Ford v. Strickland

PER CURIAM:

In Case No. 84-5293 we deny the application for a certificate of probable cause and we deny the application for stay of execution. The single issue raised, i.e., the Barclay issue, requires no discussion.

In Case No. 84-5372, we grant the application for a certificate of probable cause, and we grant the application for a stay of execution, finding that two of the grounds asserted warrant this relief.

First, Ford asserts that he is entitled to a procedural due process hearing to determine whether he is currently insane. If so, this should delay his execution because such could be cruel and unusual punishment and thus proscribed by the Eighth Amendment. Ford has raised a substantial question and we stay his execution so that a panel of this court may answer it. Credible evidence presented by the petitioner indicates that Ford is insane. Two psychiatrists appointed by Florida’s Governor found him psychotic.

The Supreme Court has not yet decided whether infliction of the death penalty upon an insane condemnee is cruel and unusual punishment within the meaning of the Eighth Amendment. See Caritativo v. People of the State of California, 357 U.S. 549, 78 S.Ct. 1263, 2 L.Ed.2d 1531 (1958); Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950); Nobles v. Georgia, 168 U.S. 398, 18 S.Ct. 87, 42 L.Ed. 515 (1897). The Florida Supreme Court in holding that Ford was not entitled to a due process hearing relied upon Solesbee. At the time of Solesbee the United States Supreme Court had not applied the Eighth Amendment to the states through the due process clause of the Fourteenth Amendment. In Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the Supreme Court incorporated the Eighth Amendment right to be free of cruel and unusual punishment to the states. For still another reason, Solesbee seems of dubious support. Since that time, as a result of Furman, the Supreme Court has drastically altered the constitutional framework in which a citizen in this country can be executed.

We believe the district court erred in holding that Ford violated Rule 9(b) of the Rules governing § 2254 cases. The district court dismissed the petition on the ground that the petitioner should have asserted the insanity ground in his prior petition and that he thus abused the writ.

The district court made this ruling without taking any evidence. We then have been caused to review the factual context of Ford’s first petition for. the writ, which was considered in December of 1981 by the district court. Neither the evidence at that hearing, which we have reviewed, nor the district court order reflects that the district court was presented with an issue of Ford’s insanity at that time. The record does reflect that in late'1981 and in 1982, counsel for Ford became apprehensive about his mental state and sought psychiatric examinations for Ford. From December of 1981 until October of 1983, Ford’s case was on appeal to this court and to the United States Supreme Court from the district court’s denial on December 10, 1981, of Ford’s petition for writ of habeas corpus.

Since we find no evidence in the record to suggest that the incompetency issue was available in December of 1981 when Ford’s first petition was filed, we conclude for the *540purpose of staying Ford’s execution that there was no abuse of the writ.

The state argues that Ford should have filed a petition for some type of relief with respect to the insanity issue before filing the petition now under consideration1. However, the state does not explain to us just what Ford should have filed and when. On October 20, 1983, Ford, through his attorneys, sought exhaustion of state remedies pursuant to Florida Statute § 922.07. This was after the mandate issued from this court on October 6, 1983. The Governor did not render a decision with respect to the § 922.07 proceeding until he signed the death warrant.

If Ford had filed a petition for an evidentiary hearing with respect to insanity in the state courts, he would most probably have been met with a ruling that Ford’s sole relief was pursuant to Florida Statute § 922.07. In this very case, the Florida Supreme Court held that “the statutory procedure is now the exclusive procedure for determining competency to be executed.” Ford v. Wainwright, 451 So.2d 471 at 475 Supreme Court of Florida, May 25, 1984. We believe if Ford had filed in the United States District Court for such relief, his petition would have met the same fate.

We conclude that this court’s opinion in Goode v. Wainwright, 731 F.2d 1482 (1984), does not control this case. There, Goode’s claim of incompetency came after he had been twice adjudicated competent in state court proceedings which were affirmed by our court. Thus, there were clear grounds for abuse of the writ in the Goode case because at the time of the filing of the successive petition, Goode had asserted the insanity ground in a prior proceeding.

Because we find that Ford’s petition for relief filed in the district court did not constitute an abuse of the writ and because we believe his claim of privilege not to be executed while insane raises substantial procedural and substantive Eighth and Fourteenth Amendment grounds, we stay the execution on this first issue.

Ford’s second ground for relief is his argument that Florida administers the death penalty arbitrarily and discriminatorily on the basis of the race of the victim, the race of the defendant, and other impermissible factors, in violation of the Eighth and Fourteenth Amendments. The district court rejected this claim as an abuse of the writ.

This issue, in the context of the Georgia death penalty statute, is now pending en banc consideration in this circuit. Spencer v. Zant, 715 F.2d 1562, vacated for rehearing en banc, 715 F.2d 1583 (11th Cir.1983); McCleskey v. Zant, (11th Cir.1984) (oral argument scheduled for June 12, 1984).

As we noted in Adams v. Wainwright, 734 F.2d 511, 512 (11th Cir.1984), “The state of the law with respect to these issues is unsettled.” In chronological order, see Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978) (rejecting argument that the Florida statute was being applied arbitrarily and discriminatorily in violation of the Eighth and Fourteenth Amendments because statistical evidence proffered was insufficient), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); Smith v. Balkcom, 671 F.2d 858 (5th Cir.1982) (denying Eighth and Fourteenth Amendment claims because statistics unreliable, but stating “in some instances circumstantial or statistical evidence of racially disproportionate impact may be so strong that the results permit no other inference but ... racially discriminatory intent or purpose”); Adams v. Wainwright, 709 F.2d 1443 (11th Cir.1983) (same), cert. denied, — U.S. —, *541104 S.Ct. 745, 79 L.Ed.2d 203 (1984); Spencer v. Zant, 715 F.2d 1562, 1578-83 (remanding Eighth and Fourteenth Amendment challenges for evidentiary hearing); Spencer v. Zant, 715 F.2d 1583 (1983) (vacating panel opinion, 715 F.2d 1562, for rehearing en banc); Sullivan v. Wainwright, 721 F.2d 316, 317 (11th Cir.1983) (following Spinkellink and Adams), petition for stay of execution denied, — U.S. -, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983); Stephens v. Kemp, 722 F.2d 627 (11th Cir.1983) (denying petition for rehearing en banc with six judges dissenting); Stephens v. Kemp, — U.S.-, 104 S.Ct. 562, 78 L.Ed.2d 370 (1983) (granting stay of execution pending Eleventh Circuit’s en banc consideration of Spencer); Smith v. Kemp, — U.S. -, 104 S.Ct. 565, 78 L.Ed.2d 732 (1983) (denying petition for rehearing from denial of certiorari); Adams v. Wainwright, 734 F.2d 511 (11th Cir.1984) (granting stay pending en banc consideration of Spencer), vacated without opinion, — U.S. -, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984).

Our effort to faithfully apply the principles enunciated by the Supreme Court is unusually difficult in these cases. Because of time constraints under which these issues invariably arise, both this court and the Supreme Court have found it impossible in some cases to write an opinion providing a rationale for the decision.

We can discern two possible interpretations of the Supreme Court’s recent treatment of this issue: either (1) the Supreme Court sees some significant difference between the contours of the issue as it has been presented in the Florida context, as opposed to the Georgia context, or (2) the procedural posture of cases has been decisive, in that the Supreme Court has declined to entertain this issue when the issue was rejected on the merits in a prior petition.

The State argues with considerable force that the Supreme Court declined to stay the Florida executions in Sullivan and Adams, while granting a stay of the Georgia execution in Stephens, because of some significant (but unstated) difference between Florida and Georgia. Several factors undermine our confidence in the State’s position. First, the position does not satisfactorily account for Smith v. Kemp, — U.S. -, 104 S.Ct. 565, 78 L.Ed.2d 732 (1983), in which the Supreme Court, when presented with this issue, declined to grant a stay of a Georgia execution to reconsider its denial of certiorari. Instead, the Supreme Court’s action in Smith is readily explained by the procedural posture, see infra. Second, no Justice of the Supreme Court and no judge of this court has expressed the view that there is a difference between the issue as presented in Florida, as compared to the issue as presented in Georgia. Third, although pressed at oral argument, counsel for the State could not point to any facet of the evidentiary proffer which might distinguish Florida from Georgia. Finally, our own study of the two proffers (e.g., the Baldus study in Georgia and the Gross and Mauro study in Florida) leaves us unpersuaded that there is a significant difference between them.2

The other possible interpretation of the Supreme Court cases is that the procedural posture has been the distinguishing factor. In both Smith (Georgia) and Adams (Florida), in which stays of execution were de*542nied, the issue was presented in a successive petition after the same claim in the initial petition had been rejected on the merits. Although Stephens, in which the Court granted a stay of execution, involved a second or successive writ, it did not involve an attempt to relitigate an issue which had already been rejected on the merits in a prior writ of habeas corpus. There is a well-established distinction in the case law, see Sanders v. United States, 373 U.S. 1, 15-19, 83 S.Ct. 1068, 1077-1079, 10 L.Ed.2d 148 (1963), between the Stephens posture, in which the rather more difficult abuse of the writ must be shown, and the Smith-Adams posture, in which the writ will be denied unless the “ends of justice” require otherwise.

As might be expected, Ford urges that we adopt this procedural distinction between his case and Adams because Ford, like Stephens, involves a successive writ, which can be barred only by a showing of abuse of the writ. This interpretation, however, must account for Sullivan, in which the Supreme Court declined to disturb this court’s denial of a stay, declining to grant a stay of execution pending the filing of certiorari. Our brother, J. Henderson, places his reliance on Sullivan, and we readily acknowledge, in this uncertain state of the law, a reasonable basis for his position because Sullivan involved a successive writ in the same abuse of the writ posture as this case and Stephens. However, two factors persuade us that Sullivan is not controlling.

The first is that the decision in Sullivan to deny a stay was not a decision on the merits of Sullivan’s constitutional challenge. As we recently noted in Ritter v. Smith, 726 F.2d 1505 at 1511 & nn. 16-17 (11th Cir.1984), denial of a stay pending filing and disposition of a writ of certiorari “imports no more than a decision to deny certiorari, which does not express any views on the merits of the claims presented.” Id. at n. 16 (citing Graves v. Barnes, 405 U.S. 1201, 1204, 92 S.Ct. 752, 754, 30 L.Ed.2d 769 (1972) (Powell, J., in chambers)).

The second and more important factor is that Sullivan was decided before the Eleventh Circuit voted in Spencer to consider this issue en banc and before the Supreme Court granted the stay of execution in Stephens. Sullivan was decided on November 29, 1983. The Spencer issue was voted en banc on December 11, 1983. Also on December 11, 1983, six judges of this court dissented from an order denying en banc rehearing of the panel order denying a stay in Stephens v. Kemp, 722 F.2d 627 (11th Cir.1983) (Godbold, Chief Judge, Johnson, Hatchett, Anderson, and Clark, Circuit Judges, dissenting) (Kravitch, Circuit Judge, dissenting on similar grounds), stating that Stephens presented the same issue that the en banc court would consider in Spencer and that the issue “beyond peradventure ... presents a substantial question in this circuit.” Id. at 628. Thereafter, on December 13, 1983, the Supreme Court in Stephens granted a stay of execution “pending decision of the United States Court of Appeals for the Eleventh Circuit in Spencer v. Zant.” — U.S. -, 104 S.Ct. 562, 78 L.Ed.2d 370 (1983). Thus the Supreme Court in Sullivan was not presented with an argument that the issue was a substantial issue in this circuit because of its pendency en banc,3 an argument which was later apparently accepted in Stephens. We thus conclude that Sullivan is not controlling.

Thus, our best judgment is that the Supreme Court cases do not distinguish Florida from Georgia, but rather teach that we should not be entertaining an attempt to relitigate this issue in a successive petition when the issue has already been rejected on the merits in a prior petition. By contrast, the issue can be entertained in a second habeas petition where there is no abuse of the writ. Stephens.

*543We conclude that Ford’s assertion of his Eighth and Fourteenth Amendment claims was not an abuse of the writ. Just as in Stephens, where the Supreme Court granted a stay, the evidence and legal precedent upon which Ford relies were not available at the time of his first habeas petition. Unlike Adams and Smith, Ford is not seeking to relitigate an issue previously presented and dismissed on the merits.

We have also determined after close scrutiny that Ford presents a claim that in substance is identical to the issues currently under consideration in Spencer and McCleskey, and is the same claim that led to a stay in Stephens. Accordingly, finding in regard to this issue that Ford has presented “substantial grounds upon which relief may be granted,” Barefoot v. Estelle, — U.S. -, -, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090, 1105 (1983), we alternatively grant his application for a stay of execution pending en banc consideration of Spencer.

For the two foregoing reasons, in case number 84-5372, we GRANT the certificate of probable cause and STAY the execution.

. We have found no precedent, and none was cited by the State, holding that it is a per se abuse of the writ to fail to file a second habeas petition while the first petition is still pending. Assuming that the law might and should evolve to impose such a duty, we would not be inclined to do so without the benefit of an evidentiary hearing to give Ford and his counsel an opportunity to explain their actions. Such actions would fall more clearly under Rule 9(a) of the Rules governing § 2254 cases, allowing dismissal of delayed petitions if the State’s ability to respond is impaired. However, the State makes no such argument here.

. Substantive differences between the Baldus study on Georgia and the Gross and Mauro Florida results are not readily apparent. Both studies examined a number of factors potentially influencing the imposition of the penalty under the respective statutes and corrected the deficiencies in methodology and results that characterized studies previously found inadequate to state a claim. Both studies respectively concluded that, all legitimate sentencing variables held constant, in Florida and Georgia: (1) a white victim murder is significantly more likely to result in a death sentence than is a black victim murder, and (2) a black perpetrator is more likely to receive a death sentence. The Gross and Mauro study expressly compared its results to the Baldus results, and found them comparable. Gross & Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, man. pp. 105-110 (October 1983).

. In fact, footnote 3 of the Sullivan opinion reflects the Supreme Court’s then understanding that the issue before the Spencer panel was merely that the district court had not had an opportunity to consider the proffer.