Tompkins v. Moore

Decision Date29 October 1999
Docket NumberNo. 98-3367,98-3367
Citation193 F.3d 1327
Parties(11th Cir. 1999) Wayne TOMPKINS, Petitioner-Appellant, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted] Appeal from the United States District Court for the Middle District of Florida.(No. 89-1638-CIV-t-21B), Ralph L. Nimmons, Jr., Judge.

Before COX, CARNES and HULL, Circuit Judges.

CARNES, Circuit Judge:

Wayne Tompkins was convicted and sentenced to death for the sexual battery and murder of Lisa DeCarr, age fifteen, who was the daughter of Tompkins' girlfriend. The facts concerning the crime and the evidence against Tompkins are set out in the Florida Supreme Court's decision affirming on direct appeal his conviction and death sentence. See Tompkins v. State, 502 So.2d 415 (Fla.1986). After conducting an evidentiary hearing, the Florida trial court denied Tompkins' motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The Florida Supreme Court affirmed that denial, and it also denied Tompkins' state habeas petition in the same opinion. See Tompkins v. Dugger, 549 So.2d 1370 (Fla.1989).

After exhausting his state remedies, Tompkins filed a petition for federal habeas corpus relief pursuant to 28 U.S.C. 2254. The United States District Court for the Middle District of Florida denied that petition in a thorough, unpublished opinion. See Tompkins v. Singletary, No. 89-1638-CIV-T-21B (M.D. Fla. April 17, 1998). This is Tompkins' appeal from that denial.


After the district court denied his habeas petition, Tompkins filed an application for a certificate permitting him to appeal. Because the federal habeas petition had been filed before the April 24, 1996 effective date of the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), a certificate of probable cause under pre-AEDPA law, instead of a certificate of appealability under post-AEDPA law, see 28 U.S.C. 2253(c), was the proper procedural route for permission to appeal. See Hardwick v. Singletary, 122 F.3d 935 (11th Cir.), modified on rehearing, 126 F.3d 1312 (11th Cir.1997). The district court recognized as much, and it also recognized that in issuing a certificate of probable cause--unlike a certificate of appealability--it need not specify the issues for which the necessary showing to permit the appeal had been made. Nonetheless, the court decided "in view of Petitioner's numerous claims, [to] specify the issues so certified." The court issued a certificate of probable cause only as to two claims in their entirety and parts of two other claims. The remaining 25 or so other claims Tompkins had raised in the district court were left out of the certificate of probable cause.

Tompkins wants us to review the district court's denial of relief as to far more claims than the certificate of probable cause specifies; indeed, he wants review of most of the many claims he raised in his habeas petition. The problem is that Tompkins did not even attempt to broaden the certificate of probable cause to cover all those other claims. He could have filed an application in this Court to do that, but he did not. The reason, Tompkins explains, is that he did not think it was necessary to do so in view of this Court's Hardwick decision.

In the Hardwick case, the district court had mistakenly believed the habeas case before it was governed by AEDPA, including the requirement that a certificate of appealability specify the issues as to which an appeal is being permitted. So, the district court issued a certificate of appealability specifying some but not all of the issues the petitioner wanted to appeal. This Court determined that the case was actually governed by pre-AEDPA law, see Hardwick, 122 F.3d at 936, which included provision for issuance of a certificate of probable cause to appeal that need not--and almost never did--specify the issues as to which an appeal was permitted; certificates of probable cause to appeal were almost always issued as to cases considered as a whole. What we decided to do in that particular instance was to construe the order granting a certificate of appealability as to some but not all issues as a certificate of probable cause as to all the issues and let the whole appeal go forward on that basis. See Hardwick 126 F.3d at 1313. Tompkins says Hardwick controls the present situation.

We do not think so. This is not a case, like Hardwick, where the district court judge was laboring under the mistaken belief that he was required to grant a certificate specifying issues worthy of appeal and was unaware he could grant a general certificate covering the whole case without making an issue-by-issue determination. Judge Nimmons, who presided over this case in the district court, made it clear in his order granting a certificate of probable cause to appeal that he knew exactly what was going on. He said in that order that this was a pre-AEDPA case governed by the certificate of probable cause to appeal rules, and that under those rules he was not required to specify which issues were worthy of being reviewed on appeal. Fully aware that he was not required to specify issues in the certificate of probable cause to appeal, Judge Nimmons nonetheless chose to do so in order to assist this Court and the parties in shaping up the appeal.

It is certainly unusual for a certificate of probable cause to appeal to specify and limit the issues as to which the appeal is being permitted. Indeed, that is one of the differences between the old certificate of probable cause to appeal and the new certificate of appealability provision in AEDPA: the new provision requires specification of issues, see 28 U.S.C. 2255(c)(3). But unusual does not equate with impermissible. On at least two occasions, we have permitted district courts to specify issues covered by certificates of probable cause to appeal, and we have honored the resulting limitation on the scope of the appeal. See Clisby v. Alabama, 52 F.3d 905, 906 (11th Cir.1995); Clark v. Dugger, 901 F.2d 908, 910 (11th Cir.1990). Tompkins points out that both of those decisions involved appeals from the denial of relief in second petition cases, but nothing in either the Clisby or the Clark opinion hints at such a distinction, nor is there any persuasive reason for distinguishing first from second petition cases insofar as certificates of probable cause to appeal are concerned.

But what about the more recent Hardwick case and that panel's decision to treat a mistaken certificate of appealability on fewer than all of the issues as a certificate of probable cause to appeal all the issues? There are two possibilities. One is that Hardwick is distinguishable from Clisby and Clark, and in turn from the present case, on the basis that Hardwick involved mistaken district court action, not action taken with eyes wide open. The second possibility is that Hardwick is not distinguishable from Clisby and Clark on that basis (or any other we can think of), which means that we are duty bound to follow the decisions in the earlier two cases instead of the more recent one in Hardwick. See United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998)(en banc)("[I]t is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.") (quoting United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993)); United States v. Dailey, 24 F.3d 1323, 1327 (11th Cir.1994)("When there is no method for reconciling an intracircuit conflict of authority, the earliest panel opinion resolving the issue in question binds this circuit until the court resolves the issue en banc.")(internal quotation marks and citation omitted). Either way, the Hardwick decision cannot rescue Tompkins from his predicament. The district court issued him a limited certificate of probable cause to appeal, and he failed to apply to this Court to have it broadened.

We would be fully justified in limiting our review to those issues specified in the certificate issued by the district court. The only reason we are not limiting our review in that manner is the Hardwick decision did engender some confusion, and we cannot say Tompkins' reliance upon it was entirely unjustified. So, we will review the issues argued in Tompkins' brief in the same fashion and to the same extent as if the district court had not limited the certificate of probable cause to appeal. We will review all of them.1

But let this opinion serve as clear notice to any other habeas petitioners who have been granted limited certificates of probable cause to appeal. The limitations contained in those certificates will be honored to the same extent that the limitations in certificates of appealability issued in AEDPA-covered cases are. It is not enough simply to file a brief addressing all of the issues for which review is sought. See Murray v. United States, 145 F.3d 1249, 1250-51(11th Cir.1998). Issues not covered in the certificate will not be considered. See id. The only way a habeas petitioner may raise on appeal issues outside those specified by the district court in the certificate is by having the court of appeals expand the certificate to include those issues. See generally Hunter v. United States, 101 F.3d 1565, 1575 (11th Cir.1996)(en banc)("Under the plain language of the rule, an applicant for the writ gets two bites at the appeal certificate apple: one before the district judge, and if that one is unsuccessful, he gets a second one before a circuit judge."). An application to expand the certificate must be filed promptly, well before the opening brief is due. Arguments in a brief addressing issues not covered in the certificate, including any expansion granted by the court of appeals, will not be considered as a...

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