Felker v. Turpin, 96-9346

Decision Date14 November 1996
Docket NumberNo. 96-9346,96-9346
Citation101 F.3d 657
PartiesEllis Wayne FELKER, Petitioner, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Center, Respondent.
CourtU.S. Court of Appeals — Eleventh Circuit

Stephen C. Bayliss, M. Elizabeth Wells, Atlanta, GA, for petitioner.

Susan V. Boleyn, Mary Beth Westmoreland, Asst. Attys. General, Atlanta, GA, for respondent.

On Motion for Certificate of Probable Cause, or in the Alternative, Certificate of Appealability.

Before BIRCH, BLACK and CARNES, Circuit Judges.

PER CURIAM.

On May 2, 1996, we denied Ellis Wayne Felker's first application filed pursuant to 28 U.S.C. § 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, for an order permitting him to file in the district court a second petition for federal habeas relief under 28 U.S.C. § 2254. Felker v. Turpin, 83 F.3d 1303 (11th Cir.), cert. dismissed, --- U.S. ----, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). He is now back before us with an application requesting a certificate of probable cause to appeal, or a certificate of appealability, permitting an appeal from the district court's denial of his Fed.R.Civ.P. 60(b) motion for relief from the January 26, 1994 judgment of that court denying his 28 U.S.C. § 2254 petition. For the reasons that follow, we deny that application.

I.

The procedural history, evidence, and facts in this case are set out: (1) in the Georgia Supreme Court's decision affirming Felker's convictions and sentence on direct appeal, Felker v. State, 252 Ga. 351, 314 S.E.2d 621, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); (2) in our opinion affirming the denial of Felker's first federal habeas petition, Felker v. Thomas, 52 F.3d 907 (11th Cir.), extended on denial of rehearing, 62 F.3d 342 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 956, 133 L.Ed.2d 879 (1996); (3) in our opinion denying Felker's first application to file a second habeas petition, Felker v. Turpin, 83 F.3d 1303 (11th Cir.1996); and (4) in the Supreme Court's opinion dismissing Felker's petition seeking certiorari review of our decision, and denying his petition for an original writ of habeas corpus, Felker v. Turpin, --- U.S. ----, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). Therefore, we will limit our discussion of the procedural history to the events that have transpired since the Supreme Court's decision on June 28, 1996.

On August 30, 1996, the Superior Court of Houston County, Georgia, set September 10 through September 17, 1996, as the period during which Felker's execution would be carried out. The State scheduled that execution for 2:00 p.m. ET, September 10, 1996. On September 5, 1996, Felker filed a petition for writ of habeas corpus in the Superior Court of Butts County, Georgia. (It was his third state habeas petition.) The Superior Court denied that petition on September 6, 1996. Three days later, on September 9, 1996, the Georgia Supreme Court denied Felker's application for a certificate of probable cause to appeal that denial and denied his motion for a stay of execution. On September 10, Felker applied to the United States Supreme Court for a stay. The Supreme Court denied that application. However, Felker was not executed on September 10, because he obtained a stay from the Houston County Superior Court in a separate proceeding brought under the Georgia Open Records Act, Ga.Code Ann. § 50-18-70 to -76 (1994).

On May 2, 1996, prior to filing his third state habeas petition, Felker had filed an Open Records Act lawsuit in the Superior Court of Houston County. In that lawsuit, Felker sought production of documents related to Felker's conviction. On September 2, 1996, Felker filed a mandamus petition in the Georgia Supreme Court, seeking to compel the Houston County Superior Court to rule on his Open Records Act lawsuit. On September 6, 1996, the Georgia Supreme Court entered an order requiring the Houston County Superior Court to consider and rule upon Felker's lawsuit within 48 hours.

On September 8, 1996, the Houston County Superior Court held a hearing on Felker's Open Records Act lawsuit. At that hearing, a box of documents was turned over to Felker's counsel, and the hearing was continued to the following day. On September 9, 1996, the Superior Court stayed Felker's execution until 2:00 p.m. ET, September 12, 1996. On September 10, the Superior Court extended the stay of execution until 2:00 p.m. ET, September 14, 1996. On September 12, 1996, the Superior Court, having concluded its Open Records Act hearing, denied Felker's motion for summary judgment on his Open Records Act claim, denied Felker's motion to withdraw the pending execution warrant, and denied his motion for an additional stay of execution. Thereafter, Felker's execution was rescheduled for 3:00 p.m. ET, September 14, 1996.

On September 12, 1996, Felker appealed to the Supreme Court of Georgia, seeking a stay of execution, review of the Superior Court's Open Records Act ruling, and reconsideration of the Georgia Supreme Court's prior denial of a certificate of probable cause to appeal the denial of Felker's third state habeas petition. On the same day, the Georgia Supreme Court stayed Felker's execution for forty days and directed the Houston County Superior Court to make findings of fact and conclusions of law regarding Felker's Open Records Act lawsuit. During the forty-day stay of execution, the Georgia Supreme Court denied Felker's motion for reconsideration.

On September 23, 1996, the Houston County Superior Court entered written findings of fact and conclusions of law, concluding that the district attorney had complied with Felker's Open Records Act request. Felker again appealed to the Georgia Supreme Court. While that appeal was pending, Felker's execution was rescheduled for 7:00 p.m. ET, November 14, 1996. On October 28, 1996, Felker filed a motion with the Georgia Supreme Court for a stay of execution. On October 30, 1996, the Georgia Supreme Court affirmed the judgment of the Houston County Superior Court with respect to Felker's Open Records Act lawsuit, and denied Felker's motion for a stay.

On November 8, 1996, Felker, acting jointly with another Georgia death row inmate, Larry Lonchar, filed a motion for a preliminary injunction and complaint for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 in the United States District Court for the Middle District of Georgia. The basis for that § 1983 action was a contention that death by electrocution is a cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. On November 12, 1996, the district court denied Felker's motion for a preliminary injunction and denied his request for declaratory and injunctive relief. He appealed, and on November 13, 1996, another panel of this Court affirmed denial of that relief. Felker v. Turpin, 101 F.3d 95 (11th Cir.1996). Thereafter, Felker filed in the United States Supreme Court a petition for a writ of certiorari and a motion for stay of execution. On November 14, 1996, the Supreme Court denied both.

On November 11, 1996, Felker filed his fourth state habeas petition, together with a motion for a stay of execution, in the Butts County Superior Court. On the following day, that court dismissed Felker's petition and denied his motion for a stay of execution. On November 12, 1996, Felker applied to the Georgia Supreme Court for a stay of execution and for a certificate of probable cause to appeal the denial of his fourth habeas petition. On November 14, 1996, the Georgia Supreme Court denied all requested relief.

On the afternoon of November 14, 1996, Felker filed in the United States District Court for the Middle District of Georgia a motion under Federal Rule of Civil Procedure 60(b)(1), (2), (3), and (6), for relief from the January 26, 1994 judgment of that court denying his 28 U.S.C. § 2254 petition. He also filed a motion for a stay of execution. The district court denied Felker's Rule 60(b) motion on two grounds. First, it held that the motion was untimely under the express provisions of the rule itself and applicable case law. Second, the district court held that even if the Rule 60(b) motion had been timely filed under that rule itself, the court would still have denied it. The court explained that the motion for Rule 60(b) relief was tantamount to a second or successive petition, and Felker had failed to obtain from this Court an authorization to file it, as required by 28 U.S.C. § 2244(b)(3)(A), as amended. Felker applied to the district court for a certificate permitting him to appeal, and the district court denied that application, also.

Felker filed a notice of appeal, and he has now filed with us an application for a certificate of probable cause, or in the alternative, for a certificate of appealability. 1

II.

Felker's Rule 60(b) motion for relief from judgment was properly denied by the district court, because it was due to be treated as a second or successive habeas corpus application. 28 U.S.C. § 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, requires that an applicant move in the appropriate court of appeals for an order authorizing the district court to consider such an application. Felker failed to do so. Instead, he contends that his Rule 60(b) motion should not be treated as a successive petition. We disagree.

Although Felker argues that his Rule 60(b) motion "does not implicate any considerations of 'successive' petitions," he acknowledges decisions from other circuits "that hold to the contrary, construing Rule 60(b) motions as essentially identical to successive petitions." See Memorandum of Law in Support of Petitioner's Motion for Relief from Judgment at 2 n. 2 (M.D.Ga. Nov. 14, 1996). Felker cites as examples of decisions contrary to his position ...

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