Opinion · Court of Appeals for the Eleventh Circuit

Jerome Bowden v. Ralph Kemp, Warden

774 F.2d 1494

Type
Opinion
Court
Court of Appeals for the Eleventh Circuit
Jurisdiction
Federal
Date
1985-10-12
Topic
intellectual-property-and-technology

How later courts describe this case

  • holding that a grant of certiorari is not authority to the contrary of binding circuit precedent
  • observing that the law of this Circuit would oblige us to reject a Grigsby claim on its merits — and that “[t]he 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”

Citator

UpLaw has not yet analyzed Jerome Bowden v. Ralph Kemp, Warden. The absence of a flag is not a finding that it is good law.

Cited by
8 opinions
BOWDEN v. KEMP,774 F.2d 1494(11th Cir. 1985)
JEROME BOWDEN, PETITIONER-APPELLANT, v. RALPH KEMP, WARDEN,
RESPONDENT-APPELLEE.
No. 85-8796.
United States Court of Appeals, Eleventh Circuit.
October 12, 1985.
Bruce Steven Harvey. Harvey Jarnigan, Atlanta, Ga., for petitioner-appellant.

Susan Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before TJOFLAT, HILL and FAY, Circuit Judges.
BY THE COURT:
[1] The 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

[2] The petition presents only one issue involved inGrigsby v.Mabry,758 F.2d 226(8th Cir. 1985),cert. grantedsub nom.Lockhart v. McCree,___ U.S. ___,106 S.Ct 59,87L.Ed.2d ___ (1985). In this Circuit, prior to and sinceGrigsby,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), andSmith 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.

[3] Since granting certiorari inGrigsby,the Court has stayed executions inCelestine v. Blackburn,___ U.S. ___,106 S.Ct. 31.87 L.Ed.2d 707(1985). andMoore v. Blackburn,774 F.2d 97(1985). It is asserted that these two stays by the High Court were granted because of theGrigsbyissue involved in each of them the orders granting those stays do not sufficiently advise us of the basis for them.

[4] 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 inGrigsbyis no authority to the contrary; any implications to be drawn therefrom may be discerned by application to the Supreme Court.

[5] The petition for certificate of probable cause is DENIED.

[6] The petition for stay of execution is DENIED.Page 1495