Steffen v. Tate, 92-3813

• Decision Date: 24 October 1994
• Docket Number: No. 92-3813,92-3813
• Parties: David Joseph STEFFEN, Petitioner-Appellee, v. Arthur TATE, Jr., Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 622

39 F.3d 622

63 USLW 2307

David Joseph STEFFEN, Petitioner-Appellee, v. Arthur TATE, Jr., Warden, Respondent-Appellant.

No. 92-3813.

United States Court of Appeals, Sixth Circuit.

Argued June 29, 1993.

Decided Oct. 24, 1994.

Dale A. Baich (argued and briefed), Public Defender's Office, Ohio Public Defender Com'n, Columbus, OH, for petitioner-appellee.

John J. Gideon (argued and briefed), Paul J. Buser, Office of the Atty. Gen. of Ohio, Columbus, OH, for respondent-appellant.

Before: RYAN and BOGGS, Circuit Judges; and ROSEN, District Judge. ^*

BOGGS, Circuit Judge.

This case arises from the action of the United States District Court for the Southern District of Ohio, in which it issued a stay of execution on a petition by a state prisoner who had been sentenced to death. The prisoner is, and has been for over two years now, ably defended by the Ohio Public Defender. At the time that the petition for a stay of execution was filed with the district court, no petition for a writ of habeas corpus had been filed, and no such petition has been filed yet, more than two years later.

Shortly after the oral argument in this case in June 1993, the United States Supreme Court granted certiorari in the case of McFarland v. Collins, --- U.S. ----, 114 S.Ct. 544, 126 L.Ed.2d 446 (1993) (mem.). That case also involved a stay of execution granted by a federal district court in a case in which no habeas petition was pending. Because of the possibility that definitive guidance would be forthcoming on the legality of a federal court granting a stay of execution when no habeas petition has been filed, we delayed a decision in this case pending the Supreme Court's decision in McFarland.

On June 30, 1994, the Supreme Court rendered its decision in McFarland, holding that a capital defendant may invoke his "right to a counseled federal habeas corpus proceeding by filing a motion requesting the appointment of habeas counsel, and that a district court has jurisdiction to enter a stay of execution where necessary to give effect to that statutory right." --- U.S. ----, ----, 114 S.Ct. 2568, 2574, 129 L.Ed.2d 666 (1994).

The circumstances in our case have almost no relation to the Supreme Court's ground for decision in McFarland. Steffen is not an uncounseled, pro se, prisoner. He is not seeking a stay of execution in order to find counsel or to gain the time to file a habeas petition. Instead, he is seeking the aid of a federal judge, in the absence of any habeas petition, to secure additional time to pursue what he contends are novel and newly available state remedies beyond a direct appeal and a post-conviction proceeding, both of which he has already enjoyed. Under these circumstances, the jurisdiction of the district court has not been properly invoked, and we reverse the decision of the district court that had granted the stay of execution.

I

David Joseph Steffen was sentenced to death in 1983 for the aggravated murder of Karen Range in 1982. His case was affirmed on direct appeal by the First District Court of Appeals, State v. Steffen, Ham. C.A. No. C-830445, 1985 WL 4301 (1985), and by the Ohio Supreme Court, State v. Steffen, 31 Ohio St.3d 111, 509 N.E.2d 383 (1987). The United States Supreme Court denied certiorari. Steffen v. Ohio, 485 U.S. 916, 108 S.Ct. 1089, 99 L.Ed.2d 250 (1988).

Steffen then filed a state post-conviction petition in 1989, which was denied. State v. Steffen, No. B-824004 (Ham. C.P. July 18, 1990). This denial was not disturbed by the Court of Appeals, State v. Steffen, No. C-900596, 1991 WL 149559 (Ham. Ct.App. Aug. 7, 1991), nor by the Ohio Supreme Court, State v. Steffen, 62 Ohio St.3d 1494, 583 N.E.2d 966, reh'g denied, 63 Ohio St.3d 1407, 585 N.E.2d 428 (1992). A writ of certiorari from this denial was not sought.

Instead, Steffen changed counsel to the Ohio Public Defender, who began a series of maneuvers premised on the theory that the Ohio Supreme Court, in a decision issued February 19, 1992, the very same day that it denied rehearing of its prior decision that had denied leave to appeal in Steffen's own post-conviction case, had created a completely new procedure for yet another round of reconsideration in a case such as this. See State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992) ("Claims of ineffective assistance of appellate counsel may be raised in an application for reconsideration in the court of appeals or in a direct appeal to the Supreme Court...." Id. at Syllabus p 2.).

He also sought a stay of the pending execution date, which the Ohio Supreme Court itself had set, 63 Ohio St.3d 1429, 588 N.E.2d 129 (1992), in order to pursue what he perceived to be this additional state remedy. The Ohio Supreme Court was not impressed by this argument, and refused to stay the execution. State v. Steffen, 64 Ohio St.3d 1411, 593 N.E.2d 2 (1992). Steffen's Murnahan motion for reconsideration in the Ohio Court of Appeals was ultimately rejected (No. C-830445), and the Ohio Supreme Court affirmed, without opinion. 67 Ohio St.3d 1500, 622 N.E.2d 649, reh'g denied, 68 Ohio St.3d 1418, 624 N.E.2d 192 (1993).

Steffen could have filed a petition for writ of habeas corpus in federal court, in which he might have raised some or all of the 28 assignments of error that his previous counsel had raised on direct appeal in the state appellate court, or the 23 questions raised by counsel in the Ohio Supreme Court, or the 27 issues raised by counsel in his post-conviction petition, all of which issues had been known to petitioner and his counsel for between three and nine years. Instead, he sought, and ultimately received, a stay of execution in the United States District Court for the Southern District of Ohio. This stay was not premised on giving Steffen time to find legal counsel, nor even on giving time for counsel to prepare a habeas petition. Instead, the court granted an indefinite stay for such time as Steffen was pursuing what he contended were further state court remedies. Steffen v. Tate, No. C-1-92-495, 1992 WL 195422 (S.D. Ohio June 18, 1992).

II

Under the relevant statutes, the United States District Court was without jurisdiction to issue a stay of execution. Two suggested grounds were ruled on by the district court: the All Writs Act, 28 U.S.C. Sec. 1651, and the habeas corpus statute, 28 U.S.C. Sec. 2251. We find neither ground sufficient.

The Supreme Court, in McFarland, did not rest directly on either of these grounds. Rather, it rested on the unusual facts of that case, in which a truly unrepresented prisoner sought a stay of execution to permit him to obtain counsel who could prepare a competent petition for a writ of habeas corpus.

The concern that was presented and addressed in that case, and it was a reasonable concern, is that traditionally the writ of habeas corpus may not be abused by presenting piecemeal claims. This common law tradition has been strengthened by Supreme Court decisions in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), and Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Thus, a pro se prisoner understandably may be reluctant to file a skeletal or unlearned petition for habeas, for fear that it will prejudice a later petition prepared by skilled counsel. As will be shown below, the circumstances in the present case bear no relation to those concerns. As counsel candidly conceded at oral argument, counsel for a death-sentenced criminal never wishes to file a habeas corpus petition unless that is the last-ditch way to avoid an actual execution, when the prisoner is more concerned with avoiding execution than with receiving a final adjudication of his claims. Since there is only one significant bite at the apple of federal habeas, and since that procedure must almost always be completed before an execution can be carried out, the filing of a habeas petition is a powerful card in the hand of the defendant, but it is a card that can only be played once. Therefore, it is almost always in the interest of a death-sentenced prisoner to delay filing that petition as long as possible.

Under McFarland, however, this tactical consideration is not a reason for overriding the normal reading of the jurisdictional statutes. McFarland only concerned a situation where a habeas proceeding can be said to be commenced by a request for counsel by a pro se prisoner. There is no indication in the opinion that the Court's reading of the statute applies to the case of a well-counseled prisoner whose counsel, for technically admirable, though dilatory, reasons, wishes to obtain both the security of a stay of execution from a federal court while simultaneously reserving, rather than exercising and thus exhausting, his right to federal court review by petitioning for a writ of habeas corpus.

III

Steffen contends that the district court's action was justified by the general grant of authority in the All Writs Act, 28 U.S.C. Sec. 1651(a) ("courts ... may issue all writs necessary and appropriate in aid of their respective jurisdictions...."). This argument has a superficial appeal, in that an executed prisoner can never in the future invoke the jurisdiction of the federal court. However, there is no authority that this broad section can be used to halt all state proceedings, pending some future hypothetical application for federal jurisdiction over a matter. Thus, as the Supreme Court stated in Vendo Company v. Lektro-Vend Corp., 433 U.S. 623, 642, 97 S.Ct. 2881, 2893, 53 L.Ed.2d 1009 (1977), "No case of this Court has ever held that an injunction to 'preserve' a case or controversy fits within the ... exception." This is even more true when other federal statutes, particularly 28 U.S.C. Sec. 2251, provide specific authority and methods for the staying of state proceedings.

The broad logic that petitioners would apply to the All Writs Act, that of simply preserving some future jurisdiction, could permit similar...