Opinion · Court of Appeals for the Eleventh Circuit
Songer v. Wainwright
756 F.2d 800
- Type
- Opinion
- Court
- Court of Appeals for the Eleventh Circuit
- Jurisdiction
- Federal
- Date
- 1985-02-05
- Topic
- general
ORDER (INCLUDING STAY OF EXECUTION) BY THE COURT: A motion to recall the mandate and for stay of execution has been denied by another panel of this court in the case of Songer v. Wainwright, 756 F.2d 799, the case concerning Songer’s first federal habeas petition. A majority of the active qualified judges of the court have voted in favor of en banc rehearing of that motion and an order to that effect has been entered. Before us is Songer’s second federal ha-beas petition. It is our view that this case should be heard by the court en banc along with Hitchcock v.
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- Cited by
- 5 opinions
SONGER v. WAINWRIGHT,756 F.2d 800(11th Cir. 1985)
CARL RAY SONGER, PETITIONER-APPELLANT, v. LOUIE L. WAINWRIGHT, SECRETARY,
FLORIDA DEPARTMENT OF CORRECTIONS, RICHARD DUGGER, SUPERINTENDENT, FLORIDA
STATE PRISON, STARKE, FLORIDA, RESPONDENTS-APPELLEES.
No. 85-3064.
United States Court of Appeals, Eleventh Circuit.
February 5, 1985.
Peggy A. Quince, Asst. Atty. Gen., Tampa, Fla., for respondents-appellees.
Before GODBOLD, Chief Judge, HILL and KRAVITCH, Circuit Judges.
[1] ORDER (INCLUDING STAY OF EXECUTION)
[3] Before us is Songer's second federal habeas petition. It is our view that this case should be heard by the court en banc along withHitchcock v. Wainwright,745 F.2d 1332(11th Cir. 1984). We respectfully request that this be done, and we ask for a poll of the active judges for this purpose.
[4] Our reasons include these: the substantive issue raised in the successive petitionPage 801context is the constitutionality of petitioner's sentencing hearing conducted in 1974. In petitioner's second state 3.850 proceeding, held last week, the presiding judge, who conducted petitioner's 1974 trial and sentencing and his resentencing in 1977, at least implied that in 1974 his opinion of Florida law concerning admissibility of evidence of non-statutory mitigating circumstances was more limited than later required by the Supreme Court of the United States inLockett v. Ohio,438 U.S. 586,98 S.Ct. 2954,57 L.Ed.2d 973(1978). In this second state proceeding the judge premised at least part of his decision to deny relief upon a finding thatLockettwas not retroactive. We are unable to determine whether his decision might be different ifLockettis held retroactive, an issue that may possibly be determined inHitchcock.This information concerning the trial judge was not presented in the first federal habeas case. Moreover, when petitioner was resentenced in 1977, he attempted to introduce non-statutory mitigating evidence, but was not permitted to do so because the trial judge interpreted the remand as limited to theGardner v. Florida,430 U.S. 349,97 S.Ct. 1197,51 L.Ed.2d 393(1977), issue relating to his presentence report. This refusal was reviewed by the Supreme Court of Florida afterLockettwas decided.
[5] In general we are not able to predict the exact contours of any en banc decision that may be rendered inHitchcockon theLockettissue in the case, and the extent, if any, to which this issue might affect this case. Nor can we, as a panel of the court, properly attempt to decide or limit what the court may decide inHitchcock.Without knowing the parameters ofHitchcock,we cannot say with assurance what, if any, issues in this case may fall outside ofHitchcock.
[6] In implementation of the vote of a majority of judges in favor of en banc rehearing on the denial of withdrawal of the mandate and denial of a stay, and on our own authority as the panel to whom the second petition is assigned, we ORDER that a STAY OF EXECUTION IS GRANTED pending the further orders of the Court.