Cave v. Singletary

above, given judgment For the reasons court is AFFIRMED. CAVE,

Alphonso Petitioner-Appellant, v.

Harry SINGLETARY, Jr., K.

Respondent-Appellee.

No. 94-3397. Appeals,

United States Court

Eleventh Circuit.

May (Fla.1985), State, cert. de

v. So.2d nied, 2907, 90 (1986). state Cave’s for L.Ed.2d 993 and the relief was post-conviction denied affirmed. Supreme Court Cave Florida (Fla.1988). State, 529 So.2d petition for a writ his first Cave then filed § corpus under 28 of habeas U.S.C.A. granted part the district which was court held that Cave The district court. of counsel assistance received ineffective sentencing phases his guilt of both the and trial, prejudice that he suffered capital but sentencing phase. v. Sin only Cave the See Pierce, Florida, Garland, Fort Jeffrey H. Cir. 1520-30 gletary, 971 Appellant. for 1992) va Accordingly, the court (appendix). Attorney Terenzio, Baggett, D. Celia Sara and ordered the cated Cave’s death sentence Af- Office, Legal of Department General’s court’s him. The district state to resentence Beach, Florida, M. fairs, Curtis Palm West present dispute. of the order forms the basis Tallahassee, General, French, Atty. Asst. August on the In this issued Florida, Appellee. stated, part: in relevant district court corpus petition for re- Petitioner’s of claim lief is as Petitioner’s granted during the of assistance counsel ineffective KRAVITCH, and HATCHETT Before Respondent his sentencing phase of trial. ANDERSON, Judges. Circuit to schedule of Florida is directed the State Peti- sentencing proceeding at which a new PER CURIAM: jury on to a may present evidence tioner court’s appeals the district Alphonso Cave this days from date of or before of the for enforcement of his denial motion Respondent to Upon failure Order. corpus previously issued of habeas writ hearing within said sentencing a new hold argues that court. Cave an order from day period without clearly its determina- erroneous court was cause, good extending said time Court attorney agreed postpone that his tion the Peti- imposed on of death the sentence beyond time date the Petitioner vacated and tioner bewill prior order court’s in the district set forth imprisonment. to life sentenced argues that He also granting the writ. in its conclusion that court 13,1990, district erred Respondent Id. at 1530. On by con- permitted postponement prior order judg- alter or amend timely motion to filed a We affirm. parties. sent proceed- stay motion to further ment and a appeal. On and

ings pending reconsideration I. BACKGROUND grant- September stay proceedings motion Respondent’s ed degree of first convicted In 1982 Cave was mo- Respondent’s and denied pending appeal kidnapping. murder, robbery, and armed affirmed, id. at amend. We tion to alter or recommendation, jury’s with the Consistent September 1520,1 mandate issued our to death. judge sentenced Cave trial 17,1992. Supreme Court affirmed. Florida and we patties not raise at 1519-20. The did Id. court's conclusion affirmed the district 1. We portion the district court’s coun- assistance of did not address received ineffective Cave had trial, appeal. that he phases capital but his in this at both order at issue sel penalty phase. only prejudice at the had suffered 20,1992, On October represents Honorable Thom- office him that it will be at least designated acting as as an April seeing Walsh circuit until this was a death Florida, judge County, preside in Martin I prior public case. have a call into the resentencing, public over Cave’s and the de- represented defender who Mr. I Cave. appointed represent fender’s office was to will confer with him. I will also check all 22, 1992, Judge Cave. On October Walsh my records that exist in office to see held a status conference at which a date for is, whether there is a conflict .if and there if resentencing was established. After solicit- conflict, continuing just it is a if it was for ing preliminary information from Mr. Phil guilt phase whether it would continue Yacueci, public repre- the assistant defender penalty phase into the that we’re at now Cave, senting as to whether his office would re-try and we guilt, wouldn’t have to have a conflict representing of interest in just penalty phase. So all of those Cave, following colloquy place: took questions just we don’t have the answers to I now. will talk to Mr. Cave as soon as

THE Okay. Alright, COURT: Judge gets he back and we will have those an- appointed your repre- Cianea has office to swers on November 30th. sent Mr. [and] until further notice way going that’s the we’re to have it. I’m THE Okay, COURT: hoped well I’d to here to set this for case trial within the long have those answers before November period. mandated time asking I’d be 30th. get Once we him back here then I —a couple things going happen. are to would like to gets be notified after he back First, going I’m to set this case for trial Barlow, you’ll here kind of know —Mr. Monday morning sorry, Monday af- back, right? when he comes —I’m commencing ternoon at 1:30 on November will, MR. I Judge. BARLOW: I’ll ask prosecutor], 30. Mr. Barlow go- [the I’m department the sheriff’s give me a call ing you to need an order from ... jail as soon as he hits the doors. transport back pos- [Cave] here as soon as THE Alright, you’ll COURT: and if no- sible .... tify calendar, me I’ll my then look at have Yes, MR. Judge. BARLOW: my judicial all, assistant you call both of THE gets COURT: As soon as he back and hearing we’ll set you’ve another after here, Yacueci, you Mr. I need to sit down days had or five six with him. and talk with [Cave]. Review whatever MR. YACUCCI: Fine. you’ve got your anything office if even THE you’ll COURT: And have five or exists as to this case at period. this time days six gets before he even here to find In the initial your conversations with client out about whether there is or is not a I want to know you number one whether conflict. going ready are to be trial Novem- MR. YACUCCI: We’llfind that out. ber 30th. I need to know that as soon as THE COURT: And any then we’ll set possible so that we can coordinate. And I pending get motions and part let’s know that that is not a period realistic time resolved as possible, soon as talk to him you and I coming know that are into this try about whether he wants to this ease as new, brand going but we’re to set it within expeditiously possible, as or if he wants to mandated time speak- and after give you an opportunity prepare ing your with you client if need more time go this. And we’ll from there. Other than going give you I’m a second date. I can transporting today, getting him public give you 26th, three April weeks on which appointed, setting defender and this case Monday, go and on from there. I can trial, anything is there else we need to give you 1st, February two weeks on and do at this time? Mr. Barlow— I’m not even sure if going that’s to be enough time. No, Judge, MR. BARLOW: those were the issues that I outlined to the court MR. Judge, YACUCCI: I would of administrator. course—will appearing be on November anticipate I public if the defender’s THE COURT: Mr. Yacueci? No, Honor, Florida, (Fla. I Your Cave v. State YACUCCI: So.2d 705 MR. 1995).2 that’s it. think Okay, THE we’ll be recess COURT: Meanwhile, 19, 1993, Cave filed » on this one. requesting a motion that the district court granting Upon Yacucci filed a enforce its order On November the writ.3 transcript and the consideration of the motion to continue of the October conference, April 1993. Ya- status court set a new date of state trial ruling rejecting motion that he needed court’s cueci stated Cave’s motion for sentence, investigate ten-year imposition of a time to old life its own additional may prior conflict which have existed when Cave district court denied Cave’s Further, found, Specifically, Yacucci motion.4 it first went to trial. stated relevant April, part: “at least until that he needed 1993 transcripts, and review trial order to secure timely The State Court commenced the depositions and as well as to un- statements re-sentencing proceedings on October complete penalty phase a back- dertake (Dkt. 72). Upon agreement # of the investigation apparently was ground which parties the trial date was set for November by trial counsel in

never done Defendant’s Upon request 1992. of Petitioner’s 1982_” Thereafter, upon by motion Ya- counsel, April the trial was continued until to a cucci to withdraw due continued conflict Moreover, 1993. the record shows that interest, appointed a the court different following delays several other either attorney represent to Cave. by Petitioner, caused or consented to re-sentencing an Order the Petitioner was new April On Cave’s counsel 25,1993. entered on June imposition of a life sentence for moved for comply 90-day with the time limit failure to Accordingly, the court held that “the imposed by district court’s order. The re-sentencing complied with the Petitioner state trial court denied the motion and there- order_” appeal this Court’s This en- resentencing hearing a after conducted sued.5 again which sentenced to death. Cave 21, 1993, September Supreme the Florida On II. DISCUSSION vacated Cave’s second death sentence Court sentencing argues the case for a new Cave that the district court’s factu- and remanded judge. finding agreement par- hearing before a different state trial al of an between the (1982) (discussing Supreme 2. Florida Court vacated Cave’s sen- L.Ed.2d 379 exhaustion doc- trine). grounds Judge improp- tence on the that Walsh erly disqualifica- a his own decided motion for filing Subsequent to the of the State's brief in tion from the case. case, Supreme this the Florida Court handed vacating down its decision Cave's second death immediately the state 3. He filed this motion after procedural sentence based on flaws in the state 90-day denied his motion to enforce the court judge's handling a his own trial of motion for period. limitation opinion, disqualification. In this the Florida Su- noted, address, preme Court but did not Cave’s adjudicated Although court tire same district claim that the district court's habeas order man- writ, a Cave's motion for enforcement imposition By a remand- dated life sentence. judge presided over the different district ing resentencing disqualification mo- on the matter. however, issue, Supreme the Florida Court tion rejected implicitly habeas claim: Cave's order brief, resentencing have moot if Cave's State contends that Cave has would been In its argument that he was entitled to a life sentence failed to exhaust the issue of the effect of the Therefore, if Cave's claim re- in state court and therefore that he were valid. even habeas order original seeking garding order precluded enforcement of the habeas from federal habeas relief 2254(b) § at the time his second on this order. See 28 U.S.C.A. had not been exhausted based court, ("An in the it is cer- application corpus for a of habeas ... was filed writ Supreme appears tainly granted exhausted now that the Florida shall not be unless it rejected applicant it. Cave has available no the remedies available Court has has exhausted claim, State....”); respect generally this further state remedies with in the courts of the see ripe review. Lundy, U.S. and it is for federal habeas Rose v. 90-day imposed by court. beyond date ties to set Judge explicitly offered Yacucci the Walsh clearly erroneous. He 90-day limit is time resentencing if opportunity expedite he judge set the date for that the state contends significant par- fact is that all desired. The assump- the erroneous 30 under November con- ties at the October status conference 90-day within the date was tion that to hold the resentenc- curred the decision transcript of the October period. The hearing 30 unless counsel ing on November Cave, conference, according does status requested a further extension. Our Cave agreed specific to a that Yacucci not indicate agree- there was such an conclusion that trial, rather, merely that he for the but date strong support fact derives from the ment7 acquiesced in the court’s determination. parties at the status October court’s disagree. The district We 90-day explicitly noted that the conference respect with to the status findings of fact agreement. period could be extended later clearly are not erroneous. As a ex- Both the court counsel matter, preliminary we note that under pressed the view that Cave’s defense would Cave, calculation of time most favorable Indeed, preparation. need more time for 90-day period contemplated time understanding by Ya- such an is evidenced would district court’s subsequent postpone cueci’s motion to expired as of the October 22 status not have sentencing hearing April until 1993.8 hearing fact conference.6 The that this was assuming agreed Yacucci Even that 90-day period does not alone held within the resentencing, time for to extend the satisfy the terms of the district court’s order. any agreement nullity argues that such is a parties critical issue is whether The 3, 1990, August because the district court’s 22 agreed at the October status conference to provides that a order of order further particular resentencing date. district court was the exclusive means of The district court’s conclusion that extending disagree. time.9 The We dis agreement an initial was reached at the Octo meaning trict court construed the of its own clearly 22 conference not erro ber status is permitting prior order as extension of the reading transcript A fair of from neous. 90-day by original agreement. mutual implicit status conference an reveals interpretation court’s of its own The district agreement resentencing that would take properly ap order is accorded deference on 30, place Judge interpretation on November 1992. Walsh peal when its is reasonable. displayed appropriate Sepco concern that the sen See Commercial Union Ins. Co. (11th Cir.1990) (cit- 920, Corp., tencing proceedings commence within the 918 F.2d 921 resolution, right privilege.” light In of our we need not address ment of a known or See John- Zerbst, 458, 464, 90-day the calculation of the time frame which is son v. 304 U.S. (1938). by disputed by apply addressed the dissent and 82 L.Ed. 1461 We decline to i.e., situation, parties. that standard in this far of afield customary its constitutional context. Cf. Bustamante, 218, 235, Schneckloth v. transcript 7. The dissent contends that the of the 2041, 2052, (1973) ("Our 36 L.Ed.2d S.Ct. October 22 status conference reveals mutual mis- cases do not reflect an uncritical demand for a take and that such mistake should be home knowing intelligent every waiver in situation disagree. signifi- We We State. believe the person where a has failed to invoke a constitu- agreed par- cant fact is that Cave’s counsel to a Rather, any protection.”). "right” tional or laboring ticular date. Whether he was under a "privilege” in this case derives not from the expiration mistake of fact or law as to the trae Constitution, solely from a but strict construction significant date is less than the clear and obvious order. of district court’s required fact that the interests of his client more analogous at issue here is more to the waiver time. resulting from the failure of counsel to waiver object Teague, at trial. United States v. Cf. do Even if Yacucci’s actions not rise the level (en (11th Cir.1992) banc) (dis- extension, implicit agreement of an to an his rights cussing difference between waivable i.e., actively discussing the date of the actions— on the defendant's behalf and defense counsel resentencing prepa- and the state of the defense defendant). only by those waivable certainly any constitute a waiver of ob- ration — jection rejoins to the extension. The dissent adopts argument. relinquish- such was not an "intentional 9. The dissent waiver Harris, KRAVITCH, Judge, dissenting: Nursing Home Ass’n v. Circuit ing Alabama Cir.1980)). (5th also See 617 F.2d I. Chicago, Rock Island and

Matter Pacific Cir.1988) Co., 810-11 R.R. 865 F.2d question The threshold in this ease is (“We inter- not reverse a district court’s shall did, fact, whether in resentence order unless the record pretation of its own day specified Cave within the 90 time frame of discretion. The clearly shows an abuse by the habeas order so as to avoid the condi- position to inter- court is the best denying tional mandate of a life sentence. orders.”) (citations and internal pret its own petition, Cave’s the district court found that omitted); Anderson v. Ste- quotation marks “timely the state court commenced the re- (4th Cir.1989) 76, 80 n. 8 phens, 875 F.2d 22,1992,” sentencing proceedings on October court must afford “the inherent (appellate setting a trial date November when it con- due a district court deference “[ujpon agreement parties.” It is order”); Michigan v. Allen its own strues unclear whether the district court believed (6th Cir.1992) Park, 1201, 1213 954 F.2d scheduling the October 22 (“[A]n should accord defer- appellate court comply itself sufficient with the court’s construction of its ence to a district terms habeas order or that Cave orders, if that construction own earlier right waived the to enforce the conditional reasonable.”). construc- The district court’s by agreeing to a trial date reasonable, especially in tion of its order is day appeal, outside the 90 time limit. On that the extensions benefit- light of the fact parties dispute both when the Thus, sentencing we hold that the ted Cave. expired time limit and when a “new sentenc- not inconsis- proceedings state court were ing hearing,” meaning within the of the habe- district court’s order or the tent with the majority as was held. The bases its of this mandate Court.10 solely affirmance on the determination that III. CONCLUSION day period by agree- the 90 was extended parties.1 ment of the judgment Accordingly, the of the district courtis Inasmuch as the district court based its denial of habeas relief on the fact that the AFFIRMED. conclusion, 25, expired light this we not ad- would have on October as the district of need states, (The possesses the au- dress whether a district court court found. district court's order thority permanently "Thus, 25, to issue a conditional order the State had until October or, forbidding resentencing assuming such au- regarding comply Peti- with this Court's Order 3, thority, August whether the district court’s re-sentencing.'') tioner's 1990, appropriately exercised such author- fact, Challenging finding the State offers ity. recounting days. a novel It asserts that the filing day after of its Rule 59 motion on the tenth Although majority the does not address the of the order should have tolled the 90 issuance day period, the State calculation of the 90 time resentencing way day that the clock in the same finding challenges court's that the filing of a Rule 59 motion tolls the time allowed 25, expired period on October 1992. I note in filing appeal, Appellate Rule of an see Federal passing that the district court was correct. 4(a)(4). Accordingly, ar- Procedure the State was issued on The district court's habeas order day gues, time would have ex- the 90 limit not August days 1990. The 90 were to be counted December, pired until some time in after Cave's On the “from the date of this Order.” requested had a continuance on Novem- counsel timely a motion to alter or amend the State filed By requesting a before the ber 17. continuance judgment, pursuant to Federal Rule of Civil Pro- argument goes. day period expired, had the stay along with a motion to the habe- cedure right Cave would have waived the to enforce September pending appeal. On as order (The resentencing time limit. State also con- court denied the Rule 59 motion but 62(a) Federal Rule of Civil Procedure tends that stay appeal granted pending to this the motion to running day operate to toll the of the 90 would court, apparently stopping day the 90 clock after days entry ten after of the district opinion days elapsed. The of this court had so, however, the addition- court’s order. Even if September 1992. With the 90 was issued on days make no difference because al ten would day again running, on October the state clock Walsh, request still Cave's for a continuance counsel’s judge, Judge status conducted the days after the 90 had resentencing would have been made Cave's conference which day period expired.) for November 30. The 90 scheduled Apparently accepting scheduling that the scheduling conference was held before the 90 conference itself was not sufficient dis- ignored it the clear day expired, limit time charge obligations the State’s time-limited language original habeas order: order, majority under con- of Florida is direct- Respondent the State scheduling happened what at that con- strues sentencing proceed- ed to schedule a new “agreement” ference as an to continue resen- may present ing at which Petitioner evi- tencing beyond day period. the 90 There are days jury or before 90 from dence to a problems approach. two serious with that Upon failure of the the date of this Order. First, nowhere the habeas order is there sentencing a new hear- Respondent to hold any provision day for extensions of the 90 day period ing said 90 without an within by agreement limit time extending from this Court said time Order parties; contrary, expressly to the the order cause, good im- the sentence of death provides extending a different mechanism for posed on the Petitioner will be vacated and day period: the 90 “an Order from this Court imprison- the Petitioner sentenced to life extending good said time for cause.”3 The ment. order was a direction from the district court State; simply power to the lacked the sentence, Conceivably, the first read it- unilaterally forgive the State of its court- self, thought ambiguous as could be between imposed obligation.4 directing scheduling that the act of occur days directing within 90 that a sentenc- Second, assuming express agreement ing proceeding jury before a commence with- postpone resentencing beyond Cave to days. together in 90 But the two sentences day period would suffice waive the time interpretation: if leave little room for limit, 22, 1992, transcript of the October sentencing fails to hold a new hear- scheduling agree- conference reveals no such may ing present which Cave evidence to Instead, ment. it is evident from the tran- —at jury designated period, time everyone script in attendance at —within imprison- then Cave is to be sentenced to life erroneously October believed Merely scheduling hearing ment. such a that the tentative date set for the resentenc- not, on the terms of ing hearing, the habeas suffi- November was within day period.5 cient.2 the 90 It is true that attor- premise argument "good day The of the State’s is dubi- such a cause" extension of the 90 resentencing period. only ous. does the State a Not fail to cite case in proposition support filing that the of a judge interpreted Insofar as the second district petition rehearing for tolls the time of a by judge the order drafted the first district order, conditional habeas but it fails to cite bind- permit day period by agree- extension the ing precedent apparently contrary. to the See ment, is, misreading majority I doubt this as the 954, (5th Wainwright, 588 F.2d Tifford argues, entitled to this court's deference. Al- Cir.1979) (90 day resentencing period specified though generally judge's we a defer to by in conditional habeas order not tolled state's order, interpretation reasonable of his own petition rehearing). for The State has no basis only doing rationale for so—that concluding clearly that the district for court was judge posi- who drafted the order is in the best finding day resentencing erroneous in that the 90 say disappears tion to know what he meant to — expired judge time limit had doing interpreting on October 25. Conse- when the is not the quently, request person judge drafting. a same as the who did the Cave's counsel’s continu- case, any interpretation imposed on the ance on November 17 is irrelevant to the issue of was, judge my the second district in compliance the State’s with the habeas order. opinion, unreasonable. presiding judge 2. The state court at the schedul- suggest There is no evidence in record to ing conference described his task as “to set this day period that Cave's counsel knew that the 90 period.” case for trial within the mandated time R.72, expire would of October the end and was Hr’g Tr. of Oct. at 3. This would withholding knowledge this from the state court scheduling seem an odd had the remark confer- strategically delaying or that he was otherwise discharge ence itself been understood to this hope day period expire that the 90 would responsibility. Cave before was resentenced. Cave’s counsel newly appointed spoken was and had not even 3. The State never availed scheduling itself of with Cave at the time of the confer- order’s ence. invitation to the district court for majority responsibility office who assumes that the public defender’s ney from the apparently ensuring resentencing day peri- at the conference within the 90 present pub- but, judge’s doubt that the perversely, in the od not on concurred falls the State on ready for trial would be lic defender’s office himself. Cave Neither the State nor Cave 30; that this “objected” but it is also true scheduling hearing on November at the to the any date other attorney did not consent judge imminent failure of the to order resen- conference, let 30 at the than November tencing specified period within the because day acknowledge that the 90 limit alone neither was aware of the miscalculation of might be extended or waived.6 have to majority’s I do not time. understand the punished view Cave alone should be indications, Because, everyone by all at the primarily, exclusively, a if not failure attrib- mistakenly that Novem- believed utable to the State. day period, was within the 90 ber way lawyer representing no that the there is (who present) could was not himself Cave II. knowingly day the 90 limit or

have waived Given that the failed to hold a re- an extension. Hamilton v. consented to Cf. scheduling hearing day period, within the 90 Cir.1970) Watkins, only question remaining is the enforce- (“The accepted classic definition of waiver ability of the district court’s habeas order relinquishment aban- ... ‘an intentional or mandating imposition of a life sentence. Is- ”) right privilege.’ of a known or donment is, suing such an order circum- under some Zerbst, (quoting Johnson v. stances, authority within the of a habeas 82 L.Ed. 1461 Consequently, court. the district court was added). (1938))(emphasis only question, The jurisdiction issuing within its habeas then, party should bear the “cost” of is which per and the order is not unenforceable mutual mistake. I believe it should be Moreover, question se. the further of wheth- The habeas order was directed State. against resentencing er the conditional bar Cave, State, not and the State was a appropriate was an exercise of the district by initi- position compliance to ensure better court’s discretion on the facts of this case is peri- within mandated ating properly not before this court because the requesting “good cause” extension. od or challenge State failed to the form of habeas majority argues tempo- that Cave’s granted by the district court in relief its rary sentencing hearing for- counsel at the appeal. I previous Eleventh Circuit would to be resentenced feited Cave’s “entitlement” conclude, therefore, the habeas order days by analogy to defense coun- within written, imposing should be enforced as object right failing of a sel’s forfeiture imprisonment. a final of life sentence reasoning at trial. This line of to its violation empowers fed- viewing the habeas or- The federal habeas statute iterates the error justice right grant eral courts to relief “as law and granting as Cave a or entitle- der 2243, expressly § and subsequently require,” forfeit 28 U.S.C. ment —which he could than release through negligence contemplates of di- remedies other his own —instead 2244(b) (“re- § custody, recting something to do obli- from see 28 U.S.C. the State —an custody remedy an persist irrespective from or other on gation that would lease Worse, corpus”). application for a writ of habeas or his counsel. the actions of Cave telling ceedings April, way majority says there is no of that its that until 6. The "conclusion agreement strong sup- they transcript there was such an derives believed that from the whether parties port the fact that the at the October from agreement do so would be sufficient to their to explicitly that the 90- 22 status conference noted comply or whether instead with the habeas order agree- day period could be extended later government would have to the dis- the majority what the means ment.” I am not sure any "good cause” extension. In trict court for a noted,” scheduling by "explicitly as no one at the case, public attorney defender’s from actually anything about what said agree any date that he did not office did not to procedure would to extend the sort of resentencing period. suffice (albeit day mistakenly) was within the 90 believe participants did While the period. resentencing pro- contemplate putting off the 1358 retrying resentencing a consistently empha has from or defendant. Supreme Court The “ (5th Lucas, 359, “withthe a federal court is vested v. 9 F.3d 365-67 sized that See Smith — denied, Cir.1993), -, to control and direct the form

largest power cert. U.S. 115 brought (1994). judgment to be entered cases 98, 47 But see S.Ct. 130 L.Ed.2d ” corpus.’ v. (5th Cir.) it habeas Hilton up before Lucas, 638, Smith v. 16 F.3d 641 770, 774, 107 2113, Braunskill, S.Ct. 481 U.S. (on appeal from the district court’s order on (1987) 2118, (quoting 724 In re 95 L.Ed.2d previous Fifth remand from the Circuit Bonner, 242, 260, 14 151 U.S. S.Ct. decision, only purporting to “have Smith (1894)). commonly, 149 Most 38 L.Ed. some doubt as to whether a federal court has relief issue “condi granting courts habeas authority pro to enter” a habeas order orders, require the which tional release” seeking hibiting subsequently the state from petitioner custody to from state release sentence) added), (emphasis a death cert. de from an unconstitutional sentence unless or — nied, -, U.S. S.Ct. petitioner is retried or resentenced with (1994). L.Ed.2d 90 “reasonable”) (or specified in some a Ordinarily, retry if Although time. the state fails to this circuit has not decided the desig petitioner issue, within the or resentence the most relevant Eleventh Circuit time, may period of it still rearrest and nated comport majority to case seems with the retry or resentence the successful habeas power view that habeas courts have the a later petitioner at time.7 See Moore resentencing. bar retrial or Moore v. (11th Zant, Cir.1992), 972 F.2d cert. Zant, interpreted this court a conditional ha- denied, prohibit beas order not to the state from (1993). L.Ed.2d 271 subsequent capital resentencing. Explaining typical the effect of the conditional habeas here, however, presented question a stated after successful authority whether a habeas court has the petitioner custody habeas is released from permanently issue a conditional order forbid may ordinarily “the state still ding reprosecution resentencing or if the rearrest grant specified peri reprosecute person,” act within a time and that the state fails to (On case, question usually adjudicate od. the facts of this of the writ “does not becomes whether a habeas court can forbid constitutionality of future state acts directed capital sentencing hearings further state petitioner.” (emphas- at the 972 F.2d at 320 added). once a death sentence has been held uncon then, Evidently, es the court was of comply and the state has failed to stitutional could, opinion that under habeas courts procedural requirements of the re with circumstances, permanently certain bar re- order.) sulting habeas Three out of four prosecution resentencing. or circuits to have decided this issue have held I would hold that it is within the broad authority that federal courts do have the power of a court to issue an habeas federal petitioner bar retrial of who has permanently barring the state from successfully challenged his or her conviction. retrying petitioner. In- or Sullivan, Capps v. See deed, may only in some cases this- be the Cir.1993); Lockhart, Foster v. 9 F.3d example, form of For (8th Cir.1993) (“district effective habeas relief. court has author granting if the basis for habeas relief is a ity preclude retrying a state from a suc petitioner’s violation of the Fifth Amendment petitioner cessful habeas when the court insufficiency Jeopardy rights or Double remedy appropriate”); deems that Burton v. evidence, Johnson, barring then a new trial would Cir.1992), 975 F.2d only way prevent denied, 1879, be the to the state from cert. (1993); iterating the violation. Simi- Ryan, constitutional 123 L.Ed.2d 497 Heiser v. (3d Cir.1995). larly, prisoner’s speedy Only Sixth Amendment the Fifth if, meaningless rights trial would be rendered Circuit has indicated that a habeas court power permanently lacks the bar a even after a successful habeas as- state course, and, fails, subsequent 7. court if that in a Of the defendant’s Sixth ín state Amendment rights against petition. speedy may trial be asserted retrial federal habeas granted by ing the form of habeas relief rights, he or she could be tried serting these ap- at the will of the state. court. Id. I would follow or sentenced Circuit, proach finding dispos- of the Tenth it course, recognize that this extreme Of acting itive that the district court was within not to condone its remedy authorized is is scope authority. of its habeas use; must exercise habeas courts routine recognized courts to have Other discretion. impose authority of habeas courts to III. on retrial or permanent bars only in case not failed in sensibly the circumstances have limited in resentenee Cave the time allotted but also appropri- form relief would be which this challenge remedy failed to the valid habeas (generally Capps, 13 F.3d at 352-53 ate. See granted by the district court in first in which the reserved for cases should be result, appeal. Eleventh Circuit As a ... cannot be violation “constitutional imprisonment. should be sentenced to life trial, excep- or other another remedied such that the hold-

tional circumstances exist I respectfully DISSENT. Foster, unjust”); ing trial would be of a new (“suitable only in situa- at 727 certain 9 F.3d

tions, a retrial itself would such as when rights”). petitioner’s constitutional

violate the not now define the circumstances

We need warranted, be

in which such relief would

however, claim that the district because the by mandating its discretion

court abused imposition of a life sentence is not conditional DELGUIDICE, Dean Petitioner- properly this court. The State admits before Appellant, challenge it did not the form of relief appeal previous specified in the habeas its Harry SINGLETARY, Respondent- K. It not to the Eleventh Circuit.8 appeal therefore, Appellee. court deter- necessary, for this the district court abused its mine whether No. 94-5029. by mandating the conditional bar discretion case; the form to retrial on the facts of this Appeals, United Court of States granted of relief became the law of this case Eleventh Circuit. challenge failed to it on the when the State May appeal. initial precisely the situation confronted This is Capps the Tenth Circuit both cases, In the court

Burton. each of those any challenge that the state had waived

held remedy permanent

to the habeas dis- 353; Burton, Capps,

charge. 13 F.3d fact, Capps the court

F.2d at 693-94. nothing in

recognized that the rec- “because violation was suggests

ord the constitutional trial, in a

not redressable new [by apparently abused its discretion

issuing barring a 'writ 13 F.3d at retrial].” Nevertheless, the state not because did remedy appeal initial

challenge the its Circuit, grant of habeas to the Tenth precluded

court held that it was from review- (i.e., Strickland) granting the writ. challenged only basis for the substantive

Case Details

Case Name: Cave v. Singletary

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 22, 1996

Citation: 84 F.3d 1350

Docket Number: 94-3397

Court Abbreviation: 11th Cir.