MELTON v. MCDONOUGH et al

Filing 33

ORDER granting 31 Motion to Sever. 1. Respondent's Renewed Motion to Lift Stay in the Capital Case and Motion to Sever Cases 31 is GRANTED. 2. The clerk is directed to sever the consolidated cases. 3. The stay is lifted in the capital case, 1:08cv34/RS. Signed by JUDGE RICHARD SMOAK on 10/12/2011. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ANTONIO LEBARON MELTON,
Petitioner,
vs.

CASE NO. 3:06cv384/RS

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent.
_________________________________________ /
ORDER
U

Before me are Respondent‟s Renewed Motion to Lift Stay in the Capital Case and
Motion to Sever Cases (Doc. 31) and Petitioner‟s Response in Opposition (Doc. 32).
Respondent has two consolidated habeas petitions before the court. The first,
3:06cv384/RS, attacks Respondent‟s felony murder conviction which resulted in a life
sentence (“non-capital case”). The second, 1:08cv34/RS, attacks Respondent‟s capital
murder conviction which resulted in the death penalty (“capital case”).
Petitioner filed a motion in state court raising a Johnson v. Mississippi claim
arguing that the non-capital case was invalid and thus could not be used as an aggravator
in the capital case. A stay was issued in the consolidated cases pending resolution of the
state court remedies. (See Doc. 27). In February 2011, the Florida Supreme Court
affirmed the state trial court‟s denial of Petitioner‟s Johnson claim. See Melton v. State
of Florida, 55 So. 3d 1287 (Fla. 2011).

Petitioner argues that these cases should not be severed and that the stay should
not be lifted for the capital case because the two cases are inextricably intertwined.
However, “Johnson established that the basis for a claim challenging a sentence
predicated on faulty state convictions arises when the order vacating those predicate
convictions issues.” Stewart v. United States, 646 F.3d 856, 859 (11th Cir. 2011) (citing
Johnson v. United States, 544 U.S. 295 (2005). Thus, it is inappropriate to stay the
capital case until Petitioner‟s non-capital case is resolved. Should the non-capital case
result in a favorable decision for Petitioner, he will be allowed to raise it in the capital
case. See id. at 858(citing Johnson, 544 U.S. at 302) (“State court vacatur of a predicate
conviction is a new „fact‟ that triggers a fresh one-year statute of limitations under §
2255(f)(4) so long as the petitioner exercised due diligence in seeking that order”).1
IT IS ORDERED:
1. Respondent‟s Renewed Motion to Lift Stay in the Capital Case and Motion to
Sever Cases (Doc. 31) is GRANTED.
2. The clerk is directed to sever the consolidated cases.
3. The stay is lifted in the capital case, 1:08cv34/RS.

ORDERED on October 12, 2011.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE
1

Because of the similarities between the provisions governing second or successive petitions under § 2254 and
second or successive motions under § 2255, precedent interpreting one of these parallel restrictions is instructive for
interpreting its counterpart. Stewart v. United States, 646 F.3d 856, 860, n.6 (11th Cir. Ga. 2011)