Arthur Lee Jones v. Fred Smith, Commissioner, Alabama Department of Corrections and W.E. Johnson, Warden, Nolman Unit

786 F.2d 1011, 1986 U.S. App. LEXIS 23978

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 20, 1986
• Docket: 86-7194
• Status: Published

Opinions

PER CURIAM:

Petitioner Arthur Lee Jones is presently scheduled for execution in Alabama on Friday, March 21, 1986 at 12:01 A.M. He appeals the district court’s denial of a petition for writ of habeas corpus. Presently pending are his petition for certificate of probable cause and for stay of execution pending appeal, both denied by the district court.

Jones was previously before this Court when denial of a prior petition for habeas corpus relief was affirmed. Jones v. Smith, 772 F.2d 668 (11th Cir.1985). The United States Supreme Court denied certiorari on January 13, 1986.

Since then, the Circuit Court of Mobile County has dismissed another coram nobis petition, filed on January 14, 1986. On March 13, 1986, the Alabama Supreme Court denied petitioner’s motion for a stay of execution. The federal district court entered its denial of relief on this second petition for writ of habeas corpus on March 18, 1986.

In his habeas corpus petition, Jones raises two issues: first, the one involved in Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985), cert. granted, sub nom. Lockhart v. McCree, — U.S. -, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985), concerning a death oriented jury, and second, that certain prosecutorial argument made during the guilt phase of the trial was improper.

I.

As to the Grigsby issue, at petitioner’s trial, a venireperson was struck for cause because she expressed reservations about capital punishment and noted her reluctance to consider imposing the death penalty. She did not indicate that her views would prevent her from fairly judging guilt or innocence.

This Court is in much the position it was in Bowden v. Kemp, 774 F.2d 1494 (11th Cir.1985). The Eleventh Circuit has consistently rejected the contention accepted by the Eighth Circuit in Grigsby. Martin v. Wainwright, 770 F.2d 918, 938 (11th Cir.1985); Jenkins v. Wainwright, 763 F.2d 1390, 1393 (11th Cir.1985); Young v. Kemp, 758 F.2d 514, 516 (11th Cir.1985); and Smith v. Balkcom, 660 F.2d 573, 575-84, modified, 671 F.2d 858 (5th Cir. Unit B 1982), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148.

We have been unable to find any case in which this Court has stayed an execution pending appeal to this Court because of the Grigsby issue since that issue has been settled by our decisions.

We stated in Bowden:

Under the precedent binding us in this Circuit, the District Judge’s dismissal of the successive petition is correct and the petitions for certificate of probable cause and stay of execution are without merit. Were we to grant CPC and reach the merits of the proposed appeal on consideration of the petition for stay of execution, see Barefoot v. Estelle, [463 U.S. 880, 103 S.Ct. 3383] 77 L.Ed.2d 1090 (1983), we should be bound to affirm the district court. The grant of the writ of certiorari in Grigsby is no authority to the contrary; any implications to be drawn therefrom may be discerned by application to the Supreme Court.

774 F.2d 1494 (llth Cir.1985).

We recognize that the Supreme Court of the United States has granted a stay in some cases involving the Grigsby issue. See James v. Wainwright, — U.S.-, 106 S.Ct. 1393, 89 L.Ed.2d 707 stay granted March 18, 1986; Adams v. Wainwright, — U.S. -, 106 S.Ct. 1371, 89 L.Ed.2d 598 stay granted March 6, 1986; Bowden v. Kemp, — U.S.-, 106 S.Ct. 213, 88 L.Ed.2d 182 stay granted October 14,1985; Moore v. Blackburn, 774 F.2d 97, stay granted October 3, 1985; Celestine v. Blackburn, — U.S.-, 106 S.Ct. 31, 87 L.Ed.2d 707 stay granted September 26, 1985. To our knowledge, however, in none of those cases has certiorari been granted.

To date, the law in this Circuit, which has not been modified by Supreme Court decision, mandates a denial of relief to petitioner on this issue.

II.

We find no merit in the prosecutorial argument claim. Aside from the abuse of the writ and procedural default problems, which appear to have been properly handled by the district court, we are convinced that it does not raise a substantial claim on which relief may be granted.

The petition for a certificate of probable cause and the petition for a stay of execution are DENIED.