1

Although the majority does not address the calculation of

the 90 day time period, the State challenges the district court's

finding that the period expired on October 25, 1992. I note in

passing that the district court was correct. 

The district court's habeas order was issued on August 3,

1990. The 90 days were to be counted "from the date of this

Order." On August 13, the State filed a timely motion to alter

or amend the judgment, pursuant to Federal Rule of Civil

Procedure 59, along with a motion to stay the habeas order 

pending appeal. On September 25, the district court denied the

Rule 59 motion but granted the motion to stay pending appeal to

this court, apparently stopping the 90 day clock after 53 days

had elapsed. The opinion of this court was issued on September

17, 1992. With the 90 day clock again running, on October 22,

the state court judge, Judge Walsh, conducted the status

KRAVITCH, Circuit Judge, dissenting:

I.

The threshold question in this case is whether the State

did, in fact, resentence Cave within the 90 day time frame

specified by the habeas order so as to avoid the conditional

mandate of a life sentence. In denying Cave's petition, the

district court found that the state court "timely commenced the

re-sentencing proceedings on October 22, 1992," setting a trial

date of November 30, 1992, "[u]pon agreement of the parties." It

is unclear whether the district court believed that the October 

22 scheduling conference was in itself sufficient to comply with

the terms of the habeas order or that Cave waived the right to

enforce the conditional habeas order by agreeing to a trial date

outside the 90 day time limit. On appeal, the parties dispute

both when the resentencing time limit expired and when a "new

sentencing hearing," within the meaning of the habeas order, was

held. The majority bases its affirmance solely on the

determination that the 90 day period was extended by agreement of

the parties.1

 
conference at which Cave's resentencing was scheduled for

November 30. The 90 day period would have expired on October 25,

as the district court found. (The district court's order states,

"Thus, the State had until October 25, 1992 to comply with this

Court's Order regarding Petitioner's re-sentencing.") 

Challenging this finding of fact, the State offers a novel

recounting of days. It asserts that the filing of its Rule 59

motion on the tenth day after issuance of the order should have

tolled the 90 day resentencing clock in the same way that the

filing of a Rule 59 motion tolls the time allowed for filing an

appeal, see Federal Rule of Appellate Procedure 4(a)(4). 

Accordingly, the State argues, the 90 day time limit would not

have expired until some time in December, after Cave's counsel

had requested a continuance on November 17. By requesting a

continuance before the 90 day period had expired, the argument

goes, Cave would have waived the right to enforce the

resentencing time limit. (The State also contends that Federal

Rule of Civil Procedure 62(a) would operate to toll the running

of the 90 day period for ten days after entry of the district

court's order. Even if so, however, the additional ten days

would make no difference because Cave's counsel's request for a

continuance still would have been made after the 90 days had

expired.) 

The premise of the State's argument is dubious. Not only

does the State fail to cite a case in support of the proposition

that the filing of a petition for rehearing tolls the time period

of a conditional habeas order, but it fails to cite binding

precedent apparently to the contrary. See Tifford v. Wainwright,

588 F.2d 954, 957 (5th Cir. 1979) (90 day resentencing period

specified in conditional habeas order not tolled by state's

petition for rehearing). The State has no basis for concluding

that the district court was clearly erroneous in finding that the

90 day resentencing time limit had expired on October 25. 

Consequently, Cave's counsel's request for a continuance on

November 17 is irrelevant to the issue of the State's compliance

with the habeas order.

2

Inasmuch as the district court based its denial of habeas

relief on the fact that the scheduling conference was held before

the 90 day time limit expired, it ignored the clear language of

the original habeas order:

Respondent the State of Florida is directed to schedule

a new sentencing proceeding at which Petitioner may

present evidence to a jury on or before 90 days from

the date of this Order. Upon failure of the Respondent

to hold a new sentencing hearing within said 90 day

period without an Order from this Court extending said
 2

The presiding state court judge at the scheduling

conference described his task as "to set this case for trial

within the mandated time period." R.72, Tr. of Oct. 22, 1992

Hr'g at 3. This would seem an odd remark had the scheduling

conference itself been understood to discharge this

responsibility.

3

time for good cause, the sentence of death imposed on

the Petitioner will be vacated and the Petitioner

sentenced to life imprisonment.

Conceivably, the first sentence, read by itself, could be thought

ambiguous as between directing that the act of scheduling occur

within 90 days and directing that a sentencing proceeding before

a jury commence within 90 days. But the two sentences together

leave little room for interpretation: if the State fails to hold

a new sentencing hearing--at which Cave may present evidence to a

jury--within the designated time period, then Cave is to be

sentenced to life imprisonment. Merely scheduling such a hearing

is not, on the terms of the habeas order, sufficient.2

 

Apparently accepting that the scheduling conference itself

was not sufficient to discharge the State's time-limited

obligations under the habeas order, the majority construes what

happened at that scheduling conference as an "agreement" to

continue resentencing beyond the 90 day period. There are two

serious problems with that approach. 

First, nowhere in the habeas order is there any provision

for extensions of the 90 day resentencing time limit by agreement

of the parties; to the contrary, the order expressly provides a

different mechanism for extending the 90 day period: "an Order
 3

The State never availed itself of the habeas order's

invitation to petition the district court for such a "good cause"

extension of the 90 day resentencing period. 

 4Insofar as the second district judge interpreted the order

drafted by the first district judge to permit extension of the 90

day period by agreement, I doubt this misreading is, as the

majority argues, entitled to this court's deference. Although we

generally defer to a district judge's reasonable interpretation

of his own order, the only rationale for doing so--that the

district judge who drafted the order is in the best position to

know what he meant to say--disappears when the judge doing the

interpreting is not the same person as the judge who did the

drafting. In any case, the interpretation imposed on the order

by the second district judge was, in my opinion, unreasonable. 

 

 5

There is no evidence in the record to suggest that Cave's

counsel knew that the 90 day period would expire at the end of

October and was withholding this knowledge from the state court 

or that he was otherwise strategically delaying in the hope that

the 90 day period would expire before Cave was resentenced. 

Cave's counsel was newly appointed and had not even spoken with

Cave at the time of the scheduling conference. 

4

from this Court extending said time for good cause."3 The order

was a direction from the district court to the State; Cave simply

lacked the power unilaterally to forgive the State of its courtimposed obligation.4

 

 Second, assuming that express agreement by Cave to postpone

resentencing beyond the 90 day period would suffice to waive the

time limit, the transcript of the October 22, 1992, scheduling

conference reveals no such agreement. Instead, it is evident

from the transcript that everyone in attendance at the October 22

conference erroneously believed that the tentative date set for

the resentencing hearing, November 30, 1992, was within the 90

day period.5

 It is true that the attorney from the public

defender's office who was present at the conference apparently
 6

The majority says that its "conclusion that there was such

an agreement derives strong support from the fact that the

parties at the October 22 status conference explicitly noted that

the 90-day period could be extended by later agreement." I am

not sure what the majority means by "explicitly noted," as no one

at the scheduling conference actually said anything about what

sort of procedure would suffice to extend the resentencing

period. While the participants did contemplate putting off the

resentencing proceedings until April, there is no way of telling

from the transcript whether they believed that their agreement to

do so would be sufficient to comply with the habeas order or

whether instead the government would have to petition the

district court for a "good cause" extension. In any case, the

attorney from the public defender's office did not agree to any

date that he did not believe (albeit mistakenly) was within the

90 day period.

5

concurred in the judge's doubt that the public defender's office

would be ready for trial on November 30; but it is also true that

this attorney did not consent to any date other than November 30

at the conference, let alone acknowledge that the 90 day limit

might have to be extended or waived.6

 

Because, by all indications, everyone at the conference

mistakenly believed that November 30, 1992, was within the 90 day

period, there is no way that the lawyer representing Cave (who

was not himself present) could have knowingly waived the 90 day

limit or consented to an extension. Cf. Hamilton v. Watkins, 436

F.2d 1323, 1326 (5th Cir. 1970) ("The accepted classic definition

of waiver is ... 'an intentional relinquishment or abandonment of

a known right or privilege.'") (quoting Johnson v. Zerbst, 58 S.

Ct. 1019, 1023 (1938) (emphasis added). The only question, then,

is which party should bear the "cost" of this mutual mistake. I

believe it should be the State. The habeas order was directed to

the State, not Cave, and the State was in a better position to
6

ensure compliance by initiating resentencing within the mandated

period or requesting a "good cause" extension.

The majority argues that Cave's temporary counsel at the

sentencing hearing forfeited Cave's "entitlement" to be

resentenced within 90 days by analogy to defense counsel's

forfeiture of a right by failing to object to its violation at

trial. This line of reasoning iterates the error of viewing the

habeas order as granting Cave a right or entitlement--which he

could subsequently forfeit through his own negligence--instead of

directing the State to do something--an obligation that would

persist irrespective of the actions of Cave or his counsel. 

Worse, the majority assumes that the responsibility for ensuring

resentencing within the 90 day period falls not on the State but,

perversely, on Cave himself. Neither the State nor Cave

"objected" at the scheduling hearing to the imminent failure of

the judge to order resentencing within the specified period

because neither was aware of the miscalculation of time. I do

not understand the majority's view that Cave alone should be

punished for a failure primarily, if not exclusively,

attributable to the State.

II. 

Given that the State failed to hold a rescheduling hearing

within the 90 day period, the only question remaining is the

enforceability of the district court's habeas order mandating

imposition of a life sentence. Issuing such an order is, under
7

some circumstances, within the authority of a habeas court. 

Consequently, the district court was within its habeas

jurisdiction in issuing the order, and the order is not

unenforceable per se. Moreover, the further question of whether

the conditional bar against resentencing was an appropriate

exercise of the district court's discretion on the facts of this

case is not properly before this court because the State failed

to challenge the form of habeas relief granted by the district

court in its previous Eleventh Circuit appeal. I would conclude,

therefore, that the habeas order should be enforced as written,

imposing on Cave a final sentence of life imprisonment.

The federal habeas statute empowers federal courts to grant

relief "as law and justice require," 28 U.S.C. § 2243, and

expressly contemplates remedies other than release from custody, 

see 28 U.S.C. § 2244(b) ("release from custody or other remedy on

an application for a writ of habeas corpus"). The Supreme Court

consistently has emphasized that a federal court is vested "'with

the largest power to control and direct the form of judgment to

be entered in cases brought up before it on habeas corpus.'" 

Hilton v. Braunskill, 107 S. Ct. 2113, 2118 (1987) (quoting In re

Bonner, 14 S. Ct. 323, 327 (1894)). Most commonly, courts

granting habeas relief issue "conditional release" orders, which

require the state to release the petitioner from custody or from

an unconstitutional sentence unless the petitioner is retried or

resentenced within some specified (or a "reasonable") period of

time. Ordinarily, if the state fails to retry or resentence the
 7

Of course, the defendant's Sixth Amendment speedy trial

rights may be asserted against retrial in state court and, if

that fails, in a subsequent federal habeas petition.

8

petitioner within the designated period of time, it may still

rearrest and retry or resentence the successful habeas petitioner

at a later time.7

 See Moore v. Zant, 972 F.2d 318, 320 (11th

Cir. 1992), cert. denied, 113 S. Ct. 1650 (1993). 

The question presented here, however, is whether a habeas

court has the authority to issue a conditional order permanently

forbidding reprosecution or resentencing if the state fails to

act within a specified time period. (On the facts of this case,

this question becomes whether a habeas court can forbid further

state capital sentencing hearings once a death sentence has been

held unconstitutional and the state has failed to comply with the

procedural requirements of the resulting habeas order.) Three

out of four circuits to have decided this issue have held that

federal courts do have the authority to bar retrial of a habeas

petitioner who has successfully challenged his or her conviction. 

See Capps v. Sullivan, 13 F.3d 350, 352 (10th Cir. 1993); Foster

v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993) ("district court has

authority to preclude a state from retrying a successful habeas

petitioner when the court deems that remedy appropriate"); Burton

v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992), cert. denied, 113

S. Ct. 1879 (1993); Heiter v. Ryan, 951 F.2d 559, 564 (3d Cir.

1995). Only the Fifth Circuit has indicated that a habeas court

lacks the power to permanently bar a state from retrying or

resentencing a defendant. See Smith v. Lucas, 9 F.3d 359, 365-67
9

(5th Cir. 1993), cert. denied, 115 S. Ct. 98 (1994). But see

Smith v. Lucas, 16 F.3d 638, 641 (5th Cir.) (on appeal from the

district court's order on remand from the previous Fifth Circuit

Smith decision, purporting only to "have some doubt as to whether

a federal court has the authority to enter" a habeas order

prohibiting the state from subsequently seeking a death sentence)

(emphasis added), cert. denied, 115 S. Ct. 151 (1994). 

Although this circuit has not decided the issue, the most

relevant Eleventh Circuit case seems to comport with the majority

view that habeas courts have the power to bar retrial or

resentencing. In Moore v. Zant, this court interpreted a

conditional habeas order not to prohibit the state from

subsequent capital resentencing. Explaining the effect of the

typical conditional habeas order, the court stated that after a

successful habeas petitioner is released from custody "the state

may ordinarily still rearrest and reprosecute that person," and

that the grant of the writ "does not usually adjudicate the

constitutionality of future state acts directed at the

petitioner." 972 F.2d at 320 (emphases added). Evidently, then,

the court was of the opinion that habeas courts could, under

certain circumstances, permanently bar reprosecution or

resentencing. 

I would hold that it is within the broad habeas power of a

federal court to issue an order permanently barring the state

from retrying or resentencing the petitioner. Indeed, in some

cases this may be the only effective form of habeas relief. For
10

example, if the basis for granting habeas relief is a violation

of the petitioner's Fifth Amendment Double Jeopardy rights or

insufficiency of the evidence, then barring a new trial would be

the only way to prevent the state from iterating the

constitutional violation. Similarly, a prisoner's Sixth

Amendment speedy trial rights would be rendered meaningless if,

even after a successful habeas petition asserting these rights,

he or she could be tried or sentenced at the will of the state.

Of course, to recognize that this extreme remedy is

authorized is not to condone its routine use; habeas courts must

exercise discretion. Other courts to have recognized the

authority of habeas courts to impose permanent bars on retrial or

resentencing sensibly have limited the circumstances in which

this form of relief would be appropriate. See Capps, 13 F.3d at

352-53 (generally should be reserved for cases in which the

"constitutional violation ... cannot be remedied by another

trial, or other exceptional circumstances exist such that the

holding of a new trial would be unjust); Foster, 9 F.3d at 727

("suitable only in certain situations, such as when a retrial

itself would violate the petitioner's constitutional rights"). 

We need not now define the circumstances in which such

relief would be warranted, however, because the claim that the

district court abused its discretion by mandating the conditional

imposition of a life sentence is not properly before this court. 

The State admits that it did not challenge the form of relief

specified in the habeas appeal on its previous appeal to the
 8

The State challenged only the substantive (i.e.,

Strickland) basis for granting the writ.

11

Eleventh Circuit.8 It is not necessary, therefore, for this

court to determine whether the district court abused its

discretion by mandating the conditional bar to retrial on the

facts of this case; the form of relief granted became the law of

this case when the State failed to challenge it on the initial

appeal. 

This is precisely the situation confronted by the Tenth

Circuit in both Capps and Burton. In each of those cases, the

court held that the state had waived any challenge to the habeas

remedy of permanent discharge. Capps, 13 F.3d at 353; Burton,

975 F.2d at 693-94. In fact, in Capps the court recognized that

"because nothing in the record suggests the constitutional

violation was not redressable in a new trial, the district court

apparently abused its discretion [by issuing a writ barring

retrial]." 13 F.3d at 353. Nevertheless, because the state did

not challenge the remedy in its initial appeal of the grant of

habeas to the Tenth Circuit, the court held that it was precluded

from reviewing the form of habeas relief granted by the district

court. Id. I would follow the approach of the Tenth Circuit,

finding it dispositive that the district court was acting within

the scope of its habeas authority. 

III.

The State in this case not only failed to resentence Cave in
12

the time allotted but also failed to challenge the valid habeas

remedy granted by the district court in the first Eleventh

Circuit appeal. As a result, Cave should be sentenced to life

imprisonment. 

I respectfully DISSENT.