Jerome Bowden v. Ralph Kemp, Warden

BY THE COURT: The United States District Court for the Middle District of Georgia has dismissed petitioner’s successive petition for the writ of habeas corpus and denied petitioner a certificate of probable cause to appeal. Presently pending is his petition for a certificate of probable cause and for his stay of execution pending appeal. The petition presents only one issue 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, 87 L.Ed.2d — (1985). In this Circuit, prior to and since Grigsby, we have rejected that contention. See Jenkins v. Wainwright, 763 F.2d 1390 (11th Cir.1985), Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985), and Smith v. Balkcom, 660 F.2d 573, 575-84, (5th Cir. Unit B 1981), modified, 671 F.2d 858 (5th Cir. Unit B 1981), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148. Since granting certiorari in Grigsby, the Court has stayed executions in Celestine v. Blackburn, — U.S. —, 106 S.Ct. 31, 87 L.Ed.2d 707(1985), and Moore v. Blackburn, 774 F.2d 97 (1985). It is asserted that these two stays by the High Court were granted because of the Grigsby issue involved in each of them; the orders granting those stays do not sufficiently advise us of the basis for them. 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. The petition for certificate of probable cause is DENIED. The petition for stay of execution is DENIED.