Barbour v. Haley

• Decision Date: 23 May 2001
• Docket Number: No. CIVA 01-T-0612-N.,CIVA 01-T-0612-N.
• Citation: 145 F.Supp.2d 1280
• Parties: Christopher BARBOUR, Petitioner, v. Michael HALEY, Commissioner, Alabama Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Alabama

145 F.Supp.2d 1280

Christopher BARBOUR, Petitioner, v. Michael HALEY, Commissioner, Alabama Department of Corrections, Respondent.

No. CIVA 01-T-0612-N.

United States District Court, M.D. Alabama, Northern Division.

May 23, 2001.

Order Denying Reconsideration, May 23, 2001.

George H. Kendall, Miriam Gohara, NAACP Legal Defense Fund, New York, NY, for Christopher Barbour, plaintiffs.

J. Clayton Crenshaw, A. Vernon Barnett, IV, David R. Clark, Office of the Attorney General, Alabama State House, Montgomery, for Charlie E. Jones, Warden, William H. Pryor, Jr., The Attorney General of the State of Alabama, Michael Haley, Commissioner Alabama Department of Corrections, defendants.

ORDER

MYRON H. THOMPSON, District Judge.

Petitioner Christopher Barbour has been convicted of capital murder and sentenced to death. He is scheduled to be executed after midnight on the morning of Friday, May 25, 2001. On Monday, May 21, Barbour filed in this court a motion for stay of execution and his first petition for a writ of habeas corpus. The court held a hearing with counsel for Barbour and respondent Michael Haley on May 22, limited to consideration of Barbour's motion for a stay of execution. Upon as much consideration of petitioner's and respondent's submissions to the record as is possible within the very short time allowed, as well as the arguments offered at the May 22 hearing, the court determines that a stay of execution must be granted because the court has insufficient time to adequately consider Barbour's habeas-corpus petition on the merits, including determination of whether there are statute-of-limitations barriers to the claims, and because a decision on the merits will require additional briefing, evidence, and perhaps an evidentiary hearing. The court also notes, however, that, although this court must retain jurisdiction of the case, it is willing to hold Barbour's habeas-corpus petition in abeyance pending exhaustion of his state-court proceedings unless the parties desire otherwise.

I. JURISDICTION

The court has jurisdiction over this case pursuant to 28 U.S.C.A. § 2251; see also 28 U.S.C.A. § 1651(a); Rule 4 of the Rules Governing § 2254 Cases.¹ Section 2251, "Stay of State court proceedings," provides that

"A justice or judge of the United States before whom a habeas corpus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding."

The court's jurisdiction exists regardless of whether Barbour has any unexhausted state motions and appeals still pending. See Arthur v. Haley, 248 F.3d 1302 (11th Cir.2001) (the district court had jurisdiction to grant a motion for a stay even though it could not yet resolve a threshold jurisdictional question about the petitioner's habeas petition under the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (amending 28 U.S.C.A. §§ 2241-2255)); see also Edwards v. Balisok, 520 U.S. 641, 649, 117 S.Ct. 1584, 1589, 137 L.Ed.2d 906 (1997); James S. Liebman and Randy Hertz, Federal Habeas Corpus Practice and Procedure § 13.3b (3d ed.1998) ("it is proper for the district court to enter a stay of execution and to hold the petition in abeyance pending exhaustion of remedies in the state courts" because "Under the terms of 28 U.S.C. § 2254(b), exhaustion of state remedies is not a necessary precondition to the filing of a federal habeas corpus petition, but instead a condition that must be fulfilled before relief may be granted. Exhaustion of state remedies, in other words, is not jurisdictional") (citing, among other cases, Clarke v. Grimes, 374 F.2d 550, 553 (5th Cir.1967)).

II. PROCEDURAL BACKGROUND

On June 24, 1993, Barbour was convicted in the Circuit Court of Montgomery County, Alabama, of murder during the commission of a rape, burglary, and arson in violation of 1975 Ala.Code §§ 13A-5-40(a)(3), (a)(4), and (a)(9).² Represented by two court-appointed attorneys, Frank Riggs and Clifford Heard, Barbour pleaded not guilty to the charges and did not testify at trial. On January 31, 1994, after a 10-2 jury recommendation that he receive the death penalty, the court found two aggravating and several mitigating circumstances and then concluded that the aggravating circumstances outweighed the mitigating ones and sentenced Barbour to death.

Barbour timely filed a direct appeal in Alabama state courts during which time Riggs and Heard continued to represent him. His conviction was affirmed by the Alabama Court of Criminal Appeals, see Barbour v. State, 673 So.2d 461 (Ala.Crim. App.1994), and the Alabama Supreme Court. See Ex Parte Barbour, 673 So.2d 473 (Ala.1995). Riggs and Heard's representation of Barbour ended after the Alabama Supreme Court denied this direct appeal. Barbour's petition for writ of certiorari (prepared by a pro-bono attorney from Boston, Massachusetts who had been secured by the Equal Justice Initiative, a privately-funded, not-for-profit, public interest law firm in Montgomery, Alabama) was then denied by the United States Supreme Court. See Barbour v. Alabama, 518 U.S. 1020, 116 S.Ct. 2556, 135 L.Ed.2d 1074 (1996).

Barbour again found himself without counsel because his Boston attorney ceased representing him after the Supreme Court's denial of certiorari. After six months may have run on the federal limitations period for filing a habeas petition under 28 U.S.C.A. § 2244(d), the Equal Justice Initiative secured the services of a law professor from the University of Michigan to draft a Rule 32 petition and to begin work on securing state collateral review of Barbour's conviction.³ Barbour submitted the professor's draft to state court on March 4, 1997, as a pro se application for relief.

The trial judge who reviewed Barbour's petition decided that it contained non-frivolous matters and could not be advanced adequately without the assistance of professional counsel. That judge exercised his discretion to appoint counsel to assist Barbour. However, the first appointed counsel withdrew from Barbour's case due to a conflict of interest. Joseph Espy, a Montgomery attorney, was then appointed to the case. Espy filed an amended Rule 32 petition and represented Barbour at an evidentiary hearing on March 18, 1998, but he did not file a post-hearing brief or proposed order. Between the hearing and the time judgment was entered, Espy explained that he would not represent Barbour any longer. Barbour's Rule 32 petition was denied on April 21, 1998.

After Espy terminated his representation of Barbour, Barbour did not obtain new counsel. Barbour claims he was not informed by Espy, or anyone else, of his right to appeal the Rule 32 judgment and, accordingly, he filed no further appeals in his case. As a result, it is possible that further state appeals may have become time-barred. Indeed, for over two years Barbour's case sat dormant, until the State filed a motion to set an execution date on September 8, 2000.

In January 2001, the Equal Justice Initiative secured Barbour's current counsel. On April 4, 2001, Barbour filed in Montgomery County Circuit Court a motion to reopen his state post-conviction proceedings. On April 20, 2001, while Barbour's state-court motion to reopen was still pending, the Alabama Supreme Court set an execution date of May 25, 2001. The circuit court denied Barbour's motion on May 14. On May 18, Barbour filed a motion for stay of execution with the Alabama Supreme Court, and, on May 21, he filed a notice of appeal of the circuit court's denial to the Alabama Court of Criminal Appeals. The stay motion and the appeal are still pending in state courts. On May 21, Barbour filed his motion for stay of execution and his first petition for federal habeas corpus in this court.

III. STANDARDS FOR GRANTING A STAY OF EXECUTION ON A FIRST PETITION

In Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996), the Supreme Court enunciated a clear rule governing a district court's ruling on a motion for stay of execution in a first federal habeas petition:

"If the district court cannot dismiss the petition on the merits before the scheduled execution, it is obligated to address the merits and must issue a stay to prevent the case from becoming moot. That is, if the district court lacks authority to directly dispose of the petition on the merits, it would abuse its discretion by attempting to achieve the same result indirectly by denying a stay."

Id. at 320, 116 S.Ct. at 1297 (expressly applying the principle of Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), a prior Supreme-Court case which concerned an appellate court's decision whether to grant a stay of execution pending appeal of the district court's judgment.)

Before the Lonchar decision, as early as 1982, the Eleventh Circuit had issued a very similar ruling. In Dobbert v. Strickland, 670 F.2d 938 (11th Cir.1982), the Court of Appeals stated that "Where the merits cannot be satisfactorily considered prior to execution of a scheduled death sentence, as in this instance, a stay should be granted." This rule, as crystallized in the Lonchar precedent, has already been recognized in Eleventh-Circuit caselaw. See Hauser ex rel. Crawford v. Moore, 223 F.3d 1316, 1321 (11th Cir.2000) ("In Lonchar ... the Court held that a district court could and should grant a stay in a first petition case unless the district court could dismiss the petition on the merits before the scheduled execution."); see also Arthur v. Haley, 248 F.3d 1302, 1302-03 (11th Cir.2001) (the district court did not abuse its discretion when it decided that, without proper briefing, perhaps a hearing, and sufficient opportunity to contemplate the claims and statute-of-limitations issues, it could not decide whether the court has jurisdiction under...