On January 14, 2002, the Superior Court of Muscogee County filed a new execution order, setting the seven-day window in which the execution of Ronald Keith Spivey could occur to open at noon, January 24, 2002, and end at noon on January 31, 2002. The Commissioner of the Georgia Department of Corrections, using the discretion under Georgia law to set the specific time and date for the execution within that window, set the execution for Thursday, January 24, 2002 at 7:00pm. The execution was carried out on January 24, 2002 at 7:35pm. Spivey had previously concluded his direct appeal from his Muscogee County criminal case (a court-ordered retrial of a previous conviction and death sentence), as well as two state and two federal habeas corpus proceedings. He was represented by John Matteson of Duluth, Georgia, who was assisted by Thomas H. Dunn of the Georgia Resource Center, Atlanta, Georgia. Spivey was represented in his first two state and his two federal habeas corpus cases by William J. Mertens of a Washington, D.C., law firm.
Ronald Keith Spivey went to a cocktail lounge at a mall in Columbus, Georgia, on the evening of December 27-28, 1976, where he had several drinks. Around the lounge’s 2 a.m. closing time, he pulled out a gun, ordered a bar maid, a waitress, and the remaining customer to the back of the lounge, then took $200 from the cash drawer and $50 from the purse of the bar maid. Meanwhile, Billy Watson, a Columbus police officer who was employed off-duty as a security guard at a restaurant across the hall from the lounge, noticed shortly after 2 a.m. on December 28, 1976, that the doors to the cocktail lounge were still open. Mr. Watson and the restaurant manager became suspicious and decided to investigate as the doorway should have been closed at 2 a.m. They entered the lounge, found it empty, and went back towards the bar, hearing voices from where Spivey and the hostages were located. As the two men approached the doorway, Ronald Spivey shot Billy Watson twice, killing him. Spivey then shot the restaurant manager two or three times. Spivey then ordered the bar maid, the waitress and the customer to leave the lounge with him. As they were leaving, the restaurant manager moaned, and Spivey turned around and shot him again. Spivey took his hostages outside the mall to the parking lot, demanding that someone furnish him a car. Meanwhile, the injured restaurant manager managed to run into his restaurant to try to get help. Spivey sent the waitress and customer into the restaurant to insure that police were not called. Spivey then followed the restaurant manager, fired several times into the restaurant, and one bullet struck a bartender in the hip. Spivey then took the remaining hostage, the barmaid, to his car, and they went to Alabama, where he was subsequently arrested and she was released. Information about crimes Spivey committed earlier in the day on December 27, 1976, in Macon, Georgia, was introduced at the Muscogee County trial, showing that Spivey killed a man in a pool hall in Macon, Georgia, over a $20 bet, and shot at others.
The Original Trial
Spivey was originally tried in Muscogee County in June 1977 for the murder and armed robbery of off-duty police officer Billy Watson, the kidnapping and armed robbery of the bar maid, and aggravated assaults upon the two men from the adjacent restaurant. His original convictions and sentences were affirmed on direct appeal in 1978. Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1978). However, the United States Court of Appeals for the Fifth Circuit later set aside those convictions and sentences, upon finding that Spivey had been forced to undergo a psychiatric evaluation in violation of his Fifth Amendment rights. Spivey v. Zant, 683 F.2d 881 (5th Cir. 1982).
Spivey was reindicted in August 1983 in Muscogee County for the same crimes. At a retrial on November 16-23, 1983, Spivey was again found guilty of murder, two counts of armed robbery, one count of kidnapping and two counts of aggravated assault. The jury found the existence of one statutory aggravating circumstance: the murder was committed while Spivey was engaged in the commission of the capital felony of armed robbery, O.C.G.A. § 17-10-30(b)(2), and imposed a death sentence for murder. The trial court resentenced Spivey to death for murder, imposed life sentences for the two armed robberies, a 20 year sentence for kidnapping, and ten year sentences for the two aggravated assaults. On July 2, l984, the Georgia Supreme Court affirmed Spivey’s convictions and sentences, and denied reconsideration on July 30, 1984. Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984), cert. denied, 469 U.S. 1132, reh’g denied, 470 U.S. 1024 (1985). The United States Supreme Court declined to review issues arising from Spivey’s retrial.
The First State Habeas Corpus Case
On March 18, 1985, Spivey filed a petition for writ of habeas corpus in the Superior Court of Butts County, Georgia, alleging constitutional errors occurred in the 1983 retrial, which should cause his convictions and sentences to be set aside. An evidentiary hearing was held on October 26, 1987. On March 31, 1989, the state habeas corpus court denied relief. The Supreme Court of Georgia denied Spivey’s application for certificate of probable cause to appeal on November 8, 1989. The United States Supreme Court declined to review issues from the state habeas corpus case. Spivey v. Kemp, 494 U.S. 1074, reh’g denied, 495 U.S. 953 (1990).
The First Federal Habeas Corpus Case
Pursuant to an outstanding execution date, Spivey filed a motion for a stay of execution and a habeas corpus petition in the United States District Court for the Middle District of Georgia, Macon Division. After discovery was conducted on one claim, Spivey moved to hold the federal case in abeyance while he filed a second state habeas corpus petition in order to exhaust his new claims regarding the state’s alleged failure to have revealed exculpatory, material evidence to him. The district court subsequently dismissed the federal petition without prejudice on January 31, 1995, to permit Spivey to litigate his new claims in the state courts.
The Second State Habeas Corpus Case
In March 1993 Spivey filed his second state habeas corpus petition in the Superior Court of Butts County, asserting the prosecutor had allegedly failed to reveal, prior to the retrial, material information helpful to the defense. A hearing was held on January 26, 1995, on the warden’s motion to dismiss the petition as successive, as the warden asserted the information on which the new claims were based was either known to or could readily have been found by Spivey before and raised in his original state habeas case. On April 7, 1995, the habeas corpus court dismissed the second petition as successive, finding that the claims could all reasonably have been raised in Spivey’s original state habeas corpus case. The Georgia Supreme Court denied his application for certificate of probable cause to appeal on June 23, 1995, and denied reconsideration July 17, 1995. The United States Supreme Court again denied review. Spivey v. Thomas, 516 U.S. 1077 (1996).
The Second Federal Habeas Corpus Case
On November 17, 1995, while his certiorari petition was pending in the United States Supreme Court from the second state habeas case, Spivey filed his second federal habeas corpus in the Middle District of Georgia, raising issues from all the prior state proceedings. The district court ultimately denied relief on December 19, 1997; denied Spivey’s motion for relief from judgment on February 28, 1998; and denied his application for a certificate of appealability on March 13, 1998. The United States Court of Appeals for the Eleventh Circuit subsequently granted Spivey a certificate of appealability on certain issues. On March 28, 2000, the Eleventh Circuit affirmed the denial of federal habeas corpus relief and declined to set aside Spivey’s 1983 convictions and sentences. Spivey v. Head, 207 F.3d 1263 (11th Cir. 2000). Rehearing was denied on July 5, 2000. On December 11, 2000, the United States Supreme Court denied Spivey’s petition for writ of certiorari to review the Eleventh Circuit’s decision, and denied his petition for rehearing on February 20, 2001. Spivey v. Head, 121 S.Ct. 1176 (2001).
The Third State Habeas Corpus Case
On February 23, 2001, the trial court filed a new execution order for Spivey’s execution, opening the window at noon, March 6, 2001, and ending at noon, March 13, 2001. The Commissioner of Corrections set Spivey’s execution for 7 p.m. on March 6, 2001. On February 27, 2001, Spivey asked the trial court to stay its own execution order pending a decision by the Georgia Supreme Court on the constitutionality of electrocution as a means of execution. The trial court denied that request on February 28, 2001. Spivey then filed an “extraordinary motion” from the trial court’s execution order in the Georgia Supreme Court in which he asked for a stay of his scheduled execution. On the afternoon of March 6, 2001, the Georgia Supreme Court granted Spivey a stay of execution until the Court addressed the issue regarding electrocution. Spivey v. State, 273 Ga. 544, 544 S.E.2d 136 (2001). Meanwhile, on the morning of March 6, 2001, before he was granted a stay of execution by the Georgia Supreme Court, Spivey filed a third habeas corpus petition in Butts County, a motion for stay of execution, a motion for a psychological evaluation, and a motion for his attorney to appear pro hac vice. The state habeas corpus denied the relief requested and dismissed the third petition on March 6, 2001. That same day Spivey filed a notice of appeal and an application for certificate of probable cause to appeal in the Georgia Supreme Court. As noted above, the Georgia Supreme Court granted Spivey a stay of execution on the afternoon of March 6, 2001. Spivey v. State, 273 Ga. at 544. The warden filed a response in opposition to Spivey’s application in the habeas case on March 7, 2001, while the State moved to dissolve the stay in the “appeal” from the new execution order. The State’s motion was denied. On January 10, 2002, the Georgia Supreme Court denied Spivey’s application for certificate of probable cause to appeal the denial of his third petition. In that same order, the Court dissolved the stay of execution it had issued on March 6, 2001. The dissolution of that stay permitted the trial court to set the new execution window in January 2002. On the afternoon of January 23, 2002, Spivey filed in the United States Supreme Court a petition for a writ of certiorari to review the Georgia Supreme Court’s decision and a motion for stay of execution. The warden filed a response in opposition that same afternoon. The United States Supreme Court denied certiorari on January 24, 2002.
The Fourth State Habeas Corpus Case
On October 17, 2001, 12 days after the Georgia Supreme Court declared electrocution unconstitutional under Georgia’s Constitution in Dawson v. State, 274 Ga. 327 (2001), Spivey, representing himself, filed his fourth habeas corpus petition in the Superior Court of Butts County. He alleged that changing the method of his execution from electrocution to lethal injection violated the ex post facto clause of the federal and state constitutions and it, like electrocution, was allegedly cruel and unusual punishment. He also raised an issue about one of the lawyers who had represented him in the third state habeas case. An attorney subsequently entered an appearance on Spivey’s behalf and raised a new claim, alleging it is cruel and unusual punishment under the state and federal constitutions to execute persons who are “mentally ill” and Spivey’s own execution should be barred as he is allegedly “mentally ill.” On January 16, 2002, the Butts County Superior Court dismissed the fourth petition as successive and/or for failing to state a basis on which Spivey’s convictions and death sentence should be set aside. Spivey filed a motion for reconsideration and motion for stay of execution on January 22, 2002, both of which were denied on January 23, 2002. Spivey then filed a notice of appeal to the Georgia Supreme Court. The Georgia Supreme Court denied his appeal and his motion for stay of execution on January 24, 2002.
The Civil Rights Lawsuit
On the afternoon of January 23, 2002, Spivey filed a civil rights lawsuit in the United States District Court, Northern District of Georgia, against the State Board of Pardons and Paroles, individual members thereof, the Governor and the Commissioner of the Department of Corrections. Spivey requested a temporary restraining order to bar his execution, as he claims that two Parole Board members have a “conflict of interest” and purportedly could not fairly consider a clemency petition. Pursuant to a hearing on the afternoon of January 23, 2002, the district court denied all relief Spivey requested. Spivey then filed an appeal and a motion for stay in the 11th Circuit Court of Appeals, which was denied by the appellate court on January 24, 2002.