1

About the Motion to Vacate the District Court's Certificate

of Probable cause, we admit that we have doubts about whether the

district court properly applied the correct legal standard when

it granted CPC. When a district court expressly applies the

wrong standard in granting CPC, the circuit court may quash the

CPC and decline to decide the appeal. Kramer v. Kemna, 21 F.3d

305, 307 (8th Cir.1994). We leave open the possibility of

quashing district court CPCs in other circumstances that suggest

that the CPC was granted as a result of a legal error. But, we

are aware that our own rule, 11th Cir.R. 22-3(a)(7), favors a

disposition on the merits when a CPC has been issued by the

district court; and in this case, we will accept and decide the

appeal. The Motion to Vacate CPC is DENIED. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-6329.

Willie CLISBY, Jr., Petitioner-Appellant,

v.

STATE OF ALABAMA, Alabama Department of Corrections, W.E.

Johnson, Fred Smith, Respondents-Appellees.

April 27, 1995.

Appeal from the United States District Court for the Northern

District of Alabama. (No. 85-PT-1251-S), Robert B. Propst, Judge.

Before KRAVITCH, EDMONDSON and COX, Circuit Judges.

BY THE COURT:

 This appeal is from the denial of habeas corpus relief to an

Alabama prisoner facing execution tonight at midnight. This

petition for habeas relief is not his first. We have expedited the

appeal, had briefing from the parties, and heard oral argument.

The briefing and argument addressed the merits as well as

petitioner's motion for a stay of execution and respondents' motion

to vacate the district court's certificate of probable cause.1

 The district court's certificate of probable cause was

limited to one issue, although petitioner asserted several issues
 2

We did not have the whole record before us at the time. We

saw no need, under the circumstances, for a complete record

before acting on petitioner's Application for a Certificate of

Probable Cause to this court. See generally, In re Woods, 249

F.2d 614 (9th Cir.1957) (entire record not required). 

 3

Clisby's first habeas petition was filed on May 24, 1985,

and was amended on July 1, 1985. Clisby raised—and then

abandoned—the following ground for relief in his first petition:

VI. Electrocution as administered in Alabama is an

unnecessarily cruel means of execution, constituting

wanton torture in excess of the means necessary to

extinguish human life, and is [not] justified as a

means for achieving any legitimate governmental end,

and thus is violative of the Eighth Amendment to the

Constitution. (In support of this claim, Petitioner

offers the newspaper clipping attached hereto as

Exhibit "B".) [Appendix N—Volume 3] 

in district court. We declined to broaden the certificate. 2 So,

only one question is presented in the appeal: whether petitioner

(especially considering doctrines such as abuse of the writ and

procedural bar) is entitled to an evidentiary hearing on his claim

that electrocution as administered in Alabama violates the Eighth

Amendment to the United States Constitution.

Although the district court granted a certificate of probable

cause on this question, that court answered the question "no" and

held no evidentiary hearing. The district court's opinion sets out

more than one reason for denying an evidentiary hearing. For the

purposes of this appeal, however, it is enough for us to conclude,

as we do conclude, that the district court did not err in deciding

as a matter of law that petitioner had abused the writ and that

relief is barred. As was explained in the district court's

opinion, the claim that electrocution as administered in Alabama

violates the Eighth Amendment was available—factually and

legally—when petitioner filed his first habeas petition.3
Petitioner has shown no cause for failing to assert and to litigate

the claim in his first petition; and for courts to decline to

adjudicate the claim in this second petition is not manifestly

unjust.

The denial of the Petition for Writ of Habeas Corpus is

AFFIRMED.

Because the rights of the parties in the appeal have now been

decided, the Motion for Stay of Execution is DENIED.