Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 88-977-Civ-T-25B. DISTRICT JUDGE: ADAMS, JR., HENRY L.
Before Kravitch, Hatchett and Anderson, Circuit Judges. Kravitch, Circuit Judge, dissenting.
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.
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,*fn1 and our mandate issued on September 17, 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 . . . .
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 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.
THE COURT: And you'll have five or six days before he even gets here to find out about whether ...