Bundy v. Wainwright

• Decision Date: 15 January 1987
• Docket Number: No. 86-5509,86-5509
• Citation: 808 F.2d 1410
• Parties: Theodore Robert BUNDY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary Department of Corrections, State of Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1410

808 F.2d 1410

Theodore Robert BUNDY, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary Department of Corrections State of Florida, Respondent-Appellee.

No. 86-5509.

United States Court of Appeals Eleventh Circuit.

Jan. 15, 1987.

James E. Coleman, Jr., (Wilmer, Cutler & Pickering), Polly Nelson, Washington, D.C., John F. Evans, Holly R. Skolnick, Coral Gables, Fla., for petitioner-appellant.

Gregory Costas, Andrea Smith Hillyer, Asst. Atty. Gens., Tallahassee, Fla., for respondent-appellee.

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

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

Corrected February 5, 1987.

GODBOLD, Circuit Judge:

On January 15, 1978 two young women, residents of a sorority house at Florida State University, Tallahassee, Leon County, Florida, were brutally murdered. Two other young women residing in the house were beaten and within an hour another young woman residing in a house nearby was attacked; these three victims survived. On July 24, 1979 Theodore Robert Bundy, the petitioner, was convicted of the two murders, three counts of attempted first degree murder, and two counts of burglary. The trial judge imposed death sentences for the murder convictions. The facts are set out in the opinion of the Florida Supreme Court affirming Bundy's convictions and sentences in June 1984. Bundy v. State, 455 So.2d 330 (Fla.1984). ¹

Certiorari was denied by the United States Supreme Court on May 5, 1986. --- U.S. ----, 106 S.Ct. 1958, 90 L.Ed.2d 366. On May 22, 1986 the Governor of Florida signed a death warrant providing that Bundy be executed before 12:00 noon on July 3, 1986. The execution was scheduled for 7:00 a.m. July 2. In June 1986 Bundy pursued collateral remedies available to him in the Florida state courts. These were finally exhausted on June 30, 1986 when the Florida Supreme Court affirmed the trial court's denial of Bundy's motions for collateral relief. 492 So.2d 1330.

Bundy's case was brought to the federal court system six and a half months ago. On June 30, 1986 he filed in the Southern District of Florida a federal habeas corpus petition (his first federal petition) some 172 pages in length and an application for a stay of execution. ² The petition is over-extensive. ³ Accompanying the petition was a memorandum in support of the application for stay, of some 30 pages plus 17 pages of exhibits. Issues briefed at length in the memorandum were deprivation of a fair trial because of prejudicial publicity, denial of a full and fair hearing on competency to stand trial, and ineffectiveness of trial counsel.

No evidentiary hearing was held. The district judge heard oral arguments on July 1. The same day he orally announced that he would deny a stay and deny the writ; he stated his reasons and reserved the right to elaborate or expand them in a written order. He granted a stay until 7:00 a.m. on July 3, within the period of the death warrant, to permit Bundy to pursue appellate remedies. The district judge also granted a certificate of probable cause. He filed his written order on July 2. 651 F.Supp. 38. Later on July 2 the Eleventh Circuit stayed the execution and calendared the case for briefing and argument. Arguments were heard by this court October 23.

This case went astray in the district court in several respects. It was heard on oral argument on a motion to stay, and then dismissed on the merits, in a context of procedural uncertainty. The court's rulings embraced substantive errors to which the procedural uncertainty contributed. The district court erred in denying a stay of execution, and it erred in denying the petition and ordering it dismissed. The judgment of the district court must be reversed and the case remanded for orderly, careful and deliberate consideration of the constitutional issues that are involved.

I. THE DISTRICT COURT BACKGROUND

Following the filing of the federal petition on June 30, the state, on July 1, filed a motion to dismiss the petition or to transfer it to the Northern District of Florida, asserting that the petition had been filed in the wrong district and that sole jurisdiction and venue lay in the Northern District. The same day the state also filed a reply to the application for stay of execution. Counsel appeared before the court on the morning of July 1 for oral argument. From 10:05 a.m. to 1:25 p.m. the court was concerned with housekeeping matters and the motion to dismiss or transfer (and with recesses). It denied the motion to dismiss or transfer at 1:25 p.m. on the ground that it had both jurisdiction and venue. ⁴

The court then announced that it would hear oral arguments on petitioner's application to stay execution. (Tr. of argument, p. 22). The court had not issued under 28 U.S.C. Sec. 2243 a show cause order requiring the state to show cause why the writ should not be granted. No motion to dismiss by the state was pending; its only motion to dismiss had been its motion based on jurisdiction and venue, and this already had been denied. Thus, before the court were a motion to stay and the state's reply to that motion. No response to the petition had been filed, nor was any transcript or record of any state court proceeding, direct or collateral, before the court (except for a two-page opinion of the Florida Supreme Court entered June 30, 1986, which was attached as an exhibit to the state's reply to the motion to stay). The state's reply to the motion to stay contended that the stay should be denied because the petition and the documents attached to the reply (the June 30, 1986 Supreme Court opinion) demonstrated no likelihood that Bundy would prevail on the merits. The state did not contend that the habeas petition should be decided on the merits or that it should be dismissed. ⁵

As the oral argument drew to a close counsel for Bundy pointed out to the court that the state record, more than 10,000 pages long, had not been lodged with the court but that counsel for the state had it in his car, to be filed with the court. (Tr.50).

Following argument, the court, at approximately 4:45 p.m., orally announced its decision denying a stay of execution (except for the one-day stay allowed to pursue appellate remedies) and dismissing the petition. The order of dismissal was the first indication given by the court that it considered that it had under submission anything other than a motion to stay. ⁶

Court adjourned at 5:05 p.m. Thereafter, at approximately 5:37 p.m., the state filed the trial court record with the district court. The district court filed its written opinion and order the next day, July 2. ⁷ Therein it discussed the merits of the motion to stay and the merits of the petition. It denied the motion to stay, denied the petition for the writ, and ordered the petition dismissed.

II. THE STRUCTURE FOR PLEADING HABEAS CORPUS CASES

The process of pleading in habeas corpus cases is governed generally by statutes and by the Rules Governing Section 2254 Cases, 28 U.S.C. foll. Sec. 2254. Under Rule 2 the petition "shall specify all the grounds for relief ... and shall set forth in summary form the facts supporting each of the grounds thus specified." Petitioner is not required by statute or Rules to attach to his petition or to file a state court record ⁸ in order to avoid a dismissal for facial insufficiency, although often in summarizing the facts a petitioner necessarily or as a matter of convenience may refer to state court proceedings and even attach extracts therefrom.

Under 28 U.S.C. Sec. 2243 the court entertaining the application may either (1) grant the writ, or (2) issue an order directing the respondent to show cause why it should not be granted, or (3) it may summarily dismiss the petition for facial insufficiency under the proviso of Sec. 2243, "unless it appears from the application that the applicant or person detained is not entitled thereto." The language of the proviso is developed more fully in Rule 4 of the Sec. 2254 Rules: "If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."

If the petition and exhibits do not of themselves require the judge to grant the writ, "and if they do not plainly show on their face that petitioner is not entitled to relief" [i.e., not the subject of a summary dismissal], Rule 4 requires that "the judge shall order the respondent to file an answer or other pleading within the time fixed by the court or to take such other action as the judge deems appropriate." ⁹

If the writ is neither granted nor the petition dismissed for facial insufficiency, the court must issue a show cause order. Rule 5 specifies what, in response to a show cause order, the respondent's answer shall embrace. It must respond to the allegations of the petition, and it must state whether the petitioner has exhausted state remedies, including post-conviction remedies. In addition:

The answer shall indicate what transcripts (of pretrial, trial, sentencing, and post-conviction proceedings) are available, when they can be furnished, and also what proceedings have been recorded and not transcribed. There shall be attached to the answer such portions of the transcripts as the answering party deems relevant. The court on its own motion or upon request of the petitioner may order that further portions of the existing transcripts be furnished or that certain portions of the non-transcribed proceedings be transcribed and furnished. If a transcript is neither available nor procurable, a narrative summary of the evidence may be submitted. If the petitioner appealed from the judgment of conviction or from an adverse judgment or order in a post-conviction proceeding, a copy of the petitioner's brief on appeal and of the opinion of the appellate court, if any,...