Shortly after John Louis Evans,
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
811 F.2d 1398
Commissioner, Alabama Department of Corrections;
and J.D. White, Warden, Holman Unit, Respondents-Appellees.,
No. 83-7486, 86-7235
Court of Appeals,
Appeals from the United States
District Court for the Southern District of
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.
Defendant Wayne Eugene
Ritter, along with his accomplice John Louis
was convicted on April 26, 1977 of the murder of
pawn shop operator Edward Nassar. As required by
the then-operative Alabama statute,
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
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
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.
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.
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.").
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.
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
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'
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
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,
and vitiates the need for the remedy which we
Thus, the Supreme Court's decision in Baldwin
properly carries great weight in satisfying the
extraordinary circumstances which require relief
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
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
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
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.
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.
828 F.2d 662
Wayne E. RITTER, Petitioner-Appellant,
Morris THIGPEN, Commissioner, Alabama Department of
Corrections, and Willie Johnson, Warden, Holman
United States Court of Appeals,
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
(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
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
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
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
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
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.
emergency motion for a stay of execution is DENIED.