Public-domain · open source
OpenJurist

774 F.2d 1494

Docket No. 85-8796.

Bowden v. Kemp

Eleventh Circuit Court of Appeals

Decided Oct. 12, 1985.

Eleventh Circuit Court of Appeals · decided 1985-10-12

Cited by 12 later decisions — most recently November 2007

11 federal appellate ·

2 counsel of record

Key passage — most relied on by later courts

“Under the precedent binding us in this Circuit, the District Judge’s dismissal of the successive petition is correct and the petitions for certificate of probable cause and stay of execution are without merit. Were we to grant CPC and reach the merits of the proposed appeal on consideration of the petition for stay of execution, see Barefoot v. Estelle, [ 463 U.S. 880 , 103 S.Ct. 3383 ] 77 L.Ed.2d 1090 (1983), we should be bound to affirm the district court. The grant of the writ of certiorari in Grigs-by is no authority to the contrary; any implications to be drawn therefrom may be discerned by application to the Supreme Court.”

quoted by 1 later decision, including Thomas v. Wainwright

“[A]ny implications to be drawn [from a grant of certiorari in another case] may be discerned by application to the Supreme Court.”

quoted by 1 later decision, including Rutherford v. Crosby

Relies on Barefoot v. Estelle · Bailey v. Butcher · Tison v. Arizona

Good law ✅— No negative treatment on recordhow we know

Decided 1985-10-12

View the full empirical analysis of this case →

¶1Bruce Steven Harvey, Harvey & Jarni-gan, Atlanta, Ga., for petitioner-appellant.

¶2Susan Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

¶3Before TJOFLAT, HILL and FAY, Circuit Judges.

¶4BY THE COURT:

¶5The United States District Court for the Middle District of Georgia has dismissed petitioner’s successive petition for the writ of habeas corpus and denied petitioner a certificate of probable cause to appeal. Presently pending is his petition for a certificate of probable cause and for his stay of execution pending appeal.

¶6The petition presents only one issue involved in Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985), cert. granted sub nom. Lockhart v. McCree, — U.S. —, 106 S.Ct. 59, 87 L.Ed.2d — (1985). In this Circuit, prior to and since Grigsby, we have rejected that contention. See Jenkins v. Wainwright, 763 F.2d 1390 (11th Cir.1985), Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985), and Smith v. Balkcom, 660 F.2d 573, 575-84, (5th Cir. Unit B 1981), modified, 671 F.2d 858 (5th Cir. Unit B 1981), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148.

¶7Since granting certiorari in Grigsby, the Court has stayed executions in Celestine v. Blackburn, — U.S. —, 106 S.Ct. 31, 87 L.Ed.2d 707(1985), and Moore v. Blackburn, 774 F.2d 97 (1985). It is asserted that these two stays by the High Court were granted because of the Grigsby issue involved in each of them; the orders granting those stays do not sufficiently advise us of the basis for them.

¶8Under the precedent binding us in this Circuit, the District Judge’s dismissal of the successive petition is correct and the petitions for certificate of probable cause and stay of execution are without merit. Were we to grant CPC and reach the merits of the proposed appeal on consideration of the petition for stay of execution, See Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), we should be bound to affirm the district court. The grant of the writ of certiorari in Grigsby is no authority to the contrary; any implications to be drawn therefrom may be discerned by application to the Supreme Court.

¶9The petition for certificate of probable cause is DENIED.

¶10The petition for stay of execution is DENIED.

/774/f2d/1494 · .json · Public domain