


Respondent is in custody pursuant to several felony convictions that were affirmed by the Third District Court of Appeal of Florida. Torna v. State, 358 So.2d 1109 (1978). The Florida Supreme Court dismissed an application for a writ of certiorari, on the ground that the application was not filed timely. 362 So.2d 1057 (1978). A petition for rehearing and clarification was later denied. App. to Pet. for Cert. A-15.

"It appearing to the Court that the notice was not timely filed, it is ordered that the cause is hereby dismissed sua sponte, subject to reinstatement if timeliness is established on proper motion filed within fifteen days from the date of this order. See Fla. R. App. P. 9.120." App. to Pet. for Cert. A-13.

Respondent thereafter filed a petition for habeas corpus in the United States District Court for the Southern District of Florida, contending that he had been denied his right to the effective assistance of counsel by the failure of his retained counsel to file the application for certiorari timely. The District Court denied the petition on the ground that the failure to file a timely application for certiorari did not render counsel's actions "so grossly deficient as to render the proceedings fundamentally unfair." Id., at A-22. In reaching this conclusion, the District Court noted that review by the Florida Supreme Court was discretionary; "[f]ailure of counsel to timely petition for certiorari to the Supreme Court, therefore, only prevented [respondent] from applying for further discretionary review." Id., at A-28. The Court of Appeals reversed. 649 F.2d 290 (CA5 1981).

Citing its decision in Pressley v. Wainwright, 540 F.2d 818 (1976), cert. denied, 430 U.S. 987 (1977), the court first noted that "the failure of court-appointed counsel to file a timely notice of certiorari in the Florida Supreme Court has been held to constitute ineffective assistance." 649 F.2d, at 291. On the basis of the recent decision in Cuyler v. Sullivan, 446 U.S. 335 (1980), the court then stated that "there is no distinction between court-appointed and privately retained counsel in the evaluation of a claim of ineffective assistance." 649 F.2d, at 292. Finally, the court quoted its recent decision in Perez v. Wainwright, 640 F.2d 596, 598 (1981), for the proposition that "`when a lawyer . . . does not perform his promise to his client that an appeal will be taken, fairness requires that the deceived defendant be granted an out-of-time appeal.'" 649 F.2d, at 292. On the basis of these statements, the court reversed "the district court's denial of the writ of habeas corpus," ibid., and remanded the case to the District Court for further proceedings consistent with its opinion.

In Ross v. Moffitt, 417 U.S. 600 (1974), this Court held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court. Respondent does not contest the finding of the District Court that he had no absolute right to appeal his convictions to the Florida Supreme Court. Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely. The District Court was correct in dismissing the petition.

Like this Court, the Florida Supreme Court has a limited mandatory appellate jurisdiction. See Fla. Const., Art. V, § 3. Respondent has never contended, however, that he had a right of review under that jurisdiction. Thus, we need not determine the extent of the right to counse in such a case.

Respondent was not denied due process of law by the fact that counsel deprived him of his right to petition the Florida Supreme Court for review. Such deprivation — even if implicating a due process interest — was caused by his counsel, and not by the State. Certainly, the actions of the Florida Supreme Court in dismissing an application for review that was not filed timely did not deprive respondent of due process of law.

The motion of respondent for leave to proceed in forma pauperis is granted. The petition for writ of certiorari is granted, and the judgment of the Court of Appeals is therefore reversed.

It is so ordered.

JUSTICE BRENNAN would set the case for oral argument.


The majority predicates its decision in this case on Ross v. Moffitt, 417 U.S. 600 (1974), which held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals. The majority reasons that because respondent had no constitutional right to counsel, his lawyer's failure to file a timely appeal did not violate his right to effective assistance of counsel. In my view, however, Ross v. Moffitt was improperly decided. See id., at 619-621 (Douglas, J., dissenting, joined by BRENNAN and MARSHALL, JJ.). I believe that a defendant does have a constitutional right to counsel to pursue discretionary state appeals. Particularly where a criminal conviction is challenged on constitutional grounds, permissive review in the highest state court may be the most meaningful review a conviction will receive. Moreover, where a defendant seeks discretionary review, the assistance of an attorney is vital. Because I disagree with the Court's position in Ross v. Moffitt, I disagree with its conclusion in this case also.

Even if I believed that Ross v. Moffitt were correctly decided, however, I would dissent from the majority's conclusion that habeas corpus provides no recourse to a criminal defendant who has been denied his right to seek discretionary review because of his attorney's error. Although respondent's Sixth Amendment right to effective assistance of counsel may not have been infringed, he was denied his right to due process. Respondent's counsel promised him that he would seek review in the Florida Supreme Court. Respondent reasonably relied on that promise. Counsel nonetheless failed to file a timely application. As a result, respondent was deprived of his right to seek discretionary review by the State's highest court. As I suggested above, this loss is significant. I would hold that when a defendant can show that he reasonably relied on his attorney's promise to seek discretionary review, due process requires the State to consider his application, even when the application is untimely. To deny the right to seek discretionary review simply because of counsel's error is fundamentally unfair. Requiring the state courts to consider untimely applications when a defendant can show that he reasonably relied on his counsel will not impose a heavy burden. The State is not required to grant the application; it is simply barred from dismissing the application on the ground that it was not timely filed.

Notice of the intent to apply for discretionary review was due in the office of the Clerk for the District Court of Appeal, Third District of Florida, on July 17, 1978. It was filed one day late, on July 18, 1978. According to respondent, a secretary in his attorney's office attempted to deliver the required papers on July 14, 1981. She became lost while traveling to the Clerk's office, and did not arrive until after it had closed. Because she did not realize that she could have placed the papers in a night depository box, she took them home and placed them in the mail. Record 29-30. To deny respondent the right to seek discretionary review, where he reasonably relied on his counsel's promise to apply for such review, and where counsel failed to comply with this promise only because of circumstances beyond his control, would be doubly unfair.

The majority argues that even if deprivation of the right to petition the Florida Supreme Court for review implicates a due process interest, there was no state action here. It reasons that the deprivation of this right was caused by respondent's counsel — a private retained attorney — and not by the State. Ante, at 588, n. 4. In my view, however, there was sufficient state involvement to satisfy the requirements of the Fourteenth Amendment. The majority's position is inconsistent with Cuyler v. Sullivan, 446 U.S. 335 (1980). In that case, the Court rejected the respondent's assertion that the failings of retained counsel at a criminal trial could not provide a basis for federal habeas corpus relief, because his conduct does not involve state action. It held that a state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. "When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty." Id., at 343. "[T]he State's conduct of a criminal trial itself implicates the State in the defendant's conviction." Id., at 344.

It is true that Cuyler v. Sullivan involved a challenge to the conduct of a private attorney during the trial, while this case involves a challenge to the post-trial conduct of a private attorney. However, post-trial proceedings are an integral part of the criminal process. In my view, the State is just as much implicated in those proceedings as in the trial itself. Here, for example, Florida was responsible for structuring the procedure by which criminal convictions are reviewed. In particular, it designed the rules governing the right to seek discretionary review, including the rule that applications are automatically rejected when filed out of time. Under the circumstances, I think it clear that the state-action requirement is satisfied.


Summaries of

Wainwright v. Torna

U.S.
Mar 22, 1982
455 U.S. 586 (1982)

holding a criminal defendant does not have a constitutional right to counsel to file a petition for discretionary review, so cannot be deprived of the effective assistance of counsel if counsel does not file petition

Summary of this case from United States v. Creighton

holding that where there is no constitutional right to counsel, there can be no deprivation of effective assistance

Summary of this case from Greene v. Superintendent Smithfield Sci

holding that because a habeas petitioner had no right to counsel in appealing to the state supreme court, an attorney's failure to timely appeal could not have resulted in denial of effective assistance of counsel

Summary of this case from United States v. Rodriguez

holding that where there is no constitutional right to counsel there can be no deprivation of effective assistance

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holding that, where there is no constitutional right to counsel, there can be no deprivation of effective assistance

Summary of this case from Brown v. Watters

holding that because the defendant had no constitutional right to the assistance of counsel in pursuit of state supreme court certiorari, "he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the [certiorari] application timely"

Summary of this case from Nichols v. U.S.

holding no deprivation of effective assistance was possible where there was no constitutional right to counsel

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holding that where there is no constitutional right to counsel there can be no deprivation of effective assistance

Summary of this case from O'Guinn v. Dutton

holding that "[s]ince respondent had no constitutional right to counsel [to pursue a discretionary state appeal], he could not be deprived of the effective assistance of counsel."

Summary of this case from Shelton v. Sec'y, Fla. Dep't of Corr.

holding where there is no constitutional right to counsel there can be no deprivation of effective assistance

Summary of this case from Bingley v. Whitten

holding that "[s]ince respondent had no constitutional right to counsel [to pursue a discretionary state appeal], he could not be deprived of the effective assistance of counsel."

Summary of this case from Snodgrass v. Sec'y, Fla. Dep't of Corr.

holding that because the defendant had no constitutional right to the assistance of counsel in pursuit of state supreme court certiorari, "he could not be deprived of the effective assistance . . . by . . . counsel's failure to file the certiorari application"

Summary of this case from Brown v. United States

holding that because petitioner had no constitutional right to counsel in pursing state supreme court review, petitioner "could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely"

Summary of this case from Antwine v. Brewer

holding that there is no federal constitutional right to counsel when applying to State Supreme Court for discretionary review

Summary of this case from Patterson v. Lamas

holding that there is no right to counsel when pursuing a discretionary state appeal, and where no constitutional right to counsel exists, there can be no claim for ineffective assistance of counsel

Summary of this case from Annin v. Spearman

holding that because "a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals," "he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file [a timely] application" for discretionary review by the Florida Supreme Court

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holding that no right to effective counsel exists absent a constitutional right to counsel

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holding that where there is no constitutional right to counsel, there can be no deprivation of effective assistance

Summary of this case from United States ex rel. Garcia v. Pfister

holding that a criminal defendant does not have a constitutional right to pursue discretionary state appeals

Summary of this case from Cruz-Hernandez v. Thomas

holding that absent a constitutional right to counsel, there can be no deprivation of the right to effective assistance of counsel

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holding that absent a constitutional right to counsel, there can be no deprivation of the right to effective assistance of counsel

Summary of this case from Samuels v. Thaler

holding that since petitioner had no constitutional right to counsel to pursue discretionary review, he was not deprived of effective assistance of counsel

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holding that a criminal defendant has no constitutional right to counsel to pursue discretionary review in a State's highest court, and therefore was not deprived of effective assistance of counsel by counsel's failure to seek such review

Summary of this case from Greenfield v. Department of Corrections

holding that "there is no constitutional right to an attorney in state post-conviction proceedings. . . . which establishe that where there is no constitutional right to counsel there can be no ineffective assistance of counsel claim"

Summary of this case from McLaughlin v. Shannon

holding that, because a criminal defendant had no constitutional right to counsel on discretionary review, the failure of state appellate counsel to timely file for discretionary review did not implicate any federal constitutional right

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Case details for

Wainwright v. Torna

Case Details

Full title:WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS v . TORNA

Court:U.S.

Date published: Mar 22, 1982

Citations

455 U.S. 586 (1982)
102 S. Ct. 1300

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