Troy Davis appeal right clarified
on Nov 6, 2010 at 2:07 pm
A federal appeals court, seeking to solve a legal puzzle over where a murder case appeal can now go, ruled on Friday that lawyers for Georgia death row inmate Troy Anthony Davis have only one option: a new appeal to the Supreme Court.  In a six-page order, a three-judge panel of the Eleventh Circuit Court refused to allow an appeal to that court from a federal judge’s ruling rejecting Davis’s claim that he did not commit a murder 21 years ago. (The complex appeal issue was discussed earlier in this post.)
Davis, facing execution for the 1989 shooting death of a police officer working a part-time security job at a fast-food restaurant in Savannah, had gone to the Supreme Court in May of last year, as his last resort after running out of options under federal habeas law. His plea for an original habeas writ from the Justices (docket 08-1443) led the Court in August last year to order a federal judge to examine anew the innocence claim.
In ruling this past summer that Davis is not innocent, U.S. District Judge William T. Moore, Jr., expressed doubt about the procedural nature of the case, but indicated that he thought Davis’s right to pursue a further appeal might only be back to the Supreme Court. On Oct. 8, Judge Moore concluded that, in fact, a Supreme Court appeal was the only remaining option.
Davis filed a notice that he would file a new appeal to the Supreme Court but also filed a separate appeal to the Eleventh Circuit, to cover all possible routes.  So far, a new appeal has not yet been docketed in the Supreme Court. It was in response to the separate appeal to the Circuit Court that the panel decided on Friday that it had no jurisdiction, and that Davis’s appeal would have to go to the Supreme Court.
The unsigned order noted that Davis had already run out of his rights under federal habeas law, when the Circuit Court in 2009 refused to allow him to file a new habeas challenge. Agreeing with Judge Smith, the panel ruled that Davis had had to go to the Supreme Court last year “because he had exhausted his other avenues of relief.”
If the Circuit Court were now to allow him to pursue his claim of innocence at that level, the panel said, “we would effectively be restoring his remedies in federal court, in complete contradiction to the express intent of Congress” [in habeas law]. In effect, we would be nullifying our previous decision denying Davis leave to file a successive habeas petition. We decline to do that.” It thus dismissed his appeal, and refused to grant him a formal certificate to pursue that appeal.
The ruling was issued by Chief Circuit Judge Joel F. Dubina and Circuit Judges Rosemary Barkett and Stanley Marcus.  Judge Barkett said in a separate opinion that while she agreed with the result this time, she noted that she had dissented in 2009 when the Circuit Court denied his renewed habeas petition.
In that dissenting opinion, she recalled, “I expressed the view that AEDPA’s limitations on filing a second or successive habeas petition ‘cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed.’ ”
(AEDPA is the current federal habeas law, the Antiterrorism and Effective Death Penalty Act of 1996.)
(NOTE TO READERS: When Davis’s new appeal to the Supreme Court is formally filed, the blog will cover it.)
