Foster v. Secretary, DOC

Filing 49

ORDER granting 46 motion to stay to the extent that this case will be stayed until June 1, 2017. In 60 days, and every 60 days thereafter until June 1, 2017, both parties shall file a report on the status of the Florida litigation. See Order for details. The Clerk shall administratively close the file. Signed by Judge John E. Steele on 8/22/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN DON FOSTER,
Petitioner,
v.

Case No: 2:14-cv-597-FtM-29MRM

SECRETARY, DOC,
Respondent.
ORDER
This matter comes before the Court upon Petitioner’s “Motion
to Stay Proceedings in Light of the United States Supreme Court
decision in Hurst v. Florida” (Doc. 46, filed February 16, 2016).
Respondents have filed a response in opposition to the motion (Doc.
48, filed March 10, 2016), and it is now ripe for review.

For the

reasons set forth in this Order, Petitioner’s motion to stay is
granted to the extent that this case will be stayed until June 1,
2017.
I.

Background

On October 16, 2014, Petitioner, a death-sentenced prisoner
of the Florida Department of Corrections, filed a petition for
writ of habeas corpus raising nine claims, including at least four
claims asserting that constitutional violations occurred during
the penalty phase of his capital trial (Doc. 1).

On

January

12,

2016,

the

United

States

Supreme

Court

determined that Florida’s capital sentencing scheme violates a
defendant’s Sixth Amendment right to a jury trial in light of Ring
v. Arizona, 536 U.S. 584 (2002).

Following the Supreme Court’s

decision in Hurst, the Florida Supreme Court issued stays of
execution in Lambrix v. State, Case No. SC16-56 and Asay v. State,
Case No. SC16-223.

Both cases are pending before the Florida

Supreme Court which will issue no decisions during its annual
summer break.

Among the issues that may be decided in Lambrix,

Asay, and other pending state post-conviction capital cases, are
the retroactivity of Hurst, whether and how harmless-error applies
to Hurst violations, and what type of resentencing proceedings
would be required for Hurst violations.
Furthermore, on March 7, 2016, House Bill 7101 was signed
into law by Governor Rick Scott.

The final Staff Analysis of the

Criminal Justice Subcommittee accompanying the bill explained its
purpose as “amend[ing] Florida’s capital sentencing scheme to
comply with the United States Supreme Court’s ruling” in Hurst.
See House of Representatives Final Bill Analysis, HB 7101. 1

The

bill requires the jury to return a unanimous verdict finding at
least one aggravating factor and that one or more aggravating
factors outweigh the mitigating circumstances before a sentence of

1

Available at:
https://www.flsenate.gov/Session/Bill/2016/7101/Analysis/?Tab=Analyses

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death may be imposed. Id.

To recommend a sentence of death, a

minimum of ten jurors must agree with the recommendation. Id.

If

the jury recommends a sentence of death, the judge may impose death
or

life

in

prison

after

considering

each

aggravating

factor

unanimously found by the jury and all mitigating circumstances.
Id.

A judge may not override a jury recommendation of life in

prison. Id.
Questions such as whether the new provisions of House Bill
7101 made substantive changes to Florida’s capital sentencing
scheme such that it cannot be applied retroactively to a previously
death-sentenced defendant are yet to be determined by the Florida
Supreme Court. See State v. Perry, 192 So. 3d 70 (Fla. 5th DCA
2016) (certifying as a question of great public importance, “Does
Chapter 2016-13, Laws of Florida, apply to pending prosecutions
for capital offenses that occurred prior to its effective date?”).
II.

Analysis

Petitioner urges that a stay of this case is warranted due to
“[c]oncerns of fundamental fairness, equal protection, and due
process” and the need to “address Hurst and its implications on
the constitutional validity of his sentence of death.” (Doc. 46 at
3). Respondents argue that this Court has no authority to grant
the motion to stay because, pursuant to Rhines v. Weber, 544 U.S.
269 (2005), a petitioner must show that a stay will result in a
potentially meritorious claim after exhaustion in state court—a

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showing Respondents believe Petitioner cannot make (Doc. 48 at 23).
in

Both parties’ arguments miss the point.
Rhines,

in

which

the

Supreme

Court

Unlike the situation

considered

“whether

a

district court has discretion to stay [a] mixed petition to allow
the petitioner to present his unexhausted claims to the state court
in the first instance, and then return to federal court for review
of his perfected petition[,]” Petitioner did not file a mixed
petition. See Rhines, 544 U.S. at 271-72.

At this point, the sole

purpose of staying this case would be to postpone consideration of
Petitioner’s

federal

penalty-phase

claims become moot.

claims

in

the

event

those

Therefore Rhines is inapplicable to the

instant motion.
The United States Supreme Court has noted that federal courts
have a “virtually unflagging obligation . . . to exercise the
jurisdiction given them” and that “the pendency of an action in
the state court is no bar to proceedings concerning the same matter
in the Federal court having jurisdiction.” Colorado River Water
Conservation District v. United States, 424 U.S. 800, 817-18 (1976)
(quoting

McClellan

Nevertheless,

a

v.

Carland,

district

court

217
may

U.S.
stay

268,
its

282

hand

in

(1910)).
certain

exceptional circumstances such as when motivated by considerations
of “wise judicial administration, giving regard to conservation of
judicial resources and comprehensive disposition of litigation[.]”
Colorado River, 424 U.S. at 817.

Moreover, the Supreme Court has

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also recognized that “the power to stay proceedings is incidental
to the power inherent in every court to control the disposition of
the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants.” Landis v. North American
Co., 299 U.S. 248, 254 (1936).
A decision by the Florida Supreme Court allowing resentencing
of defendants who were sentenced to death prior to the Hurst
decision would render moot any decision(s) on the penalty-phase
claims raised in the instant habeas petition.

Consequently, the

time and resources devoted to those claims by this Court would be
wasted.

In the interests of the parties and of judicial economy,

the Court determines that a stay is warranted pending the outcome
of the litigation in the Florida Supreme Court.

Railroad Comm’n

v. Pullman Co., 312 U.S. 496 (1941) (a federal court should abstain
where resolution of an unsettled state law question would render
unnecessary the need to decide a federal constitutional question).
In order to allow time for the Florida courts to consider the
application of Hurst on death-sentenced prisoners, this case will
be stayed until June 1, 2017 at which time the Court will consider
whether a further stay is necessary.
ACCORDINGLY, it is hereby
ORDERED:

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1.

Petitioner’s Motion for Stay of Proceedings (Doc. 46) is

GRANTED to the extent that this case will be stayed until June 1,
2017.
2.

In SIXTY (60) DAYS, and every sixty days thereafter until

June 1, 2017, both parties shall file a report on the status of
the Florida litigation so that this Court may consider whether to
lift or extend the stay.

If the Florida litigation is resolved

at any time prior to June 1, 2017, the parties shall immediately
file notice of such.
3.

The Clerk of Court is directed to administratively close

this file.
DONE and ORDERED in Fort Myers, Florida on this
of August, 2016.

SA: OrlP-4
Copies: All Parties of Record

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22nd

day