Ford v. Strickland, s. 84-5293

Decision Date30 May 1984
Docket NumberNos. 84-5293,84-5372,s. 84-5293
PartiesAlvin Bernard FORD, Petitioner-Appellant, v. Charles G. STRICKLAND, Jr., Warden, Florida State Penitentiary, Louie L. Wainwright, Secty., Dept. of Offender Rehabilitation, Florida, and Jim Smith, Atty. Gen., Florida, Respondents- Appellees. Alvin Bernard FORD, or Connie Ford, individually, and acting as next friend on behalf of Alvin Bernard Ford, Petitioners-Appellants, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Richard H. Burr, III, Richard L. Jorandby, West Palm Beach, Fla., for petitioners-appellants.

Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondents-appellees.

Appeals from the United States District Court for the Southern District of Florida.

Before HENDERSON, ANDERSON and CLARK, Circuit Judges.

PER CURIAM:

In Case No. 84-5293 we deny the application for a certificate of probable cause and we deny the application for stay of execution. The single issue raised, i.e., the Barclay issue, requires no discussion.

In Case No. 84-5372, we grant the application for a certificate of probable cause, and we grant the application for a stay of execution, finding that two of the grounds asserted warrant this relief.

First, Ford asserts that he is entitled to a procedural due process hearing to determine whether he is currently insane. If so, this should delay his execution because such could be cruel and unusual punishment and thus proscribed by the Eighth Amendment. Ford has raised a substantial question and we stay his execution so that a panel of this court may answer it. Credible evidence presented by the petitioner indicates that Ford is insane. Two psychiatrists appointed by Florida's Governor found him psychotic.

The Supreme Court has not yet decided whether infliction of the death penalty upon an insane condemnee is cruel and unusual punishment within the meaning of the Eighth Amendment. See Caritativo v. People of the State of California, 357 U.S. 549, 78 S.Ct. 1263, 2 L.Ed.2d 1531 (1958); Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950); Nobles v. Georgia, 168 U.S. 398, 18 S.Ct. 87, 42 L.Ed. 515 (1897). The Florida Supreme Court in holding that Ford was not entitled to a due process hearing relied upon Solesbee. At the time of Solesbee the United States Supreme Court had not applied the Eighth Amendment to the states through the due process clause of the Fourteenth Amendment. In Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the Supreme Court incorporated the Eighth Amendment right to be free of cruel and unusual punishment to the states. For still another reason, Solesbee seems of dubious support. Since that time, as a result of Furman, the Supreme Court has drastically altered the constitutional framework in which a citizen in this country can be executed.

We believe the district court erred in holding that Ford violated Rule 9(b) of the Rules governing Sec. 2254 cases. The district court dismissed the petition on the ground that the petitioner should have asserted the insanity ground in his prior petition and that he thus abused the writ.

The district court made this ruling without taking any evidence. We then have been caused to review the factual context of Ford's first petition for the writ, which was considered in December of 1981 by the district court. Neither the evidence at that hearing, which we have reviewed, nor the district court order reflects that the district court was presented with an issue of Ford's insanity at that time. The record does reflect that in late 1981 and in 1982, counsel for Ford became apprehensive about his mental state and sought psychiatric examinations for Ford. From December of 1981 until October of 1983, Ford's case was on appeal to this court and to the United States Supreme Court from the district court's denial on December 10, 1981, of Ford's petition for writ of habeas corpus.

Since we find no evidence in the record to suggest that the incompetency issue was available in December of 1981 when Ford's first petition was filed, we conclude for the purpose of staying Ford's execution that there was no abuse of the writ.

The state argues that Ford should have filed a petition for some type of relief with respect to the insanity issue before filing the petition now under consideration 1. However, the state does not explain to us just what Ford should have filed and when. On October 20, 1983, Ford, through his attorneys, sought exhaustion of state remedies pursuant to Florida Statute Sec. 922.07. This was after the mandate issued from this court on October 6, 1983. The Governor did not render a decision with respect to the Sec. 922.07 proceeding until he signed the death warrant.

If Ford had filed a petition for an evidentiary hearing with respect to insanity in the state courts, he would most probably have been met with a ruling that Ford's sole relief was pursuant to Florida Statute Sec. 922.07. In this very case, the Florida Supreme Court held that "the statutory procedure is now the exclusive procedure for determining competency to be executed." Ford v. Wainwright, 451 So.2d 471 at 475 Supreme Court of Florida, May 25, 1984. We believe if Ford had filed in the United States District Court for such relief, his petition would have met the same fate.

We conclude that this court's opinion in Goode v. Wainwright, 731 F.2d 1482 (1984), does not control this case. There, Goode's claim of incompetency came after he had been twice adjudicated competent in state court proceedings which were affirmed by our court. Thus, there were clear grounds for abuse of the writ in the Goode case because at the time of the filing of the successive petition, Goode had asserted the insanity ground in a prior proceeding.

Because we find that Ford's petition for relief filed in the district court did not constitute an abuse of the writ and because we believe his claim of privilege not to be executed while insane raises substantial procedural and substantive Eighth and Fourteenth Amendment grounds, we stay the execution on this first issue.

Ford's second ground for relief is his argument that Florida administers the death penalty arbitrarily and discriminatorily on the basis of the race of the victim, the race of the defendant, and other impermissible factors, in violation of the Eighth and Fourteenth Amendments. The district court rejected this claim as an abuse of the writ.

This issue, in the context of the Georgia death penalty statute, is now pending en banc consideration in this circuit. Spencer v. Zant, 715 F.2d 1562, vacated for rehearing en banc, 715 F.2d 1583 (11th Cir.1983); McCleskey v. Zant, (11th Cir.1984) (oral argument scheduled for June 12, 1984).

As we noted in Adams v. Wainwright, 734 F.2d 511, 512 (11th Cir. 1984), "The state of the law with respect to these issues is unsettled." In chronological order, see Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978) (rejecting argument that the Florida statute was being applied arbitrarily and discriminatorily in violation of the Eighth and Fourteenth Amendments because statistical evidence proffered was insufficient), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); Smith v. Balkcom, 671 F.2d 858 (5th Cir.1982) (denying Eighth and Fourteenth Amendment claims because statistics unreliable, but stating "in some instances circumstantial or statistical evidence of racially disproportionate impact may be so strong that the results permit no other inference but ... racially discriminatory intent or purpose"); Adams v. Wainwright, 709 F.2d 1443 (11th Cir.1983) (same), cert. denied, --- U.S. ---- 104 S.Ct. 745, 79 L.Ed.2d 203 (1984); Spencer v. Zant, 715 F.2d 1562, 1578-83 (remanding Eighth and Fourteenth Amendment challenges for evidentiary hearing); Spencer v. Zant, 715 F.2d 1583 (1983) (vacating panel opinion, 715 F.2d 1562, for rehearing en banc); Sullivan v. Wainwright, 721 F.2d 316, 317 (11th Cir.1983) (following Spinkellink and Adams ), petition for stay of execution denied, --- U.S. ----, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983); Stephens v. Kemp, 722 F.2d 627 (11th Cir.1983) (denying petition for rehearing en banc with six judges dissenting); Stephens v. Kemp, --- U.S. ----, 104 S.Ct. 562, 78 L.Ed.2d 370 (1983) (granting stay of execution pending Eleventh Circuit's en banc consideration of Spencer ); Smith v. Kemp, --- U.S. ----, 104 S.Ct. 565, 78 L.Ed.2d 732 (1983) (denying petition for rehearing from denial of certiorari); Adams v. Wainwright, 734 F.2d 511, (11th Cir. 1984) (granting stay pending en banc consideration of Spencer ), vacated without opinion, --- U.S. ----, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984).

Our effort to faithfully apply the principles enunciated by the Supreme Court is unusually difficult in these cases. Because of time constraints under which these issues invariably arise, both this court and the Supreme Court have found it impossible in some cases to write an opinion providing a rationale for the decision.

We can discern two possible interpretations of the Supreme Court's recent treatment of this issue: either (1) the Supreme Court sees some significant difference between the contours of the issue as it has been presented in the Florida context, as opposed to the Georgia context, or (2) the procedural posture of cases has been decisive, in that the Supreme Court has declined to entertain this issue when the issue was rejected on the merits in a prior petition.

The State argues with considerable force that the Supreme Court declined to stay the Florida executions in Sullivan and Adams, while granting a stay of the Georgia execution in Stephens, because of some significant (but unstated) difference between Florida and Georgia. Several factors undermine our confidence in the State's position. First, the position does not...

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