Clisby v. State of Ala.
| Decision Date | 27 April 1995 |
| Docket Number | No. 95-6329,95-6329 |
| Citation | 52 F.3d 905 |
| Parties | Willie CLISBY, Jr., Petitioner-Appellant, v. STATE OF ALABAMA, Alabama Department of Corrections, W.E. Johnson, Fred Smith, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Cathy S. Wright, Tony G. Miller, Cary D. Tynes, Maynard, Cooper & Gale, P.C., Birmingham, AL, for appellant.
Jeff Sessions, Atty. Gen., Beth Jackson Hughes, Asst. Atty. Gen., Montgomery, AL, for appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before KRAVITCH, EDMONDSON and COX, Circuit Judges.
This appeal is from the denial of habeas corpus relief to an Alabama prisoner facing execution tonight at midnight. This petition for habeas relief is not his first. We have expedited the appeal, had briefing from the parties, and heard oral argument. The briefing and argument addressed the merits as well as petitioner's motion for a stay of execution and respondents' motion to vacate the district court's certificate of probable cause. 1
The district court's certificate of probable cause was limited to one issue, although petitioner asserted several issues in district court. We declined to broaden the certificate. 2 So, only one question is presented in the appeal: whether petitioner (especially considering doctrines such as abuse of the writ and procedural bar) is entitled to an evidentiary hearing on his claim that electrocution as administered in Alabama violates the Eighth Amendment to the United States Constitution.
Although the district court granted a certificate of probable cause on this question, that court answered the question "no" and held no evidentiary hearing. The district court's opinion sets out more than one reason for denying an evidentiary hearing. For the purposes of this appeal, however, it is enough for us to conclude, as we do conclude, that the district court did not err in deciding as a matter of law that petitioner had abused the writ and that relief is barred. As was explained in the district court's opinion, the claim that electrocution as administered in Alabama violates the Eighth Amendment was available--factually and legally--when petitioner filed his first habeas petition. 3 Petitioner has shown no cause for failing to assert and to litigate the claim in his first petition; and for courts to decline to adjudicate the claim in this second petition is not manifestly unjust.
The denial of the Petition for Writ of Habeas Corpus is AFFIRMED.
Because the rights of the parties in the appeal have now been decided, the Motion for Stay of Execution is DENIED.
1 About the Motion to Vacate the District Court's Certificate of Probable cause, we admit that we have doubts about whether the district court properly applied the correct legal standard when it granted CPC. When a district court expressly applies the wrong standard in granting CPC, the circuit court may quash the CPC and decline to decide the appeal....
To continue reading
Request your trial
-
Wildermuth v. Furlong
...district court, and treating the notice of appeal as an application for a certificate of probable cause); see also Clisby v. Alabama, 52 F.3d 905, 906 n. 1 (11th Cir.1995).10 The mandate is still in this court pursuant to order of the court. See Fed. R.App. P. 41. Under Fed. R.App. P. 40, t......
-
Tompkins v. Moore
...certificates of probable cause to appeal, and we have honored the resulting limitation on the scope of the appeal. See Clisby v. Alabama, 52 F.3d 905, 906 (11th Cir.1995); Clark v. Dugger, 901 F.2d 908, 910 (11th Cir.1990). Tompkins points out that both of those decisions involved appeals f......
-
Gore v. Crews
...2254(b)(1), and authoritative decisions. See 11th Cir. R. 22–4(7). As for the State's motion to vacate the COA, see Clisby v. Alabama, 52 F.3d 905, 906 n. 1 (11th Cir.1995). The district court's judgment dismissing without prejudice Gore's petition for a writ of habeas corpus is AFFIRMED. T......
-
Murray v. U.S.
...CPC was granted on fewer than all of the issues in a habeas case, the appeal was limited to the issues specified. See Clisby v. Alabama, 52 F.3d 905, 906 (11th Cir.1995) (where district court granted CPC limited to one issue); Clark v. Dugger, 901 F.2d 908, 910 (11th Cir.1990) (where we gra......