Cave v. Singletary

                    United States Court of Appeals,

                           Eleventh Circuit.

                              No. 94-3397.

                  Alphonso CAVE, Petitioner-Appellant,

                                   v.

           Harry K. SINGLETARY, Jr., Respondent-Appellee.

                             May 22, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 88-977-Civ-T-25B), Henry Lee Adams, Jr.,
Judge.

Before KRAVITCH, HATCHETT and ANDERSON, Circuit Judges.

     PER CURIAM:

     Alphonso Cave appeals the district court's denial of his

motion for enforcement of the writ of habeas corpus previously

issued by the court.       Cave argues that the district court was

clearly erroneous in its determination that his attorney agreed to

postpone the date for resentencing beyond the time period set forth

in the district court's prior order granting the writ.         He also

argues that the district court erred in its conclusion that the

prior order permitted postponement by consent of the parties.       We

affirm.

                             I. BACKGROUND

     In 1982 Cave was convicted of first degree murder, armed

robbery,    and     kidnapping.     Consistent    with   the    jury's

recommendation, the trial judge sentenced Cave to death.           The

Florida Supreme Court affirmed.         Cave v. State, 

476 So.2d 180

(Fla.1985), cert. denied, 

476 U.S. 1178

, 

106 S.Ct. 2907

, 

90 L.Ed.2d 993

 (1986).   Cave's petition for state post-conviction relief was
denied and the Florida Supreme Court affirmed.   Cave v. State, 

529 So.2d 293

 (Fla.1988).

     Cave then filed his first petition for a writ of habeas corpus

under 

28 U.S.C.A. § 2254

, which was granted in part by the district

court.   The district court held that Cave received ineffective

assistance of counsel in both the guilt and sentencing phases of

his capital trial, but that he suffered prejudice at only the

sentencing phase.   See Cave v. Singletary, 

971 F.2d 1513, 1520-30

(11th Cir.1992) (appendix).   Accordingly, the court vacated Cave's

death sentence and ordered the state to resentence him.          The

district court's order forms the basis of the present dispute.    In

this order, issued on August 3, 1990, the district court stated, in

relevant part:

     Petitioner's petition for habeas corpus relief is granted as
     to Petitioner's claim of ineffective assistance of counsel
     during the sentencing phase of his trial.     Respondent the
     State of Florida is directed to schedule a new sentencing
     proceeding at which Petitioner may present evidence to a jury
     on or before 90 days from the date of this Order.        Upon
     failure of the Respondent to hold a new sentencing hearing
     within said 90 day period without an order from this Court
     extending said time for good cause, the sentence of death
     imposed on the Petitioner will be vacated and the Petitioner
     sentenced to life imprisonment.

Id. at 1530

.   On August 13, 1990, Respondent filed a timely motion

to alter or amend judgment and a motion to stay further proceedings

pending reconsideration and appeal.    On September 25, 1990, the

district court granted Respondent's motion to stay proceedings

pending appeal and denied Respondent's motion to alter or amend.

We affirmed, 

id. at 1520

,1 and our mandate issued on September 17,

     1
      We affirmed the district court's conclusion that Cave had
received ineffective assistance of counsel at both phases of his
capital trial, but that he had only suffered prejudice at the
1992.

      On October 20, 1992, the Honorable Thomas Walsh was designated

as an acting circuit judge in Martin County, Florida, to preside

over Cave's resentencing, and the public defender's office was

appointed to represent Cave. On October 22, 1992, Judge Walsh held

a    status    conference   at   which    a   date   for     resentencing     was

established.      After soliciting preliminary information from Mr.

Phil Yacucci, the assistant public defender representing Cave, as

to   whether    his   office   would   have   a   conflict    of   interest    in

representing Cave, the following colloquy took place:

           THE COURT: Okay. Alright, Judge Cianca has appointed
      your office to represent Mr. Cave [and] until further notice
      that's the way we're going to have it. I'm here to set this
      case for trial within the mandated time period.       I'd be
      asking—a couple of things are going to happen. First, I'm
      going to set this case for trial Monday morning—I'm sorry,
      Monday afternoon commencing at 1:30 on November 30.       Mr.
      Barlow [the prosecutor], I'm going to need an order from you
      ... to transport [Cave] back here as soon as possible....

              MR. BARLOW:   Yes, Judge.

           THE COURT: As soon as he gets back here, Mr. Yacucci, I
      need you to sit down and talk with [Cave]. Review whatever
      you've got in your office if anything even exists as to this
      case at this time period. In the initial conversations with
      your client I want to know number one whether you are going to
      be ready for trial by November 30th. I need to know that as
      soon as possible so that we can coordinate. And I know that
      that is not a realistic time period and I know that you are
      coming into this brand new, but we're going to set it within
      the mandated time period and after speaking with your client
      if you need more time I'm going to give you a second date. I
      can give you three weeks on April 26th, which is Monday, and
      go on from there. I can give you two weeks on February 1st,
      and I'm not even sure if that's going to be enough time.

           MR. YACUCCI: Judge, I would of course—will be appearing
      on November 30. I anticipate if the public defender's office

penalty phase. 

Id. at 1519-20

. The parties did not raise and we
did not address the portion of the district court's order at
issue in this appeal.
represents him that it will be at least until April seeing
that this was a death case. I have a call into the prior
public defender who represented Mr. Cave. I will confer with
him.   I will also check all the records that exist in my
office to see whether there is a conflict and if there is, if
it is a continuing conflict, if it was just for the guilt
phase whether it would continue into the penalty phase that
we're at now and we wouldn't have to re-try the guilt, just
the penalty phase. So all of those questions we just don't
have the answers to now. I will talk to Mr. Cave as soon as
he gets back and we will have those answers on November 30th.

     THE COURT: Okay, well     I'd hoped to have those answers
long before November 30th.    Once we get him back here then I
would like to be notified     after he gets back here by—Mr.
Barlow, you'll kind of know   when he comes back, right?

     MR. BARLOW:  I will, Judge.  I'll ask the sheriff's
department to give me a call as soon as he hits the jail
doors.

     THE COURT: Alright, and if you'll notify me then I'll
look at my calendar, have my judicial assistant call both of
you all, and we'll set another hearing after you've had five
or six days with him.

     MR. YACUCCI:   Fine.

     THE COURT: And you'll have five or six days before he
even gets here to find out about whether there is or is not a
conflict.

     MR. YACUCCI:   We'll find that out.

     THE COURT: And then we'll set any pending motions and
let's get that part resolved as soon as possible, talk to him
about whether he wants to try this case as expeditiously as
possible, or if he wants to give you an opportunity to prepare
for this. And we'll go from there. Other than transporting
him today, getting the public defender appointed, and setting
this case for trial, is there anything else we need to do at
this time? Mr. Barlow—

     MR. BARLOW:   No, Judge, those were the issues that I
outlined to the court administrator.

     THE COURT:   Mr. Yacucci?

     MR. YACUCCI:   No, Your Honor, I think that's it.

     THE COURT:   Okay, we'll be in recess on this one.

On November 17, 1992, Yacucci filed a motion to continue
resentencing and the court set a new date of April 26, 1993.

Yacucci stated in this motion that he needed additional time to

investigate a ten-year old conflict which may have existed when

Cave first went to trial.    Further, Yacucci stated that he needed

"at least until April, 1993 in order to secure and review trial

transcripts, depositions and statements as well as to undertake a

complete   penalty   phase   background   investigation   which   was

apparently never done by Defendant's trial counsel in 1982...."

Thereafter, upon motion by Yacucci to withdraw due to a continued

conflict of interest, the court appointed a different attorney to

represent Cave.

     On April 6, 1993, Cave's new counsel moved for imposition of

a life sentence for failure to comply with the 90-day time limit

imposed by the district court's order.        The state trial court

denied the motion and thereafter conducted a resentencing hearing

at which Cave was again sentenced to death.   On September 21, 1993,

the Florida Supreme Court vacated Cave's second death sentence and

remanded the case for a new sentencing hearing before a different

state trial judge.     Cave v. State of Florida,     

660 So.2d 705

(Fla.1995).2
     Meanwhile, on August 19, 1993, Cave filed a motion requesting

that the district court enforce its order granting the writ.3     Upon

consideration of the transcript of the October 22, 1992, status


     2
      The Florida Supreme Court vacated Cave's sentence on the
grounds that Judge Walsh improperly decided a motion for his own
disqualification from the case.
     3
      He filed this motion immediately after the state court
denied his motion to enforce the 90-day limitation period.
conference, the state trial court's ruling rejecting Cave's motion

for imposition of a life sentence, and its own prior order, the

district court denied Cave's motion.4    Specifically, it found, in

relevant part:

          The State Court timely commenced the re-sentencing
     proceedings on October 22, 1992 (Dkt. # 72). Upon agreement
     of the parties the trial date was set for November 30, 1992.
     Upon the request of Petitioner's counsel, the trial was
     continued until April 1993. Moreover, the record shows that
     following several other delays either caused or consented to
     by the Petitioner, an Order re-sentencing the Petitioner was
     entered on June 25, 1993.

         Accordingly, the court held that "the re-sentencing of the

Petitioner complied with this Court's order...."       This appeal

ensued.5

     4
      Although the same district court adjudicated Cave's motion
for enforcement of the writ, a different district court judge
presided over the matter.
     5
      In its brief, the State contends that Cave has failed to
exhaust the issue of the effect of the habeas order in state
court and therefore that he is precluded from seeking federal
habeas relief based on this order. See 

28 U.S.C.A. § 2254

(b)
("An application for a writ of habeas corpus ... shall not be
granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State...."); see
generally Rose v. Lundy, 

455 U.S. 509

, 

102 S.Ct. 1198

, 

71 L.Ed.2d 379

 (1982) (discussing exhaustion doctrine).

          Subsequent to the filing of the State's brief in this
     case, the Florida Supreme Court handed down its decision
     vacating Cave's second death sentence based on procedural
     flaws in the state trial judge's handling of a motion for
     his own disqualification. In this opinion, the Florida
     Supreme Court noted, but did not address, Cave's claim that
     the district court's habeas order mandated imposition of a
     life sentence. By remanding for resentencing on the
     disqualification motion issue, however, the Florida Supreme
     Court implicitly rejected Cave's habeas order claim:
     resentencing would have been moot if Cave's argument that he
     was entitled to a life sentence were valid. Therefore, even
     if Cave's claim regarding enforcement of the original habeas
     order had not been exhausted at the time his second habeas
     petition was filed in the court, it is certainly exhausted
     now that the Florida Supreme Court has rejected it. Cave
                                  II. DISCUSSION

     Cave argues that the district court's factual finding of an

agreement between the parties to set the resentencing date beyond

the 90-day time limit is clearly erroneous.             He contends that the

state judge set the date for November 30 under the erroneous

assumption that this date was within the 90-day period.                      The

transcript of the October 22 status conference, according to Cave,

does not indicate that Yacucci agreed to a specific date for the

trial,    but    rather,   that    he   merely   acquiesced   in   the   court's

determination.

         We disagree.      The district court's findings of fact with

respect to the status conference are not clearly erroneous.                 As a

preliminary matter, we note that under a calculation of time most

favorable to Cave, the 90-day time period contemplated by the

district court's August 3, 1990, order would not have expired as of

the October 22 status conference.6           The fact that this hearing was

held within the 90-day period does not alone satisfy the terms of

the district court's order.             The critical issue is whether the

parties agreed at the October 22 status conference to a particular

resentencing date.

         The district court's conclusion that an initial agreement was

reached     at   the   October    22    status   conference   is   not   clearly

erroneous.       A fair reading of the transcript from the status


     has available no further state remedies with respect to this
     claim, and it is ripe for federal habeas review.
     6
      In light of our resolution, we need not address the
calculation of the 90-day time frame which is addressed by the
dissent and disputed by the parties.
conference reveals an implicit agreement that resentencing would

take place on November 30, 1992. Judge Walsh displayed appropriate

concern that the sentencing proceedings commence within the 90-day

period imposed by the district court.               Judge Walsh explicitly

offered Yacucci the opportunity to expedite resentencing if he

desired.      The significant fact is that all parties at the October

22   status    conference   concurred    in   the   decision    to   hold    the

resentencing     hearing    on   November   30   unless   counsel    for    Cave

requested a further extension.        Our conclusion that there was such

an agreement7 derives strong support from the fact that the parties

at the October 22 status conference explicitly noted that the 90-

day period could be extended by later agreement.               Both the court

and counsel for Cave expressed the view that Cave's defense would

need more time for preparation.         Indeed, such an understanding is

evidenced by Yacucci's subsequent motion to postpone the sentencing

hearing until April 1993.8

      7
      The dissent contends that the transcript of the October 22
status conference reveals mutual mistake and that such mistake
should be borne by the State. We disagree. We believe the
significant fact is that Cave's counsel agreed to a particular
date. Whether he was laboring under a mistake of fact or law as
to the true expiration date is less significant than the clear
and obvious fact that the interests of his client required more
time.
      8
      Even if Yacucci's actions do not rise to the level of an
implicit agreement to an extension, his actions—i.e., actively
discussing the date of the resentencing and the state of the
defense preparation—certainly constitute a waiver of any
objection to the extension. The dissent rejoins that such waiver
was not an "intentional relinquishment of a known right or
privilege." See Johnson v. Zerbst, 

304 U.S. 458, 464

, 

58 S.Ct. 1019, 1023

, 

82 L.Ed. 1461

 (1938). We decline to apply that
standard in this situation, i.e., far afield of its customary
constitutional context. Cf. Schneckloth v. Bustamonte, 

412 U.S. 218, 235

, 

93 S.Ct. 2041, 2052

, 

36 L.Ed.2d 854

 (1973) ("Our cases
do not reflect an uncritical demand for a knowing and intelligent
         Even assuming that Yacucci agreed to extend the time for

resentencing, Cave argues that any such agreement is a nullity

because the district court's August 3, 1990, order provides that a

further order of the district court was the exclusive means of

extending the time. 9       We disagree.   The district court construed

the meaning of its own prior order as permitting extension of the

original 90-day period by mutual agreement.          The district court's

interpretation of its own order is properly accorded deference on

appeal when its interpretation is reasonable. See Commercial Union

Ins. Co. v. Sepco Corp., 

918 F.2d 920, 921

 (11th Cir.1990) (citing

Alabama Nursing Home Ass'n v. Harris, 

617 F.2d 385, 388

 (5th

Cir.1980)).      See also Matter of Chicago, Rock Island and Pacific

R.R. Co., 

865 F.2d 807, 810-11

 (7th Cir.1988) ("We shall not

reverse a district court's interpretation of its own order unless

the record clearly shows an abuse of discretion.               The district

court is in the best position to interpret its own orders.")

(citations and internal quotation marks omitted);              Anderson v.

Stephens, 

875 F.2d 76

, 80 n. 8 (4th Cir.1989) (appellate court must

afford    "the   inherent   deference   due   a   district   court   when   it

construes its own order");       Michigan v. Allen Park, 

954 F.2d 1201

,



waiver in every situation where a person has failed to invoke a
constitutional protection."). Rather, any "right" or "privilege"
in this case derives not from the Constitution, but solely from a
strict construction of district court's August 3, 1990 order.
The waiver at issue here is more analogous to the waiver
resulting from the failure of counsel to object at trial. Cf.
United States v. Teague, 

953 F.2d 1525, 1531

 (11th Cir.1992) (en
banc) (discussing difference between rights waivable by defense
counsel on the defendant's behalf and those waivable only by the
defendant).
     9
      The dissent adopts this argument.
1213 (6th Cir.1992) ("[A]n appellate court should accord deference

to a district court's construction of its own earlier orders, if

that     construction        is   reasonable.").        The     district     court's

construction of its order is reasonable, especially in light of the

fact that the extensions benefitted Cave.               Thus, we hold that the

sentencing proceedings in state court were not inconsistent with

the district court's order or the mandate of this Court.10

                                  III. CONCLUSION

       Accordingly, the judgment of the district court is

       AFFIRMED.

       KRAVITCH, Circuit Judge, dissenting:

                                          I.

       The threshold question in this case is whether the State did,

in fact, resentence Cave within the 90 day time frame specified by

the habeas order so as to avoid the conditional mandate of a life

sentence.         In denying Cave's petition, the district court found

that        the   state   court    "timely     commenced      the      re-sentencing

proceedings on October 22, 1992," setting a trial date of November

30, 1992, "[u]pon agreement of the parties." It is unclear whether

the    district      court    believed    that    the   October     22    scheduling

conference was in itself sufficient to comply with the terms of the

habeas       order   or   that    Cave   waived   the   right     to     enforce   the

conditional habeas order by agreeing to a trial date outside the 90

day time limit.           On appeal, the parties dispute both when the

       10
      In light of this conclusion, we need not address whether a
district court possesses the authority to issue a conditional
order permanently forbidding resentencing or, assuming such
authority, whether the district court's August 3, 1990, order
appropriately exercised such authority.
resentencing   time   limit   expired   and   when   a   "new   sentencing

hearing," within the meaning of the habeas order, was held.           The

majority bases its affirmance solely on the determination that the

90 day period was extended by agreement of the parties.1

     1
      Although the majority does not address the calculation of
the 90 day time period, the State challenges the district court's
finding that the period expired on October 25, 1992. I note in
passing that the district court was correct.

          The district court's habeas order was issued on August
     3, 1990. The 90 days were to be counted "from the date of
     this Order." On August 13, the State filed a timely motion
     to alter or amend the judgment, pursuant to Federal Rule of
     Civil Procedure 59, along with a motion to stay the habeas
     order pending appeal. On September 25, the district court
     denied the Rule 59 motion but granted the motion to stay
     pending appeal to this court, apparently stopping the 90 day
     clock after 53 days had elapsed. The opinion of this court
     was issued on September 17, 1992. With the 90 day clock
     again running, on October 22, the state court judge, Judge
     Walsh, conducted the status conference at which Cave's
     resentencing was scheduled for November 30. The 90 day
     period would have expired on October 25, as the district
     court found. (The district court's order states, "Thus, the
     State had until October 25, 1992 to comply with this Court's
     Order regarding Petitioner's re-sentencing.")

          Challenging this finding of fact, the State offers a
     novel recounting of days. It asserts that the filing of its
     Rule 59 motion on the tenth day after issuance of the order
     should have tolled the 90 day resentencing clock in the same
     way that the filing of a Rule 59 motion tolls the time
     allowed for filing an appeal, see Federal Rule of Appellate
     Procedure 4(a)(4). Accordingly, the State argues, the 90
     day time limit would not have expired until some time in
     December, after Cave's counsel had requested a continuance
     on November 17. By requesting a continuance before the 90
     day period had expired, the argument goes, Cave would have
     waived the right to enforce the resentencing time limit.
     (The State also contends that Federal Rule of Civil
     Procedure 62(a) would operate to toll the running of the 90
     day period for ten days after entry of the district court's
     order. Even if so, however, the additional ten days would
     make no difference because Cave's counsel's request for a
     continuance still would have been made after the 90 days had
     expired.)

          The premise of the State's argument is dubious. Not
     only does the State fail to cite a case in support of the
     Inasmuch as the district court based its denial of habeas

relief on the fact that the scheduling conference was held before

the 90 day time limit expired, it ignored the clear language of the

original habeas order:

     Respondent the State of Florida is directed to schedule a new
     sentencing proceeding at which Petitioner may present evidence
     to a jury on or before 90 days from the date of this Order.
     Upon failure of the Respondent to hold a new sentencing
     hearing within said 90 day period without an Order from this
     Court extending said time for good cause, the sentence of
     death imposed on the Petitioner will be vacated and the
     Petitioner sentenced to life imprisonment.

Conceivably, the first sentence, read by itself, could be thought

ambiguous as between directing that the act of scheduling occur

within 90 days and directing that a sentencing proceeding before a

jury commence within 90 days. But the two sentences together leave

little room for interpretation:       if the State fails to hold a new

sentencing    hearing—at   which    Cave    may   present   evidence    to    a

jury—within   the   designated     time    period,   then   Cave   is   to   be

sentenced to life imprisonment.       Merely scheduling such a hearing

is not, on the terms of the habeas order, sufficient.2


     proposition that the filing of a petition for rehearing
     tolls the time period of a conditional habeas order, but it
     fails to cite binding precedent apparently to the contrary.
     See Tifford v. Wainwright, 

588 F.2d 954, 957

 (5th Cir.1979)
     (90 day resentencing period specified in conditional habeas
     order not tolled by state's petition for rehearing). The
     State has no basis for concluding that the district court
     was clearly erroneous in finding that the 90 day
     resentencing time limit had expired on October 25.
     Consequently, Cave's counsel's request for a continuance on
     November 17 is irrelevant to the issue of the State's
     compliance with the habeas order.
     2
      The presiding state court judge at the scheduling
conference described his task as "to set this case for trial
within the mandated time period." R.72, Tr. of Oct. 22, 1992
Hr'g at 3. This would seem an odd remark had the scheduling
conference itself been understood to discharge this
       Apparently accepting that the scheduling conference itself was

not sufficient to discharge the State's time-limited obligations

under the habeas order, the majority construes what happened at

that       scheduling     conference   as    an    "agreement"     to     continue

resentencing beyond the 90 day period.                 There are two serious

problems with that approach.

       First, nowhere in the habeas order is there any provision for

extensions of the 90 day resentencing time limit by agreement of

the parties;        to the contrary, the order expressly provides a

different mechanism for extending the 90 day period:                    "an Order
                                                                   3
from this Court extending said time for good cause."                    The order

was a direction from the district court to the State;                  Cave simply

lacked      the   power    unilaterally     to    forgive   the   State    of   its

court-imposed obligation.4

       Second, assuming that express agreement by Cave to postpone

resentencing beyond the 90 day period would suffice to waive the

time limit, the transcript of the October 22, 1992, scheduling

conference reveals no such agreement.             Instead, it is evident from


responsibility.
       3
      The State never availed itself of the habeas order's
invitation to petition the district court for such a "good cause"
extension of the 90 day resentencing period.
       4
      Insofar as the second district judge interpreted the order
drafted by the first district judge to permit extension of the 90
day period by agreement, I doubt this misreading is, as the
majority argues, entitled to this court's deference. Although we
generally defer to a district judge's reasonable interpretation
of his own order, the only rationale for doing so—that the
district judge who drafted the order is in the best position to
know what he meant to say—disappears when the judge doing the
interpreting is not the same person as the judge who did the
drafting. In any case, the interpretation imposed on the order
by the second district judge was, in my opinion, unreasonable.
the transcript that everyone in attendance at the October 22

conference erroneously believed that the tentative date set for the

resentencing hearing, November 30, 1992, was within the 90 day

period.5    It is true that the attorney from the public defender's

office who was present at the conference apparently concurred in

the judge's doubt that the public defender's office would be ready

for trial on November 30;         but it is also true that this attorney

did   not   consent   to    any   date   other   than   November    30   at   the

conference, let alone acknowledge that the 90 day limit might have

to be extended or waived.6

      Because,   by   all    indications,    everyone    at   the   conference

mistakenly believed that November 30, 1992, was within the 90 day

period, there is no way that the lawyer representing Cave (who was

not himself present) could have knowingly waived the 90 day limit


      5
      There is no evidence in the record to suggest that Cave's
counsel knew that the 90 day period would expire at the end of
October and was withholding this knowledge from the state court
or that he was otherwise strategically delaying in the hope that
the 90 day period would expire before Cave was resentenced.
Cave's counsel was newly appointed and had not even spoken with
Cave at the time of the scheduling conference.
      6
      The majority says that its "conclusion that there was such
an agreement derives strong support from the fact that the
parties at the October 22 status conference explicitly noted that
the 90-day period could be extended by later agreement." I am
not sure what the majority means by "explicitly noted," as no one
at the scheduling conference actually said anything about what
sort of procedure would suffice to extend the resentencing
period. While the participants did contemplate putting off the
resentencing proceedings until April, there is no way of telling
from the transcript whether they believed that their agreement to
do so would be sufficient to comply with the habeas order or
whether instead the government would have to petition the
district court for a "good cause" extension. In any case, the
attorney from the public defender's office did not agree to any
date that he did not believe (albeit mistakenly) was within the
90 day period.
or consented to an extension.           Cf. Hamilton v. Watkins, 

436 F.2d 1323, 1326

 (5th Cir.1970) ("The accepted classic definition of

waiver is ... "an intentional relinquishment or abandonment of a

known right or privilege.' ") (quoting Johnson v. Zerbst, 

304 U.S. 458, 464

, 

58 S.Ct. 1019, 1023

, 

82 L.Ed. 1461

 (1938)) (emphasis

added).     The only question, then, is which party should bear the

"cost" of this mutual mistake.          I believe it should be the State.

The habeas order was directed to the State, not Cave, and the State

was   in   a   better   position   to   ensure   compliance    by     initiating

resentencing within the mandated period or requesting a "good

cause" extension.

      The majority argues that Cave's temporary counsel at the

sentencing hearing forfeited Cave's "entitlement" to be resentenced

within 90 days by analogy to defense counsel's forfeiture of a

right by failing to object to its violation at trial.            This line of

reasoning      iterates   the   error   of   viewing   the   habeas    order   as

granting Cave a right or entitlement—which he could subsequently

forfeit through his own negligence—instead of directing the State

to do something—an obligation that would persist irrespective of

the actions of Cave or his counsel.            Worse, the majority assumes

that the responsibility for ensuring resentencing within the 90 day

period falls not on the State but, perversely, on Cave himself.

Neither the State nor Cave "objected" at the scheduling hearing to

the imminent failure of the judge to order resentencing within the

specified period because neither was aware of the miscalculation of

time.      I do not understand the majority's view that Cave alone

should be punished for a failure primarily, if not exclusively,
attributable to the State.

                                      II.

       Given that the State failed to hold a rescheduling hearing

within the 90 day period, the only question remaining is the

enforceability of the district court's habeas order mandating

imposition of a life sentence.             Issuing such an order is, under

some   circumstances,      within    the   authority   of   a   habeas    court.

Consequently, the district court was within its habeas jurisdiction

in issuing the order, and the order is not unenforceable                 per se.

Moreover, the further question of whether the conditional bar

against resentencing was an appropriate exercise of the district

court's discretion on the facts of this case is not properly before

this court because the State failed to challenge the form of habeas

relief granted by the district court in its previous Eleventh

Circuit appeal. I would conclude, therefore, that the habeas order

should be enforced as written, imposing on Cave a final sentence of

life imprisonment.

       The federal habeas statute empowers federal courts to grant

relief   "as   law   and   justice    require,"   

28 U.S.C. § 2243

,   and

expressly contemplates remedies other than release from custody,

see 

28 U.S.C. § 2244

(b) ("release from custody or other remedy on

an application for a writ of habeas corpus").               The Supreme Court

consistently has emphasized that a federal court is vested " "with

the largest power to control and direct the form of judgment to be

entered in cases brought up before it on habeas corpus.' "                Hilton

v. Braunskill, 

481 U.S. 770, 774

, 

107 S.Ct. 2113, 2118

, 

95 L.Ed.2d 724

 (1987) (quoting In re Bonner, 

151 U.S. 242, 260

, 

14 S.Ct. 323, 327

, 

38 L.Ed. 149

 (1894)).   Most commonly, courts granting habeas

relief issue "conditional release" orders, which require the state

to release the petitioner from custody or from an unconstitutional

sentence unless the petitioner is retried or resentenced within

some specified (or a "reasonable") period of time.   Ordinarily, if

the state fails to retry or resentence the petitioner within the

designated period of time, it may still rearrest and retry or

resentence the successful habeas petitioner at a later time.7   See

Moore v. Zant, 

972 F.2d 318, 320

 (11th Cir.1992), cert. denied, 

507 U.S. 1007

, 

113 S.Ct. 1650

, 

123 L.Ed.2d 271

 (1993).

     The question presented here, however, is whether a habeas

court has the authority to issue a conditional order permanently

forbidding reprosecution or resentencing if the state fails to act

within a specified time period.   (On the facts of this case, this

question becomes whether a habeas court can forbid further state

capital sentencing hearings once a death sentence has been held

unconstitutional and the state has failed to comply with the

procedural requirements of the resulting habeas order.)   Three out

of four circuits to have decided this issue have held that federal

courts do have the authority to bar retrial of a habeas petitioner

who has successfully challenged his or her conviction.    See Capps

v. Sullivan, 

13 F.3d 350, 352

 (10th Cir.1993); Foster v. Lockhart,

9 F.3d 722, 727

 (8th Cir.1993) ("district court has authority to

preclude a state from retrying a successful habeas petitioner when

the court deems that remedy appropriate");   Burton v. Johnson, 975

     7
      Of course, the defendant's Sixth Amendment speedy trial
rights may be asserted against retrial in state court and, if
that fails, in a subsequent federal habeas petition.
F.2d 690, 693 (10th Cir.1992), cert. denied, 

507 U.S. 1043

, 

113 S.Ct. 1879

, 

123 L.Ed.2d 497

 (1993);             Heiser v. Ryan, 

951 F.2d 559, 564

 (3d Cir.1995).          Only the Fifth Circuit has indicated that a

habeas court lacks the power to permanently bar a state from

retrying or resentencing a defendant.                See Smith v. Lucas, 

9 F.3d 359, 365-67

 (5th Cir.1993), cert. denied, --- U.S. ----, 

115 S.Ct. 98

, 

130 L.Ed.2d 47

 (1994).            But see Smith v. Lucas, 

16 F.3d 638, 641

 (5th Cir.) (on appeal from the district court's order on remand

from the previous Fifth Circuit Smith decision, purporting only to

"have some doubt as to whether a federal court has the authority to

enter" a habeas order prohibiting the state from subsequently

seeking a death sentence) (emphasis added), cert. denied, --- U.S.

----, 

115 S.Ct. 151

, 

130 L.Ed.2d 90

 (1994).

       Although this circuit has not decided the issue, the most

relevant Eleventh Circuit case seems to comport with the majority

view    that    habeas     courts    have    the    power    to    bar    retrial    or

resentencing.         In    Moore    v.   Zant,     this    court    interpreted      a

conditional habeas order not to prohibit the state from subsequent

capital      resentencing.         Explaining      the    effect    of    the   typical

conditional habeas order, the court stated that after a successful

habeas       petitioner    is     released   from     custody      "the    state    may

ordinarily still rearrest and reprosecute that person," and that

the    grant     of    the writ "does not                usually    adjudicate      the

constitutionality of future state acts directed at the petitioner."

972 F.2d at 320

 (emphases added).             Evidently, then, the court was

of     the    opinion      that    habeas    courts       could,     under      certain

circumstances, permanently bar reprosecution or resentencing.
     I would hold that it is within the broad habeas power of a

federal court to issue an order permanently barring the state from

retrying or resentencing the petitioner.           Indeed, in some cases

this may be the only effective form of habeas relief.          For example,

if the basis for granting habeas relief is a violation of the

petitioner's     Fifth    Amendment      Double    Jeopardy      rights   or

insufficiency of the evidence, then barring a new trial would be

the only way to prevent the state from iterating the constitutional

violation.     Similarly, a prisoner's Sixth Amendment speedy trial

rights would be rendered meaningless if, even after a successful

habeas petition asserting these rights, he or she could be tried or

sentenced at the will of the state.

     Of course, to recognize that this extreme remedy is authorized

is not to condone its routine use;          habeas courts must exercise

discretion.      Other courts to have recognized the authority of

habeas courts to impose permanent bars on retrial or resentencing

sensibly have limited the circumstances in which this form of

relief   would   be   appropriate.    See   Capps,   

13 F.3d at 352-53

(generally     should    be   reserved     for    cases   in     which    the

"constitutional violation ... cannot be remedied by another trial,

or other exceptional circumstances exist such that the holding of

a new trial would be unjust");        Foster, 

9 F.3d at 727

 ("suitable

only in certain situations, such as when a retrial itself would

violate the petitioner's constitutional rights").

     We need not now define the circumstances in which such relief

would be warranted, however, because the claim that the district

court abused its discretion by mandating the conditional imposition
of a life sentence is not properly before this court.                        The State

admits that it did not challenge the form of relief specified in

the habeas appeal on its previous appeal to the Eleventh Circuit.8

It is not necessary, therefore, for this court to determine whether

the   district      court       abused    its     discretion   by        mandating   the

conditional bar to retrial on the facts of this case;                       the form of

relief granted became the law of this case when the State failed to

challenge it on the initial appeal.

      This is precisely the situation confronted by the Tenth

Circuit in both Capps and Burton.                  In each of those cases, the

court held that the state had waived any challenge to the habeas

remedy of permanent discharge.              Capps, 

13 F.3d at 353

;          Burton, 975

F.2d at 693-94.           In fact, in        Capps the court recognized that

"because     nothing       in    the     record    suggests    the       constitutional

violation was not redressable in a new trial, the district court

apparently       abused    its    discretion       [by   issuing     a    writ   barring

retrial]."       

13 F.3d at 353

.          Nevertheless, because the state did

not challenge the remedy in its initial appeal of the grant of

habeas to the Tenth Circuit, the court held that it was precluded

from reviewing the form of habeas relief granted by the district

court.     

Id.

     I would follow the approach of the Tenth Circuit,

finding it dispositive that the district court was acting within

the scope of its habeas authority.

                                           III.

      The State in this case not only failed to resentence Cave in


      8
      The State challenged only the substantive (i.e., Strickland
) basis for granting the writ.
the time allotted but also failed to challenge the valid habeas

remedy granted by the district court in the first Eleventh Circuit

appeal.    As   a   result,   Cave   should   be   sentenced   to   life

imprisonment.

     I respectfully DISSENT.