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Wayne Eugene RITTER





Classification: Murderer
Characteristics: 30 armed robberies - 9 kidnapings - 2 extortion schemes
Number of victims: 1
Date of murder: January 5, 1977
Date of arrest: March 7, 1977
Date of birth: January 30, 1954
Victim profile: Edward Nassar (pawnshop owner)
Method of murder: Shooting
Location: Mobile County, Alabama, USA
Status: Executed by electrocution in Alabama on August 28, 1987

The Facts

Shortly after John Louis Evans, III was released on parole from an Indiana prison in 1976, he and Wayne Eugene Ritter, who had been a fellow inmate, embarked on what Evans himself described as a cross-country crime "spree." App. 9. According to Evans' testimony, they committed about 30 armed robberies, 9 kidnapings, and 2 extortion schemes in seven different States during a 2-month period.

Evans testified that on January 5, 1977, he and Ritter entered a pawnshop in Mobile, Ala., intending to rob it. Ritter asked the pawnshop owner, Edward Nassar, to show him a gun. When Nassar handed the gun to Ritter, Evans pulled his own gun and announced that he intended to rob him. Nassar dropped to his hands and knees and crawled toward his office. Evans then shot him in the back, killing him. Nassar's two daughters, aged seven and nine, were in the pawnshop at the time of the murder.

Evans and Ritter were captured by the Federal Bureau of Investigation in Little Rock, Ark., on March 7, 1977. A gun, which was identified by ballistics tests as the weapon used to kill Nassar, was found in their motel room and the gun Nassar showed Ritter at the pawnshop was found in their car. After being fully advised of his constitutional rights, Evans signed a detailed written confession on March 8, 1977, admitting that he shot Nassar in the back.


811 F.2d 1398

Wayne E. Ritter, Petitioner-Appellant,
Fred Smith, Commissioner, Alabama Department of Corrections; and J.D. White, Warden, Holman Unit, Respondents-Appellees.,

No. 83-7486, 86-7235

United States Court of Appeals,
Eleventh Circuit.

February 18, 1987

Appeals from the United States District Court for the Southern District of Alabama.

Before RONEY, Chief Judge: JOHNSON and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

This death penalty case presents a rare set of circumstances involving the state's attempt to reinstate a death sentence following a Supreme Court decision in a related case. The only issues facing us on appeal are procedural in nature, and thus there is no need to discuss the underlying facts of the defendant's crime or his trial.[fn1]


Defendant Wayne Eugene Ritter, along with his accomplice John Louis Evans, III,[fn2] was convicted on April 26, 1977 of the murder of pawn shop operator Edward Nassar. As required by the then-operative Alabama statute,[fn3] the jury that convicted Ritter and Evans returned a mandatory recommendation of a death sentence for each man. The trial judge then heard evidence of aggravating and mitigating circumstances, as was also required by the statute. Following this hearing, the trial judge accepted the jury's verdict and sentenced the defendants to death.

Defendant Ritter's case reached us for the first time as a challenge to the constitutionality of the Alabama statute. In Ritter v. Smith, 726 F.2d 1505, 1516 (11th Cir. 1984), a panel of this court held that the statutory scheme was facially unconstitutional because of its mandatory death sentence component. We ordered the district court to grant a writ of habeas corpus unless Wayne Ritter was given a new sentencing hearing, but stayed the mandate pending review by the Supreme Court. On October 1, 1984, the Supreme Court denied certiorari. Smith v. Ritter, 469 U.S. 869, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984).

This court then issued its mandate instructing the district court to issue the writ of habeas corpus if Alabama did not give Ritter a new sentencing hearing. On December 3, 1984, the district court entered an order making the mandate its judgment, and giving Alabama 180 days to resentence Ritter, i.e., until June 1, 1985.

The circumstances surrounding Ritter's case became more complicated when, just a week later, on December 10, 1984, the Supreme Court of the United States granted certiorari in Baldwin v. Alabama, 469 U.S. 1085, 105 S.Ct. 589, 83 L.Ed.2d 699 (1984). In Ex Parte Baldwin, 456 So.2d 129 (Ala. 1984), the Supreme Court of Alabama, expressly disagreeing with this court's Ritter opinion, had rejected the constitutional challenge to the statute. Baldwin was argued before the United States Supreme Court on March 27, 1985.

The state did not file a Rule 59(e) motion to alter or amend the district court's December 3, 1984 judgment on the basis of the grant of certiorari in Baldwin, nor did it seek a stay of the judgment or file an appeal. However, on April 15, 1985 - within the 180-day period the district court had allowed for resentencing - the state moved in the district court for an extension of the time within which Alabama could resentence Ritter.

The state based its motion on the grant of certiorari in Baldwin and the consequences that a holding against Baldwin would have for Ritter's case. The state's motion noted that a favorable decision in Baldwin might provide a basis for instituting proceedings in the district court or the Eleventh Circuit to modify or recall the mandate. The district court granted the state's motion on April 17, 1985, and extended the time for resentencing Ritter.

The Supreme Court's decision in Baldwin came down on June 17, 1985, holding that the Alabama capital sentencing procedures were not facially unconstitutional. Baldwin v. Alabama, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). The Supreme Court expressly addressed the conflict between this court's Ritter opinion and the Alabama Supreme Court's Baldwin, opinion, and resolved the conflict in favor of the latter, i.e., in favor of the constitutionality of the statute.

No petition for rehearing was filed in Baldwin, and the mandate of the United States Supreme Court issued on July 18, 1985. Less than three weeks later, on August 5, 1985, the state filed a motion in district court to dismiss Ritter's habeas corpus petition, in conformity with the Supreme Court's decision in Baldwin.

On September 9, 1985, the state filed a Rule 60(b)(6) motion for relief from the district court's judgment of December 3, 1984, reiterating and perfecting the reasoning of the state's August 5 motion. On March 5, 1986, the district court entered its order granting the Rule 60(b)(6) motion and setting aside the December 3, 1984 order which conditionally granted the writ. Instead, the March 5, 1986 order denied all habeas relief, following the United States Supreme Court's decision in Baldwin. This March 5, 1986 order is the subject of the present appeal. We affirm.[fn4]


Federal Rule of Civil Procedure 60(b) sets forth possible bases for relief from a judgment or order. Grounds for relief include mistake, newly discovered evidence, and fraud. Rule 60(b)(6) is a catch-all ground: "any other reason justifying relief from the operation of the judgment." Rule 60(b)(6) is an extraordinary remedy, but it is within the district court's discretion to grant it in order to do justice. Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949).

Ritter argues that a supervening change in the law can never present a sufficient basis for Rule 60(b)(6) relief. While the Supreme Court has never squarely addressed this point, our reading of cases from this and other circuits leads us to the opposite conclusion. The Eleventh Circuit has recognized that Rule 60(b) can be used to remedy a mistake in the application of the law. Parks v. U.S. Life & Credit Corp., 677 F.2d 838 (11th Cir. 1982).

Such reasoning was also implicit in our recent decision in Wisecup v. James, 790 F.2d 841 (11th Cir. 1986), where we remanded a case in order to allow the petitioner to file a Rule 60(b) motion on the basis of an intervening Supreme Court decision. See also Corn v. Kemp, 772 F.2d 681 (11th Cir. 1985) (Eleventh Circuit mandate recalled pending disposition of three similar cases which were pending before the en banc court), vacated on other grounds, ___ U.S. ___, 106 S.Ct. 3326, 92 L.Ed.2d 732 (1986); Wilson v. Fenton, 684 F.2d 249, 251 (3d Cir. 1982) ("A decision of the Supreme Court of the United States or a Court of Appeals may provide the extraordinary circumstances for granting a Rule 60(b)(6) motion. . . ."); Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir. 1977) ("[t]he law of this circuit permits a trial judge, in his discretion, to reopen a judgment on the basis of an error of law.").[fn5]

Though the above-mentioned cases plainly allow Rule 60(b)(6) relief where there has been a clear-cut change in the law, it is also clear that a change in the law will not always provide the truly extraordinary circumstances necessary to reopen a case. For example, Ritter relies heavily on the Tenth Circuit case of Collins v. City of Wichita, 254 F.2d 837 (10th Cir. 1958). In Collins, the plaintiffs challenged the constitutionality of a Kansas statute relating to the notice required to be given a landowner in condemnation proceedings. The statute was upheld and after appeal, the judgment became final. One year later, the United States Supreme Court decided an identical case and invalidated the statute. The plaintiffs in Collins then sought Rule 60(b)(6) relief from their judgment.

The Tenth Circuit affirmed the district court's denial of the motion, noting that "Litigation must end some time, and the fact that a court may have made a mistake in the law, when entering judgment, or that there may have been a judicial change in the court's view of the law after its entry, does not justify setting it aside." Id. at 839; see also McKnight v. United States Steel Corp., 726 F.2d 333 (7th Cir. 1984); Seese v. Volkswagenwerk, A.G., 679 F.2d 336 (3d Cir. 1982); Lubben v. Selective Service System Local Board, 453 F.2d 645 (1st Cir. 1972); Title v. United States, 263 F.2d 28 (9th Cir.), cert. denied, 359 U.S. 989, 79 S.Ct. 1118, 3 L.Ed.2d 978 (1959); Berryhill v. United States, 199 F.2d 217 (6th Cir. 1952); Loucke v. United States, 21 F.R.D. 305 (S.D.N.Y. 1957). See generally, Comment, Federal Rule of Civil Procedure 60(b): Standards for Relief from Judgments Due to Changes in Law, 43 U.Chi. L.Rev. 646 (1976).

Our investigation thus leads us to conclude that something more than a "mere" change in the law is necessary to provide the grounds for Rule 60(b)(6) relief. Several factors in this case, in addition to the fact of the change in the law, persuade us that the circumstances are sufficiently extraordinary to warrant relief under Rule 60(b)(6).

A significant factor in this case is the fact that the previous, erroneous judgment of this court had not been executed. When a judgment has been executed a concomitantly greater interest in finality exists. This reasoning explains, in part, the result in Collins. The judgment in Collins was fully executed. The condemnor-city had already entered upon the land and installed pipes and appurtenances. 245 F.2d at 839 n. 2. Moreover, Collins involved vested property rights pertaining to real estate titles. The need for certainty with respect to land titles warrants a great deference to the need for finality of judgments.

Similarly, in Hall v. Warden, 364 F.2d 495 (4th Cir. 1966), the Fourth Circuit concluded that a supervening Supreme Court decision would not be grounds for reopening the court's grant of habeas relief. The Fourth Circuit had determined in Hall's case to apply the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), retroactively.

The Supreme Court held to the contrary in a later, different case. But at the time of the Supreme Court decision the Hall judgment had been executed, i.e., Hall had already been retried in a proceeding which suppressed a confession and resulted in a mistrial. Under these circumstances, the Fourth Circuit placed heavy reliance on the fact that Hall had already been retried and refused to reopen the judgment three years later and reinstate Hall's conviction.

Similar reasoning can be seen when courts must deal with the effect a change in law has on a consent decree or permanent injunction. Such judgments typically have both past effects and future implications. Generally courts have refused to undo the past, executed effects of the judgments, but they have, almost uniformly, recognized that it would be unjust to give prospective effect to a judgment now known to be improper. Thus, they have granted prospective 60(b)(6) relief. See, e.g., Roberts v. St. Regis Paper, 653 F.2d 166 (5th Cir. Unit B 1981) (acknowledging possibility of prospective modification of consent decree in light of change in law); Marshall v. Board of Education, 575 F.2d 417 (3d Cir. 1978) (modifying injunction in light of intervening Supreme Court judgment); cf. Pasedena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976) (allowing modification of continuing injunction as exercise of courts' equitable powers).

The lesson of these cases is clear - mere finality of judgment is not sufficient to thwart Rule 60(b)(6) relief from an unexecuted judgment. If simple finality were sufficient to overcome a Rule 60(b)(6) motion then no such motions would ever be granted. However, once the judgment has been executed and its effects are no longer prospective, modification of the judgment ordinarily will be unavailable. Thus, the fact that the previous judgment of this court, though final, was unexecuted is a significant factor in the extraordinary circumstances favoring relief from the judgment in this case.

Related to the fact that the previous judgment in this case was unexecuted is the fact that there was only minimal delay between the finality of the judgment and the motion for Rule 60(b)(6) relief. It seems clear that time is relevant. The longer the delay the more intrusive is the effort to upset the finality of the judgment. In the instant case, the state's Rule 60(b)(6) motion was filed promptly,[fn6] with only a very brief delay after the time that the judgment became final.

A third factor supporting a finding of extraordinary circumstance is the close relationship between the two cases at issue, Baldwin and Ritter. The Supreme Court granted certiorari in Baldwin for the express purpose of resolving the dispute between these two cases. Thus, the situation before us is identical to that in Tsakonites v. Transpacific Carriers Corp., 322 F.Supp. 722 (S.D.N.Y. 1970).

There, a supervening Supreme Court decision was the basis for granting a Rule 60(b)(6) motion more than five years after the original judgment. As in the present case, the intervening Supreme Court decision was rendered expressly to resolve a conflict between the earlier decision in Tsakonites and another case. Because of this close connection between the two cases, the court found the circumstances sufficiently extraordinary to justify disturbing the finality of the judgment.

An analogous situation arises where the two cases are related, not because the supervening decision was rendered to resolve a conflict between them but because they arose out of the same transaction. Thus, in Pierce v. Cook & Co., 518 F.2d 720 (10th Cir. 1975), cert. denied, 423 U.S. 1079, 96 S.Ct. 866, 47 L.Ed.2d 89 (1976), the court found Rule 60(b)(6) relief appropriate in a situation where the intervening decisional change came in a case arising out of the exact same accident as that in which the Pierce plaintiffs were injured. Pierce distinguished Collins on precisely this ground; unlike Collins, the two relevant cases in Pierce were closely related, thereby creating the extraordinary circumstances necessary for Rule 60(b) relief. Id. at 722-23; cf. Gondeck v. Pan American World Airways, Inc., 382 U.S. 25, 86 S.Ct. 153, 15 L.Ed.2d 21 (1965) (allowing successive petition for rehearing four years after denial of certiorari which erroneously let stand a lower court decision in conflict with Supreme Court precedent).

As was the case in Tsakonites, Baldwin v. Alabama was expressly decided to resolve the conflict between our decision in Ritter v. Smith and the Alabama's Supreme Court's decision in Baldwin. Further, the two cases are related insofar as they concern the constitutionality of the exact same statute. After the Baldwin decision, there can no longer be any doubt that Ritter was constitutionally sentenced the first time. As the district court correctly noted, this case and Baldwin are virtual legal twins. The Supreme Court's decision is directly on point,[fn7] and vitiates the need for the remedy which we granted.[fn8] Thus, the Supreme Court's decision in Baldwin properly carries great weight in satisfying the extraordinary circumstances which require relief from judgment.

Finally, considerations of comity argue for the relief urged by the state. A federal court's grant of a writ of habeas corpus upsets the finality of a state court judgment and is always a serious matter implicating considerations of comity. For this reason, fundamental fairness is the polestar of habeas relief. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984).

In this case, Baldwin has established that Ritter's sentencing was not constitutionally deficient. Baldwin has vitiated the need for the remedy granted by our previous judgment. Rule 60(b)(6) affords us the opportunity to avoid the imposition of the needless remedy. The state has a strong interest in assuring that constitutionally valid state court judgments are not set aside and can be carried out without undue delay.

Evaluating all of the circumstances of this case, we conclude that the circumstances are extraordinary and that relief pursuant to Rule 60(b)(6) is justified.

Ritter suggests several reasons why the foregoing analysis should be rejected. First, he argues that the state's failure to suspend the finality of the judgment caused the district court to lack jurisdiction to enter its April 17, 1985 order extending the period of time for resentencing. We find no merit in this argument. Fed.R.Civ.P. 6(b)(1) gives the district court discretion to enlarge time periods if done prior to the expiration of the original time period.

The district court's December 3, 1984 judgment gave Alabama 180 days to resentence Ritter; thus, the district court's April 17, 1985 order came well within the original time period, and well within the district court's authority under Rule 6(b)(1). Significantly, the extension of time was not inconsistent with this court's mandate, which specified no time frame for resentencing.

Moreover, Standard Oil Co. of California v. United States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976), rejected the proposition "that an appellate court's mandate bars the trial court from later disturbing the judgment entered in accordance with the mandate." Id. at 18, 97 S.Ct. at 31. The Supreme Court held that leave of the appellate court, or recall of the appellate court's mandate, was not a precondition to the authority of a district court to entertain a Rule 60(b) motion such as the one at issue here.

Of course, Rule 60(b) is not a procedural vehicle for an automatic retrial in the district court after an appellate court issues its mandate. The mandate of an appellate court to a district court must be scrupulously adhered to by the district court on remand as the law of the case in all but the most extraordinary of situations. For the reasons previously discussed in this opinion, we conclude that the district court did not err in finding that the particular facts of this case constitute such extraordinary circumstances.

Second, Ritter argues that the state should not be permitted to benefit from Rule 60(b)(6) relief. He argues that the res judicata-habeas corpus relationship is a one-way street; res judicata does not bar habeas corpus relief in favor of prisoners, but, Ritter argues, res judicata does operate and should operate to bar relief in favor of the state. We note that res judicata is not at issue in this case. Although the related doctrine, law of the case, is at issue, Rule 60(b)(6) is an available procedure to circumvent the law of the case. Nothing in the language of the Rule, nor in the case law, suggests that Rule 60(b)(6) relief should be unavailable to a state in habeas corpus proceedings. See Hall v. Alabama, 700 F.2d 1333 (11th Cir.) (entertaining a state's Rule 60(b)(6) motion in a habeas corpus proceeding), cert. denied, 464 U.S. 859, 104 S.Ct. 183, 78 L.Ed.2d 163 (1983).

Were the roles in this case reversed, it is clear that Ritter could have received the benefit of an intervening favorable Supreme Court ruling inconsistent with a decision of our court that had sustained the constitutionality of the statute. We think this factor adds some weight to the circumstances favoring the grant of Rule 60(b)(6) relief to the state.

Third, Ritter argues that the state failed to avail itself of opportunities which it had to suspend the finality of the district court's December 3, 1984 order. If true, this factor would weigh against reopening a final judgment. The RESTATEMENT (SECOND) OF JUDGMENTS 74 (1982) counsels that relief from judgment should be denied if the party was unreasonably dilatory in seeking relief. Ritter argues that the state could have prevented the district court's order from becoming final by filing a Rule 59(e) motion based on the pendency of the Baldwin case.

Certiorari was granted in Baldwin seven days after the district court issued its December 3, 1984 order. There were three days remaining within which a motion could be made to alter or amend the judgment. The state also had twenty-three days to file a notice of appeal. The state sought neither post-judgment relief nor did it appeal and, consequently, the district court's order became final. The state did not begin to seek relief until April 15, 1985, four months later, based on precisely the same information available to it in December - the pendency of Baldwin.

We conclude that the state did not behave unreasonably in failing to seek relief immediately upon the decision to grant certiorari in Baldwin. The mere decision of the Supreme Court to hear the issues presented in Baldwin did not provide a substantive basis for changing the district court's December 3, 1984 judgment implementing our mandate. It is clear that any motion to alter the district court's December 3, 1984 order, or any appeal therefrom, would have been futile; it is well established that the grant of certiorari has no precedential value.[fn9] The Supreme Court's grant of certiorari in Baldwin did, however, provide a basis for seeking an extension of time for the resentencing of Ritter.[fn10]

That extension was sought once the need for it became evident, i.e., when it became clear that the Baldwin decision would not come down prior to the expiration of the 180 days allotted for Ritter's resentencing. Therefore, it cannot be said that the state was dilatory in its actions; it simply declined to file a futile, and unjustified motion for relief. Instead, it made a timely motion for an extension of time for resentencing Ritter, and then filed its Rule 60(b)(6) motion within the extended time and promptly after the Supreme Court's judgment in Baldwin.

Finally, Ritter argues that he was entitled to rely on our judgment and the December 3, 1984 order of the district court granting him a new sentencing hearing. Following the denial of certiorari in Ritter's case, Ritter doubtless felt relieved from his sentence of death. We recognize some force to Ritter's assertion that it is unfair to thereafter reinstate the previously imposed and then vacated death sentence. We are not in the practice of writing decisions merely to raise false hopes, nor do we minimize the importance of Ritter's reliance.

However, Ritter never was fully relieved from the possibility of a death sentence. He knew that the state would again seek the death penalty; he must have expected there was a good chance he would be sentenced to death again. Thus, Ritter's sense of relief was merely temporary; at this point he could only have had the expectation of a delayed decision as to his fate. Consequently, the force of Ritter's reliance on the judgment is diminished, and cannot outweigh the otherwise extraordinary circumstances supporting the reinstitution of the death sentence.

For the foregoing reasons, we affirm the district court's order granting the State's Rule 60(b)(6) motion.



[fn1] These factual details are abundantly set forth in Ritter v. State, 429 So.2d 928 (Ala. 1983), and Ritter v. Smith, 568 F.Supp. 1499, 1502-13 (S.D. Ala. 1983).

[fn2] John Louis Evans, III has since been executed.

[fn3] Ala.Code 13-11-2(a) (1975) (repealed 1981).

[fn4] Appeal No. 86-7235 is the appeal from the district court's March 5, 1986 order, which we affirm. The state had also moved this court to recall our original mandate in No. 83-7486, the original appeal. We consolidated the two, but, in light of our decision in No. 86-7235, the motion to recall is moot.

[fn5] In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209.

[fn6] With respect to the promptness of the state's motion, see discussion in text below.

[fn7] In footnote 8 of the Baldwin opinion, 472 U.S. at 386 n. 8, 105 S.Ct. at 2735 n. 8, the Supreme Court reserved decision on the constitutionality of a death sentence imposed by a judge who actually considered the jury's verdict. At oral argument, counsel for Ritter conceded that there is nothing in the record in this case to distinguish this case from Baldwin in this regard. Our own review of the record confirms this.

[fn8] Any resentencing of Ritter could simply be an unnecessary mirror image of his original sentencing. If the grant of habeas relief is left undisturbed, it would result in a resentencing that could, under Baldwin, properly be done in precisely the same way that it was originally done. To require resentencing under these circumstances would be to exalt form over substance. Only the strongest of reasons, therefore, could justify upsetting the original state judgment.

[fn9] Though the state did not appeal the district court's order, this is not a case like those in which Rule 60(b) relief is sought merely as a substitute for timely appeal. See, e.g., Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950); Parks v. U.S. Life & Credit Corp., 677 F.2d 838 (11th Cir. 1982). The state here did not purposefully or negligently avoid an appellate remedy which was available; on the contrary, it sought the only form of relief possible - an extension of time followed by a Rule 60(b) motion. Neither Ackermann nor Parks require a party to file a groundless appeal merely to preserve their Rule 60(b) rights.

[fn10] Of course, it was not possible to obtain an extension of time for filing a motion to alter or amend the December 3, 1984 order. Fed.R. Civ.P. 6(b).


828 F.2d 662

Wayne E. RITTER, Petitioner-Appellant,
Morris THIGPEN, Commissioner, Alabama Department of
Corrections, and Willie Johnson, Warden, Holman
Unit, Respondents-Appellees.

No. 87-7517.

United States Court of Appeals,
Eleventh Circuit.

Aug. 27, 1987.

Appeal from the United States District Court for the Southern District of Alabama.

Before RONEY, Chief Judge, JOHNSON and ANDERSON, Circuit Judges.


This case comes before the court on a motion for certificate of probable cause to appeal from a denial of Wayne E. Ritter's second petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, in this death penalty case, and to stay the execution presently set for 12:01 a.m., Friday, August 28, 1987.

Petitioner was tried and convicted of capital murder and sentenced to death in 1977 in an Alabama state court. The procedural history of this case has, in part, been set forth in opinions of numerous courts during the review process encompassing a number of years. See, e.g., Ritter v. State, 429 So.2d 928, 931-32 (Ala.1983); Ritter v. Smith, 568 F.Supp. 1499 (S.D.Ala.1983), aff'd in part and rev'd in part, Ritter v. Smith, 726 F.2d 1505 (11th Cir.1984), cert. denied, 469 U.S. 869, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984).

Petitioner filed his first habeas corpus petition and application for stay of execution on May 5, 1983. Following an evidentiary hearing on August 11, 1983, the district court entered judgment denying this habeas corpus petition. Ritter, 568 F.Supp. at 1525. On February 27, 1984, the Eleventh Circuit Court of Appeals affirmed the judgment in all respects, except that it held petitioner was entitled to a new sentencing hearing. That decision was based on the decision that the statute under which petitioner had been sentenced to death was facially unconstitutional. Ritter v. Smith, 726 F.2d 1505 (11th Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984).

Pursuant to the Eleventh Circuit's mandate, the district court issued an order on December 3, 1984 conditionally granting the writ unless the state resentenced petitioner within a reasonable period of time.

Thereafter, and before the state had resentenced Ritter, the Supreme Court granted certiorari in Baldwin v. Alabama, 469 U.S. 1085, 105 S.Ct. 589, 83 L.Ed.2d 699 (1984), on the same facial constitutionality issue upon which the Eleventh Circuit had ordered relief. The Supreme Court ultimately upheld the facial constitutionality of the sentencing statute. Baldwin v. Alabama, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985).

As a result of the Baldwin decision, the district court, on March 5, 1986, granted the State Rule 60(b)(6) relief, set aside its earlier order conditionally granting the writ, and entered an order denying petitioner's May 5, 1983 habeas petition with prejudice. This order was subsequently affirmed by this court. Ritter v. Smith, 811 F.2d 1398 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987).

On June 22, 1987, the state filed a motion in the Alabama Supreme Court asking it to set a new execution date for petitioner, who filed nothing in opposition. On July 7, 1987, the Alabama Supreme Court entered an order setting petitioner's execution for August 28, 1987.

Although petitioner filed nothing in state court since his last certiorari petition was denied by the Supreme Court on June 22, 1987, the state has indicated in its answer to this second federal petition, filed on August 24, 1987, accepted by the district court, that the state waived any exhaustion of state remedies defense and any procedural bar defense it might have. Thompson v. Wainwright, 714 F.2d 1495 (11th Cir.1983), cert. denied, 466 U.S. 962, 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984).

Although the petition was originally filed pro se, the district court appointed two attorneys to represent petitioner. The case was argued in the district court on two issues raised by the petitioner as grounds for habeas relief: (1) that it is unconstitutional to have an element of the crime used a second time and double counted as an "aggravating factor", sometimes called the Lowenfield issue, Lowenfield v. Phelps, 817 F.2d 285 (5th Cir.1987); and (2) ineffective assistance of counsel because counsel yielded to defendant's insistence that the jury not be asked to give a life sentence, rather than a death sentence. The district court concluded that the petitioner was not entitled to habeas corpus relief, that his petition was due to be dismissed with prejudice, and that his motion for a stay of execution was due to be denied.

This appeal followed, all papers filed in the district court were presented to this court, together with appropriate motions and supporting memoranda, and oral argument was heard on August 26, 1987.

I. Lowenfield Issue

Petitioner was convicted of the capital offense of robbery when the victim was intentionally killed, in violation of the Ala. Code Sec. 13A-5-40(a)(2) (1975). At a sentence proceeding conducted without a jury, the trial court found four separate aggravating circumstances.

(a) The court finds that the capital felony was committed by Mr. Ritter while he was under sentence of imprisonment although he was serving the remainder of his sentence on parole at the time;

(b) The court finds that Mr. Ritter has been previously convicted of another felony involving the use or threat of violence to the person; to-wit: the offense of robbery;

(c) The court finds that Mr. Ritter has knowingly on approximately thirty-nine previous occasions created a great risk of death to many persons;

(d) The court finds that the capital felony was committed while Mr. Ritter was an accomplice in the commission of a robbery.

Evans (and Ritter) v. State, 361 So.2d 654, 664-665 (Ala.Cr.App.1977), aff'd, 429 So.2d 928 (Ala.1983). See Ala. Sec. Code 13A-5-49(1)-(4) (1975).

Petitioner claims that the overlap of the fourth statutory aggravating circumstance with the capital offense definition violates constitutional due process. The district court held this claim was barred by the abuse of the writ doctrine, was contrary to binding Eleventh Circuit precedent, and that the Supreme Court's grant of certiorari in Lowenfield v. Phelps, --- U.S. ----, 107 S.Ct. 3227, 97 L.Ed.2d 734 (1987), did not justify a certificate of probable cause or a stay of execution.

Prior to the filing of this habeas corpus petition, petitioner's case had been before the Alabama Court of Criminal Appeals twice, before the Alabama Supreme Court five times, before the United States Supreme Court five times, and before the district court and the Eleventh Circuit Court of Appeals twice each. Petitioner has never before raised any claim concerning the overlap of the capital offense definition with one of the statutory aggravating circumstances.

Petitioner raised ten claims in his 1983 federal habeas corpus petition. See Ritter v. Smith, 568 F.Supp. 1499 (S.D.Ala.1983). In the district court's scheduling order, counsel for petitioner was given time in which to amend his petition to aver each and every ground that he can conceivably think of that can be asserted under the conditions prevailing in this factual situation that are within the law on which to attack the constitutionality of the Alabama death statute or the incarceration of Wayne Ritter, and any proceedings held therein.

If counsel for Mr. Ritter declines to follow the orders and directions of this court in this regard then, by such declination, they will thereby be presumed to have deliberately waived the rights to any such proceedings on any such actions in the future. See Rule 9(b), Rules Governing Cases Brought Under 28 U.S.C. Sec. 2254.

No amendment was filed to raise any additional claims. See Ritter v. Smith, 568 F.Supp. 1499, 1502 (S.D.Ala.1983).

Once abuse of the writ has been pleaded by the state, the burden shifts to the petitioner to prove that his failure to raise the issue in his first petition was not the result of intentional withholding or inexcusable neglect. E.g., Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir.), cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985); In re Shriner, 735 F.2d 1236, 1240 (11th Cir.1984); Jones v. Estelle, 722 F.2d 159, 164 (5th Cir.1983), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984); see Woodard v. Hutchins, 464 U.S. 377, 379 n. 3, 104 S.Ct. 752, 753 n. 3, 78 L.Ed.2d 541 (1984) ("There is no affirmative evidence that the claims were deliberately withheld. But Hutchins has had counsel throughout the various phases of the case, and no explanation has been made as to why they were not raised until the very eve of the execution date.").

The issue was clearly foreseeable because by May 5, 1983, when petitioner filed his first federal habeas petition, the overlap issue had been litigated a number of times in the Alabama courts, and at first the defendants were successful with it. See, e.g., Nelson v. State, 405 So.2d 392, 400 (Ala.Cr.App.1980); Keller v. State, 380 So.2d 926, 936-37 (Ala.Cr.App.1979), cert. denied, 380 So.2d 938 (Ala.1980).

Later, the Alabama Supreme Court and the Court of Criminal Appeals overruled those cases and held that it was not impermissible for a sentencing court to find and consider a statutory aggravating circumstance that overlapped with the capital offense definition in the case. The decision in Tarver v. State, 500 So.2d 1232, 1250 (Ala.Cr.App.), aff'd, 500 So.2d 1256 (Ala.1986), cert. denied, --- U.S. ----, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987), cites eight other cases, arising both under the 1975 statute and the 1981 statute, in which defendants unsuccessfully argued that the overlap of a statutory aggravating circumstance with the capital offense definition was impermissible. To the same effect are Floyd v. State, 486 So.2d 1309, 1315 (Ala.Cr.App.1984), aff'd, 486 So.2d 1321 (Ala.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987), and Ex parte Grayson, 479 So.2d 76, 81 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985). Capital defendants in other states had recognized and raised the overlap issue, with varying degrees of success. E.g., State v. Taylor, 304 N.C. 249, 283 S.E.2d 761, 783-84 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551, 567-68 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980); State v. Goodman, 298 N.C. 1, 257 S.E.2d 569, 584-85 (1979); State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 622 (1979); People v. Kubat, 94 Ill.2d 437, 69 Ill.Dec. 30, 59, 447 N.E.2d 247, 276, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983); State v. Pritchett 621 S.W.2d 127, 140-41 (Tenn.1981); and State v. Monroe 397 So.2d 1258, 1274 n. 6 (La.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1411 (1983). In North Carolina at least, the prohibition against overlap was expressly premised on federal constitutional law grounds. See State v. Brown, 306 N.C. 151, 293 S.E.2d 569, 585-86, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982).

It is, therefore, clear that the overlap issue was a widely recognized issue. The fact that this issue was not raised in the first habeas petition by petitioner's counsel who was well versed in the law pertaining to capital cases means, that the issue was either deliberately withheld, or that the failure to raise it was inexcusable neglect. In either event, abuse of the writ principles apply to bar the claim.

A change in the law which makes a new claim available for the first time after the earlier habeas petition was filed may excuse the failure to raise that claim in the first petition. See, e.g., Moore v. Kemp, 824 F.2d 847 (11th Cir.1987) (en banc).

Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985), and other Eighth Circuit cases that petitioner cites cannot constitute "new law" in this Circuit to excuse petitioner's failure to raise the overlap claim in his 1983 habeas petition. Cases in the Eleventh Circuit, both before and after the Collins decision, clearly held the "overlap" claim does not rise to a constitutional level. See, e.g., Adams v. Wainwright, 709 F.2d 1443 (11th Cir.1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984); Porter v. Wainwright, 805 F.2d 930, 943 n. 15 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 3196, 96 L.Ed.2d 683 (1987). See also Lindsey v. Smith, 820 F.2d 1137, 1153 (11th Cir.1987). The law of the Fifth Circuit is in accord. Moore v. Butler, 819 F.2d 517, 521 (5th Cir.1987) petition for cert. filed (June 8, 1987); Berry v. Phelps, 819 F.2d 511, 516-17 (5th Cir.1987) ("No circuit court has followed the Eighth Circuit decision in Collins, and we have expressly rejected it on several occasions.").

The recent grant of certiorari in Lowenfield v. Phelps, --- U.S. ----, 107 S.Ct. 3227, 97 L.Ed.2d 734 (1987), is not "new law," either. A grant of certiorari does not constitute new law. In Mulligan v. Kemp, 818 F.2d 746, 747-48 (11th Cir.1987), petition for cert. filed (May 15, 1987), this Court explained that the grant of certiorari in another case does not constitute new law for abuse of writ purposes, because "there is no decided case upon which to pass a new law claim." In Tucker (Richard) v. Kemp, 818 F.2d 749, 751 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 2209, 95 L.Ed.2d 863 (1987), the court held that a grant of certiorari in another case involving the same or similar issue does not "sufficiently suggest that the 'new law' relevant to the present case is at hand" for successive petition or abuse of the writ purposes. Accord, Moore v. Blackburn, 806 F.2d 560, 565 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1988, 95 L.Ed.2d 827 (1987).

The Eleventh Circuit pointed out in Tucker (Richard) v. Kemp, 818 F.2d 749, that this is especially true where certiorari has been granted on two issues, only one of which is present in the case at hand. That is the situation here, because certiorari was granted in Lowenfield on two issues, only one of which involved the overlap question. See 107 S.Ct. 3227.

The "ends of justice" do not require that the abuse of the writ be excused under the standard set forth in Moore v. Kemp, 824 F.2d 847 (11th Cir.1987). Whether the "colorable showing of factual innocence" formulation of the four member plurality in Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) is the test, or the test is whether the alleged error precluded the development of true facts or resulted in the admission of false ones on a material question involving the sentence, the result is the same.

Petitioner is a confessed robber-murderer who committed multiple violent felonies in a multi-state crime spree. He not only admitted his guilt, he boasted about it. Instead of asking to be spared, petitioner demanded the death penalty and threatened to harm the jurors if he did not get it.

The overlap of one of the four statutory aggravating circumstances with the capital offense definition did not preclude the development of any true facts or result in the admission of any false facts regarding any sentence questions, whether material or not. The facts concerning the robbery were fully admissible at both the guilt and sentence stages of petitioner's trial, irrespective of whether any of the statutory aggravating circumstances overlap with the capital offense definition.

The denial of relief on the ground of abuse of the writ is due to be affirmed. Although we do not get to the merits of this claim, we have noted above that the law of this circuit is contrary to petitioner's contention. See Adams v. Wainwright, 709 F.2d 1443. We also note that although the Supreme Court granted certiorari in Lowenfield, it has denied a stay of execution in at least two capital cases that alleged the Lowenfield issue. See, e.g., Watson v. Butler, --- U.S. ----, 108 S.Ct. 236, 97 L.Ed.2d ----, (1987); Celestine v. Butler, --- U.S. ----, 108 S.Ct. 6, 97 L.Ed.2d 796 (1987).

In Lowenfield, apparently the only aggravating circumstance was included in the crime definition. 817 F.2d 285. In the other cases, apparently as in this case, there were aggravating circumstances in addition to the one included in the definition of the crime.

II. Ineffective Assistance of Counsel Issue

In his second claim, petitioner argues that his trial attorney's failure to advocate a life sentence during the sentencing phase constituted ineffective assistance of counsel, notwithstanding the fact that petitioner himself had insisted upon this approach.

We conclude that petitioner's failure to raise this claim in his original 1983 habeas petition constitutes an abuse of the writ. Obviously all of the relevant facts were known in 1983. We also reject petitioner's claim that there is no abuse because the issue is a novel legal issue.

The right to effective assistance of counsel, and the duty of counsel to perform in a fully adversarial role has long been well established. We agree with the district court that petitioner's present claim is merely a variation of law that was well established at the time of the 1983 proceedings. The ends of justice can provide no exception in this case to the application of the abuse of the writ doctrine.

The trial attorney could not prevent Ritter from testifying. Ritter's testimony--which admitted all of the relevant facts, evidenced no remorse, affirmatively sought the death penalty, and threatened harm to the jurors should they fail to return a death sentence--would have undermined any defense which the attorney might have presented. Under these circumstances, we are confident that the "ends of justice" concept does not warrant an exception to the abuse doctrine.

III. Conclusion

Although we GRANT the petition to proceed in forma pauperis, since both claims raised by petitioner are barred by the abuse of the writ doctrine, and since this issue would not be debatable among jurists of reason, we conclude the petitioner's application for a certificate of probable cause should be DENIED.

Accordingly, petitioner's emergency motion for a stay of execution is DENIED.



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