Davis v. Wainwright, 86-976-Civ-J-14.
| Decision Date | 23 September 1986 |
| Docket Number | No. 86-976-Civ-J-14.,86-976-Civ-J-14. |
| Citation | 644 F. Supp. 269 |
| Parties | Allen Lee DAVIS, Petitioner, v. Louie WAINWRIGHT, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Larry Helm Spalding, Capital Collateral Representative and Mark E. Olive, Litigation Director, Office of the Capital Collateral Representative, Tallahassee, Fla., for petitioner.
Gregory G. Costas, Asst. Atty. Gen., Tallahassee, Fla., for respondent.
This case is before the Court on the Petition For Writ Of Habeas Corpus By A Person In State Custody; Application For A Stay Of Execution And To Hold Petition In Abeyance Pending Exhaustion Of State Remedies; and the Motion For Stay Of Execution, filed herein on September 22, 1986. Petitioner's execution was scheduled for September 23, 1986, at 7:00 a.m., by warrant of the Governor of the State of Florida. At approximately 11:00 p.m., September 22, 1986, the United States Supreme Court stayed the execution and enforcement of the sentence of death until 3:00 p.m., September 23, 1986.
Petitioner was convicted and sentenced to death on March 2, 1983. Thereafter, petitioner's conviction and sentence were affirmed on direct appeal to the Florida Supreme Court on October 4, 1984. On August 8, 1986, the Governor issued the warrant of execution for 7:00 a.m., September 23, 1986. In a last minute attempt to stay the execution, petitioner filed a Petition for Extraordinary Relief on September 20, 1986, in the Florida Supreme Court. The Florida Supreme Court denied the Petition for Extraordinary Relief on September 22, 1986. Thereafter, petitioner filed for certiorari in the United States Supreme Court. In addition, petitioner filed a motion for post-conviction relief, pursuant to Fla.R.Crim.P. 3.850, on September 22, 1986. After a hearing, the trial court denied the 3.850 motion on September 22, 1986. On that same date, petitioner filed an appeal of the denial of his 3.850 motion with the Florida Supreme Court. At 10:30 p.m., September 22, 1986, petitioner filed the petition, the application for a stay and to hold in abeyance pending exhaustion, and the motion for stay presently before this Court.
On the face of the application and petition, petitioner alleges that a number of grounds in the petition are unexhausted, pending appeal of the 3.850 motion before the Florida Supreme Court. As far as the Court is aware at this time, the Florida Supreme Court has not ruled on the 3.850 motion. Petitioner requests the Court to hold the petition in abeyance pending the decision of the Florida Supreme Court, exhausting the grounds raised in the petition. For the following reasons, the Court declines to hold the petition in abeyance.
The judicially developed doctrine of abuse of the writ for intentionally delaying the raising of grounds for habeas relief is well-settled. See, e.g., Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 200, 79 L.Ed.2d 147 (1984); Booker v. Wainwright, 764 F.2d 1371 (11th Cir.1985); Witt v. Wainwright, 755 F.2d 1396 (11th Cir.1985). This case does not present the issue of a deliberate delay in the form of a successive petition or deliberate bypass.
However, this case does present another form of a deliberate delay. The Court has observed a pattern emerging in the handling of Petitions for Writ of Habeas Corpus. The Office of Capital Collateral Representative, which has been appointed to assist persons sentenced to death, does not file for relief 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.1 On July 14, 1986, this Court previously stayed an execution because there was not sufficient time to address thoroughly the claims raised in the Petition for Writ of Habeas Corpus. In Stone v. Wainwright, No. 86-792-Civ-J-14 (M.D.Fla.1986), the Petition and Application for Stay were filed July 11, 1986, and the execution was scheduled for July 15, 1986. While the Court stayed the...
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