Mulligan v. Zant, Civ. A. No. 82-6-COL.

• Decision Date: 19 January 1982
• Docket Number: Civ. A. No. 82-6-COL.
• Parties: Joseph MULLIGAN, Petitioner, v. Walter B. ZANT, Superintendent, Georgia Diagnostic and Classification Center, Respondent.
• Court: U.S. District Court — Middle District of Georgia

531 F. Supp. 458

Joseph MULLIGAN, Petitioner, v. Walter B. ZANT, Superintendent, Georgia Diagnostic and Classification Center, Respondent.

Civ. A. No. 82-6-COL.

United States District Court, M. D. Georgia, Columbus Division.

January 19, 1982.

Millard C. Farmer, Jr., Atlanta, Ga., for petitioner.

Daryl A. Robinson, Asst. Atty. Gen., State of Georgia, Atlanta, Ga., for respondent.

MEMORANDUM AND ORDER ON MOTION FOR STAY OF EXECUTION

ELLIOTT, District Judge.

Joseph Mulligan, petitioner in this habeas corpus proceeding, on January 18, 1982, filed his federal habeas corpus petition and simultaneously filed a motion for stay of execution of a death sentence set for January 21, 1982. The motion for a stay was opposed by the Georgia Attorney General; a hearing on the motion was held on January 18, 1982, at which both parties were represented.

A review of the procedural history of this case, based upon pleadings filed with the Court by petitioner and respondent, is appropriate.

Petitioner was convicted on two counts of murder in the Superior Court of Muscogee County, Georgia, on November 4, 1976; he was sentenced to death on both counts. Following conviction and sentence an automatic appeal was taken to the Supreme Court of Georgia. That Court affirmed both convictions but vacated one death penalty sentence, directing that a life sentence be imposed. The other death sentence was affirmed. Mulligan v. State, 245 Ga. 266, 264 S.E.2d 204 (1980). A petition for a writ of certiorari was filed in the United States Supreme Court. That Court denied the petition on November 10, 1980.

The petitioner then filed a state habeas corpus petition in the Superior Court of Butts County, Georgia, and counsel for petitioner and counsel for respondent each indicate that the contents of that petition are essentially the same as the petition presented to this Court. In the state habeas proceedings petitioner was allowed to present evidence by way of affidavit, as authorized by Ga.Code Ann. § 50-127(7). He did so, but it appears he limited the subject of the affidavits to his contention concerning trial counsel's conduct of the sentencing phase of trial. The trial transcript and record were also before the state habeas Court. That Court denied habeas corpus relief on April 22, 1981. Here again, pleadings submitted to the Court indicate that the state Court ruled on the issue of effectiveness of the trial attorney at sentencing, and the remaining issues were deemed abandoned.

An application for a certificate of probable cause to appeal was denied by the Supreme Court of Georgia on June 17, 1981. A petition for a writ of certiorari was denied by the United States Supreme Court on November 16, 1981. One week thereafter, on November 23, 1981, that order was made the order of the Superior Court of Butts County, the original state habeas Court.

No federal habeas corpus petition was filed at that time. Petitioner took no action whatsoever to present his allegations to this Court until a new execution date was set (on January 6, 1982) and execution was imminent (on January 21, 1982). The first telephone communication with this Court was on Friday, January 15, 1982. The federal petition was filed Monday, January 18, 1982.

Such inordinate delay in pressing federal constitutional claims appears to this Court to be motivated by a desire to prolong these proceedings as long as possible. Because counsel for petitioner stated at the hearing on the stay that the allegations in the federal petition are essentially identical to the state petition, there appears to be no reason why the federal petition could not have been filed more expeditiously. Petitioner is not justified in presuming that such a drastic measure...