William Alvin Smith, Cross-Appellee v. Walter Zant, Warden, Georgia Diagnostic and Classification Center, Cross-Appellant

887 F.2d 1407

Opinions

BY THE COURT:

William Alvin Smith, a Georgia prisoner, was convicted of armed robbery and malice murder in connection with the robbery and killing of the owner of a grocery store and service station. Smith was sentenced to death for the offense of murder, and unsuccessfully appealed to the Georgia Supreme Court. Smith v. State, 249 Ga. 228, 290 S.E.2d 43, cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982). He was also denied post-conviction relief from the Georgia state courts. Smith v. Francis, 253 Ga. 782, 325 S.E.2d 362, cert. denied, 474 U.S. 925, 106 S.Ct. 260, 88 L.Ed.2d 266 (1985).

Smith then filed a petition for habeas corpus in the United States District Court for the Middle District of Georgia. The district court, based on essentially undisputed testimony about Smith’s mental retardation, found that Smith did not knowingly and intelligently waive his Miranda rights. The court held that the introduction of Smith’s confession was harmless error as to his conviction, but that it was not harmless as to his death sentence. Accordingly, the court granted Smith a writ of habeas corpus as to the death sentence, but denied Smith’s petition as to the conviction. Smith v. Kemp, 664 F.Supp. 500 (M.D.Ga.1987). Smith appealed from the denial of habeas corpus as to his conviction, and the State cross-appealed from the grant of the writ as to Smith’s sentence.

A panel of this Court dismissed the appeal for lack of jurisdiction. Smith v. Kemp, 849 F.2d 481 (11th Cir.1988). The parties then sought, and the district court granted, certification under Fed.R.Civ.P. 54(b). A panel of this court then heard the appeal and affirmed the district court’s order to the extent that it granted the writ of habeas corpus as to Smith’s sentence, but reversed the denial of the writ as to Smith’s convictions. Smith v. Zant, 855 F.2d 712 (11th Cir.1988). The Court took this case in banc, which resulted in the panel opinion being vacated. Smith v. Zant, 873 F.2d 253 (11th Cir.1989).

The judges of the in banc court are equally divided on the proper disposition of this case. Therefore, the order of the district court is AFFIRMED as a matter of law. See Reshard v. Britt, 839 F.2d 1499 (11th Cir.1988) (in banc); Henderson v. Fort Worth Indep. School Dist., 584 F.2d 115 (5th Cir.1978) (in banc), cert. denied, 441 U.S. 906, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979).