Franklin v. Francis

Decision Date18 February 1999
Docket NumberNo. 99-3131,99-3131
Citation168 F.3d 261
PartiesJennie FRANKLIN and Elaine Quigley, as next friends for Wilford Lee Berry, Petitioners-Appellants, v. Rodney L. FRANCIS, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

David H. Bodiker, J. Joseph Bodine, Jr., Laurence E. Komp (briefed), Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellants.

Sharon A. McClellan, Bradley D. Barbin (briefed), Office of the Attorney General of Ohio, Columbus, Ohio, for Appellee.

Before: RYAN, SILER, and GILMAN, Circuit Judges.

OPINION

PER CURIAM.

Petitioners, Jennie Franklin and Elaine Quigley, proceeding as next friends for Wilford Lee Berry, who is under a death sentence, appeal the district court's denial of their motion under Federal Rule of Civil Procedure 59 to alter or amend the previous judgment dismissing their habeas corpus petition under 28 U.S.C. § 2254. They have also filed a motion pursuant to 28 U.S.C. § 2251 to stay Berry's execution, currently set for February 19, 1999. For reasons stated herein, we deny the motion for a stay of execution and affirm the ruling of the district court.

This case was the subject of a previous appeal, Franklin v. Francis, 144 F.3d 429 (6th Cir.1998). There, we held that the Ohio Supreme Court correctly found that Berry was competent to waive collateral review of his sentence and that, therefore, the district court did not have jurisdiction to entertain the petition for a writ of habeas corpus by the next friends of the condemned.

After this case was remanded to the district court, the next friends petitioned the district court under Rule 59 to alter or amend the judgment because of allegedly new, previously undisclosed evidence of serious injuries that Berry sustained during a riot at the Mansfield Correctional Institution on September 5, 1997. They assert that these injuries might affect Berry's current competency. In support of their position, they have submitted an affidavit from Dr. David L. Bachman, a neurologist, who indicates that "there is sufficient circumstantial evidence to suggest that [Berry] sustained a significant concussive injury at the time of his beating." He went on to say that "injury to the frontal part of the brain may result in abnormalities of behavior that impair judgment and insight. Deficits in these areas may impact on the prisoner's ability to make competent judgments regarding his legal claims." This was supported by the earlier opinion of Dr. Douglas Mossman, according to the petitioners.

However, the previous hearing on Berry's competency was held in June 1997, several months before the riot at Mansfield. Although the decision from the Ohio Supreme Court finding that Berry was competent to waive his rights was filed on December 3, 1997, in State v. Berry, 80 Ohio St.3d 371, 686 N.E.2d 1097 (1997), the issue of competency was decided a substantial time before Berry received his injuries in the riot at the prison. On the other hand, the state filed an affidavit by Dr. Michael S. Witter, a clinical psychologist, stating that he has "talked with inmate Berry at least once every two weeks since his incarceration at CNC." He went on to say that he last spoke to...

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3 cases
  • State v. Clark
    • United States
    • New Mexico Supreme Court
    • July 8, 1999
    ... ... 's determination, made following a hearing, that the defendant made a knowing, voluntary, and intelligent waiver of his right to appeal); Franklin v. Francis, 168 F.3d 261, 262 (6th Cir.) (per curiam) (denying stay of execution, noting that the Ohio Supreme Court had previously concluded that ... ...
  • STATE EX REL. BEACON JOURNAL PUB. CO. v. Bodiker
    • United States
    • Ohio Court of Appeals
    • July 8, 1999
    ... ... BEACON JOURNAL PUBLISHING COMPANY et al ... BODIKER, Pub. Defender ... No. 98AP-827 ... Court of Appeals of Ohio, Tenth District, Franklin County ... Decided July 8, 1999. 134 Ohio App.3d 416         COPYRIGHT MATERIAL OMITTED 134 Ohio App.3d 417         COPYRIGHT ... Franklin v. Francis (S.D.Ohio), 997 F.Supp. 916, vacated (C.A.6, 1998), 144 F.3d 429, rehearing denied (C.A.6, 1998), No. 98-3187, unreported, and certiorari denied ... ...
  • State of Ohio ex rel., the Beacon Journal Publishing Co. and Jon Craig v. David H. Bodiker,.
    • United States
    • Ohio Court of Appeals
    • July 8, 1999
    ... ... David H. Bodiker, Respondent. No. 98AP-827 99-LW-2661 (10th) Court of Appeals of Ohio, Tenth District, ... Franklin. July 8, 1999 ... IN ... MANDAMUS ... Roetzel ... & Andress, Ronald S. Kopp, Amie L. Bruggeman and Alisa ... the district court's judgment and reinstated the death ... sentence. Franklin v. Francis (S.D. Ohio), 997 ... F.Supp. 916, vacated (C.A.6, 1998), 144 F.3d 429, rehearing ... denied (C.A.6, 1998), No. 98-3187, unreported, and ... ...

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