Mobley v. Head, 02-14224.

Decision Date18 September 2002
Docket NumberNo. 02-14224.,02-14224.
Citation306 F.3d 1096
PartiesStephen A. MOBLEY, Petitioner-Appellant, v. Frederick HEAD, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Brian Steel, The Steel Law Firm, P.C., Atlanta, GA, for Petitioner-Appellant.

Allison Attaway Burton, State of Georgia Law Dept., Atlanta, GA, for Respondent-Appellee.

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

Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

BARKETT, Circuit Judge:

Having determined that the Supreme Court's forthcoming decision in Abdur'Raham v. Bell, ___ U.S. ___, 122 S.Ct. 1605, 152 L.Ed.2d 620 (2002) (granting certiorari to consider whether every Rule 60(b) motion constitutes a prohibited "second or successive" habeas petition as a matter of law), will determine our resolution of the issues Mobley raises in this appeal, we hereby stay Mobley's execution pending a decision in that case or until further order of this Court or the Supreme Court. Because the dissent fully describes the factual and procedural background of this case, we write only to explain our disagreement.

Unlike the dissent, we believe that the district court fairly read Felker v. Turpin, 101 F.3d 657 (11th Cir.1996), to have established a bright-line rule that the restrictions in 28 U.S.C. § 2244(b) for "second or successive" petitions apply to all Rule 60(b) motions filed by habeas corpus petitioners. See Felker, 101 F.3d at 661 ("We hold that the successive petition restrictions contained in the amendments to § 2244(b) apply to Rule 60(b) proceedings even where those proceedings seek to amend a judgement that became final before the effective date of the amendments."); In re Medina, 109 F.3d 1556, 1561 (11th Cir.1997) ("We held in Felker that the second and successive petition restrictions of amended § 2244(b) apply to Rule 60(b) motions."). That is the same unequivocal rule that the Supreme Court has granted certiorari to review in Abdur'Raham, and we believe the outcome in that case will determine the outcome here.

The dissent apparently believes, notwithstanding Felker and Medina, that Mobley's 60(b) motion is not subject to § 2244(b)'s restrictions. Assuming arguendo that the dissent is correct on that score, we believe that our precedent squarely precludes us from affirming the district court. Mobley has clearly alleged that the State's actions regarding Fuller's testimony created infirmities in his federal habeas hearing, not just in the state proceedings. In his 60(b) motion, Mobley claims that recently discovered evidence demonstrates that the district court's prior resolution of his habeas claim was tainted because it was based upon facts (regarding Fuller's prior testimony) that the State knew or should have known were false. Mobley argues that, because of these "extraordinary circumstances," the district court should have exercised its discretion under Rule 60(b) to grant him relief from the judgment denying his request for habeas relief.1

The district court denied Mobley's motion because of what it perceived to be Felker's absolute rule. This Court reviews a denial of a 60(b) motion for abuse of discretion. See Booker v. Singletary, 90 F.3d 440, 442 (11th Cir.1996). As we have explained previously, under that standard of review,

A discretionary decision that falls within permitted bounds, but is based on false premises, raises the question on review as to whether the trial court would have come to the same conclusion using proper premises. That it could have does not satisfy the inquiry as to whether it would have reached the same result. The affirmance of a discretionary decision that is based on an improper view of the facts or the law merely reflects the appellate court's exercise of discretion that rightfully belongs to the trial court. The proper role of appellate review permits a remand for further proceedings when a discretionary decision has been made on false premises.

Collins v. Seaboard C.R. Co., 681 F.2d 1333, 1335 (11th Cir.1982). Therefore, if the dissent were right that the district court misread Felker, then under Collins we would be required to remand; we would not be free to affirm by substituting for the district court's discretion our conjecture that it would have reached the same result had it been guided by a proper view of the law. Of course, we believe the district court correctly interpreted Felker, but recognizing that the Supreme Court has granted certiorari on the same issue in Abdur'Rahman, we find it appropriate to issue a stay pending a decision in that case.

Appellant Stephen A. Mobley's Stay of Execution is GRANTED.

TJOFLAT, Circuit Judge, dissenting:

Before the court are three last-minute petitions filed by inmate Steven Anthony Mobley, who was sentenced to death for killing John Collins, a Domino's Pizza employee, during an armed robbery of a Domino's Pizza store on February 17, 1991: (1) an "Application for Permission to File a Successive Petition for Writ of Habeas Corpus;" (2) an "Application for Certificate of Appealability [from an order of the United States District Court for the Northern District of Georgia denying his Motion for Stay of Execution and for Relief from Judgment Pursuant to Fed.R.Civ.P. 60(b)] and Motion for Stay of Execution;" and (3) a "Motion to Recall the Mandate in Case 00-13980[, Mobley v. Head, 267 F.3d 1312 (11th Cir.2001)]." The panel believes that the Supreme Court's forthcoming decision in Abdur'Rahman v. Bell, ___ U.S. ___, 122 S.Ct. 1605, 152 L.Ed.2d 620 (2002) will affect the resolution of the issues Mobley raises in these filings, because the Court's decision in Abdur'Rahman will determine whether Mobley's Rule 60(b) motion should be reviewed under that Federal Rule of Civil Procedure or, instead, should be considered to be a "second or successive" petition for writ of habeas corpus, supposedly in accordance with our previous decision in Felker v. Turpin, 101 F.3d 657 (11th Cir.1996). Consequently, the panel has chosen to postpone consideration of Mobley's filings — and stay his execution — until the Court decides Abdur'Rahman. Respectfully, I must dissent from this decision because I believe that Felker is inapplicable to the case at hand, and, thus, there is no need for us to postpone the administration of Mobley's death sentence.

I.

Mobley's petitions are premised on what transpired at the sentencing phase of his trial in the Superior Court of Hall County, Georgia. During the sentencing phase, Mobley introduced evidence that he had offered to plead guilty in exchange for any punishment other than the death penalty.1 In rebuttal, the prosecution called Judge Andrew Fuller. Though he was a superior court judge at the time of Mobley's trial, Fuller had been district attorney at the onset of the prosecution and had made the decision to seek the death penalty against Mobley.2

Fuller testified that he decided to seek the death penalty "once [he] knew what had occurred" with regard to the actual circumstances of the crime. Among the factors Fuller considered were that it was "a well planned armed robbery," that Mobley "used [his] pistol immediately for the purpose of accomplishing the taking of money," and that Collins, after seeing Mobley's face, had been marched to a back room, forced to kneel, and then shot in the back of the head. Fuller said that he was particularly troubled by the fact that Mobley "wasn't concerned about the shooting so much as he grabbed a bag to put his getaway money in before he exited the building."

Fuller also added that he had consulted the Collins family, and they "supported" his decision to seek the death penalty. He emphasized, however, that they "never put anything that [he] would even associate with pressure on [him]," telling him, "It is your decision, we put our trust in you." In fact, the family's feelings only factored as "a small percentage" in the decision to seek the death penalty; instead, "95 percent of the decision [was] made based on the evidence [he saw] that describe[d] and define[d] the defendant for [him]."

Despite his initial impressions, Fuller asserted that he nonetheless tried to remain "open minded ... because of the simple gravity of the decision," when Mobley's counsel approached him about a plea offer. According to Fuller, other factors reinforced his decision, though. Specifically, Fuller recounted how Mobley had joked about getting a job at Domino's "because he knew there was a vacancy," had gotten a Domino's tattoo on his back, had raped his cellmate, and had told a prison deputy, as a way of threatening him, that he was "looking more and more like a Domino's Pizza delivery boy every day." These events led Fuller to believe "that [he] had made the right decision" in seeking the death penalty, as he saw in Mobley "nothing but pure unadulterated meanness."

As noted, Mobley was sentenced to death. On direct appeal, the Georgia Supreme Court affirmed his capital conviction and death sentence. See Mobley v. State, 265 Ga. 292, 455 S.E.2d 61 (Ga.1995). Mobley then sought habeas corpus relief in state and federal court. His petitions were ultimately denied. See Mobley v. Head, 267 F.3d 1312 (11th Cir.2001); Turpin v. Mobley, 269 Ga. 635, 502 S.E.2d 458 (Ga.1998).

On July 12, 2002 — less than a month before the date on which Mobley was scheduled to be executed — Nina Collins, the victim's mother, apparently contacted Mobley's father to tell him that she had decided to oppose Mobley's execution. On July 16, Mobley filed an "Extraordinary Motion for New Trial as to Sentence" in the Superior Court of Hall County, Georgia. His motion asserted that, if his death sentence were vacated and he were afforded a new sentencing trial, Mrs. Collins would testify that her family only acquiesced to Fuller's decision to seek the death penalty because Fuller had not told them that a sentence of life...

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