Blake v. Kemp

Decision Date29 March 1985
Docket NumberNo. 81-7417,81-7417
Citation758 F.2d 523
Parties, 1 Fed.R.Serv.3d 1263 Joseph James BLAKE, Petitioner-Appellee, v. Ralph KEMP, Warden, Georgia Diagnostic Center, Respondent-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.

Joe Nursey, Andrea Young, Millard C. Farmer, Pamela L.J. Arangno, Atlanta, Ga., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

On Sua Sponte Reconsideration

Before TJOFLAT * and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:


Following the publication of our opinion in this case at 737 F.2d 925 (11th Cir.1984), the Court withheld the mandate sua sponte to give further consideration to the appealability of the district court's grant of the writ of habeas corpus. In that opinion, we announced what amounted to a new procedural rule touching upon the finality of judgments of habeas courts which enter judgments on some, but less than all, the "claims" before them. That rule is that each ground or basis which a habeas petitioner assigns as a ground or reason for the grant of the writ is a separate "claim" within the meaning of Fed.R.Civ.P. 54(b) 1 and that if the habeas court either grants the petition or denies it by deciding some, but not all, of the issues presented, the judgment of the Court is not a final judgment and therefore this Court lacks jurisdiction to entertain the appeal under U.S.Code, Section 1291. 2

Since, as we recognized in our prior opinion, "The Federal Rules of Civil Procedure do not always apply to habeas proceedings," we undertook to consider their applicability to the appeal in this case. The issue was not raised by either party and was, of course, not briefed.

Upon further consideration, we have concluded that our prior opinion should be vacated.

We perceive a substantial difference between the finality of a judgment by a district court granting the writ of habeas corpus on two of several grounds and of a judgment denying the writ on the basis of the court's determining the sufficiency of less than all of the asserted grounds. The only question we have before us on appealability is of the former kind of order.

We now conclude that a judgment ordering the release of a convicted defendant unless the state should retry him within a specified time "ends the litigation and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945).

Since both parties here were faced with a judgment that gave the petitioner all he could hope to achieve by the litigation and the state was required to hold a new trial or release the petitioner, it would defy logic for us to hold that such a judgment was not final within the meaning of 28 U.S.C. Sec. 1291.

We arrive at this conclusion without reaching the question whether each separate ground alleged as a basis for granting the writ is a "claim" under Rule 54(b) and without reaching the question whether, assuming it is, Rule 54(b) should be adhered to in a case in which the district judge denies the writ on one or more, but less than all, the claims. Those two questions remain for a later day when they are presented to the Court in an actual case and they are fully briefed by the parties.


This is an appeal by the State of Georgia from the grant of the writ of habeas corpus to Joseph James Blake, following his conviction of murder in the first degree and sentence to death in the Superior Court of Chatham County, Georgia. The procedural history of this case, demonstrating that all state remedies have been exhausted may be found in the report of the district court's opinion at Blake v. Zant, 513 F.Supp. 772 (S.D.Ga.1981).

As stated by the habeas court, "the circumstances leading up to the death of Tiffany Loury [aged two] are generally not in dispute." The habeas court stated the facts as follows:

In November 1975, Jacquelyn Loury and the decedent child were living with her mother, Mrs. Florence Smith, and several of Mrs. Smith's other children. Jacquelyn and Mr. Blake had dated for about nine months and planned to be married. The petitioner asked Jacquelyn to go out with him the evening of November 14, 1975, but she told him that she planned to go out with a girlfriend, Denise Walker, instead. Nonetheless, Mr. Blake persisted and, finally, after meeting her at the Walker home, Jacquelyn agreed to let the petitioner take her out drinking.

Jacquelyn's mother kept Tiffany while Jacquelyn, Ms. Walker, the petitioner and several other persons went first to one bar and then another. During the course of the evening, a dispute developed between Mr. Blake and Jacquelyn, perhaps because of her interest in another man. Petitioner struck Ms. Loury on the side of the head with his fist. He was ejected from the lounge at that time and again around midnight when he tried to return.

Mrs. Smith testified that Tiffany and the other children had gone to bed shortly after 9:30 p.m. Mrs. Smith left the house to visit friends around 10:15 p.m. and returned about two hours later. She then noticed that the window next to the front door had been opened, and the curtains pulled back. However, Mrs. Smith did not believe anything was seriously amiss at that time. At approximately 1:00 a.m., Mr. Blake called Mrs. Smith. He asked whether Jacquelyn was home. When told that she was not, Mr. Blake informed Mrs. Smith that he had taken Tiffany. Mrs. Smith began scolding him for having the child out so late on a cold evening. Mr. Blake then hung up without saying anything more. However, it did not appear that Mr. Blake's having the child was in itself a source of major concern. He had taken the child out alone several times in the past, and his relations with her as well as the rest of the family had been good.

Petitioner testified that, after he had been thrown out of the bar the second time, he had gone back to Jacquelyn's home. When no one answered, he opened the window, unlocked the door, and entered. He found everyone except Tiffany asleep. Mr. Blake testified that he asked Tiffany if she wanted to go with him. She agreed and they left by the back door. Mr. Blake indicated that his intention was to take the child away because her mother did not deserve the child and had mistreated her in a variety of respects.

Mr. Blake testified further that he first intended to run away with Tiffany and, accordingly, crossed the Talmadge Memorial Bridge as the quickest exit route. Mr. Blake stated that he drove as far as Buford, South Carolina. However, he realized at some point that he could not simply run away with the child without being chased by the authorities. Initially, he reacted to this fact by deciding to kill himself and Tiffany there in Buford. Petitioner later decided to return to Savannah. He testified that he stopped on the bridge. There he and Tiffany prayed about going to "another world" and being together forever "on the other side." Petitioner then dropped the child off the bridge to her death, which occurred on impact or very shortly thereafter.

Mr. Blake explained that he postponed his own trip to "the other side" so that he could tell the child's mother what had happened and why. Thus, petitioner did not in fact make any effort to conceal his actions. Quite the opposite, he contacted the police almost immediately after the incident, and began giving them substantially the same account of Tiffany's death that he testified to at trial, emphasizing that "I know I did wrong, but in another way I did right," while never once indicating that the child had been harmed or killed. 3

The state's brief in this Court quotes from Blake's testimony at trial and says that the exact words used by Blake and Tiffany just before he stopped the car on the bridge were: "Would you like to go and stay with me forever?" She replied: "Yes." The appellee replied: "Okay. That's what we'll do. Nobody won't bother us again." The brief then says: "Then he stopped the car. The appellee and the child then got out of the car and knelt down and prayed at the bridge about going into another world on the other side. Then he told the child: "I'll send you first and I'll be along shortly after."

Although quoting this language from Blake's testimony, the state's brief appears to accept it as a true statement of what actually occurred.

Within six or seven hours after the baby's death, Blake gave a full taped confession to the investigating officer after adequate warnings had been given. At this time, Blake stated that he did not want or need a lawyer because "he wouldn't be around." This statement, after describing his actions as outlined above, said:

All I know is I did wrong and in another way I did right. At least the baby don't have to suffer about it because the mama and/or the real father ain't fit to have a child like that. The baby is too good for any one of us. She is in a better place now.

Subsequently, within two or three days, while in jail, Blake wrote the following note, which was delivered to the jailer:

To Whom That Every Read This Letter, I have done the right thing by turning myself in, but I have a promise to keep to my little girl Tiffany. I told her that I would join her soon. But now the time has come for me to go to her. She came to me and said she wanted me now. So I must go because I promised Tiffany and I love her. That we'll be together on the other side. So you see and understand that I never lost her cause she is wait for me. I'm just sorry that Jackie won't be there with us. Me and Tiffany will live in peace now forever. I will go to her now. May god forgive me for all my sins. Joseph James Blake.

Some two weeks later, the trial court...

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