*1 Court of did plain by ed as error the Oklahoma counsel not raise prosecuto- the issue of Tobler, P.2d at 353. rial Appeals. Criminal misconduct in the state and for Indeed, to assume it almost inconceivable further determination of the issue ade- willingness appellate quate representation an to stand light of the evi- upon proce- a mechanistic addition, district produced. dence le- dural rule to consideration thwart declaratory judgment court shall enter a gitimate penalty appellate issue in death death the count relat- inquiry, case. an to our Without answer ing Bourque to Ms. invalid and unenforce- impossible perform we deem it an ade- Brown, Chaney able. Cf quate test. Strickland (10th Cir.1984). important juncture,
At this it is to inter-
ject procedural consideration the issue
bypass. originally noted our con- Respondents pre-
clusion that have not
served the issue for this case failure ruling. court’s adverse DAVIS, Petitioner-Appellant, Allen Lee Nonetheless, simply we here note us, properly even were defense we would maintain our concern over DUGGER, L. Richard Robert A. Butter representation appellate issue of counsel’s worth, Respondents-Appellees. present an based on the record. Because No. 86-3726. exegesis subject presently on the unnec- essary, simply state that is our belief Appeals, United States Court of cause Petitioner met the and actu- Eleventh Circuit. al test in Wainwright established Sept. Sykes, 97 S.Ct. (1977), in Reed reiterated Rehearing Rehearing En Banc Ross, 17,1987. Denied Nov. allegation The of inade- test, quacy meets and the facial
probability of a meets reversal the actual with, least, degree test
sufficiency to mandate further inquiry Compare context this case. An- Shulsen,
drews v.
1986). concern,
Because of our we believe the
federal district court should have made a inquiry ap-
factual into the reasons behind
pellate counsel’s failure to raise what ground forgone viewed a
which a trial new could have been obtained. time,
At the same we have examined the
remaining issues raised the Petitioner properly conclude were decided expressed the reasons opinion. of the district court is IN
AFFIRMED PART IN and REVERSED
PART and purpose REMANDED for the
conducting evidentiary hearing into the why
reasons appellate Petitioner’s state *2 Smith, Gen., Atty.
Jim Hillyer, Andrea Markey, Costas, Ray Gregory G. Asst. Gen., Atty. Tallahassee, Fla., respon- dents-appellees. RONEY, Judge, HILL
Before Chief KRAVITCH, Judges. and Circuit KRAVITCH, Judge: Circuit whether must determine case we In this a first federal may dismiss court a district of the an abuse petition as corpus filed on petition was writ because execution. scheduled petitioner’s of the eve scheduling of an exe- conclude itself, create not, in and does cution under basis doctrine, in Rule codified of the writ abuse Governing Section Cases.
I Allen February On of three counts was convicted Lee Davis murder in connection first-degree daugh- her Nancy and two Weiler deaths ten, home at the Weiler ters, ages five and March On County, Florida.1 in Duval jury’s accepted court the trial imposed and recommendation unanimous as to by electrocution of death sentences conviction.2 each from his con- appeals timely filed Supreme Court. On the Florida victions Larry Spalding, Helm opinion Office of Capi- issued 4,1984, the court October tal Representative, Collateral challenges Mark to his con- Evan petitioner’s rejecting Olive, Mello, Billy Ñolas, Mike H. sen- Tallahas- upholding and victions3 see, Fla., for petitioner-appellant. sponte. reviewing them sua after tences denying change We need not discuss the historical facts re- Davis’s motion for discretion garding alleged they crimes as are set light prejudicial pre-trial publici- of venue in opinion out in the Florida Court’s (2) ty; judge whether the trial abused his discre- State, appeal, Davis’s direct Davis v. 461 So.2d denying request tion in Davis's for individual (Fla.1984), are not relevant to the sequestered prospective jurors; voir dire of appeal. issues in this (3) judge whether the trial abused his discretion judge 2. The trial denying prospec- found four aggravating Davis’s motion to strike a circum- stances as to (1) all cause; (4) three juror convictions: the trial tive whether court imprisonment; (2) sentence of tion previous convic- denying Davis's motion for a mistrial erred (3) felony; violent during committed examination on the basis the state’s redirect course burglary; (4) heinous, atro- father, during which Davis’s of Davis’s father cious, or cruel. The court also found a fifth the fact that Davis wanted to take a referred to aggravating circumstance, arrest, prevent to avoid or arrested; (5) he was lie detector test when as to conviction for murder- prosecutorial during misconduct whether ing year girl. five old closing arguments guilt phase at the rendered 3. Davis following raised the issues in his direct fundamentally proceedings unfair. those appeal: whether the trial abused his State, (Fla.1984). 461 So.2d relief and extraordinary Davis v. supported that the record all held
The court Florida Court. The except circumstances aggravating Court denied this prevent arrest” circumstance “avoid or morning and the motion remaining aggravating cir- the four 1986. Given that Davis’s supported petitioner’s sen- cumstances still scheduled execution was for 7:00 a.m. *3 evidence, mitigating to the tences. As morning, steps the next CCR took several that the trial court ruled court’s declaration obtain an attempt emergency stay of are no Court finds that there that “[t]he permit judicial cognizance execution to of in mitigating this statutory factors existent Davis’s collateral claims. drafting of the merely inartful cause” was Davis first filed a 3.850 Fla.R.Crim.P. “mitigating sentencing order and that evi- stay motion and a motion for a not restricted to that listed in dence was trial court. The trial Id. at 72. The court section 921.-141.” hearing held on the motion on at noon petitioner’s convictions therefore affirmed September 22nd and then denied mo- both and sentences. appealed tions. Davis the denial of his Supreme denied After the Florida Court 3.850 and motion motion for 17, 1985, rehearing on Davis filed Supreme Florida Court. petition for writ of certiorari in the Unit- Supreme Court. The de- ed States Supreme The Florida Court announced 1, 1985, July on nied certiorari with two that hear argument it would oral the on Florida, dissenting. justices Davis v. a.m., morning the next at 6:00 one L.Ed.2d prior petitioner’s hour execution. At approximately p.m., 10:30 September application Davis emergency filed an for an later, Approximately year ap- one Davis stay pending for a writ peared before the Florida Board Execu- of of the certiorari in United Clemency request Supreme tive States clemency. After Court, request upon the Supreme the for based consideration months, 20, 1986, August almost two on Court’s of denial motion the Governor Florida denied filed, Davis’s extraordinary relief. Petitioner also quest simultaneously and is- in the United States District the Court for Sep- sued a death warrant for the week Florida, Middle District a federal habeas 17-23,1986. tember execution was Davis’s corpus petition, stay, motion for a and a scheduled for 7:00 a.m. on the abeyance motion to hold pending exhaustion of certain claims Flor- were still under consideration point, At the Florida Office p.m., ida Court. At 11:30 Capital (CCR) Justice Representative4 Collateral representation granted until Sep- assumed On Powell of Davis. 20, 1986, September 23, p.m. tember CCR filed a 3:00 1986 in courts, legislature posed against person 4. The Florida Office of such created the in the state (CCR) Capital Representative state, Collateral in this federal courts the United States statute effective June Circuit, 1985. Fla.Stat.Ann. Appeals for Court of the Eleventh (West Supp.1987). capital 27.701 § eral collat- States United Court. representative appointed by was to (West (em- Supp.1987) § Fla.Stat.Ann. 27.702 confirmation, subject governor, to senate from a added). phasis clearly CCR is thus restricted pool of nominations received from elected capital representing statute to offenders in col- public responsi- statutory Id. defenders. CCR’s Moreover, proceedings. lateral CCR could not bility to: begun representation Davis’s until after [Represent, compensa- without additional United States Court denied certiorari tion, person convicted and sentenced to appeal. on Davis’s direct See Fla.Stat.Ann. death in who is [Florida] without counsel and (West Ann.1987) ("representation by § 27.702 who is unable secure counsel to his due capital representative com- shall collateral indigency instituting purpose ... for the pro- appellate mence termination of direct prosecuting challenging collateral actions courts"). ceedings in state federal legality im- tion;” (3) the fact moved to consider that Davis had full Court allow stay of execution. stays for a application of execution in four in the courts twenty-four period preceding hour morning of the scheduled At 9:30 execution;5 scheduled the court’s district court issued execution, nearly two-year assertion “there motion denying petitioner’s an order execution; ap- mo- on the denying after decision direct stay of pend- abeyance peal nothing filed.”6 hold tion to claims; and of unexhausted ing exhaustion Having deliberately found that CCR cor- petition for federal habeas denying the delayed filing Davis’s federal habeas cor- petition- The court also denied pus relief. pus the district court concluded for a certificate request er’s justifies “this abuse the writ granted petitioner’s denial of to hold the pauperis. proceed request to forma and, abeyance pending exhaustion even petition, the habeas *4 exhausted, if the were the denial of (M.Fla. F.Supp. 269 Wainwright, an the in this case.” As alternate Black, 1986), the Judge without District ground supporting of the denial habeas the responsive pleading from benefit Lundy, lief, that Rose the found court evidentiary hearing, decided state or 1198, of engaged “pattern” in a that CCR (1982)required dismissal of filing a federal deliberately delaying the of because contained both exhausted and it corpus petition “until the Governor habeas unexhausted claims. very for execution and issues a warrant filing delayed until one or two often the Approximately one after the federal hour execution,” and days prior to the scheduled relief, denied the Florida district court all a that “this to achieve deliberate Supreme affirmed the denial of Court stay of constitutes an last-minute execution petition- motion and denied Davis’s 3.850 The its abuse of the court based writ.” application emergency stay for an of er’s deliberately delayed conclusion that CCR the federal execution. Petitioner moved filing petitions on: the fact that judg- to alter or amend its file and an CCR did not a habeas rehearing or because the unex- ment for a a in anoth- stay for in federal habeas claims Davis's hausted Black, Judge er case that had come before corpus petition were exhausted. now Wainwright, Stone v. No. 86-792-Civ-J-14 1986, 23, the On afternoon (M.D.Fla.1986), days prior until four judg- or amend the motion alter while execution; (2) petitioner’s scheduled pending in the rehearing was ment or for that, although Judge granted fact Black court, Supreme the United States Stone, stay in she had cautioned CCR that stay granted pending Court should not be inferred that the Court “[i]t peti- filing disposition timely automatically stay will an execution be- peti- of certiorari.7 a concur- cause of first for a writ last-minute tion signed governor a death warrant set- when the 5. These courts were: the Circuit Court Circuit, approximately ting one Coun- execution for Judicial in and for Duval Davis's Fourth Court; Therefore, Florida; period "af- ty, Supreme of time month later. Florida on the direct in which for Middle Dis- the decision United States District Court ter nothing filed,” Florida; be- Supreme consisted of the time trict of and the United States Supreme Court’s denial certiorari tween the Court. 1, July plea and the for executive clem- on ency less one 1986: June 6. assertion erroneous. As indicated This year. above, peti- upheld the Florida convictions and sentences on October tioner’s automatically peti- rehearing if the subsequent petition terminates 1984. Davis's is denied. If certio- of certiorari on Davis's tion a writ denied granted, pending will continue States rari tion for a writ certiorari the United Court’s mandate. July 1985. In issuance of Court was denied — U.S.-, Wainwright, plea Davis executive Davis June made August was denied Powell,8 apparently afternoon, ring opinion, Justice Later that the district court CCR had fact that received unaware of denied motion to alter or amend opportunity respond no notice or judgment rehearing. or for The court de- issue,9 delay/abuse the writ deliberate nied moot additional motions approve of the district court’s seemed to probable certificate of cause and a He criti- petition.10 dismissal of Davis’s certificate pauperis. forma handling its of Davis’s case cized CCR for The court also denied motion alter case, companion and a Hardwick Wain- amend or for rehearing because wright: “[petitioner has presented any authori- offered either explanation No has been ty requested for the relief.” waiting more Davis Hardwick month, than a and until eve of the appeals now the district court’s date, present to assert denial of his for federal habeas court, or federal. It claims corpus along relief other motions my understanding denied the district court.11 After we Bar, least since assured granted petitioner’s application for certifi- state and courts it would cause, cate of moved to provide promptly when counsel needed supplement the record to include various capital Although unlikely, may cases. indicating documents grossly CCR is Hardwick be that neither Davis nor knew responsibility repre- overburdened always were available. Nor that counsel are we informed as to counsel indigent capital when were sent all Florida defendants *5 event, In I engaged in these cases. that, proceedings all collateral due suggest that counsel owe this Court a understaffing, underfunding, to and lack of duty explain why to no action was taken of experienced sufficient number attor- day date, until the before the neys, incep- CCR been unable since its making it difficult for both the courts begin representation tion to collateral of the below and this Court to make capital except pending inmates those under carefully judgments considered so essen- responded execution warrants. The state cases____ capital tial in If there has majority supplemental that the of the mate- delay, been deliberate or the inexcusable self-serving rial or hearsay and that appropriate Committee not materials should be considered be- Bar will be advised. — had not before been U.S.-, Davis Wainwright, question court.12 ordered this carried 17,18, (1986) (Powell, J., concurring). with the on the merits. Burger joined ‘prejudiced
8. Chief
ability
respond
Justice
in Justice
Powell’s
the state
its
to
concurrence.
petition by delay
filing'
to the
in its
unless the
newly-dis-
shows that it is based on
9. As we noted
above,
pled
had not
state
grounds."
covered
n.
Id.
1.
pleading
abuse of the writ because
from the
no
Judge
Judge
gave
state was before
Black
Black.
11. Petitioner has
an
from
also noticed
considering
no notice that she
as
dismissal
(1) application
stay
of
the denial
his:
for a
of
writ;
opportunity
abuse of
no
CCR had
petition
abeyance
execution and to hold
respond;
Judge
to
Black held
evidentia-
no
remedies; (2)
pending exhaustion of state
mo-
ry hearing.
execution; (3)
applications
tion for
Judge
Justice Powell
"de-
wrote
Black
probable
certificate
cause before the district
petition
grant
nied the
refused
certifi-
in its
court both
initial order and
cause____
concluding]
cate of
judgment
motion to
or
alter
amend
‘intentionally
had abused the
de-
writ
rehearing;
or
alter or
motion to
laying
raising
grounds
for relief.’" 107
judgment
rehearing.
or
amend
language,
at 18.
footnote
this
Justice Powell's
concurrence indicates that
Respondent
portions
also
moved
strike the
compare
reader should
to Rule
reply
appellant's
supple-
brief that refer to the
Governing
of the Rules
Section 2254 Cases.
mental materials.
explained
9(a) parentheti-
Justice Powell
Rule
cally
petition may
as follows: "a
if
be dismissed
9;
Wainwright,
Note to Rule
Horace
II
cert,
(11th Cir.),
de
outset,
important to note
it is
At the
—nied,
-,
petition
denial of
court’s
district
(1986);
Linahan,
Hill
not
stay of execution
er’s motion
rendered
Cir.1983).
This issue was
this court.
The rule
States
United
moot when the
provides as follows:
pending
stayed
(a) Delayed petitions.
petition
A
for a writ of certio
petition
disposition
appears
if
dismissed
it
is still
The
Court’s
rari.
respondent
officer has
which the
is an
here, therefore,
concerned
effect. We are
respond
prejudiced
ability
in its
solely with the district
in its
un-
petition
petition. We conclude
less
shows that
is based
Governing Section
that neither the
grounds
of which he could not
precedent sup
judicial
2254 Cases nor
knowledge by
reason-
exercise of
dismissal Davis’s
ported the
of the writ.
diligence
an abuse
able
before the circumstances
prejudicial to the state occurred.
ambiguous
order is
The district court’s
holding.
legal
for its
basis
as to
initially proposed by
As
court could
concedes that
state
Court,
rule would
a re-
have included
not,
not,
find that Davis’s
and did
presumption
buttable
subject
under the tradi-
to dismissal
was filed more
the writ doctrine13 embod-
tional abuse of
years
after the
of con-
five
9(b)
Governing
in Rule
of the Rules
ied
Cong., 2d
viction.
H.R. No.
94th
See
9(b)
express-
Section
Cases.14
1, 4-5, reprinted
1976 U.S.Code
Sess.
ly
limited to “second
successive
Cong.
2481. Con-
& Admin.News
tion[s],”
recognized
rule,
gress
provision
deleted this
from
“present
did
that Davis’s first
however,
policy
“it is
because
unsound
the issue of
in the form
a deliberate
require
pre-
the defendant
overcome a
by-
successive
deliberate
*6
sumption
legisla-
pass.” Thus,
first
and ...
could
9(b).
9(a)
not
under
conformity
have
dismissed
Rule
brings
tion
Rule
into
with
however,
Respondent argues,
dis-
that the
provisions
other
of law.” Id.
trict court’s conclusion that
de-
“deliberate
en
cases
and after the
Our
lay to achieve a last-minute
execu-
9(a)
required
of Rule
actment
tion constitutes an abuse of the
can
writ”
prove
three elements
9(a)
supported by
Rule
Rules
First,
9(a).
obtain a dismissal
Rule
Governing
According-
Section 2254 Cases.
de
there must have been
unreasonable
ly,
begin
9(a)
analysis
with an
of Rule
petition.
lay
filing of the federal habeas
proceed
and then
to determine whether the
(5th
Alabama,
992,
Mayola
623
999
v.
F.2d
applied in
properly
rule was
this case.
cert,
913,
Cir.1980),
denied, 451
101
U.S.
A
1986,
(1981);
L.Ed.2d 303
Bouchil
S.Ct.
68
Estelle,
926,
(5th
F.2d
Cir.
v.
628
928
lon
9(a)
upon the equitable
Rule
is based
1980).15
equitable
doctrine of
Advisory
Both
doctrine
laches.
Committee
or,
9(b)
merits
if new and different
13. Rule
the abuse of
was on the
codifies
the writ stan-
States,
1,
alleged,
grounds
judge
dard of
Sanders v. United
373 U.S.
83
are
Ends that
1068,
(1963). Paprskar
v.
petitioner
1519 9(a) designed (1980); pre- Estelle, Rule are laches and Jackson v. 570 546, (5th Cir.1978); where the F.2d vent assertion stale claims 547 Hamilton v. Watkins, Advisory- longer 1323, (5th is no fresh. 436 F.2d evidence See 1326 1970). In require- Rule demonstrating Committee Note to addition to unrea delay, (1) ment be unreasonable sonable the state make a must: “particularized that do not delays showing, the fact that of prejudice;” arises from diligence petitioner’s Hill, 1035; lack of on 697 evince a F.2d at Bouchillon Es telle, (5th part 926, relief cannot 628 pursuing Cir.1980); collateral F.2d 929 9(a) 1008; Rule dis- predicate Paprskar, 612 F.2d serve as at Mayola v. Blackburn, Alabama, (5th 630 F.2d Cir.1980), missal. Louis 623 F.2d See cert, (5th Cir.1980)(Where petitioner denied, 913, 1110 451 101 (1981); (2) within filed federal three 303 demonstrate years guilty plea immediate- delay; Hill, due —almost ly supreme court affirmed deni- after state 697 at 1035. al of state habeas court —district If proves these elements of a 9(a) ground erred in Rule 9(a) defense, provides Rule the rule “petitioner diligent has been in his because petitioner an opportunity to avoid dismissal relief”); ex efforts to obtain United States by demonstrating Blackburn, rel. 610 F.2d Barksdale grounds “based of which he could not cert, denied, (5th Cir.1980), knowledge have had by the exercise of (1981) 102 S.Ct. diligence reasonable before the circum- (despite year delay between conviction prejudicial stances to the state occurred.” 9(a) federal habeas Rule 9(a), Governing Rule Section 2254 where, alia, improper dismissal was inter See, Horace, Cases. e.g., 781 F.2d petitioner diligently pursued collateral (Rule 9(a) dismissal improper where during period). relief Accordingly, tioner, incompetence, due to mental lack of prior none of our upholding decisions funds, legal assistance, and lack of neither delays dismissals have involved of less nor knew should have of his right known years sentencing fifteen between and obligation bring petition); federal habeas the filing petition.16 of the federal habeas Estelle, (5th Henson v. 641 F.2d cert, Even 1981), denied, where the A been Cir. Unit March diligent pursuit his or her of collateral U.S.
relief, however,
(Rule
proper
alone is insufficient
9(a).
stranger
warrant dismissal under Rule
was “no
to court-
Barksdale,
260;
610 F.2d at
Horace
houses” and knew all facts
connection
Wainwright,
guilty plea
years
prior
entered 18
*7
—
cert,
Cir.),
denied,
U.S.-,
filing
petition);
107
federal
S.Ct.
habeas
Bouchillon
235,
(1986);
Estelle,
926,
(5th
93
Cir.1980)
L.Ed.2d 160
v.
F.2d
Hill v. Lina-
628
929
han,
Cir.1983);
(Rule 9(a)
1032,
(11th
697 F.2d
proper
1035
dismissal
Estelle,
cert,
1030,
(5th
Baxter
forming grounds
614 F.2d
1034
facts
knew all
for federal
Cir.1980),
denied,
1085,
petition throughout
period
449
101
U.S.
habeas
entire
873,
(1981);
S.Ct.
66
Paprskar
year delay prior
filing
L.Ed.2d 810
27
for collateral
Estelle,
(5th
1003,1007-08
Cir.),
relief);
612
Estelle,
1030,
F.2d
614
Baxter v.
F.2d
cert,
cert,
denied,
239,
(5th Cir.1980),
denied,
449 U.S.
66 1034
S.Ct.
449 U.S.
Estelle,
1986,
913,
(5th
16. In Baxter v.
614
451
101
F.2d 1030
U.S.
(Petitioner’s through- claims based pursuit were of collateral relief within two- habeas con- delay, year of 15 period statutory entire in Florida year out limitations intelligence, light of sidered constitute unreasonable nevertheless criminal education, familiarity with and 9(a) Rule that a delay under that justice system, indicates refusing justified court would be con- rights,” his “sleeping on merits on that sider the appropriate). is basis. Furthermore, Rule B 9(a) dismissal was error because the discussion, it is background this From particularized showing made no state erred the district court that apparent any any prejudice nor demonstration habe- Rule to Davis’s federal applying petitioner’s delay. prejudice was due to the fact that the addition to petition. In as made no Respondent par- concedes that it approach the case delay in this does showing prejudice due to de- ticularized recognized grounds for previously level may lay,19 but contends 9(a) dismissal,17 conduct a Rule presumed from the fact that diligence evince lack of does not lengthy and the could not file After make the unreasonable. prior to scheduled exe- sponse Supreme affirmed Court cution. convictions and sentences Davis's certio- denied United States Court Respondent’s argument flawed “de- appeal, direct Davis rari on Davis’s have held that not be slightly year layed” for than one be- less See, Alabama, Mayola presumed. e.g., cert, making plea clemen- fore for executive Cir.1980), F.2d de brought habeas cy. Davis this federal nied, 451 one month tion within after (1981); Estelle, Paprskar v. L.Ed.2d cert, denied. (5th Cir.), denied, 3.850, had at Under Fla.R.Crim.P. Indeed, above, discussed as we January bring Flor- until 1987 to least expressly rejected as “unsound Congress motion.18 Davis had ida 3.850 Given that proposed provision policy” a remedy prior to exhaust effective state pre a rebuttable receiving that would created consideration of his federal 2254(b); prejudice in certain circum sumption see 28 U.S.C. § v. Florida stances. Cook and Probation Parole added). provisions, accompanying (emphasis if supra note 16 Under these
17. See text. judgment became final Davis's part: provides in 18. Fla.R.Crim.P. 3.850 imposed the trial court or when were ex- A motion to vacate a sentence which Supreme Court affirmed on when the Florida provided by may be ceeds the law filed limits appeal, had until direct then Davis No time. other motion shall filed If the file a motion. 1987 to 3.850 pursuant more considered to this rule if filed final until the Florida and sentence were not years judgment and sen- than two n after rehearing or when the Court denied alleges tence become unless final certiorari, denied United States predicated which the were facts claim *8 longer peri- would had an even then Davis attorney his unknown the movant or have allowed him to od in which Florida would by exer- could not have been ascertained bring Davis in fact filed his a 3.850 motion. or, (2) diligence, the fundamental cise of due petition federal habeas right not estab- constitutional asserted was period provided lished for herein within responsive that the did not file a Given retroactively. apply held and has been pleading and the court did district court Any person whose and sentence hearing, respondent evidentiary not hold an prior January become shall final contrary. hardly argue 1, 1987, could motion have until file accordance with this rule.
1521 addition, argument per- grounds tial respondent’s might which relief be prejudice that be requirement granted verts and cannot responsibly be Linahan, delay. 697 due to the See Hill v. prior viewed the court to the scheduled Cir.1983). (11th Respondent 1032 ba- F.2d execution). time A who that, sically the scheduled concedes absent waits until the eve of his her execution execution, no basis there would have been petition file necessarily a habeas runs concluding petitioner unreasonably the risk that the court will be able to petition, delayed habeas federal rule on the stay application prior to the 9(a) and that a Rule there- execution because it lacks sufficient time to if no inappropriate fore have been execu- determine petition whether the habeas tion had been set. It thus schedul- presents grounds substantial upon which execution, under re- ing of relief granted. only be We hold analysis, spondent’s both made the fact that a scheduled immi- tioner’s unreasonable created nent does not itself create a basis for dis- respondent jus- contends missing petition as an abuse disposition tified writ. clear, petition. makes how- habeas Hill ever, must be due
petitioner’s delay and not to some other Ill 9(a) factor. Id. at 1035-36. Rule thus ground As an alternative for dis provides dismissing no basis for an other- missing petition, the district court timely wise first federal habeas concluded that the contained both state, simply because the its own execu- exhausted and unexhausted claims scheduling, tion prejudiced ability to re- must spond to therefore be dismissed petition. the merits of the as “mixed.” habeas Although Lundy, Rose v. 455 102 U.S. 9(a) Given that Rule (1982), 71 S.Ct. held that improperly applied to Davis’s a district court must peti dismiss habeas need not discuss whether containing tions both exhausted and unex court’s dismissal without notice or a hear- claims, hausted requirement exhaustion ing abridged procedural requirements jurisdictional, is not v. Strickland Wash for Rule dismissals. Hill See v. Lina- 668, 684, ington, 466 han, (11th Cir.1983). (1984), question also do not may reach the L.Ed.2d whether state, Greer, raise Rule defense Granberry waived — sponte. Governing sua See Rule U.S.-, Section 2254 Cases. The district court therefore dismissing erred the habeas important
It is
ques-
to reiterate that the
failure to exhaust state remedies before
tions of
grant
when
district court must
responded
either
set out an
a stay
either
a certificate of
probable
exhaustion defense or
waived exhaustion.
are not before us in this
Estelle,
appeal.
Florida,
(11th
463 U.S. AH v.
court; presents the issue substan- REVERSED and REMANDED. delay pur- and deliberate HILL, Judge, specially concur- Clever Circuit attempting a con-
ring: pose “overwhelm” deliberate, may judge scientious well by announced in the I concur dismissal;1 delay justifying prejudicial of what is opinion and most majority’s our (Chief authority a state’s warrant should guilty not was said. This Judge) deliberately step Executive or Trial support dis- deliberate point to the that up execution schedules govern- rules missal under might danger judges habeas court cases, and exhaustion ing section grounds, practice such a overlooking final valid achieved before state remedies stays in cases justify well court. action ultimately merit. found to have no Neither diligently com- has acted most Petitioner petitioner nor the state shown I should others have seen. pared we with to, reaction improperly dealt have during against him the time not count of, scheduling this case. are- litigation from which he withdrew I clemency. sought na executive case, resolve, more not in this We need refraining petitioner for not fault should nothing before petition for prejudicing from his supported petitioner was resolution, suing the state by, pending its delay. guilty of Dismissal was deliberate criticize section 2254. We pursuant error. blunders; strategic this would counsel for I concur in the reversal. one. ability find, my reasoning though, I majority’s resolution inadequate the sched- presented by issue
uling At time the the execution. warrant,
governor issued the the conviction Appeal were final. had been DAVIS, Petitioner-Appellee, Freddie pend- No exhausted. collateral attack was Cross-Appellant, that, ing. grasp I cannot the notion asserts, state, majority its own "... ability scheduling, prejudiced its KEMP, Warden, Ralph Georgia Diagnos- respond to the merits the habeas Center, tic and Classification petition.” execution of this sen- When the Respondent-Appellant, Cross-Appellee. scheduled, tence there no habeas existence, petition in so the state was not No. 83-8384. prejudicing ability any- respond Appeals, United States Court thing. Eleventh Circuit. appeared petitioner, with col- Had it leisure, prepared at deliber- lateral attack Sept. 30, 1987. concealed, ately “sprung” kept it to be Rehearing and Rehearing En Banc the court whenever warrant issued 25,1987. Denied Nov. moments, hours, only perhaps days execution, 9(a) prejudicial delay I read the well have been found. As opinion, such majority circumstanc-
es, its own the state would have authored confess,
prejudice, this, I I cannot com-
prehend, in the context of this case. calculated, could, appears say majority opinion I sub- that unless Such deliberate mit, petitioner delays beyond though the maximum invoke Rule even it should allows, question occur within the of time allowed time Florida we will distortion, maxi- diligence. By bringing convert Fla.R.Crim.P. collateral at- 3.850 for mum into a minimum. paragraph tack. The second of Part B of the