FRANK SMITH, PETITIONER-APPELLANT,
v.
RICHARD L. DUGGER, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS; TOM BARTON, SUPERINTENDENT OF FLORIDA STATE PRISON AT STARKE, FLORIDA; ROBERT A. BUTTERWORTH, ATTORNEY GENERAL OF THE STATE OF FLORIDA, RESPONDENTS-APPELLEES
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The court held that it would not address the Hitchcock issue on a petition for rehearing because the petitioner had not yet presented the claim to the state courts, which is required by the exhaustion rule.
Petitioner sought to have an appellate proceeding held in abeyance pending resubmission of the Hitchcock issue to the state court after the Supreme Co…
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PER CURIAM:
Action on the petition for rehearing in this case has been unduly delayed. The only issue of concern to the Court is the so-called Hitchcock issue. Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), was decided after this case was decided by the district court and while it was on appeal. At one point on the appeal, petitioner, Frank Smith, sought to have the appellate proceeding held in abeyance pending resubmission of this issue to the state court. This motion was denied. If Smith had been entitled to relief on any other ground asserted on appeal, such delay by that procedure would not have been justified.
The Court, however, denied relief on all grounds initially asserted on this appeal by opinion dated March 9,1988. 840 F. 2d 787. The mandate has not been issued pending consideration of the Petition for Rehearing and Suggestion for Rehearing In Bane, and the supplemental briefs filed in connection therewith.
As far as is known to this Court, petitioner has not yet sought to resubmit the Hitchcock issue to the state court in light of the United States Supreme Court decision and subsequent cases decided by this court and the Florida Supreme Court.
It is inappropriate for this Court to deal with these issues on this petition for rehearing. The petition is denied without prejudice to the petitioner’s properly presenting the claims to the Florida state courts, a procedure that is required by the exhaustion rule prior to the submission of the issue to the Federal court. Were it not for Hitchcock v. Dugger, supra, this petition for rehearing would have been denied without comment. This Order clarifies that the unexhausted claim based on these later cases is not foreclosed by this decision.
The Petition for Rehearing is DENIED, and no member of this panel nor other Judge in regular active service on the court having requested that the Court be polled on rehearing in banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion of Rehearing In Banc is DENIED.
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Smith v. State, 556 So. 2d 1096 (Fla. 1990)…nd motion filed under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. Y, § 3(b)(1), Fla. Const. The facts of this case are fully discussed in the prior appeals and collateral challenges involving this appellant. Smith v. Dugger, 888 F. 2d 94 (11th Cir.1989), petition for cert. filed, No. 89-6347 (U.S. Dec. 29, 1989); Smith v. Dugger, 840 F. 2d 787 (11th Cir.1988); Smith v. State, 457 So. 2d 1380 (Fla.1984); Smith v. State, 424 So. 2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct…
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Smith v. Singletary, 61 F.3d 815 (11th Cir. 1995)…r, 840 F. 2d 787 (11th Cir.1988). Smith, however, filed a petition for rehearing with this court. This court denied Smith’s petition without prejudice so that he could present an unexhausted Hitchcock claim to the Florida courts. Smith v. Dugger, 888 F. 2d 94 (11th Cir.1989). On July 31, 1989, Smith filed a second habeas corpus petition in state court. A Florida trial court found all of Smith’s claims to be proeedurally barred, with the exception of his Hitchcock claim, which it denied on the merits. O…
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Smith v. Singletary, 970 F.2d 766 (11th Cir. 1992)…ry of this case is found at Smith v. State, 424 So. 2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983); Smith v. State, 457 So. 2d 1380 (Fla. 1984); Smith v. Dugger, 840 F. 2d 787 (11th Cir.1988); Smith v. Dugger, 888 F. 2d 94 (11th Cir.1989); Smith v. State, 556 So. 2d 1096 (Fla. 1990); and Smith v. Dugger, 493 U.S. 1064, 110 S.Ct. 1104, 107 L.Ed.2d 1012 (1990).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hitchcock v. Dugger, 481 U.S. 393 (U.S. 1987)
- Smith v. Dugger, 840 F.2d 787 (11th Cir. 1988)
- AFM Corp. v. S. Bell Tel. & Tel. Co., 840 F.2d 787 (11th Cir. 1988)