Felker v. Turpin

• Decision Date: 02 May 1996
• Docket Number: No. 96-1077,96-1077
• Citation: 83 F.3d 1303
• Parties: Ellis Wayne FELKER, Petitioner, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Center, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1303

83 F.3d 1303

64 USLW 2698

Ellis Wayne FELKER, Petitioner, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification

Center, Respondent.

No. 96-1077.

United States Court of Appeals, Eleventh Circuit.

May 2, 1996.

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

Susan V. Boleyn, Sr. Asst. Atty. Gen., Atlanta, Georgia, for respondent.

On Application for Leave to File Successive Habeas Corpus Petition.

Before BIRCH, BLACK and CARNES, Circuit Judges.

BY THE COURT:

In 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), we affirmed the denial of habeas corpus relief as to the murder, rape, aggravated sodomy, and false imprisonment convictions, as well as the death sentence of Ellis Wayne Felker. The procedural history, evidence, and facts in the case are summarized in our prior opinions and in the Georgia Supreme Court's decision affirming his 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).

On February 20, 1996, the Supreme Court denied Felker's petition for writ of certiorari seeking review of our decision denying his first federal habeas corpus petition. On April 17, 1996, the Superior Court of Houston County, Georgia, set May 2 through May 9, 1996, as the period during which Felker's execution would be carried out. On April 29, 1996, Felker filed a petition for writ of habeas corpus in the Superior Court of Butts County, Georgia. (It was his second state habeas petition; his first had been denied in 1990.) The Superior Court denied Felker's second state habeas petition on May 1, 1996, and the Georgia Supreme Court denied his Felker is now back before us. Yesterday afternoon, he lodged with this Court a request for a stay of execution and an application, pursuant to § 106 of the newly enacted Antiterrorism and Effective Death Penalty Act of 1996 ("the Act"), for permission to file a second federal habeas petition in the district court. He lodged a corrected application at 9:35 a.m. ET, this morning, and his application was formally filed at 11:30 a.m. ET, today.

petition for writ of certiorari at 11:00 a.m. ET, today.

Only last month, the Supreme Court emphasized the nonautomatic nature of stays of execution in second or successive habeas petition cases. Vacating the entry of a stay order by the Eighth Circuit in Bowersox v. Williams, --- U.S. ----, 116 S.Ct. 1312, 134 L.Ed.2d 494 (1996), the Court reiterated that: "A stay of execution pending disposition of a second or successive federal habeas petition should be granted only when there are substantial grounds upon which relief might be granted." Id. (citation and internal quotation marks omitted). The Supreme Court reminded us, in no uncertain terms, that: "[e]ntry of a stay on a second or third habeas petition is a drastic measure, and we have held that it is ' "particularly egregious" ' to enter a stay absent substantial grounds for relief." Id. (quoting Delo v. Blair, 509 U.S. 823, 113 S.Ct. 2922, 125 L.Ed.2d 751 (1993)).

Neither party in the present case contends that the standard applicable to stays of execution in second or successive petition cases has been changed by the Act. ¹ Accordingly, we proceed to determine whether Felker has shown substantial grounds upon which relief might be granted, thus entitling him to the "drastic measure" of a stay of execution in this second petition case.

Felker requests that we enter a stay of execution "to allow full briefing on the many life or death issues created by the Act," which he contends violates the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, the Supremacy Clause, and the Separation of Powers doctrine. Alternatively, he requests a stay "because the Applicant has satisfied the provisions of the Act and is entitled to a remand." (Footnote omitted). We address the second alternative first.

I. FELKER'S CONTENTION THAT HE HAS SATISFIED THE PROVISIONS OF THE ACT AND IS ENTITLED TO A REMAND

Section 106 of the Act amends 28 U.S.C. § 2244(b) to read, in pertinent part:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.

(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.

Felker's application seeks an order from this Court authorizing the district court to consider a second or successive petition containing two claims. The first is a Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), claim. Felker does not, and could not, contend that this is a claim the factual predicate of which "could not have been discovered previously through the exercise of diligence," within the meaning of new § 2244(b)(2)(B), because the factual predicate of the claim has been available on the record since Felker's trial.

As for § 2244(b)(2)(A), we have held that the Cage rule is retroactively applicable to cases that had completed direct review before the Cage decision was announced. Nutter v. White, 39 F.3d 1154 (11th Cir.1994). However, we cannot find that Felker's Cage claim was "previously unavailable" to him when he filed his first habeas petition in 1993, which was long after Cage was decided. Felker argues in his application that the Cage claim was not available to him until Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), made it obvious that the Cage rule was retroactive. Even assuming for present purposes the dubious legal premise that Cage was not available to Felker until the Sullivan decision was announced, the fact remains that Sullivan was decided on June 1, 1993, and Felker's first habeas petition was not formally accepted and placed on the docket until June 2, 1993. ² And, of course, nothing would have prevented Felker from filing a motion to amend his first petition, even if the Sullivan decision had been released days or weeks after, instead of just before, the petition was filed. No answer was filed to the petition until August 6, 1993, and amendments to habeas petitions are freely permitted.

The other claim Felker seeks to litigate in a second or successive petition is a claim that "it violates the Eighth and Fourteenth Amendments for a non-physician, state agent to provide sole evidence upon which a jury relied to determine the critical issue of time of death." As we explain on pp. 1310-12, below, this claim has no basis in the record, which contradicts it. However, even assuming for present purposes that there was some factual basis for the claim, it is not one which "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" as required by newly amended § 2244(b)(2)(A). Not only is there no new decision announcing a rule of law that has been made retroactively applicable, Felker does not cite any decisional law whatsoever in support of his proposition.

As for § 2244(b)(2)(B), Felker does not contend that the factual predicate for this claim could not have been discovered previously through the exercise of due diligence. The factual predicate, to the extent any exists, is apparent on the face of the trial record. The qualifications or lack of qualifications of Medical Examiner Warren Tillman were brought out on direct and cross-examination at the trial. There is no contention that Tillman did not testify truthfully concerning his background and qualifications. Moreover, as we explain on pp. 1310-12 below, the facts underlying this claim if proven and viewed in light of the evidence as a whole, would not be sufficient to establish by a preponderance of the evidence, much less by clear and convincing evidence, that but for the alleged constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. Accordingly,

under the new Act, Felker is not entitled to an order from this Court authorizing him to file a second or successive petition raising this claim.

II. FELKER'S CONTENTION THAT THE ACT IS UNCONSTITUTIONAL

Felker also contends that the Act violates his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, as well as the Supremacy Clause and the Separation of Powers doctrine. His application provides very little discussion and cites no authorities for that proposition. However, given the time constraints facing us, we choose to analyze this claim not in...