Cave v. Singletary, 94-3397
Decision Date | 22 May 1996 |
Docket Number | No. 94-3397,94-3397 |
Parties | Alphonso CAVE, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Respondent-Appellee. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Jeffrey H. Garland, Fort Pierce, Florida, for Appellant.
Celia Terenzio, Sara D. Baggett, Attorney General's Office, Department of Legal Affairs, West Palm Beach, Florida, Curtis M. French, Asst. Atty. General, Tallahassee, Florida, for Appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before KRAVITCH, HATCHETT and ANDERSON, Circuit Judges.
Alphonso Cave appeals the district court's denial of his motion for enforcement of the writ of habeas corpus previously issued by the court. Cave argues that the district court was clearly erroneous in its determination that his attorney agreed to postpone the date for resentencing beyond the time period set forth in the district court's prior order granting the writ. He also argues that the district court erred in its conclusion that the prior order permitted postponement by consent of the parties. We affirm.
In 1982 Cave was convicted of first degree murder, armed robbery, and kidnapping. Consistent with the jury's recommendation, the trial judge sentenced Cave to death. The Florida Supreme Court affirmed. Cave v. State, 476 So.2d 180 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986). Cave's petition for state post-conviction relief was denied and the Florida Supreme Court affirmed. Cave v. State, 529 So.2d 293 (Fla.1988).
Cave then filed his first petition for a writ of habeas corpus under 28 U.S.C.A. § 2254, which was granted in part by the district court. The district court held that Cave received ineffective assistance of counsel in both the guilt and sentencing phases of his capital trial, but that he suffered prejudice at only the sentencing phase. See Cave v. Singletary, 971 F.2d 1513, 1520-30 (11th Cir.1992) (appendix). Accordingly, the court vacated Cave's death sentence and ordered the state to resentence him. The district court's order forms the basis of the present dispute. In this order, issued on August 3, 1990, the district court stated, in relevant part:
Petitioner's petition for habeas corpus relief is granted as to Petitioner's claim of ineffective assistance of counsel during the sentencing phase of his trial. Respondent the State of Florida is directed to schedule a new sentencing proceeding at which Petitioner may present evidence to a jury on or before 90 days from the date of this Order. Upon failure of the Respondent to hold a new sentencing hearing within said 90 day period without an order from this Court extending said time for good cause, the sentence of death imposed on the Petitioner will be vacated and the Petitioner sentenced to life imprisonment.
Id. at 1530. On August 13, 1990, Respondent filed a timely motion to alter or amend judgment and a motion to stay further proceedings pending reconsideration and appeal. On September 25, 1990, the district court granted Respondent's motion to stay proceedings pending appeal and denied Respondent's motion to alter or amend. We affirmed, id. at 1520, 1 and our mandate issued on September 17, 1992.
On October 20, 1992, the Honorable Thomas Walsh was designated as an acting circuit judge in Martin County, Florida, to preside over Cave's resentencing, and the public defender's office was appointed to represent Cave. On October 22, 1992, Judge Walsh held a status conference at which a date for resentencing was established. After soliciting preliminary information from Mr. Phil Yacucci, the assistant public defender representing Cave, as to whether his office would have a conflict of interest in representing Cave, the following colloquy took place:
On November 17, 1992, Yacucci filed a motion to continue resentencing and the court set a new date of April 26, 1993. Yacucci stated in this motion that he needed additional time to investigate a ten-year old conflict which may have existed when Cave first went to trial. Further, Yacucci stated that he needed "at least until April, 1993 in order to secure and review trial transcripts, depositions and statements as well as to undertake a complete penalty phase background investigation which was apparently never done by Defendant's trial counsel in 1982...." Thereafter, upon motion by Yacucci to withdraw due to a continued conflict of interest, the court appointed a different attorney to represent Cave.
On April 6, 1993, Cave's new counsel moved for imposition of a life sentence for failure to comply with the 90-day time limit imposed by the district court's order. The state trial court denied the motion and thereafter conducted a resentencing hearing at which Cave was again sentenced to death. On September 21, 1993, the Florida Supreme Court vacated Cave's second death sentence and remanded the case for a new sentencing hearing before a different state trial judge. Cave v. State of Florida, 660 So.2d 705 (Fla.1995). 2
Meanwhile, on August 19, 1993, Cave filed a motion requesting that the district court enforce its order granting the writ. 3 Upon consideration of the transcript of the October 22, 1992, status conference, the state trial court's ruling rejecting Cave's motion for imposition of a life sentence, and its own prior order, the district court denied Cave's motion. 4 Specifically, it found, in relevant part:
The State Court timely commenced the re-sentencing proceedings on October 22, 1992 (Dkt. # 72). Upon agreement of the parties the trial date was set for November 30, 1992. Upon the request of Petitioner's counsel, the trial was continued until April 1993. Moreover, the record shows that following several other delays either caused or consented to by the Petitioner, an Order re-sentencing the Petitioner was entered on June 25, 1993.
Accordingly, the court held that "the re-sentencing of the Petitioner complied with this Court's order...." This appeal ensued. 5
Cave argues that the district court's factual finding of an agreement between the parties to set the resentencing date beyond the 90-day time limit is clearly erroneous. He contends that the state judge set the date for November 30 under the erroneous assumption that this date was within the 90-day period. The transcript of the October 22 status conference, according to Cave, does not indicate that...
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