author: BRORBY, Circuit Judge.

text:
    Cathy T. MAY, individually and as administratrix of the estate of Timothy L. May, deceased, and as parent and next of kin to Erin L. May, Caroline E. May and Luke J. May, minor children; Jesse Worsham, husband; and Shanda Worsham, wife, Plaintiffs-Appellants and Cross-Appellees, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Defendant-Appellee and Cross-Appellant, Nationwide Mutual Insurance Company, Defendant.
    Nos. 94-5173, 94-5181.
    United States Court of Appeals, Tenth Circuit.
    May 30, 1996.

      Jeffrey A. Glendening (Ann Makela Schneider and Steven W. Simcoe with him on the briefs), of BarMey, Rodolf & McCarthy, Tulsa OMahoma, for Plaintiffs-Appellants and Cross-Appellees.
    William D. Perrine (Michael F. Smith and Benton T. Wheatley with him on the brief), of Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, OMahoma, for Defendant-Ap-pellee and Cross-Appellant.
    Before BALDOCK, BRORBY and LUCERO, Circuit Judges.
   BRORBY, Circuit Judge.

TMs eases arises out of an automobile accident. It involves a dispute over whether and to what extent an auto liability insurance policy included uninsured motorist coverage. The district court found the policy included uninsured motorist coverage by operation of OMahoma law and set the limits of coverage at the statutory minimum of $10,000 per person and $20,000 per occurrence. The plaintiffs appealed, claiming the coverage limits should be higher. The defendant insurance company also appealed, claiming the policy included no uninsured motorist coverage. After preliminarily determining the policy did include uninsured motorist coverage, we certified a question to the Oklahoma Supreme Court and asked the court to determine the proper limits of coverage. The Oklahoma Supreme Court recently responded to our question. May v. National Union Fire Ins. Co. of Pittsburgh, Penn., 918 P.2d 43 (Okla.1996). For the reasons given below, we now affirm the district court.

I. Factual & Procedural Background

The parties submitted this case to the district court on cross-motions for summary judgment. The material facts are not disputed. In September 1991, an automobile operated by an intoxicated driver struck an automobile occupied by Timothy May and Jesse Worsham, killing Mr. May and seriously injury Mr. Worsham. At the time of the accident, Messrs. May and Worsham worked for Gold Bond Budding Products (“Gold Bond”), a division of National Gypsum Company (“Gypsum”). Messrs. May and Wors-ham were acting in the scope of their employment for Gold Bond when the accident occurred, and Gold Bond owned or leased the automobile in which they were traveling.

Effective January 1, 1988, National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”), issued to Gypsum a business auto liability policy (the “Policy”) providing $5 million in liability coverage. In March 1988, Gypsum’s Director of Risk Insurance executed a valid written rejection of uninsured or underinsured motorist coverage for the company’s vehicles in all jurisdictions permitting such a rejection, including Oklahoma. This rejection corresponded with Gypsum’s and National Union’s intent throughout the time period relevant to this case that the Policy not include uninsured motorist coverage.

From 1988 through 1991, National Union annually reissued the Policy to Gypsum. At Gypsum’s request, the Policy as effective January 1, 1989, lowered the liability coverage from $5 million to $3 million, where it stood at the time of Messrs. May’s and Worsham’s accident. After this change in the provisions of the Policy, National Union did not offer Gypsum uninsured motorist coverage, nor did it obtain a written rejection from Gypsum declining such coverage. At no time after the January 1989 renewal and up through the 1991 accident did National Union offer Gypsum uninsured motorist coverage or obtain from Gypsum a rejection of uninsured motorist coverage.

The Policy was last renewed prior to the accident on January 1, 1991. This 1991 version of the Policy erroneously included an endorsement that purported to add uninsured motorist coverage for Gypsum’s vehicles in Oklahoma. The endorsement expressly conflicted with the 1991 Policy’s declarations sheet, which indicated Gypsum intended to purchase uninsured motorist coverage only in states mandating such coverage.

The Mays and Worshams filed a complaint for declaratory judgment against National Union, asking the district court to determine the extent of uninsured motorist coverage to which they were entitled under the Policy. The parties filed cross motions for summary judgment, contending there were no disputes as to the material facts and the district court could decide all issues as a matter of law. The Mays and Worshams contended the erroneous endorsement to the 1991 Policy resulted in Oklahoma uninsured motorist coverage equal to the Policy’s $3 million bodily injury liability limit. In the alternative, they argued uninsured motorist coverage in the amount of $3,000,000 should be imputed to the Policy by operation of Oklahoma law. National Union claimed the Policy did not include any uninsured motorist coverage, and that if it did include such coverage the limit of liability was $10,000. Finding no material facts at issue, the district court addressed the parties’ legal contentions. The court concluded: (1) the Oklahoma uninsured motorist endorsement mistakenly attached to the 1991 Policy did not become part of the Policy and the terms of the endorsement had no effect on the dispute; (2) by operation of Oklahoma law, uninsured motorist coverage became imputed to the Policy; (3) National Union’s liability for the imputed coverage equaled the Oklahoma statutory minimum of $10,000. Both parties appealed. According to the Mays and Worshams, though the district court properly imputed uninsured motorist coverage to the Policy by operation of law, it erred by setting the amount of coverage at $10,000 instead of $3 million. National Union contends the district court improperly imputed uninsured motorist coverage to the Policy.

II. Applicable Law & Standard of Review

The district court’s jurisdiction over this matter was based on diversity of citizenship. 28 U.S.C. § 1332. A federal court sitting in diversity applies the substantive law of the forum state. Barrett v. Tallon, 30 F.3d 1296, 1300 (10th Cir.1994). We review de novo the district court’s determinations of state law. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1220-21, 113 L.Ed.2d 190 (1991); Magnum Foods, Inc. v. Continental Casualty Co., 36 F.3d 1491, 1497 (10th Cir.1994). Because Oklahoma is the forum state in this dispute, we will apply the most recent statements of Oklahoma law by the Oklahoma Supreme Court. Wood v. Eli Lilly & Co., 38 F.3d 510, 513 (10th Cir.1994). If “no state eases exist on a point, we turn to other ‘state court decisions, federal decisions, and the general weight and trend of authority.’ ” Barnard v. Fireman’s Fund Ins. Co., 996 F.2d 246, 248 (10th Cir.1993) (quoting Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir.1988)).

We review de novo the grant or denial of summary judgment, applying the same standard used by the district court under Fed.R.Civ.P. 56(e). Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

III. Analysis

We begin our analysis with National Union’s contention the district court erred by concluding uninsured motorist coverage should be imputed to the Policy by operation law.

As we have already discussed, the Policy as effective January 1, 1989, lowered the liability coverage from $5 million to $3 million. After this change in liability coverage, National Union did not offer Gypsum uninsured motorist coverage, nor did it obtain a written rejection from Gypsum declining such coverage. As we explain below, given these undisputed facts, the district court properly imputed uninsured motorist coverage to the Policy.

Okla. Stat. tit. 36 § 3636, as it existed in 1989, required in part that no automobile liability insurance policies “shall be issued, delivered, renewed, or extended in [Oklahoma]” unless the policy included uninsured motorist coverage. Okla. Stat. tit. 36 § 3636(A) & (B). The section provided, however, that insureds could reject uninsured motorist coverage:

The named insured shall have the right to reject such uninsured motorist coverage in writing, and except that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

Id. § 3636(F).

Thus, § 3636 relieves an insurer of its duty to include uninsured motorist coverage in a policy if the insured rejects the coverage in writing. If an insurer, however, fails to offer uninsured motorist coverage and does not secure a written rejection of such coverage, uninsured motorist coverage is imputed to the policy by operation of law. Beauchamp v. Southwestern Nat’l Ins. Co., 746 P.2d 673, 676 (Okla.1987). As § 3636(F) indicates, this rule does not apply to “a renewal policy” where the insured has already rejected uninsured motorist coverage. In other words, an insurer’s failure, in connection with a renewal policy, to offer uninsured motorist coverage or obtain a written rejection of uninsured motorist coverage from the insured will not result in imputed coverage. See id. at 675-77.

The Mays and Worshams contend that the change in liability coverage from $5 million to $3 million in the 1989 Policy constituted a new policy that required National Union to offer uninsured motorist coverage and obtain a written rejection of such coverage from Gypsum. Given that National Union did not do these things, the Mays and Worshams assert the district court properly imputed uninsured motorist coverage to the Policy. National Union claims the 1989 Policy was merely a renewal and that it was not required to offer uninsured motorist coverage because Gypsum had already properly rejected uninsured motorist coverage in writing in 1988. We must decide whether the 1989 Policy constituted a renewal or a new policy.

The Oklahoma Supreme Court provided guidance on this issue in Beauchamp, in which it explained:

In 36 O.S.1981 § 3636(F), the Legislature has set forth a narrow pronouncement which relieves insurers from the burden of procuring a written rejection of uninsured motorist coverage whenever an existing policy is renewed. This pronouncement, however, must be viewed in the context of the explicitly announced legislative policy set forth at 36 O.S.1981 § 3636(A) which is that uninsured motorist coverage must be offered with each policy of insurance. To give full effect to the overall policy of section 3636 the provision of subsection (F) must be viewed as strictly limited to true renewals of existing insurance policies, that is, situations where such renewals are made without effecting a material change or departure from the provisions of the original policy.

Id. at 676.

Given the Oklahoma Supreme Court’s admonition to read § 3636(F) narrowly, we conclude that the change in liability coverage from $5 million to $3 million in 1989 “effect[ed] a material change or departure from the provisions” of the Policy as originally written in 1988. Id.; see Hartford Accident & Indem. Co. v. Sheffield, 375 So.2d 598, 600 (Fla.Dist.Ct.App.1979) (holding that when a policy is reissued with significantly lower liability coverage and premiums it is a new policy and not merely a renewal) (cited without disapproval in Beauchamp, 746 P.2d at 675 n. 2). In fact, in its response to our certified question in this case, the Oklahoma Supreme Court agreed that the change in liability coverage in 1989 took the 1989 Policy out of § 3636(F)’s renewal exception: “We agree with the federal court that the $2,000,-000.00 decrease in liability coverage was a ‘material change’ of National Gypsum’s policy as contemplated by Beauchamp. A material change or departure from the provisions of an original policy is tantamount to the issuance of a new policy under 36 O.S. § 3636.” May, 918 P.2d at 44 n. 2.

Since the 1989 Policy was tantamount to a new policy, National Union was required by § 3636 to offer uninsured motorist coverage and obtain from Gypsum a written rejection of such coverage. Okla. Stat. tit. 36 § 3636. National Union did not satisfy these duties; therefore, the district court properly concluded that uninsured motorist coverage should be imputed to the Policy by operation of law. Beauchamp, 746 P.2d at 676.

National Union makes much of the fact that “[t]he intent of the parties here demonstrates that Nation Gypsum wanted to reject [uninsured motorist] coverage in all jurisdictions where rejection is permitted.” Though National Union accurately describes Gypsum’s intent with respect to uninsured motorist coverage, National Union has not persuaded us that the insured’s subjective intent has any bearing on the issue of imputed coverage. As the Oklahoma Supreme Court has explained:

[T]he burden of proof is upon the insurer to come forward with a written rejection in order to reheve the insurer from its duty to provide the statutory uninsured motorist coverage. Allegations of oral offers of uninsured motorists coverage fall short of the tenor of proof required by 36 O.S.1981 § 3636, for there is but one statutorily sanctioned method by which the mandatory uninsured motorist coverage provided for persons insured under a liability policy may thereafter be rejected.

Moon v. Guarantee Ins. Co., 764 P.2d 1331, 1335 (Okla.1988) (emphasis added).

We now turn to the issue of how much coverage should be imputed to the Policy. The Mays and Worshams claim the limits of the imputed coverage should equal the limits of the Pokey’s liability coverage, or $3 million. National Union contends the limits should be set at the statutory minimum for uninsured motorist coverage, or $10,000 per person and $20,000 per occurrence. See Okla. Stat. tit. 36 § 3636(B); Okla. Stat. tit. 47 § 7-204(a). In response to our certified question, the Oklahoma Supreme Court resolved this issue in favor of National Union. Below we excerpt a substantial portion of the Oklahoma Supreme Court’s opinion:

As a preliminary issue, we must determine whether § 3636 as amended in 1990, rather than the pre-1990 version, governs the insurance policy in this case. National Gypsum’s policy was issued in 1988 and was renewed annually. The last renewal prior to the September 1991 accident occurred on January 1, 1991. Title 36 O.S. Supp.1990 § 3636, which embraced the 1990 amendments, took effect on September 1, 1990. In Cofer v. Morton, 784 P.2d 67, 70 (Okla.1989), this Court held that “[rjights of recovery under the Uninsured Motorist Act [§ 3636] are governed by the statute in effect on the date of issuance or last renewal of the policy against which an uninsured motorist claim is made.” Accord McSorley v. Hertz Corp., 885 P.2d 1343, 1344 n. 1 (Okla.1994); Uptegraft v. Home Ins. Co., 662 P.2d 681, 684 n. 2 (Okla.1983). As previously set forth, UM coverage was imputed to National Gypsum’s policy before the 1990 changes to § 3636. However, the plaintiffs’ rights of recovery are governed by the statute in effect on the date of the last renewal of that policy. The version of § 3636 in effect on the date of the policy’s last renewal on January 1,1991, was 36 O.S. Supp.1990 § 3636. Thus, the amount of UM benefits the plaintiffs may recover under the policy is governed by the amended version of the statute.
Prior to its amendment in 1990, § 3636 provided inter alia that every automobile liability insurance policy issued in Oklahoma must include provisions for UM coverage; that UM coverage must be in an amount not less than $10,000 per person and $20,000 per accident; that insurers must offer increased limits of UM coverage not to exceed the policy's liability limits; and that insureds had the right to reject UM coverage in writing. This statute was interpreted in Moser v. Liberty Mut. Ins. Co., 731 P.2d 406 (Okla.1986), as follows:
This Court has stated that the intent of the uninsured motorist legislation is to afford to one insured under his own liability insurance policy the same protection in the event he is injured by an uninsured motorist as he would have had if the negligent motorist had carried liability insurance. In subsection (B) of section 3636, it is provided that the uninsured motorist coverage provided as a part of a liability policy shall not be less than that required under 47 O.S.1981 § 7-204, with the insured to have the option to purchase increased limits of liability not to exceed the limits provided for bodily injury liability under the policy. Section 7-204 sets the minimum limits of liability coverage required to be carried by all owners of vehicles registered in the State of Oklahoma.
The purpose of the uninsured motorist provision, when viewed in fight of the requirement that it provide minimum standards of protection, is that it place the insured in the same position he would have been in if the negligent uninsured motorist had complied with Oklahoma laws concerning financial responsibility.

Id. at 408 (footnotes omitted). Accord McSorley v. Hertz Corp., 885 P.2d 1343, 1348 (Okla.1994); Mann v. Farmers Ins. Co., 761 P.2d 460 (Okla.1988). Similarly, in Cofer v. Morton, 784 P.2d 67, 71 (Okla.1989), we stated, “The intent of the legislature as mandated in § 3636(F) is to have a statutory minimum of uninsured motorist coverage in all automobile liability insurance policies unless these minimum amounts are rejected in writing....”

The 1990 amendments to § 3636 made minor changes to subsections (B) and (F) in ways not relevant here and added subsections (G), (H) and (I). Subsections (G) and (I) are not at issue in this case. The plaintiffs rely on the language of subsection (H) for their argument that imputed UM coverage should be equal to liability limits. Subsection (H) states in relevant part:

H. The offer of the coverage required by subsection B of this section shall be in the following form which shall be filed with and approved by the Insurance Commissioner. The form shall be provided to the proposed insured in writing separately from the application and shall read as follows:
OKLAHOMA UNINSURED MOTORIST COVERAGE LAW
Oklahoma law gives you the right to buy Uninsured Motorist coverage in the same amount as your bodily injury liability coverage. THE LAW REQUIRES [US] TO ADVISE YOU OF THIS VALUABLE RIGHT FOR THE PROTECTION OF YOU, MEMBERS OF YOUR FAMILY, AND OTHER PEOPLE WHO MAY BE HURT WHILE RIDING IN YOUR INSURED VEHICLE. YOU SHOULD SERIOUSLY CONSIDER BUYING THIS COVERAGE IN THE SAME AMOUNT AS YOUR LIABILITY INSURANCE COVERAGE LIMIT.... THE COST OF THIS COVERAGE IS SMALL COMPARED WITH THE BENEFITS! 36 O.S. Supp.1990 § 3636(H) (emphasis in original).
Plaintiffs assert that the language in subsection (H) which urges insureds to purchase UM coverage in the same amount as their liability coverage indicates a change in the legislative intent ascribed to § 3686 by our pre-1990 cases. We disagree. The fundamental rule of statutory construction is to ascertain and, if possible, give effect to the intention and purpose of the Legislature as expressed in a statute. Ledbetter v. Oklahoma Alcoholic Bev. Laws Enforcement Comm’n, 764 P.2d 172, 179 (Okla.1988). In so doing, “relevant provisions must be considered together, where possible, to give force and effect to each other.” Id. Upon review of § 3636 in its entirety, we do not believe that the addition of subsection 3636(H) signified a change in the legislative intent previously ascribed to the statute.
The 1990 amendments did not alter in any significant respect the basic components of the statute as outlined above. The statute continues to require that every Lability insurance policy contain a provision for UM coverage, that UM coverage be offered in amounts between the statutory minimum and the liability limits of the policy, and that the insured has the right to reject UM coverage in writing. We deduce that the newly enacted subsection (H) was created to accomplish two objectives. Primarily, subsection (H) mandates that a standardized written form “shall” be used by every insurer in connection with an offer of UM coverage. The particular form to be used is included in the provision. This legislative mandate appears to have been an appropriate response to the multitude of Oklahoma cases that addressed, under a pre-1990 version of § 3636, insurers’ failure to offer UM coverage or obtain written rejection thereof. Subsection (H) also has the objective of encouraging insureds, via the mandatory form, to purchase UM coverage in the same amount as their bodily injury liability limits. In short, the amendment mandates the use of a standardized form and encourages the purchase of maximum UM coverage. Encouragement and mandate are two entirely different things. Neither the pre-1990 nor amended versions of § 3636 dictate the result plaintiffs seek here.

In his separate opinion in State Farm Mut. Auto. Ins. Co. v. Wendt, 708 P.2d 581 (Okla.1985), Justice Opala described the purpose of § 3636 as it existed in 1981. We believe that his interpretation applies with equal force to the version of § 3636 in effect today:

The UM statute does indeed contemplate that insureds may need additional coverage. This is doubtless why insurance companies are required to offer increased limits of liability.... If no UM coverage at all is desired, named insureds have the right to reject it in writing. UM protection is, then, only conditionally mandated. Its effectiveness as a public benefit measure is initially controlled by actions of the named insured of the policy..
While the general public is shielded against financially irresponsible motorists by the public liability coverage that is mandated by the Financial Responsibility Act [47 O.S. § 7-204], the UM statute is designed to compel insurers to provide protection only for that insured who wishes not to reject the minimum protection against loss occasioned by an uninsured motorist. In short, the former act commands vehicle owners to maintain public liability protection, while the latter act — a mandate to insurers — directs that, absent the insured’s written rejection, an automobile policy must include minimum UM coverage. The lone, though doubtless the most revealing, nexus between the two enactments is found in the mention made in § 3636(B) of the minimum amount of liability coverage that is mandated by the financial responsibility law. This reference plainly demonstrates a legislative intent to confine the public policy mandate for the statutory UM coverage level to no more than the minimum amount of insurance prescribed by law for public liability protection.
[Wendt, 708 P.2d at 588 (Opala, J., concurring in part and dissenting in part) (emphasis in original, footnotes omitted).]
An insurance coverage contract required by § 3636 must be liberally construed in favor of the object to be accomplished. State Farm Auto. Ins. Co. v. Greer, 777 P.2d 941, 942 (Okla.1989). However, once it appears that the legislative purpose of § 3636 has been served, the statute’s mandate is satisfied. Moser v. Liberty Mut. Ins. Co., 731 P.2d 406, 409 (Okla.1986). See also Equity Mut. Ins. Co. v. Spring Valley Wholesale Nursery, Inc., 747 P.2d 947, 953 (Okla.1987). “Consequently, freedom-of-contract principles control as to any vehicle coverage in excess of that required by statute.” Equity Mut., 747 P.2d at 953 (footnote omitted, emphasis in original).
As previously stated, the legislative intent underlying § 3636 is that every automobile liability insurance policy issued in this state have a statutory minimum of uninsured motorist coverage unless that minimum amount is rejected in writing. That objective was not altered by the 1990 amendments to the statute. Where an insurer fails to offer in writing or obtain a written rejection of UM coverage such that UM coverage is imputed to an insured’s policy as a matter of law, we hold that the mandate of § 3636 is satisfied by imputation of the minimum limits of UM coverage required by statute. To impute a higher amount of UM coverage would go beyond the mandate of § 3636.
In the present ease National Union, in violation of § 3636, failed to offer or secure a written rejection of UM coverage after National Gypsum effectuated a material change in its insurance policy. Thus, UM coverage was imputed to the policy as a matter of law. The amount of the imputed coverage is dictated by 36 O.S. Supp.1990 § 3636(B) and 47 O.S.1991 § 7-204(a) and equals the statutory minimum of UM coverage prescribed by law for public liability protection: $10,000.00 per person and $20,-000.00 per accident.

May, 918 P.2d at 45-49 (footnotes omitted).

For the reasons given above, the judgment of the district court is AFFIRMED.

      . The intoxicated driver carried liability insurance at the statutory minimum under Oklahoma law, $10,000 per person and $20,000 per occurrence. The Worshams’ and Mays' losses exceeded this coverage, and this policy is not at issue in this case.

      . Recognizing that we might conclude the district erred by imputing coverage, the Mays and Worshams alternatively argue the erroneously included uninsured motorist endorsement operated to include such coverage in the Policy as effective January 1, 1991. As the Mays and Worshams have stated, we are free to disregard this alternative argument, because, as explained below, we conclude the district court properly imputed uninsured motorist coverage to the policy by operation of law.

      . The statute was amended in 1990. See Oklahoma Laws 1990, c. 297, § 4, eff. Sept. 1, 1990. The relevance of the § 3636 as amended in 1990 will become apparent below.


source: Caselaw Access Project

author: PER CURIAM: KRAVITCH, Circuit Judge,

license: Public Domain

text:
    Alphonso CAVE, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Respondent-Appellee.
    No. 94-3397.
    United States Court of Appeals, Eleventh Circuit.
    May 22, 1996.

      Jeffrey H. Garland, Fort Pierce, Florida, for Appellant.
    Celia Terenzio, Sara D. Baggett, Attorney General’s Office, Department of Legal Affairs, West Palm Beach, Florida, Curtis M. French, Asst. Atty. General, Tallahassee, Florida, for Appellee.
    Before KRAVITCH, HATCHETT and ANDERSON, Circuit Judges.
   PER CURIAM:

Alphonso Cave appeals the district court’s denial of his motion for enforcement of the writ of habeas corpus previously issued by the court. Cave argues that the district court was clearly erroneous in its determination that his attorney agreed to postpone the date for resentencing beyond the time period set forth in the district court’s prior order granting the writ. He also argues that the district court erred in its conclusion that the prior order permitted postponement by consent of the parties. We affirm.

I. BACKGROUND

In 1982 Cave was convicted of first degree murder, armed robbery, and kidnapping. Consistent with the jury’s recommendation, the trial judge sentenced Cave to death. The Florida Supreme Court affirmed. Cave v. State, 476 So.2d 180 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986). Cave’s petition for state post-conviction relief was denied and the Florida Supreme Court affirmed. Cave v. State, 529 So.2d 293 (Fla.1988).

Cave then filed his first petition for a writ of habeas corpus under 28 U.S.C.A. § 2254, which was granted in part by the district court. The district court held that Cave received ineffective assistance of counsel in both the guilt and sentencing phases of his capital trial, but that he suffered prejudice at only the sentencing phase. See Cave v. Singletary, 971 F.2d 1513, 1520-30 (11th Cir.1992) (appendix). Accordingly, the court vacated Cave’s death sentence and ordered the state to resentence him. The district court’s order forms the basis of the present dispute. In this order, issued on August 3, 1990, the district court stated, in relevant part:

Petitioner’s petition for habeas corpus relief is granted as to Petitioner’s claim of ineffective assistance of counsel during the sentencing phase of his trial. 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 time for good cause, the sentence of death imposed on the Petitioner will be vacated and the Petitioner sentenced to life imprisonment.

Id. at 1530. On August 13,1990, Respondent filed a timely motion to alter or amend judgment and a motion to stay further proceedings pending reconsideration and appeal. On September 25, 1990, the district court granted Respondent’s motion to stay proceedings pending appeal and denied Respondent’s motion to alter or amend. We affirmed, id. at 1520, and our mandate issued on September 17,1992.

On October 20,1992, the Honorable Thomas Walsh was designated as an acting circuit judge in Martin County, Florida, to preside over Cave’s resentencing, and the public defender’s office was appointed to represent Cave. On October 22, 1992, Judge Walsh held a status conference at which a date for resentencing was established. After soliciting preliminary information from Mr. Phil Yacueci, the assistant public defender representing Cave, as to whether his office would have a conflict of interest in representing Cave, the following colloquy took place:

THE COURT: Okay. Alright, Judge Cianea has appointed your office to represent Mr. Cave [and] until further notice that’s the way we’re going to have it. I’m here to set this case for trial within the mandated time period. I’d be asking — a couple of things are going to happen. First, I’m going to set this case for trial Monday morning — I’m sorry, Monday afternoon commencing at 1:30 on November 30. Mr. Barlow [the prosecutor], I’m going to need an order from you ... to transport [Cave] back here as soon as possible ....
MR. BARLOW: Yes, Judge.
THE COURT: As soon as he gets back here, Mr. Yacueci, I need you to sit down and talk with [Cave]. Review whatever you’ve got in your office if anything even exists as to this case at this time period. In the initial conversations with your client I want to know number one whether you are going to be ready for trial by November 30th. I need to know that as soon as possible so that we can coordinate. And I know that that is not a realistic time period and I know that you are coming into this brand new, but we’re going to set it within the mandated time period and after speaking with your client if you need more time I’m going to give you a second date. I can give you three weeks on April 26th, which is Monday, and go on from there. I can give you two weeks on February 1st, and I’m not even sure if that’s going to be enough time.
MR. YACUCCI: Judge, I would of course — will be appearing on November 30. I anticipate if the public defender’s office represents him that it will be at least until April seeing that this was a death case. I have a call into the prior public defender who represented Mr. Cave. I will confer with him. I will also check all the records that exist in my office to see whether there is a conflict and .if there is, if it is a continuing conflict, if it was just for the guilt phase whether it would continue into the penalty phase that we’re at now and we wouldn’t have to re-try the guilt, just the penalty phase. So all of those questions we just don’t have the answers to now. I will talk to Mr. Cave as soon as he gets back and we will have those answers on November 30th.
THE COURT: Okay, well I’d hoped to have those answers long before November 30th. Once we get him back here then I would like to be notified after he gets back here by — Mr. Barlow, you’ll kind of know when he comes back, right?
MR. BARLOW: I will, Judge. I’ll ask the sheriff’s department to give me a call as soon as he hits the jail doors.
THE COURT: Alright, and if you’ll notify me then I’ll look at my calendar, have my judicial assistant call both of you all, and we’ll set another hearing after you’ve had five or six days with him.
MR. YACUCCI: Fine.
THE COURT: And you’ll have five or six days before he even gets here to find out about whether there is or is not a conflict.
MR. YACUCCI: We’ll find that out.
THE COURT: And then we’ll set any pending motions and let’s get that part resolved as soon as possible, talk to him about whether he wants to try this ease as expeditiously as possible, or if he wants to give you an opportunity to prepare for this. And we’ll go from there. Other than transporting him today, getting the public defender appointed, and setting this case for trial, is there anything else we need to do at this time? Mr. Barlow—
MR. BARLOW: No, Judge, those were the issues that I outlined to the court administrator.
THE COURT: Mr. Yacueci?
MR. YACUCCI: No, Your Honor, I think that’s it.
THE COURT: Okay, we’ll be in recess on this one. »

On November 17, 1992, Yacucci filed a motion to continue resentencing and the court set a new date of April 26, 1993. Ya-cueci stated in this motion that he needed additional time to investigate a ten-year old conflict which may have existed when Cave first went to trial. Further, Yacucci stated that he needed “at least until April, 1993 in order to secure and review trial transcripts, depositions and statements as well as to undertake a complete penalty phase background investigation which was apparently never done by Defendant’s trial counsel in 1982_” Thereafter, upon motion by Ya-cucci to withdraw due to a continued conflict of interest, the court appointed a different attorney to represent Cave.

On April 6, 1993, Cave’s new counsel moved for imposition of a life sentence for failure to comply with the 90-day time limit imposed by the district court’s order. The state trial court denied the motion and thereafter conducted a resentencing hearing at which Cave was again sentenced to death. On September 21, 1993, the Florida Supreme Court vacated Cave’s second death sentence and remanded the case for a new sentencing hearing before a different state trial judge. Cave v. State of Florida, 660 So.2d 705 (Fla.1995).

Meanwhile, on August 19, 1993, Cave filed a motion requesting that the district court enforce its order granting the writ. Upon consideration of the transcript of the October 22, 1992, status conference, the state trial court’s ruling rejecting Cave’s motion for imposition of a life sentence, and its own prior order, the district court denied Cave’s motion. Specifically, it found, in relevant part:

The State Court timely commenced the re-sentencing proceedings on October 22, 1992 (Dkt. # 72). Upon agreement of the parties the trial date was set for November 30, 1992. Upon the request of Petitioner’s counsel, the trial was continued until April 1993. Moreover, the record shows that following several other delays either caused or consented to by the Petitioner, an Order re-sentencing the Petitioner was entered on June 25,1993.

Accordingly, the court held that “the re-sentencing of the Petitioner complied with this Court’s order_” This appeal ensued.

II. DISCUSSION

Cave argues that the district court’s factual finding of an agreement between the parties to set the resentencing date beyond the 90-day time limit is clearly erroneous. He contends that the state judge set the date for November 30 under the erroneous assumption that this date was within the 90-day period. The transcript of the October 22 status conference, according to Cave, does not indicate that Yacucci agreed to a specific date for the trial, but rather, that he merely acquiesced in the court’s determination.

We disagree. The district court’s findings of fact with respect to the status conference are not clearly erroneous. As a preliminary matter, we note that under a calculation of time most favorable to Cave, the 90-day time period contemplated by the district court’s August 3, 1990, order would not have expired as of the October 22 status conference. The fact that this hearing was held within the 90-day period does not alone satisfy the terms of the district court’s order. The critical issue is whether the parties agreed at the October 22 status conference to a particular resentencing date.

The district court’s conclusion that an initial agreement was reached at the October 22 status conference is not clearly erroneous. A fair reading of the transcript from the status conference reveals an implicit agreement that resentencing would take place on November 30, 1992. Judge Walsh displayed appropriate concern that the sentencing proceedings commence within the 90-day period imposed by the district court. Judge Walsh explicitly offered Yacucci the opportunity to expedite resentencing if he desired. The significant fact is that all parties at the October 22 status conference concurred in the decision to hold the resentenc-ing hearing on November 30 unless counsel for Cave requested a further extension. Our 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. Both the court and counsel for Cave expressed the view that Cave’s defense would need more time for preparation. Indeed, such an understanding is evidenced by Ya-cueci’s subsequent motion to postpone the sentencing hearing until April 1993.

Even assuming that Yacucci agreed to extend the time for resentencing, Cave argues that any such agreement is a nullity because the district court’s August 3, 1990, order provides that a further order of the district court was the exclusive means of extending the time. We disagree. The district court construed the meaning of its own prior order as permitting extension of the original 90-day period by mutual agreement. The district court’s interpretation of its own order is properly accorded deference on appeal when its interpretation is reasonable. See Commercial Union Ins. Co. v. Sepco Corp., 918 F.2d 920, 921 (11th Cir.1990) (citing Alabama Nursing Home Ass’n v. Harris, 617 F.2d 385, 388 (5th Cir.1980)). See also Matter of Chicago, Rock Island and Pacific R.R. Co., 865 F.2d 807, 810-11 (7th Cir.1988) (“We shall not reverse a district court’s interpretation of its own order unless the record clearly shows an abuse of discretion. The district court is in the best position to interpret its own orders.”) (citations and internal quotation marks omitted); Anderson v. Stephens, 875 F.2d 76, 80 n. 8 (4th Cir.1989) (appellate court must afford “the inherent deference due a district court when it construes its own order”); Michigan v. Allen Park, 954 F.2d 1201, 1213 (6th Cir.1992) (“[A]n appellate court should accord deference to a district court’s construction of its own earlier orders, if that construction is reasonable.”). The district court’s construction of its order is reasonable, especially in light of the fact that the extensions benefit-ted Cave. Thus, we hold that the sentencing proceedings in state court were not inconsistent with the district court’s order or the mandate of this Court.

III. CONCLUSION

Accordingly, the judgment of the district courtis

AFFIRMED.

KRAVITCH, Circuit Judge,

dissenting:

I.

The threshold question in this ease 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, “[ujpon 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 habe-as order, was held. The majority bases its affirmance solely on the determination that the 90 day period was extended by agreement of the parties.

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 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.

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 resen-tencing 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 from this Court extending said time for good cause.” The order was a direction from the district court to the State; Cave simply lacked the power unilaterally to forgive the State of its court-imposed obligation.

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 resentenc-ing hearing, November 30, 1992, was within the 90 day period. It is true that the attorney from the public defender’s office who was present at the conference apparently 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.

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, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (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 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 resen-tencing 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 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, 481 U.S. 770, 774, 107 S.Ct. 2113, 2118, 95 L.Ed.2d 724 (1987) (quoting In re Bonner, 151 U.S. 242, 260, 14 S.Ct. 323, 327, 38 L.Ed. 149 (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 petitioner within the designated period of time, it may still rearrest and retry or resentence the successful habeas petitioner at a later time. See Moore v. Zant, 972 F.2d 318, 320 (11th Cir.1992), cert. denied, 507 U.S. 1007, 113 S.Ct. 1650, 123 L.Ed.2d 271 (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, 507 U.S. 1043, 113 S.Ct. 1879, 123 L.Ed.2d 497 (1993); Heiser 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 (5th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 98, 130 L.Ed.2d 47 (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, — U.S. -, 115 S.Ct. 151, 130 L.Ed.2d 90 (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 ha-beas 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 re-prosecution 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 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 Eleventh Circuit. 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 dispos-itive that the district court was acting within the scope of its habeas authority.

III.

The State in this case not only failed to resentenee Cave in 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.

      . We affirmed the district court's conclusion that Cave had received ineffective assistance of counsel at both phases of his capital trial, but that he had only suffered prejudice at the penalty phase. Id. at 1519-20. The patties did not raise and we did not address the portion of the district court’s order at issue in this appeal.

      . The Florida Supreme Court vacated Cave’s sentence on the grounds that Judge Walsh improperly decided a motion for his own disqualification from the case.

      . He filed this motion immediately after the state court denied his motion to enforce the 90-day limitation period.

      . Although tire same district court adjudicated Cave's motion for enforcement of the writ, a different district court judge presided over the matter.

      . In its brief, the State contends that Cave has failed to exhaust the issue of the effect of the habeas order in state court and therefore that he is precluded from seeking federal habeas relief based on this order. See 28 U.S.C.A. § 2254(b) ("An application for a writ of habeas corpus ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State....”); see generally Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (discussing exhaustion doctrine).
      Subsequent to the filing of the State's brief in this case, the Florida Supreme Court handed down its decision vacating Cave's second death sentence based on procedural flaws in the state trial judge's handling of a motion for his own disqualification. In this opinion, the Florida Supreme Court noted, but did not address, Cave’s claim that the district court's habeas order mandated imposition of a life sentence. By remanding for resentencing on the disqualification motion issue, however, the Florida Supreme Court implicitly rejected Cave's habeas order claim: resentencing would have been moot if Cave's argument that he was entitled to a life sentence were valid. Therefore, even if Cave's claim regarding enforcement of the original habeas order had not been exhausted at the time his second habeas petition was filed in the court, it is certainly exhausted now that the Florida Supreme Court has rejected it. Cave has available no further state remedies with respect to this claim, and it is ripe for federal habeas review.

      . In light of our resolution, we need not address the calculation of the 90-day time frame which is addressed by the dissent and disputed by the parties.

      . The dissent contends that the transcript of the October 22 status conference reveals mutual mistake and that such mistake should be home by the State. We disagree. We believe the significant fact is that Cave’s counsel agreed to a particular date. Whether he was laboring under a mistake of fact or law as to the trae expiration date is less significant than the clear and obvious fact that the interests of his client required more time.

      . Even if Yacucci’s actions do not rise to the level of an implicit agreement to an extension, his actions — i.e., actively discussing the date of the resentencing and the state of the defense preparation — certainly constitute a waiver of any objection to the extension. The dissent rejoins that such waiver was not an "intentional relinquishment of a known right or privilege.” See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). We decline to apply that standard in this situation, i.e., far afield of its customary constitutional context. Cf. Schneckloth v. Bustamante, 412 U.S. 218, 235, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854 (1973) ("Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection.”). Rather, any "right” or "privilege” in this case derives not from the Constitution, but solely from a strict construction of district court’s August 3, 1990 order. The waiver at issue here is more analogous to the waiver resulting from the failure of counsel to object at trial. Cf. United States v. Teague, 953 F.2d 1525, 1531 (11th Cir.1992) (en banc) (discussing difference between rights waivable by defense counsel on the defendant's behalf and those waivable only by the defendant).

      . The dissent adopts this argument.

      . In light of this conclusion, we need not address whether a district court possesses the authority to issue a conditional order permanently forbidding resentencing or, assuming such authority, whether the district court’s August 3, 1990, order appropriately exercised such authority.

      . 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 habe-as 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 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.

      . 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.

      . 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.

      . Insofar 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.

      . 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.

      . 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.

      . Of course, the defendant’s Sixth Amendment speedy trial rights may be asserted against retrial ín state court and, if that fails, in a subsequent federal habeas petition.

      . The State challenged only the substantive (i.e., Strickland) basis for granting the writ.


author: PER CURIAM:

text:
    Dean DELGUIDICE, Petitioner-Appellant, v. Harry K. SINGLETARY, Respondent-Appellee.
    No. 94-5029.
    United States Court of Appeals, Eleventh Circuit.
    May 24, 1996.

      Tatiana Ostapoff, Assistant Public Defender, 15th Judicial Circuit of Florida, West Palm Beach, FL, for appellant.
    Sylvia Hortensia Alonso, Melynda L. Me-lear, Asst. Attys. Gen., West Palm Beach, FL, for appellee.
    Before ANDERSON and BARRETT, Circuit Judges, and YOUNG , Senior District Judge.

       Honorable George C. Young, Senior U.S. District Judge for the Middle District of Florida, sitting by designation.

   PER CURIAM:

Dean Delguidice, a Florida prison inmate convicted in 1988 of attempted manslaughter and two counts of battery, appeals the district court’s judgment denying his petition for writ of habeas corpus brought pursuant to 28 U.S.C.A. § 2254. Delguidice argues that the state trial court erred in admitting the testimony of a psychologist because his counsel was not sufficiently notified in advance of the scope and nature of the examination giving rise to the psychologist’s testimony. We reverse and remand.

I. FACTS

The issues in this appeal involve two overlapping criminal prosecutions of Delguidice. The charges in this case (hereinafter “the instant case”) arose on May 8, 1987, when Delguidice attacked a department store security guard. The information charging Del-guidiee in the instant case was filed June 1, 1987; counsel for Delguidice filed a notice of reliance on the insanity defense on July 23, 1987.

Thereafter, in September 1987, Delguidice was tried and convicted in an unrelated erim-inal case (hereinafter “the second ease”). Delguidice was represented by different counsel in the second case. At the request of Delguidiee’s father, on November 80, 1987, a clinical psychologist, Dr. Ceros-Livingston, was appointed to determine Delguidice’s competency to be sentenced in the second case. It is undisputed that Delguidice’s attorney in the second case had notice of the court’s order for the examination by Dr. Ce-ros-Livingston. On December 5, 1987, when Dr. Ceros-Livingston conducted the examination pursuant to the court’s order in the second ease, she was under the misapprehension that she was to evaluate Delguidice with respect to both pending cases. She prepared a report of her findings accordingly. Delguidice’s counsel in the instant case was not notified in advance of the examination.

At trial in the instant case, Delguidice interposed an insanity defense. Dr. Arnold Stillman testified for the defense in support of Delguidice’s insanity theory. He testified that Delguidice suffered from “organic brain syndrome,” which resulted in episodic attacks of violence over which Delguidice had no control. Dr. Stillman concluded that Del-guidiee was insane at the time of the offense and that he thought he was acting in self-defense.

The trial court in the instant case, over counsel’s objection, allowed Dr. Ceros-Liv-ingston to testify in rebuttal of Delguidice’s insanity defense. She testified that although Delguidice believed he was defending himself at the time of the assault in the instant case, he was legally sane at that time. In Dr. Ceros-Livingston’s opinion, Delguidice knew right from wrong and understood the conse-quenees of his actions at the time of the instant offense. Dr. Ceros-Livingston was the only witness who testified in opposition to Delguidice’s insanity defense.

As noted, Delguidice was convicted and the trial court entered judgment against him. The Florida Fourth District Court of Appeal affirmed his conviction (rejecting the Sixth Amendment challenge at issue here). Del-guidiee’s petition for writ of habeas corpus in the District Court for the Southern District of Florida, which raised his Sixth Amendment constitutional challenge, was denied. This appeal ensued.

II. DISCUSSION

Delguidice asserts that the district court erred in denying his habeas corpus petition, i.e., it erred in concluding that the admission of Dr. Ceros-Livingston’s testimony at trial did not violate Delguidice’s Sixth Amendment right to consultation with counsel. Del-guidice contends that, pursuant to Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and its progeny, when counsel is not properly notified of a psychiatric evaluation, use of the results of that evaluation violates the defendant’s Sixth Amendment right to consultation with counsel.

A criminal defendant has a Sixth Amendment right to assistance of counsel before submitting to a pretrial psychological examination that represents a “critical stage” of that defendant’s prosecution. Id. at 468-70, 101 S.Ct. at 1876. See also Godfrey v. Kemp, 836 F.2d 1557, 1563-64 (11th Cir.), cert. denied, 487 U.S. 1264, 109 S.Ct. 27, 101 L.Ed.2d 977 (1988). In Smith, the Court held that once a defendant is formally charged, his Sixth Amendment right to counsel precludes such an examination without first notifying counsel as to its scope and nature. Smith, 451 U.S. at 470-71, 101 S.Ct. at 1877; Powell v. Texas, 492 U.S. 680, 681— 88, 109 S.Ct. 3146, 3148, 106 L.Ed.2d 551 (1989).

In Smith, the sentencing jury evaluated the defendant’s future dangerousness in deciding whether to impose the death penalty. Smith, 451 U.S. at 456-58, 101 S.Ct. at 1870. The defendant had been interviewed by a psychiatrist to determine whether he was competent to stand trial. Id. At the sentencing hearing, however, the psychiatrist testified that the defendant constituted a continuing threat to society. Id. at 458-60, 101 5.Ct. at 1871. The defendant’s counsel were not aware in advance that the examination would include an inquiry into defendant’s future dangerousness, and the Court concluded that the defendant had not received the opportunity to discuss with his counsel the examination or its scope. Id. at 468-71, 101 S.Ct. at 1876-77. The Court employed the following rationale for its conclusion that the defendant’s Sixth Amendment rights had been violated:

It is central to [the Sixth Amendment] principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.

Id. at 468-70, 101 S.Ct. at 1876 (quotation omitted); see also United States v. A.R., 38 F.3d 699, 704 (3d Cir.1994).

In sum, the Sixth Amendment right to counsel requires that counsel be given advance notice of the scope and nature of a psychological examination so that counsel can discuss with the client the advisability of undergoing the examination and give other appropriate advice. Buchanan v. Kentucky, 483 U.S. 402, 424-25, 107 S.Ct. 2906, 2918-19, 97 L.Ed.2d 336 (1987); Smith, 451 U.S. at 469-71, 101 S.Ct. at 1876-77. It is clear that Delguidice’s counsel in the instant ease had no advance notice of the psychological examination by Dr. Ceros-Livingston.

The State’s only argument is that the examination was initiated at the request of Delguidice’s father, that Delguidice was represented by counsel (albeit different counsel) in the second case at the time the court ordered the competency examination, and that this counsel knew about the examination. Thus, the State argues that Delguidice is not entitled to relief.

The State’s position is essentially that notice need not have been given to counsel in the instant case because Delguidice was represented in the second ease and that counsel was notified that an examination would take place. The problem with the State’s argument is its failure to focus on whether counsel in the second case was notified as to the scope of the examination. Although Delguidice’s counsel in the second case was aware in advance that Delguidice was to be examined as to his competency for sentencing, he had no advance notice at all that Dr. Ceros-Livingston was also going to examine Delguidice on the separate issue of Delguidice’s sanity. The record reveals that at a hearing in open court before sentencing in the second case, Delguidice’s father requested that Delguidiee be examined for competency with respect to sentencing. Delguid-iee’s counsel in the second case was present. The trial court agreed and ordered the same. However, the documents which were sent to Dr. Ceros-Livingston by Court Projects included the booking sheet and probable cause affidavit relating to the instant case. These documents led Dr. Ceros-Livingston to believe that she was expected to examine Del-guidiee not only for competency for sentencing in the second case, but also for possible insanity at the time of the crime at issue in the instant ease. There is no evidence in the record suggesting that counsel for Delguidiee in the second case had any advance notice that the examination by Dr. Ceros-Living-ston would exceed the scope contemplated, i.e., competency in the second case.

The Supreme Court case law is clear that, under the Sixth Amendment, counsel must have advance notice not only of the fact of an examination but also of the scope of the examination. Indeed, that was the precise matter at issue in Smith. There, it was possible that defense counsel did have advance notice of an examination relating to competency to stand trial, but was not notified in advance that the examination would encompass the issue of future dangerousness.

Defense counsel, however, were not notified in advance that the psychiatric examination would encompass the issue of their chent’s future dangerousness.

451 U.S. at 471 and n. 15, 101 S.Ct. at 1877 and n. 15. Accordingly, the Court held that by exceeding the scope of the noticed examination, the defendant’s Sixth Amendment right to counsel had been violated: “Respondent was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist’s findings could be employed.” Id. at 470-71, 101 S.Ct. at 1877. See also Vanderbilt v. Collins, 994 F.2d 189, 198 (5th Cir.1993) (holding that Sixth Amendment violated when examination encompassed more than its intended scope).

Similarly, in Buchanan, the Court indicated that defense counsel must be given advance notice “about the scope and nature” of the examination to enable counsel to consult with client. 483 U.S. at 424, 107 S.Ct. at 2919. The Court in Buchanan emphasized that the nature of the Sixth Amendment right at issue is the consultation with counsel, not the uses to which the psychological examination is later put. Id. at 422-26, 107 S.Ct. at 2918-19. “Such consultation, to be effective, must be based on counsel’s being informed about the scope and nature of the proceeding.” Id. at 424, 107 S.Ct. at 2919.

Because no counsel for Delguidice had advance notice that the scope of the examination would include Delguidice’s possible insanity, we conclude that Delguidice’s Sixth Amendment rights were violated.

Our conclusion that the trial court erred in admitting the testimony of Dr. Ceros-Livingston in violation of Delguidice’s Sixth Amendment rights does not end our inquiry. We must also decide whether the error was harmless. Satterwhite v. Texas, 486 U.S. 249, 255-59, 108 S.Ct. 1792, 1797-98, 100 L.Ed.2d 284 (1988) (adopting harmless error rule). The Court recently set forth a new harmless error standard for habeas review of trial type errors. Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). “The test ... is whether the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1993)). We Mow the Fifth Circuit in applying the Brecht standard to Smith errors. See Vanderbilt v. Collins, 994 F.2d 189, 198-99 (5th Cir.1993). Cf. Horsley v. Alabama, 45 F.3d 1486, 1492 n. 11 (11th Cir.), cert. denied, — U.S.-, 116 S.Ct. 410, 133 L.Ed.2d 328 (1995) (‘We think the Supreme Court’s rationale (advancing comity, federalism, finality, and the importance of the trial) for the Brecht rule reaches almost all federal habeas cases_”).

After careful review of the record, we conclude that the error was not harmless. Dr. Ceros-Livingston’s testimony was the State’s only rebuttal of Delguidice’s insanity defense, which was supported by the testimony of Dr. Stillman and by a lay witness who testified that Delguidice looked enraged (“not normal”) during the commission of the instant offense. In light of the evidence supporting Delguidice’s insanity defense, and in the absence of other evidence rebutting Delguid-ice’s insanity defense, we conclude that the admission of Dr. Ceros-Livingston’s testimony had a substantial and injurious effect or influence in determining the jury’s verdict.

III. CONCLUSION

Accordingly, the judgment of the district court is reversed, and the case is remanded to the district court with instructions that the writ of habeas corpus, appropriately conditioned, should be granted.

REVERSED AND REMANDED.

      . A second person was struck during the course of this melee, which resulted in the jury finding Delguidice guilty as to the second count of battery.

      . Delguidice’s counsel in the second case received notice of the examination in open court when the trial judge directed that Delguidice undergo a competency exam for sentencing.

      . Specifically, Dr. Ceros-Livingston was sent documents which led her to believe she was to examine Delguidice as to both cases. She was sent a notice to examine Delguidice as to his competency (for sentencing purposes in the second case). For some unknown reason, she was also sent a probable cause affidavit and booking sheet which indicated that she was to examine Delguidice as to the instant case. Consequently, she examined Delguidice both as to his competency to be sentenced in the second case and as to his sanity at the time of the offense giving rise to the instant case.

      . It is clear, however, that Delguidice’s counsel in the instant case had a copy of the doctor's report well before the trial.

      . The District Court of Appeal did, however, order that Appellant’s sentence as a habitual offender be reversed. Delguidice v. State, 554 So.2d 35 (Fla.App. 4 Dist.1990).

      . There has been no argument that the examination at issue here was not a "critical stage.” Thus, the State effectively concedes this point.

      . The State notes that counsel for Delguidice in the instant case knew about the examination before trial and, accordingly, had sufficient time to prepare an effective cross examination. The Supreme Court cases explaining the contours of Smith, however, make clear that the purpose of the notification requirement is to afford counsel the opportunity to consult with the client prior to the examination. See Smith, 451 U.S. at 469-71, 101 S.Ct. at 1876-77. Nothing in Smith or its progeny suggests that notification after the examination but prior to trial satisfies the Sixth Amendment concerns espoused in those cases; indeed, such notification forces a defendant to "stand alone against the State” at precisely a time the Supreme Court has held he need not.

      .Because we find that the notice given was constitutionally inadequate, we need not decide whether Delguidice’s Sixth Amendment rights in the instant case could have been satisfied by adequate notice to counsel in the second case.

       It is not clear that defense counsel were even informed prior to the examination that Dr. Grigson had been appointed by the trial judge to determine respondent’s competency to stand trial.

      . These facts are easily distinguishable from Magwood v. Smith, 791 F.2d 1438 (11th Cir.1986). In Magwood, two physicians were appointed at the request of defense counsel to determine defendant's competency to stand trial. Later, these physicians testified at trial to rebut defendant’s insanity defense. Id. at 1441. Unlike the instant case, however, the physicians limited their testimony at trial to only defendant’s competency to stand trial; neither expressed an opinion as to defendant’s sanity at the time of the offense. Id. at 1442. The court expressly noted that this differed from the situation in Smith, supra. Magwood, 791 F.2d at 1442.

      . The Court went on to conclude that Buchanan’s Sixth Amendment rights had not been violated because his counsel had been notified about both the examination and the scope of the examination. Id. at 424-26, 107 S.Ct. at 2919. The problem in Buchanan was that the State used the results of this examination (an examination about which counsel was fully informed) in a way not anticipated by counsel. Id. at 422-24, 107 S.Ct. at 2918 ("Petitioner attempts to bring his case within the scope of Smith by arguing that, although he agreed to .the examination, he had no idea, because counsel could not anticipate, that it might be used to undermine his ‘mental status’ defense.”). The Court thus noted that although the effectiveness of counsel’s consultation depended, in part, on an awareness of the uses to which the examination could be put, counsel should have been able to anticipate these uses. By contrast, in this case, Delguidice's counsel in the second case was not informed about the scope and nature of the examination; thus, he was denied the opportunity to use his expertise to anticipate potential uses because the State failed to discharge its obligation to give him advance notice of the scope of the examination.

      . The State does not argue that Delguidice's claim is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and we decline to raise the issue sua sponte. See Collins v. Youngblood, 497 U.S. 37, 40-41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990) (holding that the Teague rule is not "jurisdictional” in the sense that the court must raise and decide the issue sua sponte).