Hamblen v. Dugger, 90-810-Civ-J-12.
| Decision Date | 19 September 1990 |
| Docket Number | No. 90-810-Civ-J-12.,90-810-Civ-J-12. |
| Citation | 748 F. Supp. 1506 |
| Parties | James William HAMBLEN, Petitioner, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Larry Helm Spalding, Capital Collateral Representative, Billy H. Nolas, Chief Asst. CCR, Julie D. Naylor, Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, Fla., for petitioner Hamblen.
Robert Butterworth, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent Dugger.
ORDER DISMISSING SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS
This cause is before the Court on a Petition for Writ of Habeas Corpus by a Person in State Custody, filed herein on September 18, 1990, by JAMES WILLIAM HAMBLEN ("petitioner"), a death row inmate at Florida State Prison in Starke, Florida. The petition seeks relief from petitioner's execution, scheduled for 7:00 a.m., Friday, September 21, 1990. Petitioner asserts two grounds for relief: (1) that petitioner has never received a hearing comporting with the requirements of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to determine his competency to waive counsel and other rights, in violation of the sixth, eighth and fourteenth amendments; and (2) that the trial court erred by allowing petitioner to waive counsel in the penalty phase of his trial, creating a circumstance in which there was no adversary proceeding to determine whether death was the appropriate penalty, thus rendering petitioner's mandatory direct appeal meaningless, in violation of the sixth, eighth and fourteenth amendments. For the reasons set forth herein, the Court will dismiss the petition.
The facts of the crime for which petitioner was sentenced and the circumstances surrounding his subsequent arrest, guilty plea and sentencing are delineated in Hamblen v. Dugger, 719 F.Supp. 1051 (M.D. Fla.), certificate of probable cause denied, Dkt. No. 89-3554 (11th Cir.1989), stayed pending consideration of cert. petition, ___ U.S. ___, 110 S.Ct. 7, 106 L.Ed.2d 623 (1989), cert. denied, ___ U.S. ___, 110 S.Ct. 3289, 111 L.Ed.2d 797 (1990). The Court will not recount here those facts and circumstances but will briefly review the postconviction procedural history of the case.
Following appellate review of petitioner's conviction and death sentence, the Governor of Florida signed the first death warrant for petitioner on May 1, 1989, to cause petitioner's sentence of death to be executed between July 11 and 18, 1989. After unsuccessfully seeking relief in the state courts, counsel for petitioner, the Office of Capital Collateral Representative ("CCR"), filed a petition on his behalf, which he did not join, in this Court. While expressing serious reservations about its jurisdiction to hear the petition, the Court issued a July 10, 1989, order denying the petition on its merits. See Hamblen, 719 F.Supp. 1051, supra. This Court also refused to stay petitioner's execution and denied the request for a certificate of probable cause. The Eleventh Circuit Court of Appeals temporarily stayed petitioner's execution for consideration of the application for stay and certificate of probable cause, ultimately denying both requests in an order dated July 17, 1989. Petitioner's application for stay of execution of sentence of death addressed to the United States Supreme Court was granted on July 18, 1989, pending the disposition by that Court of the petition for writ of certiorari. See ___ U.S. ___, 110 S.Ct. 7, 106 L.Ed.2d 623 (1989). The Supreme Court denied the petition for writ of certiorari on June 28, 1990, thereby automatically terminating the stay of execution. See ___ U.S. ___, 110 S.Ct. 3289, 111 L.Ed.2d 797 (1990).
The Governor signed a second death warrant for petitioner on July 3, 1990, to cause petitioner's sentence of death to be executed between July 16 and 23, 1990. Petitioner then sought relief in the state courts, which was denied. On July 16, 1990, a second petition was filed in this Court (with petitioner's consent). Additionally, petitioner filed a motion for relief from the order denying his first petition. The Court denied this second petition on its merits and denied the motion for jurisdictional reasons by orders dated July 16, 1990. On that same date, the Eleventh Circuit stayed petitioner's impending execution because one of the issues raised in his second petition was before the appellate court in another case. See Hamblen v. Dugger, Dkt. No. 90-3621 (11th Cir. July 16, 1990). Following resolution of that issue, the Eleventh Circuit affirmed this Court's order denying relief and vacated all stays on August 24, 1990. Hamblen v. Dugger, 911 F.2d 508 (11th Cir.1990). The Eleventh Circuit denied panel rehearing on September 14, 1990, and denied en banc rehearing on September 18, 1990.
The Governor signed a third death warrant for petitioner on August 28, 1990, to cause petitioner's sentence of death to be executed between September 19 and 26, 1990. Petitioner returned to this Court on September 18, 1990, and filed the present petition for habeas corpus, his third, contesting the execution scheduled for September 21, 1990.
Petitioner raises in the present petition two claims which were raised in his first petition to this Court. These two claims were considered and rejected on their merits by the Court in that first proceeding. See Hamblen, 719 F.Supp. at 1056-57. In the usual case, this prior adjudication on the merits would, as discussed below, lead the Court to dismiss the present petition because petitioner offers no valid reason why these previously adjudicated claims should be reconsidered by this Court.
The Court is concerned, however, that the adjudication of the first petition in this case may be subject to challenge because petitioner did not join in the filing of that petition. In the order denying the first petition, the Court expressed reservations about its jurisdiction to hear the case. See id. at 1059-61. Despite these reservations, the Court treated the petition as one for which jurisdiction was proper and reached the merits of the claims raised in the petition. See id. at 1055-59. The Eleventh Circuit affirmed the denial of the petition on the merits. The subsequent authority of Whitmore v. Arkansas, ___ U.S. ___, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), persuaded the Court that it was without jurisdiction when the first petition was considered. See Order Denying Petitioner's Motion for Relief from Judgment/Order Pursuant to Fed.R.Civ.P. 60(B)(5) and/or 60(B)(6), etc., at 2-3, entered July 16, 1990, in Case No. 89-537-Civ-J-12.
Petitioner cannot be bound by an order denying a petition in which he did not join and which CCR lacked standing to prosecute for him. Therefore, the Court has considered the present claims as if they had not been raised in the first petition. After careful consideration, the Court is of the opinion that petitioner could have raised these claims in his second petition (which he joined) and any attempt to raise them in the present petition constitutes an abuse of the writ. If it should be determined that the Court had jurisdiction over the first petition, the Court finds, as an alternative ground for dismissing the petition, that the raising of the present claims, previously adjudicated in the first proceeding, constitutes an abuse of the writ. Both grounds for dismissal of the petition are discussed below.
Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides as follows:
Successive Petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.1
Thus, Rule 9(b) addresses two situations involving successive petitions: (1) where the petition raises a claim which has been raised in a prior petition and had a determination on the merits; and (2) where the petition raises a new claim not raised in a prior petition. In both situations, the district court may dismiss the subsequent petition on "abuse of the writ" grounds. "A principal reason underlying these rules is to promote the finality of criminal proceedings by requiring petitioners to include all of their claims in a single habeas petition in the federal district court." Moore v. Zant, 885 F.2d 1497 (11th Cir.1989) (en banc), cert. denied, ___ U.S. ___, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990).
The state has the burden of raising abuse of the writ. Gunn v. Newsome, 881 F.2d 949, 956 (11th Cir.) (en banc), cert. denied, ___ U.S. ___, 110 S.Ct. 542, 107 L.Ed.2d 540 (1989). Once the issue has been raised, the burden shifts to the petitioner to show that his conduct does not constitute an abuse of the writ. Id. In Witt v. Wainwright, 755 F.2d 1396 (11th Cir.), cert. denied, 470 U.S. 1039, 105 S.Ct. 1415, 84 L.Ed.2d 801 (1985), the Eleventh Circuit outlined a helpful framework for analysis when the government alleges abuse of the writ:
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