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  • In Re: Clarence Edward Hill, 437 F.3d 1080, 11th Cir. (2006)

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    Clarence Hill was convicted of capital murder and sentenced to death in Florida. He filed an application for permission to file a successive habeas corpus petition and for a stay of execution four days before his scheduled execution date. The court denied the application, finding it was untimely under the Antiterrorism and Effective Death Penalty Act. Specifically, Hill's claims were based on Atkins v. Virginia, which was decided in 2002, but he did not file his application until 2006, over two years past the deadline. The court also denied Hill's request for a stay of execution, as it no longer had jurisdiction once it denied his application to file a successive habeas petition.

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    Filed: 2006-01-24 Precedential Status: Precedential Citations: 437 F.3d 1080 Docket: 06-10595

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    Clarence Hill was convicted of capital murder and sentenced to death in Florida. He filed an application for permission to file a successive habeas corpus petition and for a stay of execution four days before his scheduled execution date. The court denied the application, finding it was untimely under the Antiterrorism and Effective Death Penalty Act. Specifically, Hill's claims were based on Atkins v. Virginia, which was decided in 2002, but he did not file his application until 2006, over two years past the deadline. The court also denied Hill's request for a stay of execution, as it no longer had jurisdiction once it denied his application to file a successive habeas petition.

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    In Re: Clarence Edward Hill, 437 F.3d 1080, 11th Cir. (2006)

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    Clarence Hill was convicted of capital murder and sentenced to death in Florida. He filed an application for permission to file a successive habeas corpus petition and for a stay of execution four days before his scheduled execution date. The court denied the application, finding it was untimely under the Antiterrorism and Effective Death Penalty Act. Specifically, Hill's claims were based on Atkins v. Virginia, which was decided in 2002, but he did not file his application until 2006, over two years past the deadline. The court also denied Hill's request for a stay of execution, as it no longer had jurisdiction once it denied his application to file a successive habeas petition.

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    of 5

    437 F.

    3d 1080

    In re: Clarence Edward HILL, Petitioner.


    No. 06-10595.

    United States Court of Appeals, Eleventh Circuit.


    January 24, 2006.

    D. Todd Doss, D. Todd Doss, P.A., Lake City, FL, for Hill.
    Carolyn M. Snurkowski, Fla. Atty. Gen., Tallahassee, FL, for State of FL.
    Application for Permission to File a Successive Habeas Corpus Petition in
    the District Court for the Middle District of Florida and for a Stay of
    Execution.
    Before EDMONDSON, Chief Judge, and TJOFLAT and PRYOR, Circuit
    Judges.

    BY THE PANEL:
    I.
    1

    Petitioner, Clarence Hill has been convicted of capital murder in a Florida


    circuit court and sentenced to death by execution. On November 28, 2005, the
    Governor of Florida signed a warrant scheduling Hill's execution for Tuesday,
    January 24, 2006 at 6:00 p.m. On Friday, January 20, 2006, Hill filed an
    application in this court pursuant to 28 U.S.C. 2254 and 2244(b)(3)(A), as
    amended, for leave to file in the district court a second or successive petition for
    a writ of habeas corpus barring the State from carrying out his execution. At the
    same time, he asked us to stay his execution pursuant to 28 U.S.C. 1651 and
    2251 pending the district court's disposition of his second or successive habeas
    petition.

    Under 28 U.S.C. 2244, "a claim presented in a second or successive habeas


    corpus application . . . that was not presented in a prior application shall be
    dismissed" unless the court of appeals "determines that the application makes a
    prima facie showing that the applica[nt has] satisfie[d]" one of the following

    requirements: (A) the applicant shows that the claim relies on a new rule of
    constitutional law, made retroactive to cases on collateral review by the
    Supreme Court, that was previously unavailable; or
    3

    (B)(i) the factual predicate for the claim could not have been discovered
    previously through the exercise of due diligence; and

    (ii) the facts underlying the claim, if proven and viewed in light of the evidence
    as a whole, would be sufficient to establish by clear and convincing evidence
    that, but for constitutional error, no reasonable factfinder would have found the
    applicant guilty of the underlying offense.

    28 U.S.C. 2244(b)(2)(A), (B).

    In his application, Hill states that he wishes to file a second or successive


    petition presenting two claims. The first claim is that he is brain damaged
    and/or mentally retarded, with the mental age of ten years, and that executing
    him would constitute cruel and unusual punishment in violation of the Eighth
    Amendment to the United States Constitution. The second claim is that he is
    exempt from execution under the Eighth Amendment because he is mentally
    retarded and/or suffering from severe brain damage, and that his death would
    not be an appropriate punishment under Atkins v. Virginia, 536 U.S. 304, 122
    S.Ct. 2242, 153 L.Ed.2d 335 (2002). Although Hill cites Atkins only in support
    of his second claim, it appears to apply to his first claim as well.1

    Atkins meets the requirement of 28 U.S.C. 2244(b)(2)(A), as we noted in In


    re: Holladay, 331 F.3d 1169, 1172 (11th Cir.2003):

    In this case, there is no question that the rule recently announced by the
    Supreme Court in Atkins that the execution of mentally retarded persons
    constitutes "cruel and unusual punishment" in violation of the Eighth
    Amendment is a new rule of constitutional law made retroactive to cases on
    collateral review by the Supreme Court that was previously unavailable.

    Hill first sought collateral review of his Atkins claims in the state circuit court
    in which he was convicted. On December 15, 2005, in a motion filed to
    pursuant Fla. R.Crim. P. 3.850, he asked the court for relief from his death
    sentence on the two Atkins grounds he presented in his 28 U.S.C. 2244(b)(3)
    (A) application to us. On December 23, 2005, the circuit court denied the
    motion without an evidentiary hearing. The court did so for two reasons: first,
    the claims were procedurally barred by Fla. R.Crim. P. 3.203 and 3.851(e)(2)

    (B); second, the claims failed to state a federal constitutional ground for relief.
    On January 3, 2006, the circuit court denied Hill's motion for rehearing, and
    Hill appealed its December 23, 2005 and January 3, 2006 rulings to the Florida
    Supreme Court.
    10

    The supreme court heard argument on January 11, 2006 and, on January 17,
    2006, affirmed the circuit court's rulings, finding Hill's Atkins claim
    procedurally barred pursuant to Fla. R.Crim. P. 3.203 and 3.851(e)(2)(B). Hill
    v. State, ___ So.2d ___, ___-___, No. SC06-2, 2006 WL 91302, 2006 Fla.
    LEXIS 8, at *9-10 (Fla. Jan. 17, 2006).

    11

    On January 20, 2006, Hill filed the application now before us.

    II.
    12

    28 U.S.C. 2244(d) states, in relevant part:

    13

    (1) A 1-year period of limitation shall apply to an application for a writ of


    habeas corpus by a person in custody pursuant to the judgment of a State court.
    The limitation period shall run from the latest of

    14

    ...

    15

    (C) the date on which the constitutional right asserted was initially recognized
    by the Supreme Court, if the right has been newly recognized by the Supreme
    Court and made retroactively applicable to cases on collateral review; or

    16

    ...

    17

    (2) The time during which a properly filed application for State post-conviction
    or other collateral review with respect to the pertinent judgment or claim is
    pending shall not be counted toward any period of limitation under this
    subsection.

    18

    Hill's 2244(b)(3)(A) application is untimely. Atkins was decided on June 20,


    2002. Thus, Hill had until June 20, 2003 to file the instant application. He did
    not file it, though, until January 20, 2006, 31 months later. As directed by
    section 2244(d), we must deduct from this 31-month period "[t]he time during
    which a properly filed application for State post-conviction or other collateral
    review with respect to [Hill's Atkins] claim[s was] pending." Rule 3.850

    collateral review was pending in the Florida courts for 33 days from
    December 15, 2005, when he filed his Rule 3.850 motion in the circuit court,
    through January 17, 2006, when the supreme court affirmed the circuit court's
    denial of relief. When we deduct these 33 days from the period beginning June
    20, 2002 and ending January 20, 2006, we find that Hill's application is over 29
    months late and is therefore time-barred.2 In sum, the application is DENIED.
    19

    Having reached this decision, the question becomes whether we have


    jurisdiction to entertain Hill's application for a stay of execution under 28
    U.S.C. 1651 or 2251. The answer to the question is no. Section 1651(a), the
    All Writs Act, states:

    20

    The Supreme Court and all courts established by Act of Congress may issue all
    writs necessary or appropriate in aid of their respective jurisdictions and
    agreeable to the usages of law.

    21

    The Act does not make the application for a stay (such as the one Hill presents)
    a civil action under 28 U.S.C. 1331; rather, it empowers a federal court in a
    case in which it is already exercising subject matter jurisdiction to enter such
    orders as are necessary to aid it in the exercise of such jurisdiction. See Steffen
    v. Tate, 39 F.3d 622, 625 (6th Cir.1994). We had jurisdiction to entertain Hill's
    2244(b)(3)(A) application. When we denied it, our jurisdiction ceased and
    with it our power to grant Hill All Writs Act relief.3

    22

    We reach the same conclusion with respect to Hill's application for a stay under
    28 U.S.C. 2251. That provision states:

    23

    A justice or judge of the United States before whom a habeas corpus


    proceeding is pending may, before final judgment or after final judgment of
    discharge, or pending appeal, stay any proceeding against the person detained
    in any State court or by or under the authority of any State for any matter
    involved in the habeas corpus proceeding.

    24

    We have denied Hill's application to file a second or successive petition.


    Accordingly, no habeas corpus proceeding (brought by Hill) is pending in this
    court, and we lack the power to grant him the 2251 relief he seeks. See
    Steffen v. Tate, 39 F.3d at 625-26. His application for a stay of his execution is
    therefore DENIED.

    25

    SO ORDERED.

    Notes:
    1

    Hill also relies onRoper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 1198, 161
    L.Ed.2d 1 (2005), which prohibits the execution of prisoners who were under
    the age of 18 at the time they committed their capital offense. Hill was 23 at the
    time of the offense. The constitutional right recognized in Roper is therefore
    entirely inapplicable to Hill.

    Even if we additionally tolled the limitation period during the pendency of


    Hill's Rule 3.850 proceeding raising aRing v. Arizona claim, Hill's application
    is still time-barred.

    Our jurisdiction is extinguished under 28 U.S.C. 2244(b)(3)(E), which states:


    The grant or denial of an authorization by a court of appeals to file a second or
    successive application shall not be appealable and shall not be the subject of a
    petition for rehearing or a writ of certiorari.

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