Case 8:08-cv-02212-SDM-MAP Document 12 Filed 11/19/2008 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
CASE NO. 8:08-cv-2212-T-23MAP
WALTER A. MCNEIL, et al.,
MOTION TO ALTER OR AMEND JUDGMENT
COMES NOW the Petitioner, WAYNE TOMPKINS, by and
through his undersigned counsel, and moves this Court,
pursuant to Fed. R. Civ. P. 59(e), to alter and/or amend the
Order dismissing Mr. Tompkins’ petition for writ of habeas
corpus, entered in this cause on November 10, 2008 (Doc.
11).1 Mr. Tompkins suggests that this Court erred in its
resolution of questions of both law and fact.2 In support
1This Court had issued an order dismissing the petition
on November 7, 2008 (Doc. 6). However on November 10, 2008,
Mr. Tompkins filed a motion to alter or amend judgment.
This Court granted that motion (Doc. 10), and then entered a
revised order dismissing the petition (Doc. 11). It is the
November 10th order that is the subject of this motion.
2Mr. Tompkins in no way abandons and/or waives any
arguments as to the matters contained in his habeas petition
which are not expressly addressed in this motion.
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of this motion, Mr. Tompkins states:3
1. Rule 59(e) of the Federal Rules of Civil Procedure
permits a motion to alter or amend judgment to be filed
within ten (10) days of entry of judgment. This motion is
2. On November 4, 2008, Mr. Tompkins filed a petition
with this Court seeking the issuance of a writ of habeas
corpus under 28 U.S.C. §2254 (Doc. 1).
3. On November 5, 2008, Respondents filed a motion to
dismiss the petition (Doc. 5). This Court entered an order
dismissing the petition on November 7, 2008, which seemed to
Mr. Tompkins to have granted Respondents’ motion (Doc. 6).
4. On November 10, 2008, Mr. Tompkins filed a motion
to alter or amend under Rule 59(e). Later that day, this
Court granted that motion and entered a new order dismissing
Mr. Tompkins’ petition. In the November 10th order this
Court made it clear that it was dismissing the petition on
the basis of its obligation contained in Rule 4, Rules
Governing Section 2254, and not on the basis of Respondents’
motion to dismiss.
5. In this Court’s order of November 10th, this Court
3As Mr. Tompkins has previously explained, his
execution is not currently scheduled.
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stated in footnote 2:
Three of the grounds (II, III, and V) Tompkins
asserts in the present petition pend in separate
actions in the Florida Supreme Court, SC08-992,
SC08-19, and SC08-2000. Until those proceedings
conclude, this federal petition is premature.
Although the other two grounds (I and IV) are
exhausted, each is based on “newly discovered” for
the pursuit of which Tompkins must obtain permission
from the circuit court.
(Doc. 11, p. 2, n. 2).4
6. However by the time that this Court issued its
order on November 10th, the Florida Supreme Court had issued
its opinion in Case Nos. SC08-992, SC08-1979, and SC08-2000.
At 4:45 PM on November 7th, the Florida Supreme Court had
issued its forty-three page opinion denying Mr. Tompkins
relief. Tompkins v. State, 2008 Fla. LEXIS 2055 (November
7, 2008). In this opinion, the Florida Supreme Court
indicated that a motion for rehearing would not be allowed.
4Mr. Tompkins recognizes that there is some ambiguity
in the last sentence of this footnote. It is unclear
whether the word “each” refers only to Claims I and IV which
are the subject of the dependent clause that begins the
sentence, or to all five claims contained Mr. Tompkins’
petition. If the word “each” is referring only to Claims I
and IV, then it would appear that this Court’s order
dismissing the petition only applies to those two grounds.
If so, then Mr. Tompkins will need to file a new petition
now that his exhaustion has been completed in order to
obtain a ruling as to whether any of the other grounds (II,
III, and V) fit within the decision in Panetti v.
Quarterman, 127 S. Ct. 2842 (2007).
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Id. at 2008 Fla. LEXIS 2055, at *52. In fact, the Florida
Supreme Court issued its mandate with the opinion making it
clear that the issues raised by Mr. Tompkins had been
finally resolved and were no longer pending on November 10th
as this Court’s order indicated.
7. Thus, all of Mr. Tompkins’ claim were exhausted
when this Court entered its order on November 10th. This
Court’s indication that Grounds II, III, and V were
premature and not properly before the Court was erroneous.
8. Moreover, this Court erred in its analysis when it
concluded that the decision in Panetti turns upon whether
the claim sought to be raised is premised upon “newly
discovered evidence.” This Court disagreed with Mr.
Tompkins’ assertion that the decision in Panetti was
premised upon “a claim based on ‘newly discovered evidence,’
that ‘ripens’ after the earlier proceeding.” (Doc. 11, at
2). However, the United States Supreme Court in Panetti
specifically explained that the claim at issue was premised
upon “new evidence”:
The state court had before it, at that time,
petitioner's Renewed Motion To Determine Competency
To Be Executed (hereinafter Renewed Motion To
Determine Competency). Attached to the motion were a
letter and a declaration from two individuals, a
psychologist and a law professor, who had
interviewed petitioner while on death row on
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February 3, 2004. The new evidence, according to
counsel, demonstrated that petitioner did not
understand the reasons he was about to be executed.
Panetti v. Quarterman, 127 S. Ct. at 2849 (emphasis added).
9. The Supreme Court further observed that the State
conceded that the claim at issue did not ripen until the
“new evidence” provided support for the competency claim:
The State acknowledges that Ford-based incompetency
claims, as a general matter, are not ripe until
after the time has run to file a first federal
Panetti v. Quarterman, 127 S. Ct. at 2852.
10. The Supreme Court’s opinion turned not on what
the claim presented was premised upon, but upon the
statutory construction of 28 U.S.C. §2244:
We conclude there is another reasonable
interpretation of § 2244, one that does not produce
these distortions and inefficiencies.
The phrase "second or successive" is not self-
defining. It takes its full meaning from our case
law, including decisions predating the enactment of
the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 110 Stat. 1214. See Slack v. McDaniel,
529 U.S. 473, 486, 120 S. Ct. 1595, 146 L. Ed. 2d
542 (2000) (citing Martinez-Villareal, supra); see
also Felker v. Turpin, 518 U.S. 651, 664, 116 S. Ct.
2333, 135 L. Ed. 2d 827 (1996). The Court has
declined to interpret "second or successive" as
referring to all § 2254 applications filed second or
successively in time, even when the later filings
address a state-court judgment already challenged in
a prior § 2254 application. See, e.g., Slack, 529
U.S., at 487, 120 S. Ct. 1595, 146 L. Ed. 2d 542
(concluding that a second § 2254 application was not
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"second or successive" after the petitioner's first
application, which had challenged the same state-
court judgment, had been dismissed for failure to
exhaust state remedies); see also id., at 486, 120
S. Ct. 1595, 146 L. Ed. 2d 542 (indicating that
"pre-AEDPA law governed" the case before it but
implying that the Court would reach the same result
under AEDPA); see also Martinez-Villareal, supra, at
645, 118 S. Ct. 1618, 140 L. Ed. 2d 849.
Panetti v. Quarterman, 127 S. Ct. at 2853.
11. The Supreme Court defended its conclusion on the
basis of general principles concerning statutory
Our conclusion is confirmed when we consider AEDPA's
purposes. The statute's design is to "further the
principles of comity, finality, and federalism."
Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (internal quotation
marks omitted). Cf. Day v. McDonough, 547 U.S. 198,
205-206, 126 S. Ct. 1675, 164 L. Ed. 2d 376 (2006)
("The AEDPA statute of limitation promotes judicial
efficiency and conservation of judicial resources,
safeguards the accuracy of state court judgments by
requiring resolution of constitutional questions
while the record is fresh, and lends finality to
state court judgments within a reasonable time"
(internal quotation marks omitted)).
These purposes, and the practical effects of our
holdings, should be considered when interpreting
AEDPA. This is particularly so when petitioners "run
the risk" under the proposed interpretation of
"forever losing their opportunity for any federal
review of their unexhausted claims." Rhines v.
Weber, 544 U.S. 269, 275, 125 S. Ct. 1528, 161 L.
Ed. 2d 440 (2005). See also Castro v. United States,
540 U.S. 375, 381, 124 S. Ct. 786, 157 L. Ed. 2d 778
(2003). In Rhines "we recognized the gravity of
[the] problem" posed when petitioners file
applications with only some claims exhausted, as
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well as "the difficulty [this problem has] posed for
petitioners and federal district courts alike." 544
U.S., at 275, 276, 125 S. Ct. 1528, 161 L. Ed. 2d
440. We sought to ensure our "solution to this
problem [was] compatible with AEDPA's purposes."
Id., at 276, 125 S. Ct. 1528, 161 L. Ed. 2d 440. And
in Castro we resisted an interpretation of the
statute that would "produce troublesome results,"
"create procedural anomalies," and "close our doors
to a class of habeas petitioners seeking review
without any clear indication that such was Congress'
intent." 540 U.S., at 380, 381, 124 S. Ct. 786, 157
L. Ed. 2d 778. See also Williams v. Taylor, 529 U.S.
420, 437, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000);
Johnson v. United States, 544 U.S. 295, 308-309, 125
S. Ct. 1571, 161 L. Ed. 2d 542 (2005); Duncan v.
Walker, 533 U.S. 167, 178, 121 S. Ct. 2120, 150 L.
Ed. 2d 251 (2001); cf. Granberry v. Greer, 481 U.S.
129, 131-134, 107 S. Ct. 1671, 95 L. Ed. 2d 119
Panetti v. Quarterman, 127 S. Ct. at 2854 (emphasis added).
12. As a result, the Supreme Court construed §2244 to
include “exceptions” to the bar on “second or successive”
In the usual case, a petition filed second in time
and not otherwise permitted by the terms of § 2244
will not survive AEDPA's "second or successive" bar.
There are, however, exceptions. We are hesitant to
construe a statute, implemented to further the
principles of comity, finality, and federalism, in a
manner that would require unripe (and, often,
factually unsupported) claims to be raised as a mere
formality, to the benefit of no party.
Panetti v. Quarterman, 127 S. Ct. at 2855 (emphasis added).
The Supreme Court specifically used the word “exceptions”
plural. Clearly, that meant that the decision was not
Case 8:08-cv-02212-SDM-MAP Document 12 Filed 11/19/2008 Page 8 of 17
limited to competency to be executed claims. In fact,
specific reference was made to “unripe” claims that had been
previously “factually unsupported.” Previously “factually
unsupported” claims is clearly a reference to claims that
arise from new evidence that was not previously available,
like new evidence showing that the Petitioner is incompetent
to be executed. Thus, the opinion in Panetti on its face
makes it clear the Court’s construction of §2244 recognized
the exception to the bar on second applications was not
limited to competency to be executed claims, but included
claims that were not ripe at the time of the first habeas
petition was filed. See McCallum v. Secretary for DOC, 257
Fed. Appx. 157, 159 n. 4 (11th Cir. 2007).
13. Though the Supreme Court in Panetti did not
specifically define when a claim became “ripe” so that it
was cognizable in a habeas petition, §2244(d)(1) explains
the various circumstances by which a claim becomes ripe such
that the one year limitation period begins to run:
(d) (1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a
State court. The limitation period shall run from
the latest of-(
A) the date on which the judgment became final by
the conclusion of direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment to filing an
Case 8:08-cv-02212-SDM-MAP Document 12 Filed 11/19/2008 Page 9 of 17
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
Currently pending before the United States Supreme Court is
a case that requires construction of this statute and a
determination of when a claim becomes ripe and starts the
one year clock. Jimenez v. Quarterman, Case No. 07-6984
(orally argued November 4, 2008).
14. As to Mr. Tompkins’ claims, each one became ripe
under §2244(d)(1) after the conclusion of proceedings on Mr.
Tompkins previous habeas petition. Each one of the claims
is presented in this petition in conformity with the one
year limitation since the one year clock has been tolled
continuously since April of 2001, except for a two week
period in August of 2007.
15. First as Ground I, the claim is that the
sentencing judge failed to advise Mr. Tompkins and/or his
counsel that in imposing a sentence of death he was
considering material that he had obtained ex parte without
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providing Mr. Tompkins with notice and an opportunity to be
heard. This claim is premised upon the Supreme Court’s
decision in Gardner v. Florida, 430 U.S. 349 (1977).
Because Gardner imposes a duty upon the judge to disclose
his consideration of material that was obtained ex parte,
the violation is ongoing until disclosure to the capital
defendant is made.5 At the time of Mr. Tompkins’ first
habeas petition, both the judge and the trial prosecutor
knew of the Gardner violation, but continued to deny Mr.
Tompkins notice and a reasonable opportunity to be
meaningfully heard. Under §2244(d)(1)(B), the Gardner claim
did not become ripe until notice of the ex parte contact was
disclosed. Mr. Tompkins was not provided notice of the ex
parte contact until March of 2001.
16. In the context of a due process violation arising
under Brady v. Maryland, 373 U.S. 83 (1963), the United
States Supreme Court stated: “When police or prosecutors
conceal significant exculpatory or impeaching material in
the State’s possession, it is ordinarily incumbent on the
5If the violation is not ongoing, then the claim could
be untimely without the capital defendant ever being given
notice and an opportunity to be heard. That would be
illogical and would defeat the purpose of the right to
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State to set the record straight.” Banks v. Dretke, 540
U.S. 668, 675-76 (2004). This logic applies equally to
sentencing judge’s violation of Gardner. As the Supreme
Court explained in Banks:
Our decisions lend no support to the notion that
defendants must scavenge for hints of undisclosed
Brady material when the prosecution represents that
all such material has been disclosed. As we observed
in Strickler,defense counsel has no "procedural
obligation to assert constitutional error on the
basis of mere suspicion that some prosecutorial
misstep may have occurred." 527 U.S. 263 at 286-287,
144 L. Ed. 2d 286, 119 S. Ct. 1936. The "cause"
inquiry, we have also observed, turns on events or
circumstances "external to the defense." Amadeo v.
Zant, 486 U.S. 214, 222, 100 L. Ed. 2d 249, 108 S.
Ct. 1771 (1988) (quoting Murray v. Carrier, 477 U.S.
478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)).
The State here nevertheless urges, in effect, that
"the prosecution can lie and conceal and the
prisoner still has the burden to . . . discover the
evidence," Tr. of Oral Arg. 35, so long as the
"potential existence" of a prosecutorial misconduct
claim might have been detected, id., at 36. A rule
thus declaring "prosecutor may hide, defendant must
seek," is not tenable in a system constitutionally
bound to accord defendants due process. "Ordinarily,
we presume that public officials have properly
discharged their official duties." Bracy v. Gramley,
520 U.S. 899, 909, 138 L. Ed. 2d 97, 117 S. Ct. 1793
(1997) (quoting United States v. Chemical
Foundation, Inc., 272 U.S. 1, 14-15, 71 L. Ed. 131,
47 S. Ct. 1 (1926)). We have several times
underscored the "special role played by the American
prosecutor in the search for truth in criminal
trials." Strickler, 527 U.S. 263 at 281, 144 L. Ed.
2d 286, 119 S. Ct. 1936; accord Kyles, 514 U.S. 419
at 439-440, 131 L. Ed. 2d 490, 115 S. Ct. 1555;
United States v. Bagley, 473 U.S. 667, 675, n. 6, 87
L. Ed. 2d 481, 105 S. Ct. 3375 (1985); Berger, 295
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U.S. 78 at 88, 79 L. Ed. 1314, 55 S. Ct. 629. See
also Olmstead v. United States, 277 U.S. 438, 484,
72 L. Ed. 944, 48 S. Ct. 564 (1928) (Brandeis, J.,
dissenting). Courts, litigants, and juries properly
anticipate that "obligations [to refrain from
improper methods to secure a conviction] . . .
plainly rest[ing] upon the prosecuting attorney,
will be faithfully observed." Berger, 295 U.S. 78 at
88, 79 L. Ed. 1314, 55 S. Ct. 629. Prosecutors'
dishonest conduct or unwarranted concealment should
attract no judicial approbation. See Kyles, 514 U.S.
419 at 440, 131 L. Ed. 2d 490, 115 S. Ct. 1555 ("The
prudence of the careful prosecutor should not . . .
Banks v. Dretke, 540 U.S. at 695-96. Here, the judge
violated his obligation under Gardner. Both the judge and
the prosecutor knew of the Gardner violation, yet neither
advised either Mr. Tompkins or his counsel until 2001, long
after the first federal habeas proceedings were concluded.
Section 2244 cannot be construed as intending to insulate a
Gardner violation from being heard because the judge and the
prosecutor hid the violation from a capital defendant until
it was too late for him to be heard.
17. Ground I was not ripe until Mr. Tompkins was
advised of the ex parte contact and given an opportunity to
be meaningfully heard. Cleveland Bd. of Ed. v. Loudermill,
470 U.S. 532, 542 (1985). Under Panetti, Mr. Tompkins can
present this claim as long as he meets the one year
limitation set forth in §2244(d). This Court has
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jurisdiction under Panetti to hear Ground I of Mr. Tompkins’
petition. This Court should grant this motion to alter or
18. As to Ground II of the habeas petition, Florida
had not adopted lethal injection as its method of execution
at the time of Mr. Tompkins’ prior federal habeas petition.
Just as a competency to be executed claim can be raised in a
second habeas petition and not run afoul of the bar on
successive petitions, a challenge to the lethal injections
procedures adopted by the State of Florida after the
conclusion of proceedings on a prior habeas petition fits
within the statutory exceptions recognized in Panetti. The
logic of Panetti is fully appicable to Ground II of Mr.
Tompkins’ petition. This Court has jurisdiction over Ground
II, and this motion to alter or amend should be granted.
19. As to Ground III, just as an incompetency claim is
not ripe until an execution is scheduled and evidence of
mental health issues are presented, the claim that the
amount of time a capital defendant has spent on death row
prior to his scheduled execution cannot be ripe before an
execution is set. The logic of Panetti is fully applicable
to Ground III of Mr. Tompkins’ petition. This Court has
jurisdiction over Ground III, and this motion to alter or
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amend should be granted.
20. For the reasons set forth as to Ground I based
upon Banks v. Dretke, this Court has jurisdiction to hear
Ground IV of Mr. Tompkins’ petition. To preclude the
presentation of Claim IV would violate the Supreme Court’s
admonition in Banks that: “Prosecutors' dishonest conduct or
unwarranted concealment should attract no judicial
approbation.” 540 U.S. at 696.
21. As explained in Mr. Tompkins’ petition, the Brady
material serving as a basis for the claim was not disclosed
by the State until April of 2001. Under §2244(d)(1)(B),
this claim was not ripe until the State complied with its
due process obligation and disclosed the favorable
information. Ground IV was not ripe until Mr. Tompkins was
advised of the undisclosed favorable information and thereby
given notice and a reasonable opportunity to be meaningfully
heard. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532,
542 (1985). Under Panetti, Mr. Tompkins can present this
claim as long as he meets the one year limitation set forth
in §2244(d). This Court has jurisdiction under Panetti to
hear Ground IV of Mr. Tompkins’ petition. This Court should
grant this motion to alter or amend.
22. Finally, the same logic applies to Ground V, the
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basis for which was not disclosed by the State until October
30, 2008. In Banks, the Supreme Court stated: “As we
observed in Strickler, defense counsel has no ‘procedural
obligation to assert constitutional error on the basis of
mere suspicion that some prosecutorial misstep may have
occurred.’ 527 U.S. 263 at 286-287.” Until the State’s
disclosure on October 30, 2008, Mr. Tompkins had no basis
present a claim premised upon Giglio v. United States, 405
U.S. 150, 153 (1972), that the trial prosecutor had
instructed a witness to include false representations in his
testimony. For §2244 to be construed in such a fashion as
to permit the State to withhold information of a
constitutional deprivation for over twenty years and to
insulate that conduct from federal habeas review would
violate the Supreme Court’s admonition in Banks that:
“Prosecutors' dishonest conduct or unwarranted concealment
should attract no judicial approbation.” 540 U.S. at 696.
23. Under §2244(d)(1)(B), this claim was not ripe
until the State complied with its due process obligation and
disclosed the favorable information. Ground V was not ripe
until Mr. Tompkins was advised of the undisclosed favorable
information and thereby given notice and a reasonable
opportunity to be meaningfully heard. Cleveland Bd. of Ed.
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v. Loudermill, 470 U.S. 532, 542 (1985). Under Panetti, Mr.
Tompkins can present this claim as long as he meets the one
year limitation set forth in §2244(d). This Court has
jurisdiction under Panetti to hear Ground V of Mr. Tompkins’
petition. This Court should grant this motion to alter or
WHEREFORE, Mr. Tompkins requests that this Court grant
the motion to alter or amend judgment for the reasons set
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this, the 19th day of
November, 2008, I electronically filed the foregoing Motion
with the Clerk of the Court by using the CM/EFC system which
will send notice of electronic filing to SCOTT BROWNE,
Assistant Attorney General, Department of Legal Affairs,
3507 Frontage Road, Suite 200, Tampa, FL 33607.
/s Martin McClain
MARTIN J. McCLAIN
Florida Bar No. 0754773
Special Assistant CCRC-South
141 N.E. 30th Street
Wilton Manors, FL 33334
101 N.E. Third Avenue
Fort Lauderdale, FL 33301
Case 8:08-cv-02212-SDM-MAP Document 12 Filed 11/19/2008 Page 17 of 17
Counsel for Mr. Tompkins