Gonzalez v. Secretary for Dept. of Corrections

• Decision Date: 26 April 2004
• Docket Number: No. 02-14224.,No. 02-12054.,No. 02-12483.,02-12054.,02-12483.,02-14224.
• Citation: 366 F.3d 1253
• Parties: Aurelio O. GONZALEZ, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, James Crosby, Secretary, Respondent-Appellee. Emil Lazo, Petitioner-Appellant, v. United States of America, Respondent-Appellee. Stephen A. Mobley, Petitioner-Appellant, v. Derrick Schofield, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

366 F.3d 1253

Aurelio O. GONZALEZ, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, James Crosby, Secretary, Respondent-Appellee.

Emil Lazo, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

Stephen A. Mobley, Petitioner-Appellant, v. Derrick Schofield, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 02-12054.

No. 02-12483.

No. 02-14224.

United States Court of Appeals, Eleventh Circuit.

April 26, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul M. Rashkind, Asst. Fed. Public Defender, Kathleen M. Williams, Fed. Public Defender, Miami, FL, for Gonzalez.

Cassandra Kaye Dolgin, Tallahassee, FL, Paulette R. Taylor, Miami, FL, for Crosby.

Milton Hirsch and David O. Markus (Court-Appointed), Miami, FL, for Lazo.

Lynn Dena Rosenthal, Fort Lauderdale, FL, Anne R. Schultz, Dawn Bowen, Lisa T. Rubio, Miami, FL, for U.S.

Brian Steel, The Steel Law Firm, P.C., August F. Siemon, Atlanta, GA, for Mobley.

Beth Attaway Burton, State of Georgia Law Dept., Atlanta, GA, for Schofield.

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

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges^*.

CARNES, Circuit Judge:

The Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996), clamped down on second and successive petitions filed by state prisoners seeking federal habeas corpus relief under 28 U.S.C. § 2254, and those filed by federal prisoners seeking relief under 28 U.S.C. § 2255. See 28 U.S.C. §§ 2244(a)-(b), 2255 ¶ 8. Naturally, habeas petitioners and § 2255 movants have sought to circumvent the AEDPA's restrictions on second round collateral attacks in federal courts. One of the most popular vehicles used in the attempted end-runs is a Fed.R.Civ.P. 60(b) motion requesting that the prior judgment denying relief be set aside.

Given the number of cases involved and the importance of the issues, we entered an order granting hearing or rehearing en banc in three cases in order to answer some common questions that have arisen about the use of Rule 60(b) motions to obtain relief from judgments that denied § 2254 relief (in two of the cases before us), or § 2255 relief (in one of the cases). Gonzalez v. Sec'y of the Dep't of Corr., 326 F.3d 1175 (11th Cir.2003). Specifically, we asked each of the three would-be appellants to brief and argue, insofar as it related to his case: 1) whether the certificate of appealability requirement contained in 28 U.S.C. § 2253(c) applies to an attempted appeal of the denial of Rule 60(b) relief from a judgment denying § 2254 or § 2255 relief; 2) if so, whether a certificate of appealability should be issued in his case; 3) what standards should govern Rule 60(b) motions aimed at judgments in § 2254 or § 2255 proceedings, that is, when should they be granted; and 4) was it an abuse of discretion for the district court to deny the Rule 60(b) motion in his case?

I.

We begin with the relevant facts and procedural history of each of the three cases before us, in the sequence in which the panel decisions or orders were issued in them.

A.

A decade ago at a retrial Stephen Mobley was convicted and sentenced to death for the 1991 murder of a Domino's Pizza employee during an armed robbery. See Mobley v. State, 265 Ga. 292, 455 S.E.2d 61 (1995). During the sentencing phase, Mobley introduced as potential mitigating circumstance evidence that he had offered to plead guilty in exchange for any punishment other than death. In rebuttal the prosecution called Andrew Fuller, who had been the district attorney when the prosecution began but no longer was. Fuller testified to the factors which had led him to seek the death penalty. He said those factors included the actual circumstances of the crime, and Mobley's "pure unadulterated meanness" which had been aptly demonstrated by a number of his comments since he killed the victim in cold blood. Mobley v. Head, 306 F.3d 1096, 1097-99 (11th Cir.2001) (Tjoflat, J., dissenting). Fuller also testified that the victim's family supported his decision to seek a death sentence. Id. at 1098-99. The victim's family's feelings about the penalty had not carried much weight in his decision; he told the jury that "95 percent of the decision [was] made based on the evidence [he saw] that describe[d] the defendant for [him]." Id. at 1099.

Among the issues Mobley raised in his direct appeal was a contention that Fuller should not have been permitted to testify about the factors that influenced him to seek a death sentence in the case. Mobley, 265 Ga. at 298-99, 455 S.E.2d at 69-70. The Georgia Supreme Court rejected that contention, after concluding that Fuller's testimony about why he had turned down Mobley's plea offer was relevant since Mobley had put in evidence that he had made the offer. Id. The Court, however, had second thoughts about permitting a capital defendant to introduce evidence that he had offered to plead guilty in return for a sentence less than death.

The first thoughts of the Georgia Supreme Court on the subject had come during an earlier appeal Mobley filed following a mistrial due to error at his first trial. Mobley v. State, 262 Ga. 808, 426 S.E.2d 150 (1993). Mobley asked the Georgia Supreme Court, which had the case before it primarily to decide a double jeopardy issue arising from the mistrial, also to decide whether he could introduce evidence at the retrial that he had offered to plead guilty conditioned on not receiving the death penalty. Id. at 810-11, 426 S.E.2d at 152-53. The Court said that he could, but that if he did the State would be allowed to explain its reasons for insisting on a death sentence. Id. And that is how things played out at the retrial: Mobley put in evidence that he had offered to plead guilty in return for a sentence less than death; and Fuller, the former prosecutor who had rejected that offer, testified about why he had decided nothing less than death would do.

When the case returned to it on direct appeal after the retrial, the Georgia Supreme Court had an opportunity to see the problems that had sprung from the evidentiary box that its ruling in the first appeal had opened. The Court realized that permitting testimony about a defendant's plea offer and the reasons it had been rejected would likely lead to attorneys on both sides testifying and could also put highly inflammatory matters before the jury. Facing up to its mistake, the Court announced that evidence of a defendant's conditional guilty plea offer and its rejection would not thereafter be allowed in Georgia capital cases. Mobley, 265 Ga. at 300, 455 S.E.2d at 70 ("[W]e now hold that offers by defendants to plead guilty and testimony of prosecutors regarding their reasons for rejecting such offers are no longer admissible."). It was too late to close that evidentiary box in Mobley's case, of course, but the Georgia Supreme Court decided that neither the testimony concerning the plea offer and its rejection nor anything else that happened at the retrial had been reversible error. It affirmed Mobley's conviction and death sentence. Id. at 301, 455 S.E.2d at 71.

Thereafter, Mobley sought state habeas relief which was denied, see Turpin v. Mobley, 269 Ga. 635, 502 S.E.2d 458 (1998), and federal habeas relief which was denied by the district court on May 26, 2000, a denial which we affirmed, see Mobley v. Head, 267 F.3d 1312 (11th Cir.2001), cert. denied, 536 U.S. 968, 122 S.Ct. 2682, 153 L.Ed.2d 853 (2002) (mem.); our mandate was issued on June 9, 2002.

On July 16, 2002, which was two-and-a-half weeks after the United States Supreme Court denied certiorari in his appeal from the denial of federal habeas relief, Mobley filed an "Extraordinary Motion for New Trial as to Sentence" in state court. That motion sought a new sentencing stage trial where Mobley could present the victim's mother to testify that the family had acquiesced in the prosecutor's decision to seek the death penalty only because they had been unaware that a sentence of life without parole was an option. The state trial court denied Mobley's motion, reasoning that even if the testimony of the victim's mother were presented to a jury, "it [could] not reasonably be concluded that the opposition of the victim's family to the death penalty ... would probably produce a different verdict." See Mobley, 306 F.3d at 1099. Mobley applied to the Georgia Supreme Court for a discretionary appeal of the denial of his motion, but his application was denied. Id. His execution was set for August 5, 2002.

On August 2, 2002, Mobley filed in the federal district court a "Motion for Stay of Execution and for Relief from Judgment Pursuant to Fed.R.Civ.P. 60(b)." The judgment he sought relief from is the one the district court had entered on May 26, 2000, denying his § 2254 habeas petition. The district court denied Mobley's Rule 60(b) motion on August 3, 2002 in an order stating that "petitioner concedes, moreover, that the respondent is correct in asserting that pursuant to the current state of the law in the Eleventh Circuit, this motion must be treated as a second or successive habeas action." The district court thought that our prior decision in Felker v. Turpin, 101 F.3d 657 (11th Cir.1996), required that all Rule 60(b) motions in habeas cases be treated as second or successive petitions.

Because it treated Mobley's Rule 60(b) motion as a second or successive habeas petition, the district court was compelled to reject it. The reason is that Mobley had not obtained an order from this Court permitting the district court to consider a second or successive petition, as he was required to do by § 2244(b)(3)(A); he could not obtain one since the ground upon which relief was sought fit neither...