State v. Alley, No. M1991-00019-SC-DPE-PD (TN 12/30/2004), M1991-00019-SC-DPE-PD.
| Decision Date | 30 December 2004 |
| Docket Number | No. M1991-00019-SC-DPE-PD.,M1991-00019-SC-DPE-PD. |
| Parties | STATE OF TENNESSEE, v. SEDLEY ALLEY. |
| Court | Tennessee Supreme Court |
By virtue of the December 14, 2004, decision of the Sixth Circuit vacating the federal district court's entry of a stay of execution, the State moved on that same day that this Court set a new date of execution pursuant to Tenn.Sup.Ct.R. 12.4(E). On December 23, 2004, Alley responded to this motion, contending that this Court lacks authority to set a new execution date; he maintains that the stay issued by the district court remains "in full effect" until the Sixth Circuit issues its mandate. But Alley is incorrect; acceptance of his view would nullify the December 14, 2004, judgment of the Sixth Circuit. And one need only slightly alter the posture of this case to see the folly of Alley's position: if the stay of execution issued by the district court on May 19, 2004, had instead been issued by a panel of the Sixth Circuit, Alley would certainly not have accepted the argument that the panel's stay order was not final, and therefore of no effect, until the court's mandate was issued.
In the Sixth Circuit, the mandate is merely "the document by which [the court] relinquishes jurisdiction and authorizes the originating district court . . . to enforce the judgment of [the court of appeals]." 6 Cir.I.O.P. 41(a).1 It is quite true that, until the mandate issues, the judgment is not final"; the court of appeals retains jurisdiction and may alter or modify the judgment by rehearing or rehearing en banc. But the fact that the court of appeals' judgment is not final until the mandate issues does not mean that the judgment has "no effect" until that time. Indeed, by rule in the Sixth Circuit, "[t]he effect of the granting of a rehearing en banc shall be to vacate the previous opinion and judgment of [the court] . . . ." 6 Cir.R. 35(a) (emphasis added). If the panel opinion and judgment had no effect, as Alley suggests, there would be no need to vacate it before rehearing. Conversely, when rehearing en banc is denied, or only partially granted, the panel opinion remains in effect. See, e.g., Washington Legal Foundation v. Texas Equal Access to Justice Foundation, 293 F.3d 242, 243 (5th Cir. 2002) (); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1159 n.1 (10th Cir. 1999) (); Snyder v. Murray City Corp., 159 F.3d 1227, 1228 (10th Cir. 1998) (same). See also United States v. Carron, 64 F.3d 713, 719 (1st Cir. 1995) ().
Moreover, under the terms of the panel opinion in this case, there is nothing further for the district court to do in order to enforce the Sixth Circuit's judgment. The Sixth Circuit itself stated in its decision: "[T]he entry of the stay of execution is VACATED." Alley v. Bell, ___ F.3d ___, No. 04-5596, slip op., p. 9 (6th Cir. Dec. 14, 2004) (emphasis in original). And the judgment that accompanies that decision likewise provides: "[I]t is ordered that the entry of the stay of execution is VACATED . . . ." (copy attached). The court did not, for example, direct or instruct the district court to vacate the stay. Cf., e.g., Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 418 (6th Cir. 2004) ().2 If it had, Alley would likely have the better of the argument, because the stay could not be vacated until jurisdiction was returned to the district court. But, instead, because the Sixth Circuit itself vacated the stay, the mere fact that the mandate has not yet issued means nothing; once "the panel issued a decision vacating the district court's stay . . . , [Alley became] immediately eligible for execution." Cooey v. Bradshaw, 338 F.3d 615, 617 (6th Cir. 2003) (Gilman, J., concurring) (emphasis in original).3
Of course, to conclude that this Court is not prohibited from setting a new date of execution until the Sixth Circuit's mandate issues and the decision thus becomes "final" does not mean that this Court may not elect to wait for the issuance of the mandate before setting a new date. But the State would urge this Court not to do so. Without a new execution date, Alley has no incentive to act expeditiously in his pursuit of further review of the panel decision, either from the en banc court of appeals, or the Supreme Court.4 And experience shows that, left to proceed in the normal course, it may take upwards of a year, or more, for the Sixth Circuit's mandate to issue.5 But it has already been a year since this Court set Alley's original execution date and nearly seven months since that date passed. Electing the course advocated by Alley, which in all likelihood would entail waiting yet another year for the string of post-judgment appellate proceedings in this case to play out, would serve only to perpetuate the vicious cycle that plagues capital cases — one in which execution dates are repeatedly set, stayed, and delayed, thus leading to endless litigation that frustrates enforcement of this Court's lawful orders. The State's motion to reset the date for execution of petitioner's sentence should be granted.
Respectfully submitted
PAUL G. SUMMERS
Attorney General & Reporter
MICHAEL E. MOORE
Solicitor General
_________________________________
JOSEPH F. WHALEN
Associate Solicitor General
Counsel of Record
425 Fifth Avenue North
Nashville, Tennessee 37243
(615) 741-3499
CERTIFICATE OF SERVICE
I hereby certify...
To continue reading
Request your trial