Scott v. Singletary

• Decision Date: 14 November 1994
• Docket Number: 94-5171,Nos. 88-5536,s. 88-5536
• Citation: 38 F.3d 1547
• Parties: Paul William SCOTT, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1547

38 F.3d 1547

Paul William SCOTT, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-Appellee.

Nos. 88-5536, 94-5171.

United States Court of Appeals Eleventh Circuit.

Nov. 14, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Nov. 17, 1994.

Martin J. McClain, Office of the Capital Collateral Representative, Tallahassee, FL, for appellant.

Consiglia Ann Terenzio, Asst. Atty. Gen., West Palm Beach, FL, for appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT, ANDERSON and DUBINA, Circuit Judges.

HATCHETT, Circuit Judge:

Petitioner, Paul William Scott, filed a motion requesting a stay of his execution and, pursuant to Eleventh Circuit Rule 41-1, a recall of the mandate issued in Scott v. Dugger, 891 F.2d 800 (11th Cir.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179 (1990), in which this court affirmed the district court's denial of his Petition for Writ of Habeas Corpus. Scott also filed a motion in the United States District Court for the Southern District of Florida, pursuant to Fed.R.Civ.P. 60(b)(6), seeking relief from that court's 1988 denial of his Petition for Writ of Habeas Corpus. Following the district court's denial of the Rule 60(b)(6) motion, Scott appealed to this court. We construe Scott's Rule 60(b)(6) motion to be in the order of a petition for writ of habeas corpus. For the reasons that follow, we affirm the district court's denial of Scott's Rule 60(b)(6) motion, decline to recall the mandate, deny the petition for certificate of probable cause, and deny the request for a stay of execution.

PROCEDURAL HISTORY

Scott is under sentence of death for the December 1978 murder of James Alessi. ¹ The jury recommended the death penalty and, in accordance with that recommendation, the trial court sentenced Scott to death on December 14, 1979.

On appeal to the Supreme Court of Florida, Scott challenged his convictions and sentence on several grounds. One of the claims attacked the constitutionality of Florida's death penalty statute. None of his claims, however, challenged his specific "heinous, atrocious, or cruel" (HAC) aggravating circumstance instruction. The Supreme Court of Florida rejected all of Scott's claims and affirmed his convictions and sentence. Scott v. State, 411 So.2d 866 (Fla.1982). After exhausting his direct appeals, Scott filed a state habeas corpus petition, an application for leave to file a petition for writ of error coram nobis, and a motion for stay of execution. None of these claims attacked the HAC instruction given at his sentencing proceeding. The Supreme Court of Florida denied all of Scott's motions. Scott v. Wainwright, 433 So.2d 974 (Fla.1983).

The state of Florida scheduled Scott's execution for June 7, 1983. On May 27, 1983, Scott filed a petition for writ of habeas corpus in federal district court. The district court stayed Scott's execution and allowed him to file an amended petition. On June 8, 1983, Scott amended his petition; his petition contained 29 assignments of error. On January 10, 1984, the district court stayed all proceedings and allowed Scott to file his unexhausted claims in state court. Again, none of these claims attacked his trial court's HAC instruction. The Supreme Court of Florida once again denied Scott state habeas corpus relief. Scott v. State, 513 So.2d 653 (Fla.1987).

Scott then returned to federal district court for a final disposition of his claims. He added two more claims to his habeas corpus petition, bringing his total assignments of error to 31. ² One of these 31 claims contended that Florida had failed to establish a consistent framework for the application of the HAC aggravating circumstance. None of the claims, however, specifically attacked the HAC instruction given in Scott's case. The district court rejected all of Scott's claims and denied his petition. Scott v. Dugger, 686 F.Supp. 1488 (S.D.Fla.1988). On the appeal of the district court's denial of his habeas petition, this court issued an opinion affirming the district court's denial of habeas corpus relief. Scott v. Dugger, 891 F.2d 800, 802 (11th Cir.1989). Scott then filed a petition for rehearing, which was denied. Scott v. Dugger, 898 F.2d 160 (11th Cir.1990). The United States Supreme Court subsequently denied his petition for writ of certiorari. Scott v. Dugger, 498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179 (1990).

On October 19, 1990 the Governor of Florida signed a death warrant setting Scott's execution for the week of October 30. On October 23, 1990 Scott's former counsel withdrew and Florida's Office of the Capital Collateral Representative entered an appearance on his behalf. On October 29, 1990, the Supreme Court of Florida entered a stay to allow Scott's new counsel time to file a state habeas corpus petition. Scott filed a state habeas petition on December 18, 1990 alleging seven grounds for relief. None of Scott's claims challenged the trial court's HAC instruction. The Florida Supreme Court affirmed the state trial court's denial of relief. Scott v. Dugger, 634 So.2d 1062 (Fla.1994).

Following an unsuccessful clemency hearing, the Governor signed a death warrant on September 30, 1994, setting an execution date of November 16, 1994. On October 28, 1994, Scott filed an application for a stay of execution and a motion for relief from judgment, pursuant to Fed.R.Civ.P. 60(b)(6), in federal district court. He alleged that this court's recent decision in Glock v. Singletary, 36 F.3d 1014 (11th Cir.1994), constituted intervening new law which demonstrates that our previous decision affirming the district court's denial of his habeas corpus petition was erroneous. On November 2, 1994, while his Rule 60(b) motion was pending in the district court, Scott filed a motion in this court requesting a stay of his execution and, pursuant to Eleventh Circuit Rule 41-1, a recall of the mandate issued in Scott v. Dugger, 891 F.2d 800 (11th Cir.1989).

On November 7, 1994 the district court, rejecting the contention that Glock constituted an intervening change in the law which entitled Scott to relief, denied the Rule 60(b)(6) motion and the request for a stay of execution. The district court, apparently treating the Rule 60(b)(6) motion in the nature of a petition for writ of habeas corpus, then granted a certificate of probable cause allowing Scott to appeal its decision to this court. See Fed.R.App.P. 22(b); 11th Cir.R. 22-1. The district court, however, subsequently entered an order vacating its earlier order granting a certificate of probable cause. Scott moved to strike this order. This court held oral argument on November 10, 1994. ³

CONTENTIONS

The gravamen of Scott's Rule 60(b)(6) motion and his motion to recall the mandate is that our earlier decision in Scott v. Dugger, 891 F.2d 800 (11th Cir.1989), affirming the district court's denial of his petition for writ of habeas corpus, "erroneously found no merit to [his] claim that [Florida's] 'heinous, atrocious or cruel' aggravating circumstance was applied in an overbroad and vague manner when the penalty phase jury did not receive adequate guidance regarding a narrowing construction." ⁴ The intervening decision of the Eleventh Circuit in Glock v. Singletary, 36 F.3d 1014 (11th Cir.1994), demonstrates, according to Scott, that our purported ruling on the "heinous, atrocious or cruel" aggravating (HAC) circumstance "was based upon an error of law."

DISCUSSION

"A mandate once issued shall not be recalled except to prevent injustice." Eleventh Circuit Rule 41-1(b). This court does have the power to recall its mandate if there has been a supervening change in the law. Judkins v. Beech Aircraft Corp., 745 F.2d 1330, 1332 (11th Cir.1984). This change in the law, however, must seriously undermine the correctness of the court's prior judgment. United States v. Holland, 1 F.3d 454, 455 (7th Cir.1993).

A. Motion to Recall the Mandate

Scott asserts that this court, in its earlier opinion, did not address the claim that his sentencing phase jury did not receive an adequate narrowing instruction concerning the HAC aggravating circumstance. If the court had done so, he continues, it would have concluded that his death sentence was based on an unconstitutionally vague jury instruction. Because we believe that an appellate court's failure to reach the merits of a capital defendant's adequately presented, ostensibly meritorious claim would effect a manifest injustice and undermine confidence in the judicial system, our inquiry begins with a review of the nature of Scott's HAC claim in our earlier decision.

Scott framed the issue concerning the HAC circumstance as follows:

WHETHER THE DECISIONS OF THE SUPREME COURT OF FLORIDA INTERPRETING THE AGGRAVATING CIRCUMSTANCE REGARDING CAPITAL FELONIES THAT ARE "ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL" HAVE RENDERED THAT CIRCUMSTANCE UNCONSTITUTIONALLY VAGUE, OVERBROAD, ARBITRARY AND CAPRICIOUS IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES. ⁵

Thus, in the opinion, this court paraphrased Scott's formulation of the issue in the following manner: "whether Florida's aggravating circumstance of "especially heinous, atrocious, or cruel" is unconstitutional." Scott v. Dugger, 891 F.2d at 802. The court devoted a relatively small portion of the opinion to resolving that claim. We stated in pertinent part:

Appellant relies on Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), to argue that, like the Oklahoma version of the especially heinous, atrocious and cruel aggravating capital sentencing factor, the Florida factor has not been limited sufficiently to pass constitutional scrutiny. We previously rejected an identical claim in Harich v. Wainwright, 813 F.2d 1082, 1104 (11th Cir.1987), adopted on this point, Harich v. Dugger, 844 F.2d 1464,...