Adams v. Wainwright, 84-5322
Decision Date | 08 May 1984 |
Docket Number | No. 84-5322,84-5322 |
Citation | 734 F.2d 511 |
Parties | James ADAMS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent-Appellee. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Richard H. Burr, III, West Palm Beach, Fla., for petitioner-appellant.
Jim Smith, Atty. Gen., State of Fla., Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HENDERSON, ANDERSON and CLARK, Circuit Judges.
The issue before the court is whether Adams's application for stay of his execution should be granted pending this appeal. The standard to be applied in determining whether Adams' execution should be stayed is whether he has presented "substantial grounds upon which relief may be granted." Barefoot v. Estelle, --- U.S. ----, ----, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090, 1105 (1983).
We discuss only one of the several asserted grounds for relief, 1 i.e., his claim that the death penalty in Florida is administered in an arbitrary and capricious manner on the basis of race. This issue was presented in an earlier federal habeas proceeding and resolved against Adams on the merits. Adams v. Wainwright, 709 F.2d 1443 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984). The present writ is thus successive and should be entertained only if the ends of justice so require. Sanders v. U.S., 373 U.S. 1, 15-17, 83 S.Ct. 1068, 1077-1078, 10 L.Ed.2d 148 (1963).
At the outset we note that this court now has Spencer v. Zant, 715 F.2d 1562, vacated for rehearing en banc, 715 F.2d 1583 (11th Cir.1983), pending en banc consideration and in June will hear oral argument in McCleskey v. Zant, 729 F.2d 1293 (1984). These cases present issues with respect to the Georgia death penalty of whether the statute is operated in an intentionally discriminatory manner, whether the actual operation of the statute statewide is arbitrary and capricious on the basis of race, and whether the statute is arbitrary and capricious on that basis as applied to the defendant.
The only thing we can say with confidence is that the state of the law with respect to these issues is unsettled. Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978) (, )cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); 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); Smith v. Balkcom, 671 F.2d 858 (5th Cir.1982) ( ); Spencer v. Zant, 715 F.2d 1562, 1578-83 ( ), vacated for rehearing en banc, 715 F.2d 1583 (11th Cir.1983); 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, --- U.S. ----, 104 S.Ct. 562, 78 L.Ed.2d 370 (1983) ( ).
If Adams has presented the same issues as Spencer and McCleskey, and unless his petition is barred as a successive writ, it is clear that he has presented "substantial grounds upon which relief may be granted."
At oral argument we examined counsel to ascertain whether Adams has presented the same issues now pending in Spencer and McCleskey. We are satisfied that he has.
Also at oral argument we carefully explored whether or not the evidence of justice warrants our consideration of this successive writ. Adams in his first application for collateral relief in the state courts presented this issue and unsuccessfully asked for an evidentiary hearing and for the appointment of experts. Similarly in his first federal habeas proceedings, he was denied an evidentiary hearing and appointment of experts. Adams, supra, at 1450. The Gross and Mauro Report on which Adams primarily relies became available only after his prior federal habeas proceedings. In Stephens the Supreme Court granted a stay of execution pending this court's resolution of the en banc issues. Stephens, like this case, involved a second or successive writ. We believe that the Stephens case in the Supreme Court and the en banc cases nonpending in the Eleventh Circuit require a stay in this case. 2
The stay of execution is GRANTED pending en banc...
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