Derrick Tyrone Smith v. Secretary, Department of Corrections, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT. 12, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-11562
________________________
D.C. Docket No. 8:06-cv-01330-EAK-MAP
DERRICK TYRONE SMITH,
lllllllllllllllllllll Petitioner - Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
lllllllllllllllllllll Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 12, 2011)
Before DUBINA, Chief Judge, CARNES and HULL, Circuit Judges.
PER CURIAM:
Since this appeal from the denial of federal habeas relief was re-submitted

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to us following a remand to the district court, the Florida Supreme Court has
issued a decision in a Florida Rule of Criminal Procedure 3.851 proceeding
involving the same petitioner. Smith v. State, No. SC09-2063, 2011 WL 4599594
(Fla. Oct. 6, 2011). That decision directs the Florida trial court to conduct an
evidentiary hearing on two claims and to consider certain Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194 (1963), violations in its cumulative prejudice analysis.
Smith, 2011 WL 4599594, at *1.
In light of that Florida Supreme Court decision, we vacate the district
court’s order and remand this case with instructions for the district court to hold
this federal habeas proceeding in abeyance pending the completion of the state
collateral proceedings that the Florida Supreme Court has ordered and the
completion of any appeal from those proceedings. The district court may, if it
wishes, order the parties to regularly report to it the progress of the state collateral
proceedings and any decisions issued in those proceedings.
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