Davis v. Dugger
| Decision Date | 28 September 1987 |
| Docket Number | No. 86-3726,86-3726 |
| Parties | Allen Lee DAVIS, Petitioner-Appellant, v. Richard L. DUGGER, Robert A. Butterworth, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Larry Helm Spalding, Office of the Capital Collateral Representative, Mark Evan Olive, Mike Mello, Billy H. Nolas, Tallahassee, Fla., for petitioner-appellant.
Jim Smith, Atty. Gen., Andrea Hillyer, Ray Markey, Gregory G. Costas, Asst. Atty. Gen., Tallahassee, Fla., for respondents-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before RONEY, Chief Judge, HILL and KRAVITCH, Circuit Judges.
In this case we must determine whether a district court may dismiss a first federal habeas corpus petition as an abuse of the writ because the petition was filed on the eve of the petitioner's scheduled execution. We conclude that the scheduling of an execution does not, in and of itself, create a basis for dismissing a petition under the abuse of the writ doctrine, codified in Rule 9 of the Rules Governing Section 2254 Cases.
On February 4, 1983, petitioner Allen Lee Davis was convicted of three counts of first-degree murder in connection with the deaths of Nancy Weiler and her two daughters, ages five and ten, at the Weiler home in Duval County, Florida. 1 On March 2, 1983, the trial court accepted the jury's unanimous recommendation and imposed sentences of death by electrocution as to each conviction. 2
Davis filed timely appeals from his convictions to the Florida Supreme Court. On October 4, 1984, the court issued its opinion rejecting petitioner's challenges to his convictions 3 and upholding petitioner's sentences after reviewing them sua sponte. Davis v. State, 461 So.2d 67 (Fla.1984). The court held that the record supported all aggravating circumstances except the "avoid or prevent arrest" circumstance and that the four remaining aggravating circumstances supported petitioner's sentences. As to mitigating evidence, the court ruled that the trial court's declaration that "[t]he Court finds that there are no statutory mitigating factors existent in this cause" was merely inartful drafting of the sentencing order and that "mitigating evidence was not restricted to that listed in section 921.-141." Id. at 72. The court therefore affirmed petitioner's convictions and sentences.
After the Florida Supreme Court denied rehearing on January 17, 1985, Davis filed a petition for writ of certiorari in the United States Supreme Court. The Court denied certiorari on July 1, 1985, with two justices dissenting. Davis v. Florida, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985).
Approximately one year later, Davis appeared before the Florida Board of Executive Clemency to request clemency. After holding the request under consideration for almost two months, on August 20, 1986, the Governor of Florida denied Davis's request for clemency and simultaneously issued a death warrant for the week of September 17-23, 1986. Davis's execution was scheduled for 7:00 a.m. on September 23, 1986.
At this point, the Florida Office of the Capital Collateral Representative 4 (CCR) assumed representation of Davis. On September 20, 1986, CCR filed a petition for extraordinary relief and an application for a stay in the Florida Supreme Court. The Florida Supreme Court denied this petition and the motion for a stay on the morning of September 22, 1986. Given that Davis's execution was still scheduled for 7:00 a.m. the next morning, CCR took several steps to attempt to obtain an emergency stay of execution to permit judicial cognizance of Davis's collateral claims.
Davis first filed a Fla.R.Crim.P. 3.850 motion and a motion for a stay of execution in the state trial court. The trial judge held a hearing on the motion at noon on September 22nd and then denied both motions. Davis appealed the denial of his 3.850 motion and motion for a stay to the Florida Supreme Court.
The Florida Supreme Court announced that it would hear oral argument on the appeal the next morning at 6:00 a.m., one hour prior to petitioner's execution. At approximately 10:30 p.m., September 22, Davis filed an application for an emergency stay pending filing of a petition for a writ of certiorari in the United States Supreme Court, based upon the Florida Supreme Court's denial of petitioner's motion for extraordinary relief. Petitioner also filed, in the United States District Court for the Middle District of Florida, a federal habeas corpus petition, a motion for a stay, and a motion to hold the petition in abeyance pending exhaustion of certain claims that were still under consideration by the Florida Supreme Court. At 11:30 p.m., Justice Powell granted a stay of execution until 3:00 p.m. on September 23, 1986 in order to allow the full Court to consider Davis's application for a stay of execution.
At 9:30 on the morning of the scheduled execution, the federal district court issued an order denying petitioner's motion for a stay of execution; denying petitioner's motion to hold the petition in abeyance pending exhaustion of unexhausted claims; and denying the petition for federal habeas corpus relief. The court also denied petitioner's request for a certificate of probable cause to appeal and granted petitioner's request to proceed in forma pauperis.
In dismissing the habeas petition, Davis v. Wainwright, 644 F.Supp. 269, (M.Fla.1986), District Judge Black, without the benefit of a responsive pleading from the state or an evidentiary hearing, decided that CCR had engaged in a "pattern" of deliberately delaying the filing of a federal habeas corpus petition "until the Governor issues a warrant for execution and very often the filing is delayed until one or two days prior to the scheduled execution," and that "this deliberate delay to achieve a last-minute stay of execution constitutes an abuse of the writ." The court based its conclusion that CCR deliberately delayed filing habeas petitions on: (1) the fact that CCR did not file a habeas petition and an application for a stay of execution in another case that had come before Judge Black, Stone v. Wainwright, No. 86-792-Civ-J-14 (M.D.Fla.1986), until four days prior to the petitioner's scheduled execution; (2) the fact that, although Judge Black granted a stay in Stone, she had cautioned CCR that "[i]t should not be inferred that the Court will automatically stay an execution because of last-minute filing of a first petition;" (3) the fact that Davis had moved for stays of execution in four courts in the twenty-four hour period preceding his scheduled execution; 5 and (4) the court's assertion that "there was nearly a two-year period after the decision on the direct appeal in which nothing was filed." 6
Having found that CCR had deliberately delayed filing Davis's federal habeas corpus petition, the district court concluded that "this abuse of the writ justifies the denial of the application to hold the petition in abeyance pending exhaustion and, even if the petition were exhausted, the denial of the petition in this case." As an alternate ground supporting the denial of habeas relief, the court found that Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) required dismissal of Davis's petition because it contained both exhausted and unexhausted claims.
Approximately one hour after the federal district court denied all relief, the Florida Supreme Court affirmed the denial of Davis's 3.850 motion and denied petitioner's application for an emergency stay of execution. Petitioner moved the federal district court to alter or amend its judgment or for a rehearing because the unexhausted claims in Davis's federal habeas corpus petition were now exhausted.
On the afternoon of September 23, 1986, while the motion to alter or amend judgment or for rehearing was pending in the district court, the United States Supreme Court granted a stay of execution pending the timely filing and disposition of a petition for a writ of certiorari. 7 In a concurring opinion, Justice Powell, 8 apparently unaware of the fact that CCR had received no notice or opportunity to respond to the deliberate delay/abuse of the writ issue, 9 seemed to approve of the district court's dismissal of Davis's petition. 10 He criticized CCR for its handling of Davis's case and a companion case, Hardwick v. Wainwright:
No explanation has been offered either by Davis or Hardwick for waiting more than a month, and until the eve of the execution date, to assert the present claims in any court, state or federal. It is my understanding that the Florida Bar, at least since 1984, has assured state and federal courts that it would provide counsel promptly when needed in capital cases. Although unlikely, it may be that neither Davis nor Hardwick knew that counsel always were available. Nor are we informed as to when counsel were engaged in these cases. In any event, I suggest that counsel owe this Court a duty to explain why no action was taken until the day before the execution date, making it difficult both for the courts below and for this Court to make the carefully considered judgments so essential in capital cases.... If there has been deliberate or inexcusable delay, the appropriate Committee of the Florida Bar will be advised.
Davis v. Wainwright, --- U.S. ----, 107 S.Ct. 17, 18, 92 L.Ed.2d 783 (1986) (Powell, J., concurring).
Later that afternoon, the district court denied petitioner's motion to alter or amend judgment or for rehearing. The court denied as moot petitioner's additional motions for a certificate of probable cause and a certificate to appeal in forma pauperis. The court also denied the motion to alter or amend judgment or for rehearing because "[p]etitioner has not presented any authority for the requested relief."
Davis now appeals the district court's denial of his ...
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