Opinion
No. M1999-01334-SC-DPE-PD.
January 3, 2007.
RESPONSE TO MOTION TO RESET EXECUTION DATE
Philip Workman currently has ongoing federal proceedings involving as-yet unresolved issues of federal law. Rulings by the federal courts would almost certainly render ineffectual any execution date set by this Court. In his first proceeding which involves a motion for relief from judgment, the Sixth Circuit is considering federal issues which even the United States District Court admits may be meritorious. Workman v. Bell, 6th Cir. No. 06-6451. Those issues are virtually identical to those which Donnie Johnson has before the Sixth Circuit, which recently stayed his execution date set by this Court. Johnson v. Bell, 6th Cir. No. 05-6925. The Sixth Circuit is likewise considering similar issues in the case of Abu-Ali Abdur'Rahman, now on remand from the United States Supreme Court. Abdur'Rahman v. Bell, 6th Cir. Nos. 02-6547, — 6548. Further, Workman has a separate habeas proceeding pending in the United States District Court, raising serious issues about his innocence: The prosecution's key witness, Harold Davis, never saw the shooting of Officer Oliver, as he claimed at trial. Workman v. Bell, W.D.Tenn. No. 03-2660.Given the federal stay in Johnson; the pendency of the federal appeals in Workman, Johnson, and Abdur'Rahman; and Workman's pending habeas petition, the interests of judicial economy weigh against the setting of an execution date at this time. Because federal proceedings would render an execution date ineffectual, this Court should deny the State's motion. Should the Sixth Circuit rule against Workman on all issues, the State could then file a motion at that time. For now, however, the State's motion should be denied pending the resolution of the federal proceedings
I. PROCEDURAL HISTORY
On September 4, 2003, Mr. Workman filed two separate proceedings in the United States District Court for the Western District of Tennessee. The first asserted that the District Court should grant Mr. Workman relief from the judgment it entered in the original proceeding due to, among other reasons, fraud. (Rule 60(b) Proceeding). The District Court filed Mr. Workman's motion under the original habeas proceeding's case number, 94-2577. Exhibit 1: Docket Sheet, at R. 161. The second proceeding asserted that Mr. Workman was entitled to have the District Court entertain a separate habeas proceeding that presented issues surrounding, among other things, Harold Davis's August 2001 testimony that he did not see Philip Workman, or anybody else, shoot Memphis Police Lieutenant Ronald Oliver. (Habeas Proceeding). The District Court assigned that proceeding a separate case number, 03-2660. Exhibit 2: Docket Sheet, at R. 1.
In both proceedings, Mr. Workman moved for a stay of his then-scheduled September 22, 2004, execution date. Exhibit 1: Docket Sheet, at R. 160; Exhibit 2: Docket Sheet, at R. 7. The District Court granted Mr. Workman's motions and entered stay orders in both the Rule 60(b) Proceeding, Exhibit 1: Docket Sheet, at R. 162, and the Habeas Proceeding. Exhibit 2: Docket Sheet, at R. 9.
On October 17, 2006, the District Court denied Mr. Workman relief in his Rule 60(b) Proceeding. Exhibit 1: Docket Sheet, at R. 177. Mr. Workman filed a motion to alter or amend, Exhibit 1: Docket Sheet, at R. 178, which the District Court denied. Exhibit 1: Docket Sheet, at R. 184. In that denial order, however, the District Court recognized that it was unclear which of two competing standards controlled the specific claim Mr. Workman asserted in his Rule 60(b) Proceeding, the Sixth Circuit needed to resolve that dilemma, and should it do so in Workman's favor he would be entitled to further process. Exhibit 3, Order, at 7. Mr. Workman filed a Notice of Appeal. Exhibit 1: Docket Sheet, at R. 181.
Mr. Workman's Habeas Proceeding remains pending in the District Court.
II. BECAUSE MR. WORKMAN'S RULE 60(b) PROCEEDING PRESENTS SUBSTANTIAL ISSUES THAT REMAIN UNRESOLVED IN THE SIXTH CIRCUIT, THIS COURT SHOULD DENY THE STATE'S MOTION
A. The Scope Of Equitable Relief Available To A Habeas Petitioner Under Fed.R.Civ.P. 60(b) Remains Unsettled In The Sixth Circuit
Two capital habeas appeals demonstrate that the Sixth Circuit remains unsure about what standards should govern application of Fed.R.Civ.P. 60(b) in habeas corpus proceedings: Abdur'Rahman v. Bell, Sixth Circuit No. 02-6548, and Johnson v. Bell, Sixth Circuit No. 05-6925.
1. Abdur'Rahman
On March 6, 2003, this Court set a June 18, 2003, execution date for Abu-Ali Abdur'Rahman. See Exhibit 4: Docket Sheet, at 3/7/03 Entry. On June 6, 2003, the en banc Sixth Circuit stayed Mr. Abdur'Rahman's execution to consider the extent to which he could rely on Fed.R.Civ.P. 60(b) to obtain further process in the District Court. Exhibit 4: Docket Sheet, at 6/6/03 Entry. The en banc Court subsequently held that Mr. Abdur' Rahman was entitled to invoke Rule 60(b), and it remanded his case to the District Court for further proceedings. Exhibit 4: Docket Sheet, at 12/13/04 Entry. The United States Supreme Court, however, granted the State's certiorari petition and remanded the case to the Sixth Circuit for further consideration in light of Gonzalez v. Crosby, 125 S.Ct. 2641 (2005). Bell v. Abdur' Rahman, 125 S.Ct. 2991 (2005).
On February 24, 2006, the Sixth Circuit ordered the parties to file supplemental briefs. Exhibit 4: Docket Sheet, at 2/24/06 Entry. On March 17, 2006, the parties did so. Exhibit 4: Docket Sheet, at 3/17/06 Entry. As of the date of this Response, the Sixth Circuit has not ruled, indicating that the scope of Rule 60(b) remains an issue of considerable debate in that Court.
2. Donnie Johnson
On August 10, 2004, this Court set a November 16, 2004, execution date for Donnie Johnson. Mr. Johnson filed a Fed.R.Civ.P. 60(b) proceeding in the District Court, and that Court stayed Mr. Johnson's execution. The District Court subsequently denied relief, Mr. Johnson appealed, and on June 20, 2006, this Court set an October 25, 2006 execution date.
On October 19, 2006, the Sixth Circuit stayed Mr. Johnson's execution. Exhibit 5: Docket Sheet, at 10/19/06 Entry. The State subsequently moved that Court to establish an expedited briefing schedule for Mr. Johnson's appeal. Exhibit 5: Docket Sheet, at 10/27/06 Entry. The Sixth Circuit denied the State's motion, allowing Mr. Johnson's appeal to proceed in the normal course. Exhibit 5: Docket Sheet, at 11/15/06 Entry. Mr. Johnson's appeal remains pending, again indicating that Rule 60(b)'s applicability remains a substantial open issue in the Sixth Circuit.
B. The Standard Applicable To The Specific Claim Mr. Workman Asserts In His Rule 60(b) Proceeding Also Remains Unsettled In The Sixth Circuit
Mr. Workman's Rule 60(b) Proceeding presents allegations that fraud taints the judgment denying him habeas relief. As the District Court recognizes, the law in the Sixth Circuit is unclear as to which of two standards governs Mr. Workman's fraud claim. While the District Court applied a standard it denominated as "more stringent" to deny Mr. Workman relief, it candidly acknowledged that should a standard it denominated as "broader" apply, Mr. Workman would be entitled to further process. Exhibit 3: Order at 4-7. The District Court concluded that "Ultimately, this decision is for the Sixth Circuit." Exhibit 3: Order, at 7.
C. Because The Law Governing Rule 60(b) And The Standard Applicable To Mr. Workman's Fraud Claim Remain Unsettled In The Sixth Circuit, And Because The Sixth Circuit Has Halted The Execution Of Similarly-Situated Condemned Inmates To Consider In The Normal Course Of Business Rule 60(b)'s Applicability, This Court Should Not Set An Execution Date
As discussed above, in Abdur' Rahman and Johnson, the Sixth Circuit stayed execution dates this Court set to allow for thoughtful, unhurried, consideration of the extent to which Rule 60(b) applies in those cases. The Sixth Circuit emphasized its desire for such consideration in Mr. Johnson's case by subsequently denying the State's request to expedite Mr. Johnson's appeal. Mr. Workman is in a position virtually identical to Abdur'Rahman and Johnson. This Court should therefore refrain from setting an execution date at this juncture.
In addition, Sixth Circuit law governing the standard applicable to Mr. Workman's fraud claim remains unsettled in the Sixth Circuit. The District Court recognizes that which of two competing standards controls is a decision that the Sixth Circuit must decide, and if the Sixth Circuit concludes that the District Court applied the wrong standard Mr. Workman would be entitled to additional process. This Court should refrain from setting an execution date to allow for the Sixth Circuit to engage in thoughtful, unhurried, consideration of this issue as well.
III. BECAUSE MR. WORKMAN'S HABEAS PROCEEDING REMAINS PENDING IN THE DISTRICT COURT, AND BECAUSE THAT COURT ENTERED A STAY OF EXECUTION IN THAT PROCEEDING, THIS COURT SHOULD DENY THE STATE'S MOTION
In the Habeas Proceeding pending before the District Court, Mr. Workman asserts issues surrounding the recantation of the State's key trial witness, Harold Davis. While Davis testified at trial that he saw Workman cooly and deliberately point a pistol at Police Lieutenant Oliver's chest and pull the trigger, in August 2001 Davis testified to what has now become obvious to all: he wasn't there. The District Court entered an order in the Habeas Proceeding staying Mr. Workman's then-scheduled September 22, 2003, execution. Exhibit 2: Docket Sheet, at R. 9. Because the Habeas Proceeding remains pending in the District Court, and because that Court entered a stay in that case, this Court should refrain from setting an execution date. See 28 U.S.C. § 2251(b).
This Court's current composition also warrants against granting the State's motion. State law provides that the Tennessee Supreme Court sets execution dates in capital cases. Tennessee Supreme Court Rule 12.4(E). Article VI, § 2 of the Tennessee Constitution provides that the Tennessee Supreme Court "shall" consist of five Judges. This Court, however, does not currently have five judges — it consists of only four. As a result, the Tennessee Supreme Court to which Rule 12.4(E) refers does not exist. This Court should therefore decline to set an execution date until a new judge joins its membership thereby making it the Tennessee Supreme Court that State law empowers to set an execution date.
IV. CONCLUSION
For the foregoing reasons this Court should deny the State's motion to set an execution date.
Respectfully Submitted,
Christopher M. Minton
Office of the Federal Public Defender
Middle District of Tennessee
810 Broadway, Suite 200
Nashville, Tennessee 37203
(615) 736-5047
DESIGNATION OF ATTORNEY OF RECORD
Christopher M. Minton
Office of the Federal Public Defender
Middle District of Tennessee
810 Broadway, Suite 200
Nashville, Tennessee 37203
(615) 736-5047
FAX (615) 736-5265
Mr. Minton prefers to be notified via facsimile 615-736-5265.
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing and its accompanying Exhibits have been hand-delivered to Joseph Whalen, Office of the Attorney General, 425 5th Avenue North, Nashville, Tennessee 37243 on this 5th day of January, 2007.
EXHIBIT 1
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