author: Mr. Justice Rehnquist,

text:
    No. A-1020.
    Wainwright, Secretary, Department of Offender Rehabilitation of Florida v. Spenkelink.
    [See dissenting opinion, infra, filed May 25, 1979.]
   C. A. 5th Cir. Motion of the Attorney General of Florida to vacate the order entered by Honorable Elbert Parr Tuttle, Senior Judge of the United States Court of Appeals for the Fifth Circuit, on May 22, 1979, denied.

Mr. Justice Rehnquist reserves the right to file a written statement at a future date.

Mr. Justice Rehnquist,

dissenting.

I cannot join the Court’s unexplained denial of the State’s motion to vacate the stay order entered a few minutes before midnight on May 22, 1979, by the Honorable Elbert P. Tuttle, Senior Circuit Judge of the United States Court of Appeals for the Fifth Circuit. My difficulty with the Court’s action, and with the action of Judge Tuttle in granting a stay in this case, undoubtedly stems from the six years of litigation revolving about the question of whether the State of Florida is entitled to impose the death sentence on respondent. This procedural history is set forth in detail in my May 22 in chambers opinion in which I denied respondent’s application for a stay. Post, p. 1301. The stay occasioning the instant motion is, in my view, the product of a clear abuse of the writ of habeas corpus, and I am concerned that this Court’s action implicitly sanctions the use of such tactics to frustrate the attempts of the State to effectuate the will of its citizens.

Attorneys representing defendants under sentence of death have a difficult and arduous task to perform, but in seeking stays of execution they need devote little time to the oft-litigated issue of “irreparable injury.” “[D]eath is a punishment different from all other sanctions in kind rather than degree.” Woodson v. North Carolina, 428 U. S. 280, 303-304 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). The irreversible nature of the penalty makes irreparable by definition any injury inflicted in violation of the United States Constitution. But because imposition of the death penalty is irreversible, I respectfully suggest that there may be a tendency on the part of individual judges or courts exercising the extraordinary-writ authority conferred upon them by 28 U. S. C. § 1651 not merely to resolve all constitutional questions fairly admitting of doubt in favor of a federal habeas petitioner under sentence of death, but to create or assume such doubts where in fact there are none.

My understanding of the principal opinions in Gregg v. Georgia, 428 U. S. 153 (1976), Proffitt v. Florida, 428 U. S. 242 (1976), Jurek v. Texas, 428 U. S. 262 (1976), Woodson v. North Carolina, supra, and Roberts v. Louisiana, 428 U. S. 325 (1976), is that a State whose citizens have expressed through their elected representatives and their judges and juries a will to impose the death penalty for offenses such as murder may do so if the State conforms its trial and sentencing procedures to the requirements enunciated in this Court’s cases. Considering, however, that there are several hundred federal judges in the United States who have authority to issue stays under the provisions of 28 U. S. C. § 1651, even the relatively limited authority found open to the States under the Constitution in the above-cited cases could turn out, as a practical matter, to be entirely closed to them. Most, if not all, States provide for some lapse of time between the entry of a final order setting a date for execution and the date itself. Thus, the entry of a stay of execution by a federal court or judge, even though later dissolved, will generally require a State to set a new execution date, often 30 to 60 days after it is released from the constraints of the federal stay. As the new execution date approaches, new claims are conceived and, at the last minute, new stay applications are filed. Understandably, because no mortal can be totally satisfied that within the extremely short period of time allowed by such a late filing he has fully grasped the contentions of the parties and correctly resolved them, judges are inclined to grant such llth-hour stay applications. Then, again, new execution dates must be set and the process begins anew. This now familiar pattern could in fact result in a situation where States are powerless to carry out a death sentence, even though it has been judicially determined that the sentence was imposed in complete conformity with the United States Constitution.

Thus, it can hardly be said that a State will never be injured by issuance of such last-minute stays of execution. When a State has taken all steps required by our capital cases, its will, as represented by the legislature that authorized the imposition of the death sentence and by the juries and courts that imposed and upheld it, must be carried out. Constant and repeated frustration of the State’s lawful action in such a situation is contrary to the underlying assumptions of our federal system. This Court was faced with a similar problem in Rosenberg v. United States, 346 U. S. 273 (1953). There, Mr. Justice Douglas had granted a stay of execution later found by the full Court to have been improvidently granted. The Court said:

“This Court has the responsibility to supervise the administration of criminal justice by the federal judiciary. This includes the duty to see that the laws are not only enforced by fair proceedings, but also that the punishments prescribed by the laws are enforced with a reasonable degree of promptness and certainty. The stay which had been issued promised many more months of litigation in a case which had otherwise run its full course.” Id., at 287.

In the same case, Mr. Justice Clark, joined by the Chief Justice, Mr. Justice Reed, Mr. Justice Jackson, Mr. Justice Burton, and Mr. Justice Minton, stated:

“Our liberty is maintained only so long as justice is secure. To permit our judicial processes to be used to obstruct the course of justice destroys our freedom. Over two years ago the Rosenbergs were found guilty by a jury of a grave offense in time of war. Unlike other litigants they have had the attention of this Court seven times; each time their pleas have been denied. Though the penalty is great and our responsibility heavy, our duty is clear.” Id., at 296.

Under the present combination of statutes and rules by which stay authority is exercised, however, a result so at odds with a government of law is by no means foreordained. This Court has authority pursuant to 28 U. S. C. § 1651 to vacate any stay granted by any other federal court or judge pursuant to that same section. And under Rules 50 and 51 of this Court, the Circuit Justice for the Circuit in question may take any action that the full Court might take under § 1651. Holtzman v. Schlesinger, 414 U. S. 1304, 1308 (1973) (Marshall, J., in chambers). Vacation of a stay order that is palpably erroneous is authorized under § 1651, even though vacation of the stay would result in execution of the death sentence. See O’Brien v. Brown, 409 U. S. 1, 5 (1972).

Here, respondent has not had an opportunity to file any response to the motion to vacate the stay. Given the gravity of the consequences of vacation of the stay, only the most demonstrable and self-evident error on the part of the judge or court issuing the stay would lead me to conclude that it should be vacated. Here, the circumstances surrounding issuance of the stay convince me that such error is present.

Respondent’s “Original Petition for a Writ of Habeas Corpus by a Person in State Custody,” filed with Judge Tuttle six years after respondent’s trial and less than nine hours before respondent was scheduled to die, alleged for the first time that respondent’s trial attorney had rendered ineffective assistance of counsel. The petition further alleged that respondent’s “post-conviction attorneys,” who are, incidentally, extraordinarily skilled and experienced in the area of capital punishment cases, rendered ineffective assistance in failing to claim that respondent’s trial counsel had been ineffective. It strains credulity to suppose that six years and countless courthouses after his trial, respondent suddenly determined that his trial attorney had been ineffective. Either he does not believe the claim himself or he had held the claim in reserve, an insurance policy of sorts, to spring on the federal judge of his choice if all else fails. This Court has disapproved of such tactics before:

“Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. . . . Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay.” Sanders v. United States, 373 U. S. 1, 18 (1963).

See also Federal Habeas Corpus Rule 9 (b).

Moreover, respondent, for unexplained but obvious reasons, presented his original petition not to the United States District Court for the Northern District of Florida, the jurisdiction in which he- is detained and which had twice denied him postcon-viction relief, but to a Senior Circuit Judge residing several hundred miles away in Atlanta, Ga. Title 28 U. S. C. § 2242, designed to deter such forum shopping, requires that petitions for habeas corpus “addressed to the Supreme Court, a justice thereof or a circuit judge , . . shall state the reasons for not making application to the district court of the district in which the applicant is held.” Nowhere in respondent’s original petition is such an allegation made.

For the foregoing reasons, I am compelled to dissent from the Court’s denial of the State’s motion.

      The Court’s denial of the motion took place on Thursday, May 24. Though the later action of the Court of Appeals 'for the Fifth Circuit in vacating the stay has robbed this Court’s denial of any lasting significance, the legal questions involved are bound to recur in later cases. I am therefore filing this opinion dissenting from the Court’s action.


source: Caselaw Access Project

license: Public Domain

text:
    May 25, 1979
    No. A-1025.
    Spenkelink v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida, et al.
   C. A. 5th Cir. Application for stay of execution, presented to Mr. Justice Powell and by him referred to the Court, denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant the stay. Mr. Justice Blacicmun took no part in the consideration or decision of this application.


text:
    May 29, 1979
    No. 78-1553.
    No. 78-1556.
    Beggans v. Public Funds for Public Schools of New Jersey et al.; and Byrne, Governor of New Jersey, et al. v. Public Funds for Public Schools of New Jersey et al.
   Affirmed on appeal from C. A. 3d Cir.

The Chief Justice, Mr. Justice White, and Mr. Justice Rehnquist would note probable jurisdiction and set case for oral argument.


text:
    No. 78-1516.
    Wessel v. Pennsylvania State Board of Law Examiners.
   Appeal from Sup. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 78-1523.
    Floyd v. Texas.
   Appeal from Ct. Crim. App. Tex. dismissed for want of substantial federal question.


text:
    No. 78-1521.
    Epstein et al. v. Adler, Barish, Daniels, Levin & Creskoff.
   Appeal from Sup. Ct. Pa. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-6238.
    Jackson v. Martin, Warden.
   Appeal from C. A. 6th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-6547.
    Stein v. Andress et al.
   Appeal from Ct. Civ. App. Tex., 5th Sup. Jud. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-6405.
    Linden v. Dial Press et al.
   Appeal from C. A. 2d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-6474.
    Murray v. New Hampshire et al.
   Appeal from C. A. 1st Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-1.
    Chrysler Corp. v. Gabriele.
   C. A. 6th Cir. Certiorari, granted, judgment vacated, and case remanded for further consideration in light of Oscar Mayer & Co. v. Evans, 441 U. S. 750 (1979).


text:
    No. 78-53.
    Whirlpool Corp. v. Simpson.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Oscar Mayer & Co. v. Evans, 441 U. S. 750 (1979).


text:
    No. 78-419.
    Jos. Schlitz Brewing Co. v. Smith.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Oscar Mayer & Co. v. Evans, 441 U. S. 750 (1979).


text:
    No. D-169.
    In re Disbarment of Carnow.
   It is ordered that Donald S. Carnow, of Chicago, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 82,
    Orig.
    New Mexico v. Texas.
   The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 78-1139.
    North Carolina et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 18-1231.
    Atlantic Richfield Co. v. Thibodaux, Administratrix.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1263.
    East Carroll Parish Police Jury et al. v. Marshall.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1310.
    Epperson v. Missouri.
   Sup. Ct. Mo. Cer-tiorari denied.


text:
    No. 78-1346.
    Cook v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1348.
    No. 78-1388.
    Shear v. United States; and LaMorte v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1387.
    Munoz et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1403.
    Kirshner v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1411.
    Del Valle et al. v. United States et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1424.
    Shelton v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1452.
    National Motor Freight Traffic Assn., Inc., et al. v. Interstate Commerce Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-1461.
    Safeguard Co. et al. v. Baldwin et al.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 78-1514.
    Chirolde v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 78-1515.
    Richards v. County of Los Angeles.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 78-1519.
    Ramey et al. v. Harber, Sheriff, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-1534.
    McMahon v. Kentucky Bar Assn.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 78-1544.
    Duncan v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 78-1559.
    Brooks v. Washington Terminal Co.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-1612.
    Nelums v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1629.
    Petsas v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1659.
    Hayes v. National Transportation Safety Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-5263.
    Richardson v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6074.
    Plemons v. Jones, Sheriff, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6239.
    Williams et al. v. Leeke, Corrections Director, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6277.
    Matthews v. Florida.
   Sup. Ct. Fla. Cer-tiorari denied.


text:
    No. 78-6282.
    Whitehead v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6336.
    Figueroa et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-6351.
    Belle v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6352.
    Bain v. Califano, Secretary of Health, Education, and Welfare.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6357.
    Peoples v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 78-6367.
    Carelli v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6380.
    Talbert v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6383.
    Powers v. United States.
   Ct. Cl. Cer-tiorari denied.


text:
    No. 78-6387.
    Fernandez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6420.
    Friedman v. Avon Products.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6483.
    Thomas v. Stone, Correctional Superintendent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6456.
    No. 78-6502.
    Thacker v. Ison, Forestry Camp Superintendent; and Thacker v. Bordenkircher, Penitentiary Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6489.
    Sam v. Blackburn, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6490.
    Maxey et al. v. Morris, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-6491.
    Myers v. Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 78-6497.
    Rinehart v. Durham County Board of Education et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6503.
    Lockett v. Director, Department of Corrections of Illinois.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-6504.
    Holsey v. Inmate Grievance Commission.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 78-6508.
    Dennis v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 78-6515.
    Dallas v. Hilton, Warden, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6526.
    Dragon v. Indiana.
   Sup. Ct. Ind. Cer-tiorari denied.


text:
    No. 78-6557.
    Dinke v. Riggs National Bank of Washington, D. C.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-6580.
    Marinoff v. Department of Health, Education, and Welfare.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6585.
    Tiberio v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6607.
    Myers, aka Coates v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6608.
    Myers, aka Coates v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6613.
    Peery v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6617.
    Barnes v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 78-6623.
    Wallace et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6634.
    Brown v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6636.
    Waugh v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6643.
    Gould v. Members of the New Jersey Division of Water Policy and Supply et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-1495.
    Riggs v. Laurens District 56 et al.
   Sup. Ct. S. C. Certiorari denied.

Mr. Justice Marshall would grant certiorari.


text:
    June 4, 1979
    No. 78-1396.
    Charbonnet et al. v. Braden et al.
   Affirmed on appeal from D. C. E. D. La.

Mr. Justice Brennan would note probable jurisdiction and set case for oral argument.


text:
    No. 78-6486.
    Alexander v. Estelle, Corrections Director.
   Appeal from Ct. Crim. App. Tex. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-6646.
    Ahmad v. Rodak, Clerk, Supreme Court of the United States.
   Appeal from C. A. D. C. Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certio-rari denied.


text:
    No. 78-750.
    Kentucky v. Brannon.
   Sup. Ct. Ky. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Kentucky v. Whorton, 441 U. S. 786 (1979).


text:
    No. 78-1084.
    Kentucky v. Williams.
   Sup. Ct. Ky. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Kentucky v. Whorton, 441 U. S. 786 (1979).


text:
    No. 78-1085.
    Kentucky v. Avery.
   Sup. Ct. Ky. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Kentucky v. Whorton, 441 U. S. 786 (1979).


text:
    No. 78-1493.
    Kentucky v. Miller.
   Sup. Ct. Ky. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Kentucky v. Whorton, 441 U. S. 786 (1979).


text:
    No. 78-1643.
    Lombard, Sheriff v. Marcera et al.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Bell v. Wolfish, 441 U. S. 520 (1979).

Mr. Justice Marshall dissents.


text:
    No. A-958.
    Williams et al. v. Zbaraz et al.
   D. C. N. D. Ill. Application for stay, addressed to Mr. Justice Rehnquist and referred to the Court, denied.


text:
    No. A-1012.
    LaMagna v. United States.
   Application for writ of habeas corpus and for bail, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. 78-1453.
    United States et al. v. Euge.
   C. A. 8th Cir. [Certiorari granted, 441 U. S. 942.] Motion for appointment of counsel granted, and it is ordered that James W. Erwin, Esquire, of St. Louis, Mo., be appointed to serve as counsel for respondent in this case provided he applies for admission to the Bar of this Court prior to the commencement of the next Term of Court.


text:
    No. 78-1538.
    Callahan et al. v. Kimball et al.
   C. A. 9th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 78-1577.
    Sears, Roebuck & Co. v. County of Los Angeles et al.
   Ct. App. Cal., 2d App. Dist. The Solicitor General is invited to file a brief in this case expressing the views of the United States.

Mr. Justice Stewart took no part in the consideration or decision of this order.


text:
    No. 78-1545.
    No. 78-1549.
    Zipes et al. v. Trans World Airlines, Inc.; and Trans World Airlines, Inc. v. Zipes et al.
   C. A. 7th Cir. Joint motions to defer consideration of petitions for writs of certiorari granted.

Mr. Justice Stevens took no part in the consideration or decision of these motions.


text:
    No. 78-6407.
    Fagan v. Romero, Warden.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 78-1548.
    California Brewers Assn. et al. v. Bryant et al.
   C. A. 9th Cir. Certiorari granted.

Mr. Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 78-6020.
    No. 78-6029.
    Busic v. United States; and LaRocca v. United States.
   C. A. 3d Cir. Motions of petitioners for leave to proceed in forma pauperis and certiorari granted. Cases consolidated and a total of one and one-half hours allotted for oral argument.


text:
    No. 78-1249.
    Boring v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 78-1325.
    Tyler v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 78-1372.
    Arambasich v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-1383.
    Wedelstedt v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-1412.
    No. 78-6369.
    No. 78-6431.
    James v. United States; Smith v. United States; and Whitmore v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1414.
    Robeson v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1420.
    Grumman Aerospace Corp. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 78-1444.
    DeCarlo v. New Jersey.
   Super. Ct. N. J. Certiorari denied.


text:
    No. 78-1463.
    Arnone v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-1465.
    Sahara-Tahoe Corp. v. National Labor Relations Board et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1467.
    Midtaune v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-1474.
    No. 78-1480.
    No. 78-1483.
    Fields et al. v. United States; Davis v. United States; and Friedman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1477.
    Formica Corp. v. Lefkowitz et al.
   C. C. P. A. Certiorari denied.


text:
    No. 78-1484.
    Ruby Co. et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1491.
    United Telecommunications, Inc., formerly United Utilities, Inc. v. Commissioner of Internal Revenue.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 78-1502.
    Solvino v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-1537.
    Forman v. Wolfe et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1542.
    Automobile Club of Michigan et al. v. Bell et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-1554.
    Bell v. New Jersey et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-1560.
    Avedisian v. Hubbard et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-1564.
    Beaumont v. Michigan Department of Labor et al.
   Ct. App. Mich. Certiorari denied.


text:
    No. 78-1566.
    Long’s Hauling Co., Inc. v. Huge et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-1575.
    Libertarian Party of Illinois v. Board of Election Commissioners of Chicago et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-1582.
    Harris v. Inahara et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1591.
    Paulinski et al. v. Isaac et al.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 78-1600.
    Wells v. Pioneer Wear, Inc.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 78-1601.
    Manufacturers Systems, Inc. v. ADM Industries, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-1603.
    Goss v. Revlon, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1613.
    Air Transport Lodge 1894, International Association of Machinists & Aerospace Workers, AFL-CIO, et al. v. Turner.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1649.
    Fleener v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1660.
    U. S. Labor Party v. Whitman.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 78-1666.
    Crespo et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1675.
    Lujan et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1678.
    Bomher v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-1712.
    Rose v. Carter, President of the United States, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-6237.
    Phillips v. Louisiana.
   Sup. Ct. La. Cer-tiorari denied.


text:
    No. 78-6264.
    Rehbein v. Illinois.
   Sup. Ct. Ill. Certio-rari denied.


text:
    No. 78-6322.
    Hill v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6329.
    Kirkham v. Overberg, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6345.
    Harbolt v. Hanberry, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6362.
    Quinones v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6368.
    Steinkoetter v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6384.
    No. 78-6411.
    DeFillipo v. United States; and DeFillipo v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6391.
    Valenzuela-Lopez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6397.
    Orozco et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6517.
    Joiner v. Wyrick, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6527.
    Tubbs v. Blackburn, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6528.
    Hoskinson v. Engle et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6530.
    Chase v. Redman, Correctional Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6538.
    Williams v. Smith, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6540.
    Johnson v. California.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 78-6541.
    Reece v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 78-6542.
    Welch v. Falke, Montgomery County Prosecuting Attorney.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6545.
    Kelso v. Nevada.
   Sup. Ct. Nev. Certio-rari denied.


text:
    No. 78-6556.
    Boothe v. Greater New York Savings Bank.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6630.
    No. 78-6631.
    With Horn v. United States; and Wounded Knee v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6640.
    McMahon v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6648.
    Cook v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6658.
    Moree v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-1379.
    Tahoe Nugget, Inc., dba Jim Kelley's Tahoe Nugget, et al. v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice White would grant certiorari.


text:
    No. 78-1529.
    Hunt et al. v. Commodity Futures Trading Commission.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Blackmun and Mr. Justice Powell would grant certiorari.


text:
    No. 78-1558.
    Iowa Beef Processors, Inc., et al. v. Hawkins et al.
   C. A. 8th Cir. Certiorari denied.

Mr. Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 78-1650.
    International Association of Machinists & Aerospace Workers, AFL-CIO, Silvergate District Lodge 50 v. Anderson.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Brennan and Mr. Justice White would grant cer-tiorari.


author: Mr. Justice Blackmun,

text:
    No. 78-6067.
    Goulden v. Oliver et al.
   C. A. 5th C'ir. Certiorari denied.

Mr. Justice Blackmun,

with whom Mr. Justice Brennan joins,

dissenting.

Petitioner Dudley Dee Goulden asserts that he is an Orthodox Jew, and that the Alabama prison authorities have forced him to shave and cut his hair, which is contrary to his religious beliefs. He filed this suit under 42 U. S. C. § 1983 alleging that the prison’s grooming regulations violated his rights under the First and Fourteenth Amendments. The District Court dismissed his complaint, reasoning that the prison regulations promoted cleanliness and personal identification and that those valid objectives outweighed any religious freedom petitioner was entitled to enjoy under the Constitution. By a single-judge order and without opinion, the' United States Court of Appeals for the Fifth Circuit denied petitioner’s pro se application for leave to appeal in forma pauperis. To support these rulings, respondents rely on Brooks v. Wainwright, 428 F. 2d 652 (CA5 1970), which upheld the dismissal of a somewhat similar complaint. See also Brown v. Wainwright, 419 F. 2d 1376 (CA5 1970).

In Cruz v. Beto, 405 U. S. 319 (1972), this Court held that a complaint that challenged restrictions on an inmate’s practice of Buddhism stated a claim upon which relief could be granted. Ruling that “reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty,” id., at 322 n. 2, the Court remanded the case for a hearing on the merits. See also Cooper v. Pate, 378 U. S. 546 (1964).

Whatever validity the Fifth Circuit’s Brooks rule may once have had, it has been severely undercut by Cruz and the subsequent eases that have reaffirmed the principle that prison regulations are subject to constitutional scrutiny. See Jones v. North Carolina Prisoners’ Union, 433 U. S. 119 (1977); Bounds v. Smith, 430 U. S. 817 (1977); Procunier v. Martinez, 416 U. S. 396 (1974). Citing Cruz and Martinez, the Second Circuit has rejected Brooks and held that a prisoner challenging prison grooming regulations on free exercise grounds is entitled to a hearing on the reasonableness of the prison’s regulations. Burgin v. Henderson, 536 F. 2d 501, 504, and n. 8 (1976). Accord: Jihaad v. Carlson, 410 F. Supp. 1132, 1134 (ED Mich. 1976); Wright v. Raines, 1 Kan. App. 2d 494, 500-501, 571 P. 2d 26, 31-32 (1977), cert. denied, 435 U. S. 933 (1978). Similarly, the Eighth Circuit has rejected the contention that such regulations are valid as a matter of law, and has affirmed a decision finding violative of the Free Exercise Clause an Iowa rule that prevented an American Indian prisoner from wearing long braided hair. Teterud v. Burns, 522 F. 2d 357, 362 (1975) (rejecting language in Proffitt v. Ciccone, 506 F. 2d 1020 (CA8 1974)). Other courts have upheld similar free exercise claims. See Wright v. Raines, 457 F. Supp. 1082 (Kan. 1978); Moskowitz v. Wilkinson, 432 F. Supp. 947 (Conn. 1977) (Orthodox Jew); Monroe v. Bombard, 422 F. Supp. 211, 217-218 (SDNY 1976); Maguire v. Wilkinson, 405 F. Supp. 637 (Conn. 1975).

While a decision based on evidentiary proof may well result in a finding that petitioner’s religious beliefs are not sincere, or that the State’s interests are sufficient to justify the restriction imposed on petitioner’s professed religious practice, I am not yet prepared to say that there is no set of facts that would entitle him to relief. I would permit petitioner to proceed in forma pauperis, grant the petition, vacate the order of the Court of Appeals, and remand the case with instructions to allow petitioner an adjudication on the merits of his complaint.

       The District Court cited three decisions involving personal lifestyle claims. Hill v. Estelle, 537 F. 2d 214 (CA5 1976); Rinehart v. Brewer, 491 F. 2d 705 (CA8 1974); Daugherty v. Reagan, 446 F. 2d 75 (CA9 1971). None of these, however, dealt with religious rights under the Free Exercise Clause. Hill did discuss Brooks.

       Respondents, citing two suits in which other allegations made by petitioner proved untrue, contend that the District Court could have dismissed the complaint as an abuse of process. Respondents, however, do not challenge the facts as stated by petitioner, and do not contend that the question presented has been previously litigated. The District Court’s opinion rejects petitioner’s claim on the merits and does not question his good faith.


text:
    No. 78-6187.
    No. 78-6500.
    Muniz v. Texas. Waye v. Virginia.
   Ct. Crim. App. Tex; and Sup. Ct. Va. Certio-rari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 78-6549.
    Gully et al. v. Kunzman, Judge, et al.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant certiorari.


text:
    No. 78-1284.
    No. 78-1367.
    No. 78-6472.
    Bub Davis Packing Co., Inc. v. United States, Cook v. Muskingum Watershed Conservancy District, DiSilvestro v. Veterans’ Administration,
   441 U. S. 931; 441 U. S. 924; and 441 U. S. 936. Petitions for rehearing denied.


text:
    No. 78-6206.
    Mundy v. Director, Department of Corrections, Tazewell, Virginia,
   441 U. S. 910. Petition for rehearing denied.

Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 78-5950.
    Haywood v. Illinois,
   440 U. S. 948. Motion for leave to file petition for rehearing denied.


text:
    June 5, 1979
    No. 78-874.
    Roth et al. v. Bank of the Commonwealth.
   C. A. 6th Cir. [Certiorari granted, 440 U. S. 944.] Writ of certiorari dismissed under this Court’s Rule 60.


text:
    June 11, 1979
    No. 78-1482.
    Meyers v. Chilcote.
   Appeal from Ct. App. Ohio, Hamilton County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-1590.
    Jones v. Committee of Legal Ethics of the West Virginia State Bar.
   Appeal from Sup. Ct. App. W. Va. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 78-6553.
    Lupert v. College of Law of Syracuse University.
   Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-6581.
    Cross v. Church, County Clerk-Recorder of San Mateo County, et al.
   Appeal from Sup. Ct. Cal. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 77-6855.
    Hardwick v. Reese.
   C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis and cer-tiorari granted. Judgment vacated and case remanded for further consideration in light of Greenholtz v. Nebraska Penal Inmates, ante, p. 1.


text:
    No. 78-950.
    Missouri Board of Probation and Parole et al. v. Williams et al.
   C. A. 8th Cir. Motion of respondent Williams for leave to proceed in forma pauperis and cer-tiorari granted. Judgment vacated and case remanded for further consideration in light of Greenholtz v. Nebraska Penal Inmates, ante, p. 1.


text:
    No. 78-1282.
    Williams et al. v. Phillips.
   Sup. Ct. Okla. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Greenholtz v. Nebraska Penal Inmates, ante, p. 1.


text:
    No. 78-1533.
    Connecticut Board of Pardons et al. v. Dumschat et al.
   C. A. 2d Cir. Motion of respondents for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Greenholtz v. Nebraska Penal Inmates, ante, p. 1.


text:
    No. 78-5419.
    Van Curen v. Jago, Correctional Superintendent.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Greenholtz v. Nebraska Penal Inmates, ante, p. 1.


text:
    No. 78-5551.
    Smith v. Woodard et al.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Greenholtz v. Nebraska Penal Inmates, ante, p. 1.


text:
    No. A-1042.
    Rega v. Curios, Correction Commissioner.
   C. A. 2d Cir. Application for stay of execution of sentence, presented to Mr. Justice Marshall, and by him referred to the Court, denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant the application.


text:
    No. D-158.
    In re Disbarment of Herman.
    [For earlier order herein, see 440 U. S. 933.]
   Disbarment entered.


text:
    No. 78-432.
    No. 78-435.
    No. 78-436.
    United Steelworkers of America, AFL-CIO-CLC v. Weber et al.; Kaiser Aluminum & Chemical Corp. v. Weber et al.; and United States et al. v. Weber et al.
   C. A. 5th Cir. [Certiorari granted, 439 U. S. 1045.] Motion of Rudy Gorden et al. for leave to intervene and for an order vacating the judgment below and remanding cases for a new trial with intervenors as party defendants, denied.

Mr. Justice Powell and Mr. Justice Stevens took no part in the consideration or decision of this motion.


text:
    No. 78-1143.
    Vance, Secretary of State v. Terrazas.
   C. A. 7th Cir. [Probable jurisdiction noted, 440 U. S. 970.] Motion of the Solicitor General to dispense with printing appendix granted.


text:
    No. 78-1202.
    Chiarella v. United States.
   C. A. 2d Cir. [Certiorari granted, 441 U. S. 942.] Motion of petitioner to dispense with printing appendix granted.


text:
    No. 78-1604.
    Central Machinery Co. v. Arizona State Tax Commission.
   Sup. Ct. Ariz. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 78-6604.
    Raitport v. Clerk of the Supreme Court of the United States.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 78-1611.
    Reichel v. Supreme Court of California et al.
   Motion for leave to file petition for writ of mandamus and/or prohibition denied.


text:
    No. 78-6609.
    Franks v. Delaware.
   Motion for leave to file petition for writ of mandamus and/or petition for writ of certiorari denied.


text:
    No. 78-1369.
    Committee for Public Education and Religious Liberty et al. v. Regan, Comptroller of New York, et al.
   Appeal from D. C. S. D. N. Y. Probable jurisdiction noted.


text:
    No. 78-1588.
    Vance et al. v. Universal Amusement Co., Inc., et al.
   Appeal from C. A. 5th Cir. Probable jurisdiction noted.


text:
    No. 78-1472.
    Costle, Administrator, Environmental Protection Agency v. Pacific Legal Foundation et al.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 78-1522.
    Andrus, Secretary of the Interior v. Utah.
   C. A. 10th Cir. Certiorari granted.


text:
    No. 78-910.
    Occidental of Umm Al Qaywayn, Inc. v. Cities Service Oil Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1328.
    Beech Aircraft Corp. v. Braband et al.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 78-1334.
    Weiss v. Patrick et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 78-1338.
    Coleman-American Cos., Inc. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-1344.
    Vriner v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 78-1357.
    Basciano v. Herkimer, Executive Director, New York City Employees Retirement System, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1366.
    Costello et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1428.
    Butler, District Attorney of Bexar County, et al. v. Dexter.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1435.
    Local 336, International Brotherhood of Electrical Workers, AFL-CIO v. GTE-Automatic Electric Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-1440.
    Rose et al. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-1479.
    Peoples v. Judicial Standards Commission of North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 78-1492.
    Guttman, t/a Liberty Nursing Center v. National Labor Relations Board et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-1500.
    Citicorp v. Board of Governors of the Federal Reserve System.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1541.
    Howell v. Gates et al.
   Ct. App. Colo. Certiorari denied.


text:
    No. 78-1576.
    Texas State Optical Co. et al. v. Royal International Optical Co., dba Texas Optical.
   Ct. App. N. M. Certiorari denied.


text:
    No. 78-1579.
    Charter et al. v. Ohio.
   Ct. App. Ohio, Highland County. Certiorari denied.


text:
    No. 78-1580.
    Brooks et al. v. Anker et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1587.
    Leveson v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 78-1589.
    Tom Benson Chevway Rental & Leasing, Inc. v. Allen et ux.
   Ct. Civ. App. Tex., 8th Sup. Jud. Dist. Certiorari denied.


text:
    No. 78-1598.
    Clark, County Executive, et al. v. O’Brien, Judge, et al.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 78-1599.
    Simpson et al. v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 78-1605.
    Jacobson et al. v. Rose, District Attorney of Washoe County, Nevada, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1615.
    Grayhill, Inc. v. AMF Inc. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-1683.
    O’Hair et al. v. Blumenthal, Secretary of the Treasury, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1728.
    Soto et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6236.
    Edwards v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 78-6286.
    Stowe v. Devoy, U. S. Marshal.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6287.
    Lundy v. Warden, El Reno Federal Correctional Institution, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6294.
    Jackson v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 78-6335.
    Fleming v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-6337.
    Brenneman v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 78-6422.
    Seward v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6428.
    Miner v. Califano, Secretary of Health, Education, and Welfare.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6437.
    Powers v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6447.
    Breest v. New Hampshire.
   Sup. Ct. N. H. Certiorari denied.


text:
    No. 78-6450.
    Lyman v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6466.
    Grant v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6496.
    Smith v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6524.
    Green v. United States et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6548.
    Johnson v. Meacham, Warden.
   Sup. Ct. Wyo. Certiorari denied.


text:
    No. 78-6551.
    Wells v. North Dakota.
   Sup. Ct. N. D. Certiorari denied.


text:
    No. 78-6555.
    Sandoval v. Utah.
   Sup. Ct. Utah. Certiorari denied.


text:
    No. 78-6564.
    Baker v. Estelle, Corrections Director.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 78-6566.
    Fernandez v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 78-6571.
    Najera v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 78-6575.
    Smith v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 78-6576.
    Watkins v. Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 78-6586.
    Harrell v. Huff, Assistant Hospital Administrator, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 78-6600.
    Kantorski et al. v. Commissioner of Corporations and Taxation of Massachusetts et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 78-6618.
    Cook v. Hanberry, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6622.
    Williams v. Tennessee.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 78-6625.
    Ho Yin Wong v. Bell, Attorney General, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6628.
    Silvers v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-6632.
    Homel v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6642.
    Rodriguez v. Secretary of Health, Education, and Welfare.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 78-6667.
    Sullivan v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6672.
    Killebrew v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6673.
    Farris v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6674.
    Cox v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6675.
    Apostol v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-6682.
    Nolen v. Brown, Secretary of Defense.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6698.
    Fortes v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6705.
    Holland v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6707.
    Ramos-Chacon v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1390.
    Illinois Central Gulp Railroad Co. v. Claiborne et al.
   C. A. 5th Cir. Motion of Chamber of Commerce of the United States for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 78-1583.
    Allstate Insurance Co. v. Kelley, Attorney General of Michigan, et al.
   Sup. Ct. Mich. Motion of National Association of Independent Insurers et al. for leave to file a brief as amici curiae granted. Certiorari denied.


text:
    No. 78-1610.
    United Air Lines, Inc. v. McDonald.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 78-1618.
    Southern Railway Co. et al. v. Yawn et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 78-6375.
    No. 78-6462.
    No. 78-6561.
    Ferguson v. Texas. Redd v. Georgia. Young v. Zant, Warden.
   Ct. Crim. App. Tex.; Sup. Ct. Ga.; and Sup. Ct. Ga. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 78-707.
    No. 78-1385.
    No. 78-1473.
    No. 78-6316.
    No. 78-6425.
    Atkins v. Louisiana, Lebowitz v. Florida, Packard v. City of Vallejo, Gibson v. Louisiana, Gordon v. United States,
   441 U. S. 927; 441 U. S. 932; 441 U. S. 933; 441 U. S. 926; and 441 U. S. 936. Petitions for rehearing denied.


text:
    No. 78-1236.
    No. 78-6082.
    Arnold et ux. v. Johnson et al., Thornton v. United States,
   440 U. S. 981; and 440 U. S. 983. Motions for leave to file petitions for rehearing denied.

Mr. Justice Powell took no part in the consideration or decision of these motions.


text:
    June 18, 1979
    No. 78-1527.
    Luna v. Secretary of Health, Education, and Welfare.
   Appeal from C. A. 1st Cir. dismissed for want of substantial federal question. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, cer-tiorari denied.


text:
    No. 78-6409.
    Bello v. Texas.
   Appeal from Ct. Crim. App. Tex. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 78-1546.
    Montana Contractors’ Assn. et al. v. Kreps, Secretary of Commerce, et al.
   Appeal from D. C. Mont, dismissed for want of jurisdiction.


text:
    No. 78-1626.
    Rosenbaum v. Rosenbaum.
   Appeal from App. Ct. Ill., 1st Dist., dismissed for want of substantial federal question.


text:
    No. 78-1684.
    Fahey, dba Castle Rest Nursing Home v. Hynes, Deputy Attorney General of New York.
   Appeal from App. Div., Sup. Ct. N. Y., 4th Jud. Dept., dismissed for want of substantial federal question.


text:
    No. 78-931.
    Babbitt, Governor of Arizona, et al. v. United Farm Workers National Union et al.
   Appeal from D. C. Ariz. Judgment vacated and case remanded for further consideration in light of Babbitt v. Farm Workers, ante, p. 289.


text:
    No. 78-5693.
    Ross v. Byrd et al.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Greenholtz v. Nebraska Penal Inmates, ante, p. 1.

Mr. Justice Stewart, Mr. Justice Blackmun, Mr. Justice Rehnquist, and Mr. Justice Stevens dissent.


text:
    No. 78-6095.
    Griffith v. Arizona.
   Sup. Ct. Ariz. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Greenholtz v. Nebraska Penal Inmates, ante, p. 1.

Mr. Justice Stewart, Mr. Justice Blackmun, Mr. Justice Rehnquist, and Mr. Justice Stevens dissent.


text:
    No. 78-6232.
    White v. Arizona.
   Sup. Ct. Ariz. Motion of petitioner for leave to proceed in forma pauperis and cer-tiorari granted. Judgment vacated and case remanded for further consideration in light of Greenholtz v. Nebraska Penal Inmates, ante, p. 1.

Mr. Justice Stewart, Mr. Justice Blackmun, Mr. Justice Rehnquist, and Mr. Justice Stevens dissent.


text:
    No. A-1026.
    No. A-1051.
    University of Tennessee et al. v. Geier et al.; and Tennessee Higher Education Commission v. Geier et al.
   C. A. 6th Cir. Applications for stay, presented to Mr. Justice Stewart, and by him referred to the Court, denied.

Mr. Justice Marshall took no part in the consideration or decision of these applications.


text:
    No. A-1067.
    Henry et al. v. Mississippi.
   D. C. D. C. Application for stay, or in the alternative for advancement of appeal, presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. D-166.
    In re Disbarment of Kaufman.
    [For earlier order herein, see 441 U. S. 920.]
   Disbarment entered.


text:
    No. 27,
    Orig.
    Ohio v. Kentucky.
    [For earlier order herein, see, e. g., 439 U. S. 1123.]
   Exceptions to Report of Special Master set for oral argument in due course.


text:
    No. 67,
    Orig.
    Idaho ex rel. Evans, Governor of Idaho, et al. v. Oregon et al.
    [For earlier order herein, see, e. g., 440 U. S. 943.]
   Exceptions to Report of Special Master set for oral argument in due course.


text:
    No. 83,
    Orig.
    Maryland et al. v. Louisiana.
   Motion for leave to file bill of complaint granted and defendant shall have 60 days to answer.


text:
    No. 84,
    Orig.
    United States v. Alaska.
   Motion for leave to file bill of complaint granted and defendant shall have 60 days to answer.


text:
    No. 77-1724.
    Burks et al. v. Lasker et al.,
   441 U. S. 471. Motion of respondents to be relieved of costs denied.

Mr. Justice Rehnquist took no part in the consideration or decision of this motion.


text:
    No. 78-253.
    No. 78-282.
    No. 78-283.
    Estes et al. v. Metropolitan Branches of the Dallas NAACP et al.; Curry et al. v. Metropolitan Branches of the Dallas NAACP et al.; and Brinegar et al. v. Metropolitan Branches of the Dallas NAACP et al.
   C. A. 5th Cir. [Certiorari granted, 440 U. S. 906.] Motion of Dallas Alliance et al. for leave to file a brief as amici curiae granted. Motion of petitioners Brinegar et al. for additional time for oral argument granted, and 15 additional minutes allotted for that purpose. Respondents also allotted 15 additional minutes for oral argument.

Mr. Justice Marshall took no part in the consideration or decision of these motions.


text:
    No. 78-630.
    Washington et al. v. Confederated Tribes of the Colville Indian Reservation et al.; and Washington v. United States et al.
   D. C. E. D. Wash. [Probable jurisdiction postponed, 440 U. S. 905.] Motion of the Solicitor General for additional time for oral argument granted, and 15 additional minutes allotted to the appellees. Appellants also allotted 15 additional minutes for oral argument.


text:
    No. 78-857.
    No. 78-997.
    National Labor Relations Board v. Yeshiva University; and Yeshiva University Faculty Assn. v. Yeshiva University.
   C. A. 2d Cir. [Certiorari granted, 440 U. S. 906.] Motion of the Solicitor General for divided argument granted.


text:
    No. 78-911.
    No. 78-1036.
    Industrial Union Department, AFL-CIO v. American Petroleum Institute et al.; and Marshall, Secretary of Labor v. American Petroleum Institute et al.
   C. A. 5th Cir. [Certiorari granted, 440 U. S. 906.] Motion of the Solicitor General for additional time for oral argument granted, and 15 additional minutes allotted to petitioners. Respondents also allotted 15 additional minutes for oral argument.


text:
    No. 78-952.
    Rush et al. v. Savchuk.
   Sup. Ct. Minn. [Probable jurisdiction noted, 440 U. S. 905.] Motion of New York State Trial Lawyers Assn, for leave to file a brief as amicus curiae denied.


text:
    No. 78-1183.
    Carbon Fuel Co. v. United Mine Workers of America et al.
   C. A. 4th Cir. [Certiorari granted, 440 U. S. 957.] Motions of Chamber of Commerce of the United States, Washington Legal Foundation, and Bituminous Coal Operators’ Association, Inc., for leave to file briefs as amici curiae granted.


text:
    No. 78-1418.
    Bloomer v. Liberty Mutual Insurance Co.
   C. A. 2d Cir. [Certiorari granted, 441 U. S. 942.] Motion of petitioner to dispense with printing appendix granted.


text:
    No. 78-1653.
    North Carolina Wildlife Resources Commission et al. v. Eastern Band of Cherokee Indians.
   C. A. 4th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 78-5705.
    Trammel v. United States.
   C. A. 10th Cir. [Certiorari granted, 440 U. S. 934.] Motion of Michigan Bar Association Standing Committee on Civil Procedure for leave to file a brief as amicus curiae granted.


text:
    No. 78-6386.
    Rummel v. Estelle, Corrections Director.
   C. A. 5th Cir. [Certiorari granted, 441 U. S. 960.] Motion for appointment of counsel granted, and it is ordered that Scott J. Atlas, Esquire, of Houston, Tex., be appointed to serve as counsel for petitioner in this case.


text:
    No. 78-6748.
    Fried v. Warden, New York State Correctional Facility at Elmira, et al.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 78-1595.
    Lewis v. United States.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 78-1651.
    Seatrain Shipbuilding Corp. et al. v. Shell Oil Co. et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 78-1756.
    United States v. Mitchell et al.
   Ct. Cl. Certiorari granted.


text:
    No. 78-1261.
    Carlson, Director, Federal Bureau of Prisons, et al. v. Green, Administratrix.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 78-1487.
    Ford Motor Credit Co. et al. v. Milhollin et al.
   C. A. 9th Cir. Motion of respondents for leave to proceed in forma pauperis and certiorari granted. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 78-1557.
    Nachman Corp. v. Pension Benefit Guaranty Corporation et al.
   C. A. 7th Cir. Certiorari granted limited to Question 2 presented by the petition.


text:
    No. 78-1303.
    Chisnell v. Chisnell.
   Ct. App. Mich. Certiorari denied.


text:
    No. 78-1397.
    Mallery v. Blackburn, Warden.
   Sup. Ct. La. Certiorari denied.


text:
    No. 78-1457.
    Richardson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-1486.
    Mitchell v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1505.
    Giacalone v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-1524.
    Jackson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1535.
    Broward v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1536.
    Hart et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1550.
    Thomas v. Kentucky.
   Ct. App. Ky. Certiorari denied.


text:
    No. 78-1552.
    Cohran v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1555.
    Muniz v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1578.
    Losego et al. v. Guernsey County Board of Education et al.
   Ct. App. Ohio, Guernsey County. Certiorari denied.


text:
    No. 78-1592.
    Sharon et ux. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1593.
    Hinchman v. Colorado.
   Sup. Ct. Colo. Certiorari denied.


text:
    No. 78-1619.
    Mosher v. Saalfeld et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1621.
    Vesco v. International Controls Corp.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1622.
    Highsaw v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 78-1630.
    Consolidated Rail Corp. v. Illinois et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-1635.
    Tivian Laboratories, Inc. v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 78-1636.
    Goichman v. Disciplinary Board of the Supreme Court of Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 78-1640.
    Bell & Howell Co. v. National Labor Relations Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-1645.
    Davis et al., Trustees v. Pima County, Arizona, et al.
   Ct. App. Ariz. Certiorari denied.


text:
    No. 78-1655.
    Insurance Company of North America v. Farmer’s Home Mutual Insurance Co.
   Ct. App. Wash. Certiorari denied.


text:
    No. 78-1657.
    Pennsylvania Human Relations Commission v. Pittsburgh Press Co.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 78-1664.
    Allustiarte et ux. v. Peters et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1680.
    Washington v. Norton Manufacturing Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1703.
    Freedson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1704.
    California Inspection Rating Bureau v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1713.
    Alston v. Allegheny-Ludlum Steel Corp., a Division of Allegheny-Ludlum Industries, Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-1718.
    Poe v. Kuyk et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-1723.
    States Steamship Co. et al. v. Zirpoli, U. S. District Judge (R. J. Reynolds Tobacco Co. et al., Real Parties in Interest).
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1735.
    Fabsteel Company of Louisiana v. National Labor Relations Board.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1736.
    Migely v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 78-1750.
    Tussel v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-1762.
    Gonzalez-Perez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1763.
    McBrearty v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1772.
    United Artists Corp. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-5996.
    Anzaldua v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 78-6396.
    Farmer v. United States Parole Commission.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6432.
    Roby v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6459.
    Gaines v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6468.
    Haner v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6469.
    Clark v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 78-6480.
    Snell v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6482.
    Agee v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6488.
    DelPiano v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6495.
    Stine v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6505.
    Noles v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6516.
    Darby et al. v. International Brotherhood of Electrical Workers, Local Union No. 1547, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6521.
    Siggers v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 78-6532.
    Colon v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-6589.
    Burson v. Engle, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6591.
    Trice v. Missouri.
   Ct. App. Mo., St. Louis Dist. Certiorari denied.


text:
    No. 78-6594.
    Mattingly v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6599.
    Parris v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6602.
    Heller v. Consolidated Rail Corp.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6606.
    Toneman v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 78-6610.
    Wilson v. Henderson, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6616.
    Alexander v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 78-6619.
    Wiener v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 78-6666.
    Collins v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6690.
    Brown v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 78-6708.
    Walters v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6713.
    Wood v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 78-6715.
    Kriz v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6720.
    Williams v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6724.
    Reeves v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6725.
    Risco v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 78-6726.
    Howard v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 78-6734.
    Dolliole v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-6746.
    Lewis v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 78-6747.
    Davis v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-25.
    Brokenleg v. Butts et ux.
   Ct. Civ. App. Tex., 8th Sup. Jud. Dist. Motions of Rosebud Sioux Tribe, American Academy of Child Psychiatry, and National Indian Youth Council, Inc., et al., for leave to file briefs as amid curiae granted. Certiorari denied.


text:
    No. 78-685.
    Aberdeen & Rockfish Railroad Co. et al. v. United States et al.
   C. A. D. C. Cir. Motions of PPG Industries, Fort Howard Paper Co., and Allied Chemical Corp. et al. for leave to intervene denied. Certiorari denied.

Mr. Justice Powell took no part in the consideration or decision of these motions and this petition.


text:
    No. 78-1399.
    Chicago-Midwest Meat Assn. v. City of Evanston et al.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Brennan and Mr. Justice White would grant cer-tiorari.


text:
    No. 78-1454.
    Trageser v. Libbie Rehabilitation Center, Inc., t/a Libbie Convalescent Home.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Stewart and Mr. Justice Marshall would grant certiorari.


text:
    No. 78-1470.
    Lopez v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice White and Mr. Justice Marshall would grant certiorari.


text:
    No. 78-1688.
    City Council of the City of Philadelphia et al. v. Resident Advisory Board of Philadelphia et al.
   C. A. 3d Cir. Motion of respondent Nellie Reynolds for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 78-6699.
    Goodwin v. Hopper, Warden.
   Sup. Ct. Ga. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


text:
    No. 78-385.
    No. 78-1179.
    No. 78-1222.
    No. 78-1437.
    Volpe et al. v. United States, Grant et al. v. United States, Western Communications, Inc. v. Federal Communications Commission et al., Gottesman et al. v. General Motors Corp. et al.,
   441 U. S. 930; 441 U. S. 931; 441 U. S. 931; and 441 U. S. 932. Petitions for rehearing denied.


text:
    No. 78-6204.
    No. 78-6318.
    No. 78-6416.
    Clayton v. United States, Aponte v. Secretary of Health, Education, and Welfare, Harrison v. Illinois et al.,
   441 U. S. 962; 441 U. S. 934; and 441 U. S. 949. Petitions for rehearing denied.


author: Mr. Justice Rehnquist, Circuit Justice.

text:
    SPENKELINK v. WAINWRIGHT et al.
    No. A-1016.
    Decided May 22, 1979
   Mr. Justice Rehnquist, Circuit Justice.

This application for stay has come to me by reason of the unavailability of Mr. Justice Powell. On December 20, 1973, following a trial and jury verdict, applicant was sentenced to death pursuant to the Florida statute that we upheld in Proffitt v. Florida, 428 U. S. 242 (1976), for a murder committed in February 1973. On applicant’s appeal, the Supreme Court of Florida affirmed both the conviction and sentence, Spenkelink v. State, 313 So. 2d 666 (1975), and this Court denied certiorari. 428 U. S. 911 (1976). Applicant next sought executive clemency from the Governor of Florida, but his request for that relief was denied on September 12, 1977, and at the same time the Governor signed a death warrant setting applicant’s execution for 8:30 a. m. on September 19, 1977. The following day, applicant filed a motion for collateral relief in the Florida trial court that had convicted him; this motion, too, was denied, the Supreme Court of Florida affirmed its denial, Spenkelink v. State, 350 So. 2d 85 (1977), and we again denied certiorari. 434 U. S. 960 (1977).

One day after he filed his petition for collateral relief in state court, however, applicant filed a petition for federal habeas corpus in the United States District Court for the Middle District of Florida, which transferred the case to the Northern District of Florida. That court stayed the execution and scheduled an evidentary hearing for September 21, 1977. At that time a hearing was held, which lasted from the late morning into the evening and produced over 300 pages of testimony. On September 23, the District Court dismissed the petition and ordered that the stay of execution previously issued by it terminate at noon on September 30. But the District Court also granted applicant a certificate of probable cause to appeal, and the Court of Appeals for the Fifth Circuit then stayed applicant’s execution pending its decision of his appeal.

On August 21, 1978, a panel of the Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. Spenkelink v. Wainwright, 578 F. 2d 582. In an opinion comprising 39 pages in the Federal Reporter, the Court of Appeals for the Fifth Circuit dealt at length with all of applicant’s claims, which had previously been rejected by the United States District Court and by the Supreme Court of Florida. It affirmed the judgment of the District Court, and we again denied certiorari on March 26,1979, with Mr. Justice Brennaw and Mr. Justice Marshall dissenting on the basis of their views set forth in Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976). 440 U. S. 976.

According to the application now before me, the Governor of Florida again denied executive clemency on Friday, May 18, 1979, and signed a death warrant authorizing the execution of applicant on Wednesday, May 23, 1979, at 7 a. m., e. d. t. On Monday, May 21, applicant filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida requesting the court to stay his execution pending consideration and final determination of the petition. According to the applicant, the only point he seeks to preserve in his application to me for a stay is that under this Court’s decision in Presnell v. Georgia, 439 U. S. 14 (1978), “the failure to accord petitioner adequate advance notice of the aggravating circumstances alleged by the prosecution as the basis for seeking the death penalty” denied applicant rights secured to him by the Eighth and Fourteenth Amendments to the Constitution of the United States. In Presnell, supra, this Court held that the “fundamental principles of procedural fairness” enunciated in Cole v. Arkansas, 333 U. S. 196 (1948), “apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial.” 439 U. S., at 16. Cole, in turn, had held that “[t]o conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.” 333 U. S., at 202.

This claim was submitted to and denied by the District Court for the Northern District of Florida on Monday, May 21, 1979. The District Court simultaneously entered a second order refusing certification of the appeal under both local and statutory rules, and denying a stay of execution pending appeal. Today, a panel of the Court of Appeals for the Fifth Circuit has, by a divided vote, denied applicant a certificate of probable cause, a certificate for leave to appeal in forma pauperis, and his motion for a stay of execution.

Throughout these many hearings, appeals, and applications, there has been virtually no dispute that substantial evidence supported the jury’s verdict that applicant was guilty of first-degree murder, or that the Florida state trial judge had ample basis for following the jury’s recommendation that the death penalty be imposed. The Supreme Court of Florida in its opinion affirming applicant’s conviction stated:

“As more fully set out above the record shows this crime to be premeditated, especially cruel, atrocious, and heinous and in connection with robbery of the victim to secure return of money claimed by Appellant. The aggravating circumstances justify imposition of the death sentence. Both Appellant and his victim were career criminals and Appellant showed no mitigating factors to require a more lenient sentence.” 313 So. 2d, at 671.

The Court of Appeals for the Fifth Circuit, in afiirming the denial of federal habeas relief, said:

“On February 4, 1973, petitioner John A. Spenkelink, a 24-year-old white male and twice convicted felon, who had escaped from a California correctional camp, murdered his traveling companion, Joseph J. Szymankiewicz, a white male, in their Tallahassee, Florida motel room. Spenkelink shot Szymankiewicz, who was asleep in bed, once in the head just behind the left ear and a second time in the back, which fragmented the spine, ruptured the aorta, and resulted in the victim’s death. [Spenkelink] then recounted a cover story to the motel proprietor in order to delay discovery of the body and left.” 578 F. 2d, at 586.

When I granted an application for stay of execution as Circuit Justice in Evans v. Bennett, 440 U. S. 1301 (1979), I referred to the oft-repeated rule that a Circuit Justice must act as surrogate for the entire Court when acting on a stay application. Even though he would deny the application if he were to consider only his own views as to its merits, he is obligated to consider the views that each Member of the Court may have as to its merits, and if he believes that four Members of the Court would vote to grant certiorari to review the applicant’s claims, he is obligated to grant the application, provided it meets the other requirements for a stay. In Evans, supra, although I would not have voted to grant cer-tiorari to consider applicant’s claims, I was satisfied that there was a reasonable probability that four other Members of the Court would have voted differently. I therefore granted the application pending referral to the next scheduled Conference of the full Court.

In this case, by contrast, I have consulted all of my colleagues who are available, and am confident that four of them would not vote to grant certiorari to hear any of the numerous constitutional claims previously presented by applicant in his three earlier petitions for certiorari to this Court. It devolves upon me, however, as a single Justice, to answer as best I can whether four Members of the Court would grant certiorari to consider applicant’s new claim that his death sentence was imposed in violation of our opinion in Presnell v. Georgia. The easiest way to find out, of course, would be to have the necessary copies of applicant’s papers circulated to all eight of my colleagues in order to obtain their firsthand assessment of this contention at the next regularly scheduled Conference of the Court on Thursday. Even if I were only marginally convinced that there were four Justices who might vote to grant certiorari in order to hear this claim presented, in view of the fact that applicant’s life is at stake, I would probably follow that course. But evaluating applicant’s “new” claim as best I can, it does not impart to me even that degree of conviction. As I understand it, he contends that Presnell, which required that a state appellate court affirm a capital sentence on the same theory under which it had been imposed by the trial court, be extended to require that the defendant receive some sort of formal notice, perhaps in the form of a specification in the indictment or information, of each and every one of the statutorily prescribed aggravating circumstances upon which the prosecution intends to rely for the imposition of the death penalty. I do not believe that four Members of this Court would find that claim either factually or legally sufficient to persuade them to vote to grant certiorari in order to review its denial in the federal habeas proceeding.

Applicant has conceded in his memorandum of law in support of the present federal habeas action that “defense counsel could properly have been expected to know that the State might seek a death sentence on the grounds that the offense was (1) committed by a defendant previously convicted of a felony involving the use or threat of violence or (2) committed by a defendant under sentence of imprisonment.” Application, Exhibit B, p. 10. But the memorandum goes on to state that “a homicide caused by a single gun shot wound to the heart is not self-evidently ‘especially heinous, atrocious, or cruel.’ And it was not until the sentencing hearing itself that petitioner was appraised that the State would seek the death penalty on this ground.” Id., at 11.

Cole v. Arkansas, which Presnell simply extended to the sentencing phase of a capital trial, was after all decided in 1948, and was not then thought to embody any novel principle of constitutional law. Applicant concedes that there was adequate notice at the sentencing stage of the hearing for the State to seek the death penalty on two of the statutorily defined aggravating circumstances, and the fact that it has required six years for him to discover that he did not have adequate notice as to the other grounds upon which it was sought, and was thereby prejudiced, tends to detract from the substantiality of his contention.

Applicant has had not merely one day in court. He has had many, many days in court. It has been the conclusion of the Supreme Court of Florida that the death sentence was imposed in accordance with the requirements of Florida law as well as those of the United States Constitution, and it has been the conclusion of the United States District Court for the Northern District of Florida and the Court of Appeals for the Fifth Circuit that there was no federal constitutional error in the process by which applicant was sentenced to death. Three times this Court has refused to review the determinations of these state and federal courts. I do not believe that the claim presented in the present application would be any more successful than the claims presented in the preceding three petitions for certiorari. The application for stay of execution of John A. Spenkelink, presently scheduled for Wednesday, May 23, 1979, at 7 a. m., e. d. t., is accordingly

Denied.

      In light of the extensive scrutiny applicant’s claims have received in the courts below, I decline to take the extraordinary step of granting a certificate of probable cause authorizing an appeal to the United States Court of Appeals for the Fifth Circuit from the District Court’s judgment.


author: Mr. Justice Marshall.

text:
    SPENKELINK v. WAINWRIGHT et al.
    No. A-1016.
    Decided May 23, 1979
   Mr. Justice Marshall.

John A. Spenkelink, who is scheduled to be put to death at 7:00 a. m. on May 23, 1979, has applied to me for a stay of his execution. Mr. Justice Rehnquist and Mr. Justice Stevens have both denied the application, and the pertinent facts are set forth in Mr. Justice Rehnquist’s opinion, ante, p. 1301. Given the Court of Appeals’ divided vote on whether to grant a certificate of probable cause, the irrevocable nature of the penalty to be imposed, and the ability of the full Court to consider this case within 36 hours at our regular Conference, I believe it appropriate to grant the application for a stay until further action by the entire Court.

Granted.


author: Mr. Justice Stevens, Circuit Justice.

text:
    WILLIAMS v. ZBARAZ
    No. A-958.
    Decided May 24, 1979

      Together with No. A-967, Quern v. Zbaraz, also on application for stay of the same order.

   Mr. Justice Stevens, Circuit Justice.

Applicants seek a stay of an order of the United States District Court for the Northern District of Illinois enjoining the State of Illinois from refusing to fund under its medical assistance programs medically necessary abortions performed prior to viability.

The plaintiffs in this action are a class of pregnant women eligible for Illinois medical assistance programs for whom an abortion is medically necessary and a class of physicians who perform such procedures and are certified to receive reimbursement for necessary medical services. Their complaint alleged that the Illinois statute, 1977 Ill. Laws, Pub. Act 80-1091, § 1, denying reimbursement for medically necessary abortions violated their rights under both the Social Security Act and the Fourteenth Amendment. After the United States Court of Appeals for the Seventh Circuit reversed the District Court’s initial decision to abstain, 572 F. 2d 582, the District Judge held that the Illinois statute violated the federal Social Security Act and its implementing regulations, since Illinois’ funding of only “life-preserving” abortions fell short of the federal statutory responsibility to “establish reasonable standards” for providing medically necessary treatment. The court rejected the argument that the Hyde Amendment’s prohibition of federal funding of certain categories of abortions limited the State’s statutory responsibility, and entered an injunction requiring Illinois to fund medically necessary abortions. The Court of Appeals, after denying a stay of the injunction pending appeal, reversed the District Court decision. The Court of Appeals concluded that the Hyde Amendment was not simply a limitation on the use of federal funds for abortions, but was itself a substantive amendment to the obligations imposed upon the State by Title XIX of the Social Security Act, 42 U. S. C. § 1396 et seq. The court recognized the constitutional questions raised by its interpretation and remanded to the District Court with instructions to consider the constitutionality of both the Illinois statute and the Hyde Amendment.

The District Court held both provisions to be unconstitutional on equal protection grounds. While rejecting the argument that strict scrutiny was appropriate, Judge Grady concluded that the statute’s distinction between indigent women in medical need of abortions and those in need of other surgical procedures failed to further any legitimate, articulated state purpose. He was not persuaded by the State’s argument that its interest in “fiscal frugality” supported the classification, since the costs of prenatal care, childbirth, and postpartum care were established to be substantially higher than the cost of abortions. As to the State’s asserted interest in the encouragement of childbirth, the court recognized that while this interest was clearly legitimate in certain circumstances, see Maher v. Roe, 432 U. S. 464; Poelker v. Doe, 432 U. S. 519, the State does not have a legitimate interest in promoting the life of a nonviable fetus in a woman for whom an abortion is medically necessary. The United States had intervened as a defendant on remand, when the constitutionality of the Hyde Amendment was called into question. The District Court’s injunction, however, was directed solely to the State of Illinois, which was ordered to fund medically necessary abortions prior to viability. The District Court refused, to stay this order, and applicants — the Director of the Illinois Department of Public Aid and two physicians who intervened as defendants below — now seek a stay from me in my capacity as Circuit Justice, pending their appeal to this Court.

The standards governing the issuance of stays are well established. “Stays pending appeal to this Court are granted only in extraordinary circumstances. A lower court judgment, entered by a tribunal that was closer to the facts than the single Justice, is entitled to a presumption of validity.” Graves v. Barnes, 405 U. S. 1201, 1203 (Powell, J., in chambers). “To prevail here the applicant must meet a heavy burden of showing not only that the judgment of the lower court was erroneous on the merits, but also that the applicant will suffer irreparable injury if the judgment is not stayed pending his appeal.” Whalen v. Roe, 423 U. S. 1313, 1316 (Marshall, J., in chambers). In my view, the applications before me do not present the “extraordinary circumstances” necessary to justify a stay.

An initial inquiry where a stay is sought in a case within this Court’s appellate jurisdiction is “whether five Justices are likely to conclude that the case was erroneously decided below.” Graves v. Barnes, supra, at 1203. Applicants’ claim that the District Court improperly distinguished our prior decisions in Maher and Poelker is far from frivolous, and may well prevail in this Court. While the District Court’s judgment is entitled to a presumption of validity, so are statutes validly enacted by Congress and the State of Illinois. Even so, a stay is not necessary to preserve the issue for decision by the Court: the controversy between plaintiffs and defendants is a live and continuing one, and there is simply no possibility that, absent a stay, our appellate jurisdiction will be defeated. Cf. In re Bart, 82 S. Ct. 675, 7 L. Ed. 2d 767 (Warren, C. J., in chambers). The question, then, is only whether the District Court’s injunction should be observed in the interim. Unless the applicants will suffer irreparable injury, it clearly should be. See Whalen v. Roe, supra, at 1317-1318.

In addressing the irreparable-injury issue, the task of a judge or Justice is to examine the “competing equities,” Socialist Labor Party v. Rhodes, 89 S. Ct. 3, 21 L. Ed. 2d 72 (Stewart, J., in chambers), a task that involves “balancing th[e] injury [to one side] against the losses that might be suffered by [the other].” Railway Express Agency v. United States, 82 S. Ct. 466, 468, 7 L. Ed. 2d 432, 434 (Harlan, J., in chambers). Where the lower court has already performed this task in ruling on a stay application, its decision is entitled to weight and should not lightly be disturbed. Graves v. Barnes, supra; Railway Express Agency v. United States, supra.

Both sides agree as to the consequences of a stay of the District Court’s order in this case: if a stay is not granted, indigent women for whom an abortion is medically necessary will be able to have abortions prior to viability; with a stay, many or most of them will not. In support of their argument that the former course will cause irreparable injury, applicants point to two factors. First is the State’s financial integrity, and the losses which Illinois will suffer if forced to fund medically necessary abortions pending appeal, particularly since no federal reimbursement for these expenses has been ordered. I find this argument unpersuasive. Both the findings of the District Court and the record before me compellingly demon-state that it is less expensive for the State to pay the entire cost of abortion than it is for it to pay only its share of the costs associated with a full-term pregnancy. Far from suffering any irreparable financial losses without a stay, the State will benefit financially if one is not granted.

The second state interest asserted merits greater concern. A refusal to stay the District Court’s order, it is argued, will result in irreparable injury to the interest of the people of Illinois in protecting potential human life. We have in the past recognized the legitimacy of the state interest in encouraging childbirth, and I do not doubt its validity here. How much weight can properly be accorded to that interest, however, is a somewhat different question; Roe v. Wade, 410 U. S. 113, itself establishes that the State’s interest in potential life is never so great that it can outweigh the woman’s interest in her health or in deciding, prior to viability, whether to have an abortion. Moreover, the State clearly has an interest in preserving and protecting the life and health of the mother, as well as in promoting childbirth. In this case, where we deal only with “medically necessary” abortions, the weight to be accorded to the State’s interest in childbirth must necessarily be diminished by its acknowledged interest in the health of the mother. Finally, the State’s policy of encouraging childbirth is in no way guaranteed if a stay is granted. Even without state assistance, at least some indigent women will secure abortions: they may “beg, borrow, or steal” the money; they may find doctors willing to treat them without charge; or they may resort to less costly and less safe illegal methods. While the refusal of a stay will in many cases defeat the State’s ability to enforce its interest in promoting childbearing, the grant of a stay will not ensure the full effectuation of that interest.

These claims of irreparable injury to the interests of the State must be weighed against the plaintiffs’ claims of irreparable injury to their interests if a stay is granted. First, the women plaintiffs here have a conceded constitutional right to choose to have an abortion. Whether or not the State is under a constitutional obligation to fund their abortions, the fact remains that meaningful exercise of this constitutional right depends on the actual availability of abortions. Under the District Court’s judgment, the women will in fact be free to decide whether or not to have an abortion; if the judgment is stayed, the constitutional right to choose will for many be meaningless. And in these circumstances, the loss to the women may be particularly grievous. The order here is addressed only to abortions which are “medically necessary” for the health of the mother. The District Court found that if medically necessary abortions are not performed, “the mother may be subjected to considerable risk of severe medical problems, which may even result in her death.”

“Under the Hyde Amendment standard, a doctor may not certify a woman as being eligible for a publicly funded abortion except where ‘the life of the mother would be endangered . . . or . . . where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term. . . .’ Most health problems associated with pregnancy would not be covered by this language . . . and those that would be covered would often not be apparent until the later stages of pregnancy, when an abortion is more dangerous to the mother .... At the earlier stages of pregnancy, and even at the later stages, doctors are usually unable to determine the degree of injury which may result from a particular medical condition .... The effect of the new criteria, then, will be to increase substantially maternal morbidity and mortality among indigent pregnant women.” Memorandum opinion, No. 77C 4522 (ND Ill. Apr. 27, 1979), pp. 10-11.

Whether or not these findings provide support for the District Court’s judgment on the merits, a distinct question which I do not consider here, it is clear that they do provide support for plaintiffs’ claims of irreparable injury if a stay is granted.

Balancing these same equities of the plaintiffs and defendants, the District Court denied a stay of its injunction pending appeal. The applicants had also sought a stay from the Seventh Circuit, pending appeal, of the District Court’s earlier order requiring the State to fund medically necessary abortions on the grounds that its refusal to do so violated the Social Security Act. That application was denied by Judges Fair-child, Bauer, and Wood, who concluded that “the defendant-appellant and intervening defendants-appellants have not sustained their heavy burden of demonstrating immediate irreparable harm in the absence of a stay of the district court’s injunction pending appeal.” Plaintiffs’ Exhibit K-2. Both of these courts, evaluating the same or substantially the same claims as those made here, concluded that a stay was not warranted. Their decisions must be given some weight. I am persuaded that they are correct.

Whether or not the plaintiffs prevail in this Court, the fact is that they did in the District Court. The burden is on the defendants-applicants to establish that the order of the District Court should not be enforced. Balancing the equities is always a difficult task, and few cases are ever free from doubt. Where there is doubt, it should inure to the benefit of those who oppose grant of the extraordinary relief which a stay represents. Cf. Enomoto v. Spain, 424 U. S. 951 (Stevens, J., dissenting). In my judgment, as in the judgment of the District Court and the Court of Appeals, the equities here appear to favor the plaintiffs. The applications for a stay are therefore denied.

       Public Law 95-480, § 210, 92 Stat. 1586, commonly known as the Hyde Amendment, provides:
      “None of the funds provided for in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians.”

       A stay was then sought in this Court, and both The Chief Justice and I denied the application. I have reviewed the claims of the parties anew in connection with these applications. And I have concluded once again that the judgment of the lower court should not be disturbed.