Lindsey v. Thigpen
| Decision Date | 24 May 1989 |
| Docket Number | 89-7389 and 89-7390,Nos. 86-7162,s. 86-7162 |
| Citation | 875 F.2d 1509 |
| Parties | Michael LINDSEY, Petitioner-Appellant, v. Morris THIGPEN, Commissioner, Alabama Department of Corrections, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Louis E. Braswell, David A. Bagwell, Mobile, Ala., for petitioner-appellant.
John Gibbs, William Whatley, Ed Carnes, Asst. Attys. Gen., Montgomery, Ala., for respondents-appellees.
Appeal from the United States District Court for the Southern District of Alabama.
Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.
Michael Lindsey was convicted of murder and sentenced to death in 1982. Lindsey now seeks: (1) a stay of execution, (2) an order appointing new counsel, (3) a certificate of probable cause to appeal the district court's denial of his motion to reopen that court's 1986 judgment denying his first petition for habeas corpus ("CPC"), (4) an order recalling the mandate by which this court affirmed the district court's 1986 judgment, and (5) a certificate of probable cause to appeal the district court's denial of his third petition for habeas corpus. We deny all relief.
Lindsey filed his first federal habeas petition in 1985. The district court denied habeas relief, and we affirmed. Lindsey v. Smith, 820 F.2d 1137 (11th Cir.), reh'g denied, 828 F.2d 775 (1987), cert. denied, --- 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). 1 Our mandate issued on March 2, 1989. Lindsey's execution is scheduled for May 26, 1989.
On March 8, 1989, Lindsey filed a new motion in the original habeas case, CA 85-0775, urging the district court to appoint new counsel pursuant to 21 U.S.C. Sec. 848(q) and to stay his execution. The district court denied the motion on March 24, 1989, and, on March 30, 1989, Lindsey petitioned this court for a writ of mandamus directing the district court to appoint new counsel. We denied the petition. In re Lindsey, 875 F.2d 1518, (11th Cir. 1989) (per curiam).
On April 5, 1989, while the petition for mandamus was pending, the district court determined that Lindsey's March 1989 filings should be treated as a new petition for habeas corpus, which the court read 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), his execution 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 another motion for appointment of new counsel. The district court denied all relief on April 12, 1989, and we denied CPC. See Lindsey v. Thigpen, 875 F.2d 1516, (11th Cir. 1989). By a separate order, we again refused to order the district court to appoint new counsel. In re Lindsey, 875 F.2d 1502, (11th Cir. 1989).
On April 20, 1989, Lindsey returned to the Alabama trial court, seeking an order staying his scheduled execution, on the grounds of his alleged insanity. He also filed a new petition for state collateral review, which stated two claims for relief: first, that the trial court's consideration of Alabama's "especially heinous, atrocious or cruel" statutory aggravating factor in fixing his sentence violated the eighth amendment as interpreted by the Supreme Court in Maynard v. Cartwright, --- U.S. ----, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); second, that the trial court's consideration of statutory aggravating factors not found by the jury violated the sixth amendment as interpreted by the Ninth Circuit in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988) (in banc), petition for cert. filed, 57 U.S.L.W. 3655 (U.S., Apr. 4, 1989) (No. 88-1553). On May 16, 1989, the trial court denied all relief, finding both claims to be procedurally barred. State v. Lindsey, No. CC-82-212 .
Lindsey immediately returned to federal district court, moving to reopen the judgment in his first habeas case, CA 85-0775, pursuant to Fed.R.Civ.P. 60(b)(6). In support of the motion, he argued: (1) that the district court should reconsider his claim regarding the "especially heinous, atrocious or cruel" aggravating factor in light of Cartwright and (2) that the trial judge's override of the jury's recommendation of life imprisonment violated the sixth amendment as interpreted in Adamson. He also presented the Adamson claim via a third petition for habeas corpus, CA 89-0388. The district court denied all relief, holding that the Rule 60(b) motion "does not state 'truly extraordinary circumstances' that would justify relief from judgment," Lindsey v. Thigpen, No. 85-0775, mem. op. at 8 , and that the attempt to raise the Adamson claim in the third habeas petition "is not only an abuse of the writ but also is procedurally barred." Lindsey v. Thigpen, No. 89-0388-CB-C, mem. op. at 3 . The court also denied the third habeas petition on the alternative ground that "even if the claim were to withstand these [procedural] impediments, it would fail on the merits." Id. On May 23, 1989, the district court denied Lindsey's applications for certificates of probable cause to appeal the denial of the Rule 60(b) motion in CA 85-0775 and the denial of habeas relief in CA 89-0388. Lindsey now seeks such certificates of probable cause from this court.
On May 18, while the Rule 60(b) motion and the third petition for habeas were pending in the district court, Lindsey moved this court pursuant to 11th Cir.R. 41-1(b) to recall our mandate affirming the denial of his first habeas petition, CA 85-0775. On May 22, he added to his Rule 41-1(b) motion still another request for the appointment of new counsel. Thus, several claims for relief are now pending before this court. In the context of the first habeas case, now pending are Lindsey's Rule 41-1(b) motion to recall our mandate pursuant to Rule 41-1(b), his motion for the appointment of new counsel in the Rule 41-1(b) proceeding, and his application for a certificate of probable cause to appeal the district court's denial of the Rule 60(b) motion. 2 In the context of the third habeas petition, only Lindsey's application for a certificate of probable cause to appeal the district court's denial of the writ is pending. We address each habeas petition separately.
As noted above, see supra n. 2, Lindsey's motion for appointment of new counsel was made in district court, in the context of the Rule 60(b) motion and the third habeas petition, as well as in this court, in the context of the Rule 41-1(b) motion. In denying the motion for appointment of new counsel, the district court held:
Lindsey has made no showing of good cause, and indeed has offered no reason, for dismissing his counsel. The Court finds the petitioner's latest motion [is] simply another attempt to circumvent the Court's decision that he is not entitled to additional or alternative counsel, and to delay execution in this case.
Lindsey v. Thigpen, Nos. 85-0775, 89-0388, mem. op. at 3 . We adopt this reasoning and hold that Lindsey is not entitled to appointment of new counsel at this stage of the proceedings.
Rule 41-1(b) provides that the mandate of this court "once issued shall not be recalled except to prevent injustice." Because the denial of a motion under Rule 60(b) is reviewable only for an abuse of discretion and a certificate of probable cause should issue only when a habeas petitioner has made a "substantial showing of the denial of a federal right," Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983), a certificate of probable cause to appeal the denial of Lindsey's Rule 60(b) motion should issue only if Lindsey has made a substantial showing that the district court abused its discretion by denying the Rule 60(b) motion. Neither with respect to the Cartwright issue nor with respect to the Adamson issue has Lindsey satisfied either the standard governing Rule 41-1(b) or that governing the issuance of a certificate of probable cause. 3
Citing Greater Boston Television Corp. v. F.C.C., 463 F.2d 268, 278 n. 12 (D.C.Cir.1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972), Lindsey argues that we should recall our mandate in order to prevent injustice, because Cartwright shows that our original disposition of his challenge to the "heinous, atrocious or cruel" aggravating factor is "demonstrably wrong." 4 Assuming arguendo that Lindsey correctly states the law governing Rule 41-1(b), recall of our mandate would be improper. Contrary to Lindsey's assertion, Cartwright does not affect the correctness of the original disposition of this claim. Consequently, Lindsey also has failed to make a substantial showing that the district court's refusal to re-examine this claim perpetuated the "denial of a federal right."
The district court's 1986 order held that Lindsey's challenge to the trial court's consideration of the "heinous, atrocious or cruel" aggravating factor was procedurally barred. Our order affirming the district court held that it was unnecessary to determine whether the claim was procedurally barred, as it was meritless. We held that Lindsey's "conclusory assertion [that Alabama's "heinous, atrocious or cruel" aggravating factor is unconstitutionally vague] is unsupported by any allegation of fact beyond the circumstances of this particular case, and thus fails to state a claim for which habeas relief can be granted." Lindsey v. Smith, 820 F.2d at 1153. Thus, although no procedural bar ultimately was applied, we never reached the question of the constitutionality of the...
To continue reading
Request your trial
-
Saunders v. Stewart
...imposition of the death penalty . . . ." Yet Saunders does not allege the aggravating statute is unconstitutionally vague such that a Lindsey v. Thigpen-type analysis is required. Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir. 1989). To satisfy Lindsey's limiting jury instruction requirement ......
-
Hodges v. State
...death sentence is imposed, a finding that the victim was tortured or was caused to suffer serious physical abuse). "In Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir.1989), the United States Court of Appeals for the Eleventh Circuit upheld this Court's application of the `especially heinous, a......
-
Jones v. State
...homicides which are unnecessarily torturous to the victim.' Ex parte Clark, [728 So.2d 1126 (Ala. 1998)], citing, Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir.1989). The Alabama appellate courts have considered the infliction of psychological torture as especially indicative that the offense......
-
Ingram v. Stewart
...law relating to it. The instructions were in accordance with the Kyzer standard, and were clear and understandable. See Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir. 1989); Ex parte Clark, 728 So. 2d 1126 (Ala. 1998).In determining the sentence to impose pursuant to § 13A-5-47, the trial cou......