Blake v. Zant Appeal

    r'l

IN TEE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-7417

JOSEPH JAI{.ES BLAKE,

Petitioner-AppeIIee,

versus
I

I.{ALTER B. ZANT, Warden,
Georgia Diagnostic Center,

Re spondent-Appel lant .

PUBI.ISH

Appeal from
for the

the United States
Southern District

District Court
of Georgia

Before TJOFTAT
Circuit Judge.

(July L3, 1984)

CircuiE Judges, and TUTTEE, Seniorand CLARK,



TJOPLAT, Circult Judge:

On February 1{, L976, Joseph Janes B1ake wae convlcted after
a jury trlal in Chatham Countyr Georgla, oE the murder of Tlffany
Lowery, the two-ydar-o1d daughter of Blakets girlfrlend. Ee ras

sentenced to death. After pursuing varlous state remedieerl

Blake sought federal habeas corpus relief in the district court.
There, Blake claimed, inter aIia, that he was denied effective
assisEance of counsel in the guilt phase of his trial, because

his lawyer failed to develop or present his insaniEy defense, and

in the sentencing phase because his lawyer failed to present

possible mitigating circumstances. The district court granted

Ehe writ of habeas corpus on both of these claims and did not

decide the other claims B1ake raised. The state now attetnpts to

appial the grant of the writ. Because the districE courtrs order

did not dispose of all claims presented, and thus does not coD-

stitute an appealable final judgmentr w€ must dismiss this appeal

for want of jurisdiction.

I.

This court has jurisdiction to entertain appeals only of

final decisions and certain specified interlocutory decisions of
a district court. See 28 U.S.C. S I29I, L292 (1982). Where it
appears t,hat we have no jurisdiction over an appeal, we raise
that issue sua sponEe.



rn this casF the distrlct court granted Blake a ririt of
habeas corPus on the basis of two of the claims stated in his
petition. The court expressed no opinion regarding the remainder
of the claims. Rather, Ehe court listed the claims presented in
Blake I s habeas pet'i Eion and stated 3 'Because the Court Einds
petitionerrs second and third arguments with respecE to ineffec-
tive assistance of counsel determinative,
be considered below." (Emphasis added.) Blake v. zant, 513 F.
Supp. 7-12, 778 (S.D. Ga. IggI). The courE also described its
approach: 'numerous arguments have been raised by petitioner, but
Ehe court rill reziew onlv two in detail here

reasons discussed be10wr the courE finds that both

..Por

of these argu-
ment,s must be sustained. Therefore, p€titioner's convicEion and

sentence oE death wilr be vacated.r2 (Emphasis added.) rd. at
776.

were we to reject the two issues claims on Ehe basis of
which Ehe disErict court granted the writr w€ would be forced t,o

remand the case to the district court for a deEermination of t,he

other claims. If the district court then decided less Ehan all of
the remaining claims in EhaE round, p€titionerrs single habeas
petition courd spend many years in the federal court system
undergoing piecemeal adjudication. It is such a resulE that
rures ii.iting apperlaEe review rar.gely to f inal judgments were
designed to prevent.3



Because the Federal Rules of Civll Procedure do noE always

apply to habeas proceedloger we w111 flrst dlscuss the appeal-

ablllty of the dlstrict court,rs order as a final judgment ln the

context of Fed. R. Civ. P. 54(b) and 81 (a).(21 , and under section
1291. Second, we viitl turn to the appealability of the dlstrict
courtrs order as an interlocutory order granting an injunction
under section L292 (a) (1).

A.

A final decision, Eot Ehe purposes of section 1291, is gen-

erally one which ends the Iitigation on the merits and leaves

nothing for the court to do but execute Ehe judgment. Catlirl v.

United Stateq, 324 U.S. 22g, 233,55 S.Ct. 531, 533 (1945). Fed.

R. Civ. P. 54(b) provides thaE in cases with multiple claims, in
the absence of an express determination by the district court

that t,here is no just reason for delay and.an express direction
for Ehe enEry of judgment on one c1aim, 'any order . . . however

designated, which adjudicates fewer than aII the claims . . .

shall not terminate the action . . . [andJ is subject to revision

at any Eime before the entry of judgment adjudicating all the

cla ims

pol icy of

.' This rule merely expresses Ehe long-standing

the federal courts to prohibit piecemeal 1itigatlon of
clains. Fed. Rules Civ. Proc. RuIe 54, 28 U.S.C.A., Notes of

Advisory Committee on Rules to 1946 and 1951 Amendments. See

HohorsE v. Hamburq-Ameri@, 148 U.S. 262, 264-5, 13

s.cr. 590, 590-91 (1893).



Eed R. Civ. P. 81(a) (2) provides, 'Thege rules are appllca-.

ble tO Prqqeedlngs fOr . . . habeaS CorPus . . ' to Ehe exlent

that the practlce ln such proceedings is not, set forth in [u.s.l

sEatutes . . . and has heretoEore conformed to the practice in

clvil actions." 28 U.S.C. fol. S 2254 Rules Governing Section-

2254 cases in the District Courts, RuIe I1, Provides that' the

Federal Rules of civil Procedure, "to the extent that they are

not incohsisEent wiEh Ehese rules, may be aPPIied, when aPPro-

priate, to Ihabeas corPus] PetiEions." Cert'ain provisions of t'he

Federal Rules have been determined Eo be inapplicable to habeas

corpus actions under these rules. See Harris v. Nelson, 394 U.S.

286r 89 S.Ct. I082 (1969) (f inding Fed. R. Civ. P. 33 not to

govern discovery in habeas actions); Pitchess v. Oavis ' 42L U.S'

482, 95 S.Ct. 1748 (1975) (f inding Fed. R. civ. P. 50 (b) no! to

apply to habeas act,ions when it, would alter Ehe 28 U.S.C; S 225t

exhaust,ion requirement) -

The task bef ore uS r t,hen, is to determine whether either

rule 54(b) t oE the policy exPressed therein, is aPproPriately

applied to this habeas appeal. The Sevent,h and Eighth Circuits

have addressed this issue. See United States ex reI. Stachulak

v. Couqhlin, 520 g.2d 931 (7th Cir. I975) (finding rule 54(b)

inapplicable where habeas claim was joined with non-habeas civil

rights c1aln, and habeas claim was finally determined); Grav v'

swenson, 430 E.2d g (8th c1r. I970) (stat,ln9 that rule 54 (b)

applles to prohiblt appeals rhere fewer than all habeas claims

are flnally determined by district court,, but finding all clalms



to have been declded in Ehat case); stewart v. Bishop, 403 F.zd
674 (8th Cir. 1958) (disnissing habeas appeal for lack of juris-
diction pursuant to rule 54 (b) where district court only ruled on

one of five habeas claims, though it stated in an accompanying
letter that the remaining four claims were meritress).

we find the Stewart analysis to be persuasive in this case.
ApPIicaEion of rule 54 (b) to require that all claims presented in
the habeas petiEion be Einalry determined before an appear may

Iie will vindicaEe long-sEanding policies against piecemeal liti-
gation and wirl noE conflict with any habeas statute, ruler or
policy- To the conErary, the habeas policy the stachulak court
found to miritate against apprying rure 54(b) to joined habeas
and non-habeas craims, that of providing a "prompt and effica-
cious remedy for whatever society deems to be intolerable
restraints," Fav v- Noiar 372 u.s. 3g1r 40r-02, g3 s.ct. g22r g2g

(1953), suPPorEs our decision where only habeas claims are at
issue- The habeas PetiEioner receives a more prompt, and effica-
cious remedy when all his claims of unconstitutional confinement
are judged at once. while the disErict judge may save a few
weeks by ruling on only one or two claims he considers deEermina-
tive, the habeas petitioner stands to lose years if the district
courtrs decision on those claims is reversed and the petitioner
urtimat,ery prevails on a dif f erent craim. Because it is appro-
priate Eo apply rule 54(b) and the poticy against piecemeal-
Iltigatlon it represents to this caser w€ have no final judgment

here to give us jurisdictlon to revlew the claim under section



1291. See also Collins v. Mi1ler, 252 U.S. 364 , 40 s.ct. 347

of jurisdiction
to magistrate for

(1920) (dlsrolsslng habeas corPus appeal for want

where wrlE was denled on one issue and remanded

proceedlngs on other issues).

B.

It is possible that we might have jurisdiction to review the

order granElng the writ under 28 U.S.C. S I292(a) (I). That, sec-

Eion provides: n[TIhe courts of appeals shall have jurisdiction
oE appeals f rom: (I) Interlocutory orders of the distr ict, court,s

. . . or of the judges thereof, granting, continuing, modifying,

refusing or dissolving injunctions . except where a direct
:

review may be had in t,he Supreme Court [. ]' It is arguable (1)

that if this order is not a final order it is interlocutory, and

(21 that it is akin to an order granting injunctive relief.
g{e do not believe that an order granting the writ of habeas

corpus should be reviewable as an interlocutory injunction. The

facts of this case are anomalousi Ehe district courtrs order is
not interlocutory ln the sense that the judge intended it Eo take

effect while he considered other matters. The judge seemed to

believe that he had granted permanent relief on the merit,s and

had no further issues beEore him. Our research indicates no case

considering lssuance of the writ of habeas corpus to be an inter-
Iocutory lnjunction.

We note that lnterlocutory appeals are except,ional; section

L292 la Eo be narrowly conetrued. Seer e.q., Carson v. Amerlcan



Brandg, rnc., 450 U.S. 79, 84r 101 S'Ct ' gg3, gg7 (1981);

385 U.S. 23r 87 S.Ct. I93 (1955)' Gould v. control Laser Corp.r

650 F.2d 6L7 (5th Cir. Unit B 1981) '4

We believe that'in Ehis case the SEaterp aPProPriate course

is not t,o appeal Ehe grant of Ehe wr i t as an interlocutory

injunctive order causing it irreparable injury, buE rather to

move t.he dist,r ict court Eo stay the grant oE the writ' pending

determinat,ion of the remaining claims. I E the dist,r ict court,

when the Iack of finality in its order is point'ed out, orders

that the prisoner be released pending resolution of t'he remaining

claims, the inEerlocutory character of.the order wilI be plainly

established. At thaE t,ime, Ehe state could at,tempt to have the

distr ict court make the necessary deEerminations Eo render t,he

order appealable under rule 54 (b) r oE iE could attempE to ippeat

under28U.s.c.sI292(a|.AtleastunEiltheint,erlocutory
character of the order is Ehus established, we will not take

jurisdict,ion of the aPPeaI because we do not wish to encourage

what is, practically speaking, a piecemeal appeal of parE of a

habeas case, in contravention of general policies against, such

piecemeal appeals and the special policy of disposing of habeas

pet,i tions exPeditiouslY.

DIST,IISSED.



1 For a trore deEatled account oE the facts of Ehis
the varlous state and federal remedies Blake pursued,
i. -2""i,- lt3 F. suPp . 772 (s'D' Ga' r98r) '

"""a'unasee BIake

i=2 Law o ConcemP. Probs. 13 (1984)
oE current Eederal interlocutorY

2 tn contrast, the distr ict court I s language in Ewo ot'her
declsions handed down simultaneously wlt'h, ald attached Eo, this
decision, cfeiiiy-dispose of all tha claims involved. One order,
In Burger v. ,;;i, No-. CV 280-144, stated "Ehe Court finds merit
9!1!- ii--tone-"f "i., 

-andl petitioner I s sentence will theref ore be

vacated.' Blake v. Zant, 51i f . SuPP. 772, 787-8 (S'D' Ga' 19811 '
i;;.;.;"'iffi.,BaIkcom,-tlo.cv478-309,stated,"AI1
matters p.op"rfi before the Court are considered below
Afger this r.ri6r, the Court sees merit in only one . 

"Blake v. Zant, Sf3 F- SuPP.7221 803 (S'D'Ga' 198I)'

3 see generallY Federal Civil Appellate JuE isd:[ct]=on,: =+tfr=, Law s cont,emP. Probs. 13 (1984)
I nte r locutorY .Res thteFenF r

Eor an exEensive anarYsrs
appeals PolicY and Practice.
4 In Stein v. Rg1nol-ds-Securities, Inq., 667 E.2d 33 (Ilth
Cir. 1982), thi.s court, adofrffas 5ffi4ft9 Fecedent-311 decisions
of Unit B oE in" former f iittr Circuit franaea down af ter SepEember

30, r981.