Bolender v. Singletary, 95-4876

• Decision Date: 17 July 1995
• Docket Number: No. 95-4876,95-4876
• Citation: 60 F.3d 727
• Parties: Bernard BOLENDER, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 727

60 F.3d 727

Bernard BOLENDER, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 95-4876.

United States Court of Appeals Eleventh Circuit.

July 17, 1995.

Mark Evan Olive, Anne Faith Jacobs, Volunteer Lawyers' Post-Conviction Defender Organization, Inc., Tallahassee, FL, for appellant.

Fariba Nora Komeily, Asst. Atty. Gen., Dept. of Legal Affairs, Miami, FL, for appellee.

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

Before TJOFLAT, Chief Judge, COX and DUBINA, Circuit Judges.

BY THE COURT:

Petitioner Bernard Bolender is a Florida death row inmate; his execution is scheduled for tomorrow morning, Tuesday, July 18, 1995, at 7 o'clock. Earlier today the district court denied Bolender's second petition for habeas corpus relief and his application for a certificate of probable cause to appeal. The district court also denied Bolender's application for a stay of his execution.

Petitioner has now applied to this court for a certificate of probable cause to appeal and for a stay of his execution. We deny the certificate. Because we anticipate that the petitioner will apply to the Supreme Court for a writ of certiorari, we stay petitioner's execution until 10:00 a.m. tomorrow, July 18, 1995, to give the Court an opportunity to consider petitioner's application. Any stay beyond that shall issue from the Supreme Court.

The claims the district court has dismissed were first included (in their present form) in a motion petitioner filed pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure in the Circuit Court of Dade County on June 8, 1995. That court rejected the claims because they were procedurally barred; accordingly, the court did not reach any of petitioner's claims on the merits. The Supreme Court of Florida affirmed, Bolender v. Florida, No. 86,020, --- So.2d ----, 1995 WL 419737 (Fla. July 11, 1995), agreeing that Bolender's claims were procedurally barred. Claims 1 through 6 were barred because "[t]he facts upon which Bolender relies could have been obtained through the use of due diligence more than two years prior to the filing of this motion." Claim 7, seeking an evidentiary hearing on all claims, was rejected because the record demonstrated conclusively that all of Bolender's claims were procedurally barred. Claim 8, claiming ineffective assistance of counsel, was barred as a successive claim (having been raised in a prior Rule 3.850 motion). Claim 9, a Brady claim that Bolender had pursued and effectively abandoned in a prior Rule 3.850 petition, was barred because it constituted a "successive" petition and,...