Beauford White v. Richard L. Dugger, As Secretary, Department of Corrections, State of Florida, 828 F.2d 10, 11th Cir. (1987)

828 F.
2d 10
Beauford WHITE, Petitioner-Appellant,

v.
Richard L. DUGGER, as Secretary, Department of
Corrections,
State of Florida, Respondent-Appellee.
No. 87-5761.
United States Court of Appeals,

Eleventh Circuit.
Aug. 27, 1987.
Stay Denied and Certorari Denied Aug. 27, 1987.
See 108 S.Ct. 20.
Larry H. Spalding, Capital Collateral Representative, Billy Nollas, Asst.

Cap. Coll. Rep., Tallahassee, Fla., for petitioner-appellant.
Robert A. Butterworth, Atty. Gen., Richard L. Kaplan, Asst. Atty. Gen.,
Richard L. Polin, Miami, Fla., for respondent-appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before HILL, ANDERSON and EDMONDSON, Circuit Judges.
PER CURIAM:
Presently pending in this Court is an application for a Certificate of Probable

Cause to appeal from the Judgment of the District Court of the Southern
District of Florida denying a writ of habeas corpus. The application is denied.
This Petition was filed with this Court on the evening of August 26, 1987,
although as discussed below, the pleadings and supporting materials were
lodged with this Court several days previously.
The current appearances on behalf of Petitioner in both State and Federal Court
are successive, Petitioner having previously sought relief as described in White

v. Wainwright, 632 F.Supp. 1140 (S.D.Fla.1986), aff'd, 809 F.2d 1478 (11th
Cir.1987).
4
This time around, on August 19, 1987 Petitioner initially filed a Petition for a
Writ of Habeas Corpus and a Motion for Stay of Execution with the Supreme
Court of Florida. On August 20, 1987, the Supreme Court of Florida denied the
petition and denied the stay. Petitioner then, on August 21, 1987, filed a motion
pursuant to Florida Rule of Criminal Procedure 3.850 with the Circuit Court of
the Eleventh Judicial Circuit in and for Dade County, Florida, seeking to vacate
the judgment and sentence imposed on him, and he also moved for an
emergency stay of the execution set for 7:00 a.m. on Wednesday, August 26,
1987. By order dated August 22, 1987, Circuit Judge Friedman denied the
petition and denied the application for the stay. Immediately thereafter,
Petitioner appealed the trial court's denial of relief to the Supreme Court of
Florida. By order entered on August 25, 1987, the Florida Supreme Court
affirmed the trial court's denial of relief and stay of execution. The Petitioner
then filed a Petition for Writ of Habeas Corpus accompanied by a motion to
stay execution in the Federal District Court for the Southern District of Florida.
The Honorable Stanley Marcus, United States District Judge for the Southern
District of Florida, held a hearing on the evening of August 25, 1987, in Key
West, Florida. In a carefully reasoned thirty-five page Memorandum Opinion
and Order, Judge Marcus denied the Petition on August 26, 1987.
The "second-round" filings described in the preceding paragraph have taken

place since the current warrant of execution was signed by the Governor of the
State of Florida on June 4, 1987. Under the rules of this Court, our Panel was
assigned to this matter at that time, and has since then received, almost
contemporaneously with their filing, all of the pleadings and supporting
documents filed on behalf of Petitioner in those various courts. Several days
ago, extensive pleadings and supporting documents were lodged with our Clerk
and furnished to the Panel. They constituted the pleadings that would be filed
should the District Court deny relief. While they were not filed until the
evening of August 26, 1987, a relatively short time ago, the Judges on the Panel
have had them for several days and have been reviewing and studying them
since they were lodged. The presentation of Petitioner's claims is extensive and
detailed, and we fail to see that oral argument would add to the presentation of
these claims.
We have now received and have carefully reviewed the Memorandum Opinion
and Order Denying Petition for Writ of Habeas Corpus entered by Judge
Marcus on the evening of August 26, 1987. It addresses each contention
thoroughly and in detail, and comes to the correct result in denying the prayers
of Petitioner. The district judge is to be commended for producing this
impressive order, especially in light of the present circumstances of rigid time
constraints.
7
We agree with the district court that the allegedly suppressed materials were
available to the attorney at the time of the trial and that Detective Derringer's
reference to such information in his testimony at trial put defendant on notice of
the existence of such records. We agree with the district court that White's
failure to raise this issue in his original federal habeas corpus petition
constitutes an abuse of the writ. Although we need not reach the merits of the
issue, the district court's discussion of the merits amply demonstrates that the
"ends of justice doctrine" does not warrant an exception to the abuse doctrine
on this issue.
The claim based on Tison v. Arizona, --- U.S. ----, 107 S.Ct. 1676, 95 L.Ed.2d
127 (1987) was presented in the original federal habeas corpus petition and was
resolved against White on the merits. Accordingly, it is barred by the
successive writ doctrine unless the "ends of justice" warrant an exception. We
agree with the District Court that the "ends of justice" do not indicate
reconsideration of this issue. The district court found "that the Florida Supreme
Court found that White possessed an intent to kill. See White v. Wainwright,
632 F.Supp. 1140, 1157 n. 7." We agree with the district court that Tison sets
forth a standard which is less stringent than the findings previously made in this
case.
We agree with the district court that the jury override claim is barred by the
abuse of the writ doctrine. While we need not reach the merits, it appears to us
that the state-court review of the override was appropriate and constitutionally
adequate. We therefore agree with the district court that the ends of justice do
not merit review of this claim.
10
The other claims raised by White are also barred by the abuse of the writ
doctrine for the reasons discussed by the district court, and those claims
warrant no further discussion here.
11
Having found that White's claims are barred by the abuse/successive writ
doctrine, we also conclude that this result would not be debatable among jurists
of reason. Accordingly, the application for a certificate of probable cause is
DENIED.
12
PRIOR TO ENTERING JUDGMENT, THE DISTRICT COURT ISSUED A

STAY OF THE EXECUTION OF THE SENTENCE OF DEATH UPON
PETITIONER UNTIL 7:00 A.M., EASTERN DAYLIGHT TIME ON
FRIDAY, AUGUST 28, 1987. THAT STAY WAS NOT LIFTED BY THE
DISTRICT COURT JUDGMENT AND WE CONTINUE IT. IF NOT
EXTENDED BY THE UNITED STATES SUPREME COURT, THE STAY
SHALL EXPIRE ACCORDING TO ITS TERMS.
13
Petitioner's motion for emergency stay of execution is DENIED; HOWEVER,

as stated above, we do not vacate the stay hereinbefore entered by the district
court.
14
As we have determined that there is no good reason for oral argument,

Petitioner's motion for oral argument is DENIED.
15
The motion for certificate of probable cause having been DENIED, any other
motions presently pending are DENIED.

Beauford White v. Richard L. Dugger, As Secretary, Department of Corrections, State of Florida, 828 F.2d 10, 11th Cir. (1987)

Uploaded by

Copyright:

Available Formats

Beauford White v. Richard L. Dugger, As Secretary, Department of Corrections, State of Florida, 828 F.2d 10, 11th Cir. (1987)

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Beauford White v. Richard L. Dugger, As Secretary, Department of Corrections, State of Florida, 828 F.2d 10, 11th Cir. (1987)

Uploaded by

Copyright:

Available Formats

828 F.

Beauford WHITE, Petitioner-Appellant,

United States Court of Appeals,

Larry H. Spalding, Capital Collateral Representative, Billy Nollas, Asst.

Presently pending in this Court is an application for a Certificate of Probable

are successive, Petitioner having previously sought relief as described in White

The "second-round" filings described in the preceding paragraph have taken

PRIOR TO ENTERING JUDGMENT, THE DISTRICT COURT ISSUED A

Petitioner's motion for emergency stay of execution is DENIED; HOWEVER,

As we have determined that there is no good reason for oral argument,

You might also like