Lindsey, In re, 89-7312

• Decision Date: 01 May 1989
• Docket Number: No. 89-7312,89-7312
• Citation: 875 F.2d 1502
• Parties: In re Michael LINDSEY, Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1502

875 F.2d 1502

In re Michael LINDSEY, Petitioner.

No. 89-7312.

United States Court of Appeals Eleventh Circuit.

May 1, 1989.

Louis E. Braswell, David A. Bagwell, Mobile, Ala., for petitioner.

Ed Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondent.

On Petition for Writ of Mandamus to the United States District Court for the Southern District of Alabama.

Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.

BY THE COURT:

Michael Lindsey, convicted of murder and sentenced to death, seeks a writ of mandamus directing the district court to appoint for his representation in Alabama collateral-review proceedings an attorney with three years' experience handling felony appeals and a psychiatrist. We deny the petition.

I. PROCEDURAL POSTURE

On June 6, 1985, Lindsey filed his first petition for a writ of habeas corpus (CA 85-0775), an application for leave to proceed in forma pauperis ("IFP"), a motion for a stay of execution (which was then scheduled for June 7, 1985), and a motion for appointment of counsel under 18 U.S.C. Sec. 3006A.

On June 7, 1985, the district court granted leave to proceed IFP, stayed the scheduled execution, and appointed Louis E. Braswell and David A. Bagwell to serve as counsel. Notwithstanding its grant of interim relief, however, the district court denied Lindsey's petition for habeas corpus on March 3, 1986. On March 10, 1986, the court denied his application for a certificate of probable cause to appeal ("CPC") but granted his motion to proceed IFP in this court.

On March 11, 1986, Lindsey docketed his appeal from the denial of habeas in CA 85-0775 by applying to this court for CPC. We granted the application and set the case for oral argument. On June 12, 1987, we issued an opinion affirming the district court's judgment; on August 18, 1987, we denied rehearing. Lindsey v. Smith, 820 F.2d 1137 (11th Cir.), reh'g denied, 828 F.2d 775 (11th Cir.1987). Nevertheless, on September 4, 1987, we granted Lindsey's motion to withhold our mandate pending the United States Supreme Court's disposition of his petition for certiorari.

The Court denied Lindsey's petition for certiorari on February 27, 1989 and denied rehearing on April 17, 1989. Lindsey v. Smith, --- U.S. ----, 109 S.Ct. 1327, 103 L.Ed.2d 595 reh'g denied, --- U.S. ----, 109 S.Ct. 1771, 104 L.Ed.2d 206 (1989). Per our September 4, 1987 order, our mandate affirming the denial of habeas corpus in CA 85-0775 issued on March 2, 1989. Thereafter, the Attorney General of Alabama sought and obtained from the Supreme Court of that State an order setting a new date for Lindsey's execution, which now is scheduled for May 26, 1989.

On March 8, 1989, Lindsey, through Braswell and Bagwell, filed in the district court a new motion in CA 85-0775. The motion, which was styled a "MOTION FOR STAY OF EXECUTION AND FOR APPOINTMENT OF COUNSEL," urged the court to appoint new counsel pursuant to the newly enacted 21 U.S.C. Sec. 848(q). ¹ The motion argued that subsections 848(q)(4)(B) and 848(q)(6) entitle Lindsey to the appointment of "at least one attorney ... admitted to practice in the court of appeals for not less than five years, and [having] not less than three years experience in the handling of appeals in that court in felony cases." The motion averred Braswell and Bagwell lack such experience. Lindsey also moved for a stay of execution so that new counsel would have time to seek further relief.

On March 24, 1989, the district court denied the motion, holding that, although neither Braswell nor Bagwell has three years' experience handling felony appeals, their appointments should stand under subsection 848(q)(7), which provides:

[T]he court, for good cause, may appoint another attorney whose background, knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation.

21 U.S.C.A. Sec. 848(q)(7) (West Supp.1989). The court found that Braswell and Bagwell have sufficient professional experience, particularly when coupled with their familiarity with Lindsey's case, to represent him properly.

On March 30, 1989, Lindsey asked this court for a writ of mandamus directing the district court to appoint new counsel. On April 10, 1989, we denied the petition, holding that "the district court had no pending case before it when it entered the March 24, 1989 order denying Lindsey's application for appointment of new counsel" and that "[o]nly after Lindsey file[d] a new petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254, one which complie[d] with the district court's local rules governing such petitions, [would] the district court have authority to appoint new counsel" under 21 U.S.C. Sec. 848(q). In re Lindsey, 875 F.2d 1518 (11th Cir. 1989) (per curiam).

On April 5, 1989, while Lindsey's first petition for mandamus was pending in this court, the district court entered an order recognizing that CA 85-0775 terminated when this court's mandate issued and that the district court was without authority to entertain Lindsey's March 8, 1989 request for counsel, unless the court treated the papers accompanying the request as a new petition for habeas corpus. The court decided so to treat those papers and assigned the new petition case number CA 89-0253-CB-M. The court read the second petition to allege that Lindsey currently is insane and that, under the reasoning of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), execution of Lindsey would violate the eighth amendment's prohibition of cruel and unusual punishment. The court read Lindsey's filings also to include a motion for a stay of execution, a motion for appointment of a psychiatrist, and a renewed motion for appointment of new counsel or, in the alternative, a motion for instructions to Braswell and Bagwell regarding the scope of their appointments and their responsibilities with respect to state competency and clemency proceedings.

On April 12, 1989, two days after we denied Lindsey's first petition for mandamus, the district court denied habeas relief in CA 89-0253-CB-M, on the ground that Lindsey had failed to exhaust all available state remedies for his Ford claim. The court also denied Lindsey's motion for appointment of a psychiatrist, holding that Lindsey had failed to show that the services of such a psychiatrist are reasonably necessary to present his case. ² In a separate order, also dated April 12, 1989, the court denied the renewed motion for appointment of new counsel and reappointed Braswell and Bagwell pursuant to the Criminal Justice Act, as amended, 18 U.S.C. Sec. 3006A and the Controlled Substances Act, as amended, 21 U.S.C. Sec. 848(q)(7).

On April 13, 1989, Lindsey filed a notice of appeal and an application for CPC in the district court. The district court denied CPC on the same day, and, on April 18, 1989, Lindsey applied to this court for CPC. He also moved to expedite the appeal and to stay his scheduled execution. By a separate order, also entered today, we denied CPC. See Lindsey v. Thigpen, 875 F.2d 1518 (11th Cir. 1989).

On April 19, while his application for CPC was pending, Lindsey filed this, his second, petition for mandamus. He seeks an order directing the district court to appoint for his representation in state collateral-review proceedings both a lawyer with three years' experience handling felony appeals and a psychiatrist. We deny the petition.

II. DISCUSSION

We emphasize that the petition for mandamus neither challenges the district court's denial of habeas relief nor argues that the district court's failure to give Lindsey a new lawyer and/or a psychiatrist impaired his ability to demonstrate that he has exhausted all available state remedies. The petition contests only the district court's refusal to appoint a psychiatrist and a lawyer with three years' experience handling felony appeals to assist Lindsey in his pursuit of state-court remedies for his unexhausted Ford claim. We find merit neither in Lindsey's argument under 21 U.S.C. Sec. 848(q) nor in that under 18 U.S.C. Sec. 3006A.

A. Assistance Under 21 U.S.C. Sec. 848

Subsection 848(q)(4)(B) of Title 21 provides that "[i]n any post conviction proceeding under section 2254 ... seeking to vacate or set aside a death sentence, any defendant who is ... financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services" in accordance with subsections 848(q)(5)--(q)(9). 21 U.S.C.A. Sec. 848(q)(4)(B) (West Supp.1989). Subsection 848(q)(9) authorizes appointment of experts "[u]pon a finding ... that ... expert ... services are reasonably necessary for the representation of the defendant...." Id. at Sec. 848(q)(9). Subsection 848(q)(8) provides that, "[u]nless replaced by similarly qualified counsel ..., each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings ... and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant." Id. at Sec. 848(q)(8).

Lindsey contends that, taken together, these subsections entitle him to the appointment of a lawyer and expert to assist in his pursuit of state-court remedies for his Ford claim. Acceptance of that contention, however, would require us to assume two crucial points upon which Lindsey has offered no argument. First, we would have to assume that Lindsey's rights under section 848 attached when the district court decided to treat his post-March 2 filings as a second petition for habeas corpus--even though, under 28 U.S.C. Sec. 2254(b), the district court was without authority to grant relief upon that petition, as it presented only an...