Parker, In re

• Decision Date: 12 April 1995
• Docket Number: No. 94-5988,94-5988
• Citation: 49 F.3d 204
• Parties: In re Phil PARKER, Warden, Kentucky State Penitentiary, Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 204

49 F.3d 204

In re Phil PARKER, Warden, Kentucky State Penitentiary, Petitioner.

No. 94-5988.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 1, 1995.

Decided March 7, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied April

12, 1995.

Elizabeth A. Myerscough and David A. Smith, Asst. Attys. Gen. (argued and briefed), Frankfort, KY, for petitioner.

Stefanie M. McArdle, Kentucky Capital Litigation Resource Center, J. Vincent Aprile, II (argued and briefed), Dept. of Public Advocacy, Frankfort, KY, for respondent.

Before: KENNEDY, BOGGS, and SILER, Circuit Judges.

BOGGS, Circuit Judge.

Phil Parker, Warden of the Kentucky State Penitentiary, petitions for a writ of mandamus. Parker petitions for an order directing the district court to revoke the appointment of counsel and vacate the stay of execution entered pursuant thereto. Both the appointment of counsel and the stay of execution stem from the July 19, 1994 and the July 27, 1994 orders of Judge Johnstone of the United States District Court for the Western District of Kentucky. These orders appoint counsel for, and stay the execution of, Kevin Stanford. Stanford is a death-sentenced prisoner currently incarcerated at the Kentucky State Penitentiary. For the reasons set out more fully below, the petition is granted in part. The district court is directed to vacate the stay of execution, purportedly entered pursuant to 28 U.S.C. Sec. 2251.

I

On the evening of January 7, 1981, Kevin Stanford, then age 17, and two accomplices, David Buchanan (age 16) and Troy Johnson (age 15), robbed the Checker gasoline station on Cane Run Road in southwestern Jefferson County, Kentucky. The clerk at the station was Barbel Poore. While Johnson sat outside in a car, Buchanan and Stanford entered the store. Stanford carried a loaded pistol. While Buchanan attempted to open the store's safe Stanford took Poore to an interior restroom where he raped her. When Buchanan was unable to open the safe he joined Stanford in the restroom. Both men then took turns raping and sodomizing Poore. Apparently concerned that Poore might recognize them, Stanford drove Poore in her own car to an isolated area. Once there, Stanford shot Poore to death.

On August 12, 1982, a jury convicted Stanford of intentional murder and other crimes. Stanford was sentenced to death for the intentional murder on September 28, 1982.

The Kentucky Supreme Court affirmed the conviction and sentence on April 30, 1987. Stanford v. Commonwealth, 734 S.W.2d 781 (1987). The United States Supreme Court granted certiorari to determine whether the execution of a person who was a juvenile at the time of the crime was cruel and unusual punishment under the Eighth Amendment. Stanford v. Kentucky, 488 U.S. 887, 109 S.Ct. 217, 102 L.Ed.2d 208 (1988), as amended, 488 U.S. 906, 109 S.Ct. 256, 102 L.Ed.2d 245 (1988). The Supreme Court affirmed the conviction and sentence. Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989).

On April 30, 1990, Stanford filed a motion under Kentucky Rule of Criminal Procedure 11.42 to vacate, set aside, or correct his judgment of conviction and sentence of death. The Jefferson Circuit Court denied this motion on June 28, 1990.

On January 21, 1993 the Kentucky Supreme Court affirmed the circuit court's order. Stanford v. Commonwealth, 854 S.W.2d 742 (1993). Stanford petitioned the United States Supreme Court for a writ of certiorari on September 29, 1993. The Supreme Court denied the petition on January 10, 1994. Stanford v. Kentucky, --- U.S. ----, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994). Stanford has now exhausted all state remedies. Therefore, Stanford's case is ripe for federal habeas review, if he seeks such review.

By stated policy, Kentucky allows death row prisoners 90 days to initiate the next step in their litigation, before setting an execution date. Stanford's 90-day period began to run when the Supreme Court denied the petition for certiorari. As the end of his 90-day period approached, Stanford's attorney, by letter dated April 6, 1994, requested an additional 90 days in which to file the habeas corpus petition. The attorney's supervisor provided a letter concurring in his request because of his busy schedule. Kentucky granted this request and, based on representations in the letter, set a July 9, 1994, deadline for filing the habeas petition. By the end of this period, neither a petition nor any other communication had arrived.

On July 13, 1994, Governor Brereton C. Jones signed a Death Warrant setting Stanford's execution date for August 12, 1994. ¹ This provided Stanford with an additional thirty days in which to file his habeas petition. Rather than filing a habeas petition, Stanford moved a federal district court on July 19, 1994 for appointment of counsel and a stay of execution. The motion was prepared and signed by J. Vincent Aprile II. Mr. Aprile is employed by the Kentucky Department of Public Advocacy. Mr. Aprile and the Department have represented Stanford since the United States Supreme Court rejected Stanford's direct appeal in 1989.

Stanford based the motion on the authority of 21 U.S.C. Sec. 848(q)(4)(B) and the United States Supreme Court's recent decision in McFarland v. Scott, --- U.S. ----, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). The United States Supreme Court decided McFarland in June of 1994, during Stanford's 90-day extension. The district court appointed Mr. Aprile as counsel ex parte on July 19, but deferred entering a stay until Kentucky had an opportunity to respond. On July 27, 1994, after a telephonic conference, the district court denied Kentucky's motion requesting that the order appointing counsel be vacated. The district court also entered an indefinite stay.

On August 5, 1994, Kentucky filed a petition for a writ of mandamus. Stanford filed a response to the petition on September 2, 1994. Both parties filed supplementary letter briefs in December 1994. These briefs addressed the applicability of this Circuit's decision in Steffen v. Tate, 39 F.3d 622 (6th Cir.1994). As of oral argument, on February 1, 1995, more than six months after the district court entered the stay and almost thirteen months after the Supreme Court's denial of certiorari, Stanford has not filed a habeas petition. Kentucky's petition for a writ of mandamus requests that this court direct the district court to revoke the appointment of counsel and dissolve the stay.

II

This court's authority to issue a writ of mandamus is derived from the "All Writs Statute," 28 U.S.C. Sec. 1651. The statute states that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Id. Rule 21 outlines the procedure a petitioner uses to secure a writ of mandamus. Fed. R.App.P. 21.

Mandamus is a drastic remedy, to be invoked only in extraordinary situations where the petitioner can show a clear and indisputable right to the relief sought. Will v. Calvert Fire Ins. Co., 437 U.S. 655, 661-62, 98 S.Ct. 2552, 2556-57, 57 L.Ed.2d 504 (1978); Kerr v. United States District Court, 426 U.S. 394, 402-03, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976); In re NLO, Inc., 5 F.3d 154, 155-56 (6th Cir.1993); In re Glass Workers Int'l Union Local 173, 983 F.2d 725, 727 (6th Cir.1993). In particular, "mandamus is disfavored because it has 'the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants [appearing] before him.' " In re Blodgett, 502 U.S. 236, 243, 112 S.Ct. 674, 678, 116 L.Ed.2d 669 (1992) (Stevens, J., concurring) (quoting In re Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947)). There must be a demonstrable abuse of discretion or conduct amounting to usurpation of judicial power for the writ to issue. Mallard v. United States District Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989); In re NLO, Inc., 5 F.3d at 156; United States v. Ford (In Re Ford), 987 F.2d 334, 341 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 180, 121 L.Ed.2d 126 (1992).

An error of law, standing alone, is not sufficient to warrant mandamus. If it were, every erroneous interlocutory order would be subject to mandamus review. In re NLO, Inc., 5 F.3d at 156. However, mandamus can be "used to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Kerr, 426 U.S. at 402, 96 S.Ct. at 2123 (citations omitted)(emphasis added); see In re General Motors Corp., 3 F.3d 980, 983 (6th Cir.1993). " 'The general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary writ, may not be done with it. It lies only where there is practically no other remedy.' " In re NLO, Inc., 5 F.3d at 156 (quoting Helstoski v. Meanor, 442 U.S. 500, 505, 99 S.Ct. 2445, 2448, 61 L.Ed.2d 30 (1979)).

The Sixth Circuit has adopted a five-step process for examining whether there are extraordinary circumstances warranting mandamus relief. In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 303-04 (6th Cir.1984). The five steps are: 1) whether the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief needed; 2) whether the petitioner will be damaged or prejudiced in a way not correctable on appeal; 3) whether the district court's order is clearly erroneous as a matter of law; 4) whether the district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules; 5) whether the district court's order raises new and important problems, or issues of law of first impression. The factors are cumulative and should be balanced; they may not all point to the same conclusion. Id. at 304. Furthermore, the absence of any...