Blazak v. Ricketts

• Decision Date: 04 August 1992
• Docket Number: 91-16562,Nos. 91-16549,s. 91-16549
• Parties: Mitchell Thomas BLAZAK, Petitioner-Appellee-Cross-Appellant, v. James R. RICKETTS, Donald Wawrzaszek, Respondents-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1408

971 F.2d 1408

Mitchell Thomas BLAZAK, Petitioner-Appellee-Cross-Appellant, v. James R. RICKETTS, Donald Wawrzaszek Respondents-Appellants-Cross-Appellees.

Nos. 91-16549, 91-16562.

United States Court of Appeals Ninth Circuit.

Argued June 23, 1992.

Decided Aug. 4, 1992.

Robert Bartels, Arizona State University, Tempe, Ariz., and Natman Schaye, Tucson, Ariz., for petitioner-appellee-cross-appellant.

R. Wayne Ford, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellants-cross-appellees.

Appeal from the United States District Court for the District of Arizona.

Before: TANG, BEEZER, and BRUNETTI, Circuit Judges.

PER CURIAM.

This is an appeal and cross-appeal from a grant of habeas corpus by the district court in a death penalty case. We sua sponte have considered whether we have jurisdiction to consider this appeal, see Collins v. Miller, 252 U.S. 364, 366, 40 S.Ct. 347, 348, 64 L.Ed. 616 (1920), and whether we should remand this case because of prudential concerns for judicial finality and efficiency. We find that the grant of habeas corpus was a final judgment ripe for immediate review.

I

In 1988, Petitioner Mitchell Blazak filed a second amended habeas corpus petition under 28 U.S.C. § 2254. ¹ The petition contained thirty-seven claims for relief, eleven of the claims challenged the conviction and twenty-six of the claims attacked the sentence. Both parties indicate that the district judge in effect bifurcated the conviction and sentencing issues, considering all of the conviction issues, claims one through eleven, separately. In July of 1990, the district court granted summary judgment in favor of the state on claims five, six, seven, nine, and ten. The court held an evidentiary hearing on claims one, two, three, four, eight, and eleven. On September 10, 1991, the court entered an order denying habeas relief as to claims one, two, three, four, and eight. The court, however, granted habeas relief as to claim eleven, finding that "reasonable grounds exist to question Petitioner's competency at the time of trial." The order granted the Petition for Writ of Habeas Corpus, but left the "state free to retry Petitioner, assuming, of course, that at the time of such trial he is competent to be tried."

The dissent states that at this point "there was no indication the district court ever considered the judgment to be final." Dissent at 1416. We disagree. The district court's order clearly was designed to be final. The order granted the writ, left the state free to retry the petitioner, and returned all exhibits in the court's possession to the Arizona Attorney General's Office. Subsequently, on September 11, 1991, as required by Fed.R.Civ.Pro. 58, the clerk for the court entered a "JUDGMENT IN A CIVIL CASE" granting the writ as to claim eleven only. ² The court's docket noted that judgment had been entered granting the writ of habeas corpus and "terminating the case." The state filed an appeal from the "district court's judgment which granted the writ of habeas corpus" and the Petitioner cross-appealed the "final judgment entered in this action." The district court then granted a Certificate of Probable Cause to allow Petitioner to proceed with his cross-appeal. We fail to see any reason to believe that the court, or the parties, considered the judgment to be anything less than a final judgment ending the litigation at the district court level. Indeed, had the district court contemplated further proceedings it would not have certified the case for appeal or returned the exhibits to the state.

The state appeals the grant of habeas as to claim eleven and Petitioner cross-appeals the denial of claims one through ten. On May 28, 1992, we issued an order to show cause as to why the case should not be dismissed without prejudice and remanded to the district court in conformity with the finality principles announced in the recent case of Clisby v. Jones, 960 F.2d 925 (11th Cir.1992) (en banc). On June 23, 1992, argument was held to discuss this question.

II

We have jurisdiction under 28 U.S.C. § 2253 to review on appeal a "final order" of a district judge in a habeas corpus proceeding. The settled rule in civil proceedings that we have jurisdiction over only final judgments applies to habeas corpus proceedings. Collins v. Miller, 252 U.S. 364, 366, 40 S.Ct. 347, 348, 64 L.Ed. 616 (1920). The district court's order requiring the state to retry the Petitioner, if competent, left nothing to be done but the execution of the judgment and was thus final. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Because this order disposed of all the conviction related claims and, by vacating the Petitioner's conviction, granted all the relief requested it is a final appealable judgment. See Young v. Herring, 777 F.2d 198, 202 (5th Cir.1985); Blake v. Kemp, 758 F.2d 523, 525 (11th Cir.), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985); but cf. Stewart v. Bishop, 403 F.2d 674, 679 (8th Cir.1968) (District court's order requiring state to provide hearing on voluntariness of defendant's conviction, but reserving jurisdiction over habeas petition, not a final judgment.). ³

Both logic and case law dictate our conclusion that the order of the district court was a final judgment. The order left the state free to retry the Petitioner if it chose but nothing further remained for the district court's consideration. In Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), the Supreme Court rejected the state's argument that a conditional grant of habeas corpus was not a final judgment leaving nothing to be done but to enforce its execution "because all the required procedures under the Habeas Corpus Act had not been completed at the time the order was issued." Id. at 265, 98 S.Ct. at 561. The state maintained that the district court erred in not deciding whether to hold an evidentiary hearing before granting the writ. The Court dismissed the appeal as untimely because the state did not appeal soon enough after the district court's order "directing the Petitioner be released unless the State retried him within 60 days." Id. at 256, 98 S.Ct. at 555. In reaching this conclusion the Supreme Court specifically held that the order was a final order. Similarly, the order in the present case was a final order. Unless the district court's judgment is overturned on appeal nothing is left for the district court but to ensure the execution of its judgment.

In Young, 777 F.2d at 201, the Fifth Circuit specifically considered the issue before us today: a grant of habeas corpus by the district court where the court did not rule on all the habeas arguments. The court noted that "the sole purpose of the habeas corpus proceedings is to test the validity or legality of the restraint of the Petitioner." Id. at 202 (quoting Martin v. Spradley, 341 F.2d 89, 90 (5th Cir.1965)). Id. Thus, the court held that an order granting a writ of habeas corpus ended the litigation on the merits and was a final appealable judgment. In reaching this conclusion the court cited to Blake, 758 F.2d at 525, where the Eleventh Circuit also decided that a habeas corpus grant ordering a new trial or release of the Petitioner finally settled the rights of both parties and was a final judgment. In the case before us, as in Young and Blake, both parties' rights have been determined and the litigation on the merits is over. Therefore, there is a final appealable judgment.

The dissent insists that the recent case of Clisby v. Jones, 960 F.2d 925 (11th Cir.1992) (en banc), "clearly undermined" the decision in Blake (and by virtue of its citation to Blake, the decision in Young). This is not true. In Clisby the court considered a district court's decision granting a writ of habeas corpus but reserving decision on some remaining claims. The Eleventh Circuit used its supervisory powers to issue a prospective rule requiring district courts to consider all claims for relief raised in a habeas petition, whether the habeas petition is granted or denied. Significantly, the court took jurisdiction over the appeal before it and decided the merits of the claims reached by the district court. Id. at 928-34. Thus, the court did not overrule its law that a grant of habeas corpus on some claims for relief can be a final judgment for purposes of appeal. See, e.g., Wilson v. Kemp, 777 F.2d 621, 622-23 (11th Cir.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2258, 90 L.Ed.2d 703 (1986); Blake, 758 F.2d at 525. Obviously, if the court did not believe the order in Clisby was a final judgment, no appellate jurisdiction would have existed and the court would have been powerless to decide the issues it reached.

In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), the Court made it clear that an appellate court is powerless to hear a case unless there is a final judgment. In Firestone the appellate court held that an order denying motions to disqualify counsel was not a final judgment but made its decision prospective and went on to reach the merits of the challenged order. Id. at 369-70, 101 S.Ct. at 670-71. The Court upheld the ruling as to finality, but went on to state:

If the appellate court finds that the order from which a party seeks to appeal [is not final], its inquiry is over. A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only. We therefore hold that because the Court of Appeals was without jurisdiction to hear the appeal, it was without authority to decide the merits.

Id. at 379, 101 S.Ct. at 676 (footnote omitted). In reaching the merits in Clisby the Eleventh Circuit had to have considered the district court's judgment final or it would have been powerless to decide the case and its decision on the...