United States District Court, M.D. Florida, Tampa Division
JAMES M. DAILEY, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.
ORDER GRANTING LIMITED STAY OF EXECUTION
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE.
matter comes to the Court on Petitioner James Dailey's
Motion for a Limited Stay of Execution Under 28 U.S.C. §
2251(a)(3)-Expedited (Dkt. 75) in which he moves the Court to
stay his execution, scheduled for November 7, 2019, until
December 15, 2019. Respondents oppose the motion. Dkt. 77.
This Court STAYS imposition of the death penalty for ninety
(90) days from appointment of federal counsel, until December
30, 2019 at which time this stay will automatically dissolve.
Dailey, a Florida prisoner under sentence of death and
scheduled to be executed on November 7, moves to stay his
execution under 28 U.S.C. § 2251(a)(3), which provides:
If a State prisoner sentenced to death applies for
appointment of counsel pursuant to section 3599(a)(2) of
title 18 in a court that would have jurisdiction to entertain
a habeas corpus application regarding that sentence, that
court may stay execution of the sentence of death, but such
stay shall terminate not later than 90 days after counsel is
appointed or the application for appointment of counsel is
withdrawn or denied.
Dailey argues that under § 2251(a)(3), this Court has
and should exercise its “statutory authority to stay
[his] execution in order to allow for meaningful
conflict-free federal representation” by the Capital
Habeas Unit, which was appointed on October 1, 2019, to
provide Mr. Dailey with representation in any federal
proceedings related to his first-degree murder conviction and
death sentence. Dkt. 75 at 6. He further argues
“whether to grant a stay under 28 U.S.C. §
2251(a)(3) is not discretionary if a petitioner's right
to federally appointed counsel will be violated unless the
court stays his execution[, ]” and it would be an abuse
of discretion not to grant a stay of execution in this case
because the CHU was appointed on October 1, 2019, and will
not have sufficient time to meaningfully research and present
his claims before November 7. Dkt. 75 at 8.
the Office of Capital Collateral Regional Counsel-Middle
Region (“CCRC”) was appointed to represent Mr.
Dailey pursuant to 18 U.S.C. § 3599(a)(2). Dkt. 8. On
September 30 of this year, Mr. Dailey moved to have the
Capital Habeas Unit of the Office of the Federal Public
Defender for the Middle District of Florida
(“CHU”) appointed pursuant to 18 U.S.C. §
3599(a)(2). Dkt. 49. The next day, October 1, CCRC moved to
withdraw as Mr. Dailey's counsel due to alleged conflicts
of interest. Dkt. 56. The Court granted both motions on
October 1 and appointed CHU to represent Mr. Dailey pursuant
to 18 U.S.C. § 3599(a)(2). Dkt. 58.
object to any stay, noting correctly that Dailey has already
engaged in a full round of federal habeas. Respondents also
argue that any potential petition would be meritless and/or
Court has “jurisdiction to entertain a habeas
corpus application regarding that sentence.” 28 U.S.C.
§ 2251(a)(3) (emphasis added). Whether Dailey's
potential habeas application will invoke this Court's
jurisdiction depends upon what it contains. This Court likely
has jurisdiction to entertain habeas corpus petitions that
are not successive. See Boyd v. United States, 754
F.3d 1298, 1301 (11th Cir. 2014) (“[T]he phrase second
or successive is not self-defining and it does not refer to
all habeas petitions filed second or successive in
time.”). And, at minimum, this Court would be the court
with jurisdiction to entertain a second or successive habeas
corpus petition should it be permitted by the Eleventh
Circuit Court of Appeals. See 28 U.S.C. §
2244(b)(3)(A). As such, this Court has jurisdiction to
entertain habeas corpus applications by Mr. Dailey. And,
since Mr. Dailey's counsel-CHU-was appointed pursuant to
18 U.S.C. 3599(a)(2) and this Court may have jurisdiction to
entertain a habeas corpus application should one be filed,
this Court may stay execution for up to 90 days. 28 U.S.C.
“section 2251(a)(3) does not mandate an automatic stay,
[it does] leave the exercise of stay jurisdiction to the
sound discretion of a federal court.” Johnson v.
Davis, No. 4:11-cv-2466, Doc. 84, at 8 (S.D. Tex. Apr.
30, 2019) (Dkt. 75-3); see also Gutierrez v. Davis,
No. 18-70028, Order Denying Motion, at *2 (5th Cir. Sept. 10,
2018) (Dkt. 75-2) (“We next consider whether the
district court abused its discretion in [granting a stay
pursuant to 28 U.S.C. § 2251(a)(3).]”). While this
Court takes no position on any potential habeas application
that Dailey's new counsel might file between now and the
due date set below-or even if such application would be
reviewable on its merits without approval from the Eleventh
Circuit Court of Appeals-it is in the interests of a just and
fair system for Mr. Dailey's new counsel to have the
statutory grant of time to review and present habeas issues
to this Court. Mr. Dailey has been on death row since 1987.
Staying his execution for 53 days to ensure that Dailey's
right to counsel is meaningful is scant prejudice to
this Court grants Dailey's Motion for Limited Stay of
Execution Under 28 U.S.C. § 2251(a)(3)-Expedited. Dkt.
75. Mr. Dailey's execution shall be stayed for ninety
(90) days until 11:59 PM December 30, 2019, at which time
this stay will automatically dissolve. The Governor of
Florida, Respondents, and the Warden of the Florida State
Prison are hereby enjoined from executing James M. Dailey
during the pendency of this stay. Mr. Dailey and his counsel
are ordered to file any habeas corpus petition or any other
grounds for relief in federal court no later than
November 30, 2019, at 5 PM.