Stephens v. Zant, 79-2407

• Decision Date: 19 September 1983
• Docket Number: No. 79-2407,79-2407
• Citation: 716 F.2d 276
• Parties: Alpha Otis O'Daniel STEPHENS, Petitioner-Appellant. v. Walter ZANT, Superintendent, Respondent-Appellee. . *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 276

716 F.2d 276

Alpha Otis O'Daniel STEPHENS, Petitioner-Appellant. v. Walter ZANT, Superintendent, Respondent-Appellee.

No. 79-2407.

United States Court of Appeals, Fifth Circuit. ^*

Sept. 19, 1983.

James C. Bonner, Jr., Athens, Ga., Richard Erwin Shapiro, New Orleans, La., for plaintiff-appellant.

John C. Boger, Joel Berger, Jack Greenberg, James M. Nabrit, III, Deborah Fins, Anthony G. Amsterdam, New York City, for NAACP Legal Defense and Educational Fund, Inc.

William B. Hill, Jr., Senior Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before RONEY and THOMAS A. CLARK, Circuit Judges, and INGRAHAM, Senior Circuit Judge.

PER CURIAM:

The prior judgment of this Court, which reversed a denial of habeas corpus relief as to the Georgia state death sentence, has been reversed by the United States Supreme Court. Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Upon remand to us from the Supreme Court for further proceedings in conformity with that opinion, we affirm the district court's denial of habeas corpus relief.

Alpha Otis O'Daniel Stephens was convicted of murder in Georgia and was sentenced to death. On direct appeal, the Georgia Supreme Court upheld the conviction and the death sentence. Stephens v State, 237 Ga. 259, 227 S.E.2d 261 (Ga.), cert. denied, 429 U.S. 986, 97 S.Ct. 508, 50 L.Ed.2d 599 (1976). Stephens exhausted his state post-conviction remedies, and then petitioned the federal district court for a writ of habeas corpus, which was denied. On appeal, this Court affirmed as to the conviction but reversed the denial of habeas corpus relief as to the death sentence, and remanded for further proceedings. Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), modified, 648 F.2d 446 (5th Cir.1980). On certiorari, the Supreme Court reversed this Court's decision and remanded the case to this Court for further proceedings consistent with the Supreme Court's opinion.

Considering our prior opinion together with the Supreme Court opinion, we now affirm the district court's denial of Stephens' petition for habeas corpus relief.

In this Court's earlier opinion, however, we stated:

In the brief filed by amicus curiae, NAACP Legal Defense and Educational Fund, the Court's attention is invited to three additional issues: (1) whether the trial judge should have ordered a competency hearing in light of petitioner's conduct at trial; (2) whether petitioner was denied effective assistance of counsel because of counsel's inability to communicate with him; and (3) whether petitioner's uncounseled confession was knowing and voluntary, in view of allegations that it was given while appellant was under the influence of drugs.

631 F.2d at 406-07.

In a "Memorandum of Law on the Judgment to be Entered in this Case," filed by the attorneys who filed the amicus brief and the appellant's attorney, shown as co-counsel for petitioner, Stephans calls to this Court's attention the above portion of the Court's opinion "which remains unaffected by the Supreme Court's recent opinion in his case."

The issues indicated were never considered by the district court. Aside from the question of whether an amicus can properly inject into a case at the appellate level issues which have never been raised by the parties, our cases consistently hold this Court will not even consider issues raised by the parties for the first time on appeal. Cobb v. Wainwright, 666 F.2d 966, 968 n. 1 (5th Cir. Unit B), cert. denied, 457 U.S. 1107, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); Spivey v. Zant, 661 F.2d 464, 477 (5th Cir. Unit B 1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); Miller v. Turner, 658 F.2d 348, 350 (5th Cir. Unit B 1981). The Supreme Court has held that a federal appellate court generally does not consider issues which have not been presented to the district court. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976).

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