Smith v. Balkcom
| Decision Date | 10 May 1982 |
| Docket Number | No. 81-7043,81-7043 |
| Citation | 677 F.2d 20 |
| Parties | John Eldon SMITH, or Anthony Isalldo Machetti, Petitioner-Appellant, v. Charles BALKCOM, Warden, Georgia State Prison, Respondent-Appellee. . Unit B * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert C. Glustrom, Decatur, Ga., John Charles Boger, New York City, Anthony G. Amsterdam, Stanford Univ. Law School, Stanford, Cal., Samuel R. Gross, New Haven, Conn., for petitioner-appellant.
Susan V. Boleyn, Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before HILL, Circuit Judge, SMITH **, Judge, and HENDERSON, Circuit Judge.
Post-conviction litigation in cases involving the death penalty is, apparently, conducted by counsel for the condemned and for the State in such fashion that emergency motions for extraordinary, last minute relief are the order of the day. If there be no emergency, it appears that counsel will work together to create one, lest orderly court processes be substituted for "eleventh hour" emergencies.
This case is no exception.
On March 29, 1982, this court, 671 F.2d 858 (5th Cir.), issued its order on rehearing fully affirming the denial, by the district court, of petitioner-appellant's application for writ of habeas corpus. At that time, an application to this court for a stay of the issuance of its mandate could have been processed and decided orderly. Our clerk held the mandate for seven days in anticipation of the filing of such an application, but none was filed.
The mandate issued. The case was affirmed.
Thereafter, in a hearing before the district court on the question of stay, it was made to appear that there was nothing to stay. No date for appellant's execution had been set. All that remained to be done was for appellant's counsel to proceed with a petition to the Supreme Court for review. To create an emergency, it would be necessary that the Georgia Superior Court set a new execution date.
So, on April 29, 1982, well within the time available to appellant for filing with the Supreme Court, counsel for the State appeared before the Honorable C. Cloud Morgan, Judge of the Superior Courts, Macon Judicial Circuit, and obtained an order setting the execution for May 18, 1982. Thus did counsel for the State destroy any defense they may have had, on mootness grounds, to an application for stay. Whereas there had been nothing to stay, their efforts created something.
Thus it is that the matter is, again, before us. In a pleading ominously captioned, "Capital Case Execution is Imminent," appellant's attorneys petition us, first, to recall the mandate which, by design or oversight, they did not request us to withhold in the first instance, and, second, to stay the execution which had not been...
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