EDWARD DEAN KENNEDY, PETITIONER-APPELLANT,
v.
HARRY K. SINGLETARY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE

11th Cir. | 1992-07-20
No. 92-2706
Before TJOFLAT, Chief Judge, FAY and ANDERSON, Circuit Judges.
967 F.2d 1482 Court of Appeals for the Eleventh Circuit (1992) Positive Treatment
Cited by 4 cases
Opinion of the Court
PER CURIAM:

PER CURIAM: The district court denied this successive petition for writ of habeas corpus, denied a stay of execution, and denied the motion for a certificate of probable cause. Kennedy has appealed to this court and now seeks a stay of execution and a certificate of probable cause. The claim now asserted by Kennedy is that his sentencing jury was tainted by a constitutionally deficient instruction concerning the allegedly heinous aspect of the murders and that the Florida Supreme Court failed to cure that constitutional error by conducting a proper harmless error review. Kennedy has failed to persuade us that the Florida Supreme Court improperly interposed a procedural bar. In any event, we conclude that the presentation of this claim constitutes an abuse of the writ. Kennedy did not raise this claim in his appeal to this court from the district court’s denial of his first federal habeas petition. As to both the procedural bar and the abuse of the writ, we cannot conclude that Kennedy has demonstrated “cause” or “prejudice” or a fundamental miscarriage of justice. Sawyer v. Whitley, — U.S.-, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

We do not believe that this resolution is debatable among jurists of reason. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).

Accordingly, Kennedy’s motion for a certificate of probable cause and for a stay of execution is DENIED. . To the extent that Kennedy asserts any other claim, he has failed to persuade us that he is entitled to a stay of execution or a certificate of probable cause. . See Kennedy v. Singletary, Nos. 89-3845 & 92-2412 (11th Cir. April 30, 1992) (Unpublished Order) ("Kennedy's claim that his sentencing jury was tainted by a deficient instruction concerning the heinous aspect of the murders and the claim that the Florida Supreme Court failed to conduct a harmless error analysis with respect to same were not presented to this court on appeal from Kennedy's first federal habeas petition.”)

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Nelson v. Nagle, 995 F.2d 1549 (11th Cir. 1993)
    …ndamental miscarriage of justice” exception used in extraordinary circumstances. Johnson v. Singletary, 938 F. 2d 1166, 1174-75 (11th Cir. 1991) (en banc), cert. denied, — U.S.-, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992); see also Kennedy v. Singletary, 967 F. 2d 1482, 1483 (11th Cir.1992). Nelson has not shown that either exception of the procedural default doctrine applies in this case. B. Ineffective Assistance of Counsel Nelson contends that William M. Dawson, the lawyer who represented Nelson at trial and o…
  • Maggard v. Singletary, 23 F. Supp. 2d 1367 (M.D. Fla. 1998)
    …cause for failing to raise it and prejudice therefrom; alternative-the abuse of the writ is excusable if the petitioner can show that a fundamental miscarriage of justice would result from not considering the claims. See Kennedy v. Singletary, 967 F.2d 1482 (11th Cir.1992); Singleton v. Thigpen, 806 F.Supp. 936 (S.D.Ala. 1992). To satisfy the cause requirement, the petitioner must show that some objective fac-external to the defense impeded counsel’s efforts to raise this claim adequately or at a…
  • Scott v. Singletary, 870 F. Supp. 328 (S.D. Fla. 1994)
    …to this specific deficiency in the Narrowing Construction Instruction, as opposed to the general deficiency of Florida’s Narrowing Construction, precludes him from reopening this Court’s 1988 judgment on this ground. Cf. Kennedy v. Singletary, 967 F.2d 1482 (11th Cir.1992) (petitioner’s claim that “his sentencing jury was tainted by a constitutionally deficient instruction concerning the allegedly heinous aspect of [his] murders” was not raised in first habeas petition and therefore was barred as abuse…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw