Ford v. Wainwright, No. 84-5372

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore VANCE and CLARK; PER CURIAM; CLARK
Citation752 F.2d 526
PartiesAlvin Bernard FORD, or Connie Ford, individually and acting as next friend on behalf of Alvin Bernard Ford, Petitioners-Appellants, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
Docket NumberNo. 84-5372
Decision Date17 January 1985

Page 526

752 F.2d 526
Alvin Bernard FORD, or Connie Ford, individually and acting
as next friend on behalf of Alvin Bernard Ford,
Petitioners-Appellants,
v.
Louie L. WAINWRIGHT, Secretary, Department of Corrections,
State of Florida, Respondent-Appellee.
No. 84-5372.
United States Court of Appeals,
Eleventh Circuit.
Jan. 17, 1985.

Richard H. Burr, Public Defender, 15th Judicial Circuit of Fla., Richard L. Jorandby, Asst. Federal Public Defender, West Palm Beach, Fla., Laurin A. Wollan, Jr., Tallahassee, Fla., for petitioners-appellants.

Jim Smith, Atty. Gen., State of Florida, Joy Shearer, Russell Bohn, Penny H. Brill, Asst. Attys. Gen., West Palm Beach, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE and CLARK, Circuit Judges, and STAFFORD *, District Judge.

PER CURIAM:

Over ten years ago, on July 21, 1974, Alvin Bernard Ford murdered a helpless, wounded police officer by shooting him in the back of the head at close range. Ford was captured, tried in state court and sentenced to death. The history of these events and the various steps in the judicial proceedings that followed are set forth in more detail in our original panel opinion, Ford v. Strickland, 676 F.2d 434 (11th Cir.1982), and in our 1983 en banc opinion, Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).

The 1983 en banc opinion affirmed the district court's denial of Ford's habeas petition but remanded for a determination of the possible effect on this case of Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), which was then pending in the Supreme Court. That determination resulted in the district court's dismissal of Ford's petition on March 22, 1984. Ford's merits appeal and all collateral attacks to that point had been concluded with results unfavorable to him.

Before resolution of his first federal habeas procedure Ford invoked the procedures of Fla.Stat. Sec. 922.07 (1983). The Florida governor appointed a commission

Page 527

of three psychiatrists to evaluate Ford's current sanity in light of the appropriate statutory standards. The commission members reported their findings and on April 30, 1984, the governor signed a death warrant setting Ford's execution for the week beginning at noon Friday, May 25, 1984.

Ford's mother, as next friend, then filed a motion in state trial court requesting a stay of execution, a hearing and court appointment of experts to determine Ford's competency to be executed. The motion was denied summarily. After hearing oral argument, the Florida supreme court also denied relief. Ford v. Wainwright, 451 So.2d 471 (Fla.1984). The present petition was filed in district court on May 25, 1984. The district court held a hearing on May 29, 1984, heard argument of counsel and concluded the hearing by denying Ford's petition on the alternative grounds of abuse of the writ 1 and the merits. On May 30, 1984, a divided panel of this court granted Ford's application for certificate of probable cause and stayed Ford's execution. Ford v. Wainwright, 734 F.2d 538 (11th Cir.) aff'd, --- U.S. ----, 104 S.Ct. 3498, 82 L.Ed.2d 911 (1984).

Ford contends that presently he is insane. 2 He does not contend that he was insane at the time of the murder, that he was incompetent to stand trial or that he lacked competence to pursue his initial collateral attack. He argues, however, that his mental condition has deteriorated, so that presently he is insane.

Either by statute or case law, states that authorize the death penalty uniformly prohibit the execution of presently insane persons. The origin of the rule is in the common law. Its initial justification is obscure. 3 Florida's prohibition is incorporated in Fla.Stat. Sec. 922.07 (1983), which prescribes both the test of insanity and the procedure for determining the sanity of a person under a death sentence. The test is whether the prisoner has the mental capacity to understand the nature of the death penalty and the reason it is to be imposed on him. Fla.Stat. Sec. 922.07(2) (1983). The statutory procedure requires the governor to appoint a commission of three psychiatrists and to make a determination as to the prisoner's sanity after receiving the commission's report. Ford does not challenge the state's compliance with the statutory procedure.

Ford contends that the prohibition against execution because of insanity is rooted in the eighth amendment. No federal appellate court has so held. There has, however, been considerable comment supportive

Page 528

of his contention. 4 Prior references in Justice Frankfurter's dissent in Solesbee v. Balkcom, 339 U.S. 9, 14, 70 S.Ct. 457, 459, 94 L.Ed. 604 (1950), and Justice Harlan's concurring opinion in Caritativo v. California, 357 U.S. 549, 550, 78 S.Ct. 1263, 2 L.Ed.2d 1531 (1958), were to the effect of due process rights on the execution of insane persons. Ford argues, however, that these opinions failed to consider the implication of the eighth amendment because they predated recognition that the eighth amendment is incorporated by the fourteenth as a limitation on the power of the states. 5 The only substantive difference between Ford's eighth amendment claim and the Florida statute is based on Frankfurter's contention in Solesbee that a defendant must be sufficiently competent to cooperate with his attorney in providing reasons why his execution should not be carried out. Since Ford has exhausted both his merits appeal and his collateral attacks, he concedes that this substantive distinction is not material in his case.

Ford argues, however, that procedural protections comporting to federal due process standards would inexorably follow from recognition of the federal constitutional basis of his substantive right. He contends that the Florida statute, which is essentially an ex parte procedure conducted by the executive, falls short of those due process standards.

If the matter were being presented for the first time, Ford's contention might present considerable difficulty. The panel majority, however, feels that Ford's contention is foreclosed by binding authority. In Solesbee the Supreme Court examined a Georgia procedure which was virtually identical to that now incorporated in the Florida statute. In the controlling portion of the opinion the Supreme Court held: "We are unable to say that it offends due process for a state to deem its Governor an 'apt and special tribunal' to pass upon a question so closely related to powers that from the beginning have been entrusted to governors." Solesbee v. Balkcom, 339 U.S. at 12, 70 S.Ct. at 458 (footnote omitted).

Ford argues that the development of eighth amendment law has so eroded the underpinnings of Solesbee that it no longer can be considered as binding authority. That contention is confronted, however, with this court's opinion in Goode v. Wainwright, 731 F.2d 1482 (11th Cir.1984), in which we considered an attack on the specific statute now in question and held: "The second claim, the attack on the Florida statute, is made on procedural due process grounds. We hold that the statute meets minimum standards required by procedural due process." Id. at 1483. The authority cited in support of that holding was Solesbee and Caritativo. Under the rule of precedent applicable in this circuit, 6 the majority regards this holding as binding. Ford contends that his facts are somewhat distinguishable from those in Goode, but the statute is precisely the same. Ford contends that the analytical underpinnings of Solesbee have been eroded but the facts are indistinguishable from those now before us. Together, our recent reliance on Solesbee and our determination that the Florida statute meets minimum standards required by procedural due process is sufficient to require that a panel of this court reject Ford's contention. If our application of Solesbee and Goode is to be altered, it must be done by the Supreme Court or at least by this court sitting en banc.

AFFIRMED.

CLARK, Circuit Judge, dissenting:

I respectfully dissent. In the law, as in many other disciplines, where one ends up is frequently determined by where one begins. The majority fails to address and

Page 529

decide whether there is a constitutional prohibition against execution of an insane person. The court says that "[n]o federal appellate court has so held." Majority opinion at 4. Before addressing a party's constitutional due process rights, it is necessary to first decide the substantive constitutional right to which he is entitled, if any. Dissenting, Justice Frankfurter challenged the majority of the Court in Solesbee to reach the issue, saying:

If the Due Process Clause of the Fourteenth Amendment does not bar the State from infliction of the death sentence while such insanity persists, of course it need make no inquiry into the existence of supervening insanity. If it chooses to make any inquiry it may do so entirely on its own terms. If the Due Process Clause does limit the State's power to execute such an insane person, this Court must assert the supremacy of the Due Process Clause and prohibit its violation by a State.

The Court in an easy, quick way puts this crucial problem to one side as not before us. But in determining what procedural safeguards a State must provide, it makes all the difference in the world whether the United States Constitution places a substantive restriction on the State's power to take the life of an insane man. If not to execute is merely a benevolent withholding of the right to kill, the State may exercise its benevolence as it sees fit. But if Georgia is precluded by the Due Process Clause from executing a man who has temporarily or permanently become insane, it is not a matter of grace to assert that right on behalf of the life about to be taken. If taking life under such circumstances is...

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5 practice notes
  • Magwood v. Smith
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 4, 1986
    ...Sec. 15-16-23 is Page 1447 constitutional. Cf. Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950); Ford v. Wainwright, 752 F.2d 526 (11th Cir.) (per curiam), cert. granted, --- U.S. ----, 106 S.Ct. 566, 88 L.Ed.2d 552 (1985); Goode v. Wainwright, 731 F.2d 1482 (11th Cir.1984......
  • Ford v. Wainwright, No. 85-5542
    • United States
    • United States Supreme Court
    • June 26, 1986
    ...court denied the petition without a hearing, and the Court of Appeals affirmed. Held: The judgment is reversed, and the case is remanded. 752 F.2d 526, reversed and remanded. Justice MARSHALL delivered the opinion of the Court with respect to Parts I and II, concluding that the Eighth Amend......
  • People v. Allegri, No. 61000
    • United States
    • Supreme Court of Illinois
    • December 20, 1985
    ...against cruel and unusual punishments are involved and that here both protections were ignored. Ford v. Wainwright (11th Cir.1985), 752 F.2d 526, cert. granted (1985), 474 U.S. 1019, 106 S.Ct. 566, 88 L.Ed.2d 552 GOLDENHERSH, J., joins in this dissent. ...
  • Billiot v. State, No. 54960
    • United States
    • Mississippi Supreme Court
    • October 30, 1985
    ...raises substantial procedural and substantive Eighth and Fourteenth Amendment grounds... 734 F.2d at 540. See also Ford v. Wainwright, 752 F.2d 526 (11th Cir.1985). But see Goode v. Wainwright, 731 F.2d 1482 (11th In spite of the conflicting opinions by the Eleventh Circuit, some writers an......
  • Request a trial to view additional results
5 cases
  • Magwood v. Smith
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 4, 1986
    ...Sec. 15-16-23 is Page 1447 constitutional. Cf. Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950); Ford v. Wainwright, 752 F.2d 526 (11th Cir.) (per curiam), cert. granted, --- U.S. ----, 106 S.Ct. 566, 88 L.Ed.2d 552 (1985); Goode v. Wainwright, 731 F.2d 1482 (11th Cir.1984......
  • Ford v. Wainwright, No. 85-5542
    • United States
    • United States Supreme Court
    • June 26, 1986
    ...court denied the petition without a hearing, and the Court of Appeals affirmed. Held: The judgment is reversed, and the case is remanded. 752 F.2d 526, reversed and remanded. Justice MARSHALL delivered the opinion of the Court with respect to Parts I and II, concluding that the Eighth Amend......
  • People v. Allegri, No. 61000
    • United States
    • Supreme Court of Illinois
    • December 20, 1985
    ...against cruel and unusual punishments are involved and that here both protections were ignored. Ford v. Wainwright (11th Cir.1985), 752 F.2d 526, cert. granted (1985), 474 U.S. 1019, 106 S.Ct. 566, 88 L.Ed.2d 552 GOLDENHERSH, J., joins in this dissent. ...
  • Billiot v. State, No. 54960
    • United States
    • Mississippi Supreme Court
    • October 30, 1985
    ...raises substantial procedural and substantive Eighth and Fourteenth Amendment grounds... 734 F.2d at 540. See also Ford v. Wainwright, 752 F.2d 526 (11th Cir.1985). But see Goode v. Wainwright, 731 F.2d 1482 (11th In spite of the conflicting opinions by the Eleventh Circuit, some writers an......
  • Request a trial to view additional results

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