author: Justice Brennan,

text:
    No. 85-660.
    Colorado v. Connelly.
   Sup. Ct. Colo. Motion of Duane Woodard, Attorney General of Colorado, et al. for leave to file a brief as amici curiae granted. Motion of respondent for leave to proceed informa pauperis and certiorari granted. In addition to the question presented by the petition for writ of certiorari, the parties are requested to brief and argue the following question: “Did respondent’s mental condition render his waiver of Miranda rights ineffective?” Application for stay, presented to Justice White, and by him referred to the Court, is granted pending the issuance of the mandate of this Court.

Memorandum of

Justice Brennan,

with whom Justice Stevens joins.

This grant of certiorari is yet another instance supporting the concern that the Court shows an unseemly eagerness to act as “the adjunct of the State and its prosecutors in facilitating efficient and expedient conviction . . . .” Wainwright v. Witt, 469 U. S. 412, 463 (1985) (Brennan, J., dissenting). Most often, this concern has been evoked by the Court’s overly narrow interpretations of the Constitution’s fundamental guarantees and the laws established to secure relief from violations of those guarantees. See ibid.; United States v. Leon, 468 U. S. 897, 928-929 (1984) (Brennan, J., dissenting). However, the Court’s willingness to take special judicial action to assist the prosecutor has not been limited to its interpretations of substantive law. For example, in New Jersey v. T. L. O., 469 U. S. 325 (1985), reargument was directed on a constitutional question not raised by either party because it provided a broader basis for upholding the State’s action. Similarly, two Terms ago, Justice Stevens noted the “quite striking” fact that during the preceding two-and-a-half years the Court had summarily reversed, without briefing or oral argument, 19 criminal cases — every one on the petition of the warden or the prosecutor and every one in his favor. Florida v. Meyers, 466 U. S. 380, 385-387, and n. 3 (1984) (Stevens, J., dissenting). Nothing has changed in the year and a half since that decision, for, although in the immediate wake of Justice Stevens’ dissent the Court did summarily reverse a few convictions on the petition of a criminal defendant, the trend to grant summary dispositions only in favor of the prosecutor has resumed and the record now stands at 26-4. No particularly informed understanding of statistics is required to appreciate that the likelihood of courts so consistently erring in favor of defendants is truly remote and that only a one-sided exercise of discretion can explain these results.

The Court’s treatment of this case provides another clear example of why there is concern that the Court engages in injudicious efforts to assist prosecutors. Today, the Court takes the unprecedented step of rewriting a prosecutor’s certiorari petition for him, enabling him to seek reversal on a ground he did not present himself.

Respondent approached a uniformed police officer and stated that “he had killed someone” and wanted to tell the officer about it. Before questioning respondent about the killing, the officer informed respondent of his Miranda rights. Respondent waived his rights and proceeded to confess to the murder of a young girl. After being charged with murder, respondent moved to suppress his statements as made involuntarily. A psychiatrist testified that respondent believed that the voice of God had commanded him to confess or commit suicide. The psychiatrist testified that respondent was suffering from “chronic paranoid schizophrenia” and “command auditory hallucinations” when he confessed and that respondent’s actions were not the product of a free will. The trial court suppressed statements made both before and after the Miranda warnings were given on the ground that respondent’s mental state rendered these confessions involuntary and tainted his waiver of the Miranda rights. The Colorado Supreme Court affirmed, and this petition followed. The prosecutor carefully limited his petition to this Court to challenge only the suppression of respondent’s initial, unsolicited statements. The petition expressly states that “[respondent’s] later confession, which involves a Miranda issue, is not an issue in this petition.” Pet. for Cert. 15. Despite this, the Court directs the parties to brief and argue that issue.

We do not know why the prosecutor chose not to seek review of the Miranda issue. But, whatever the reason, review was not sought, and it is hardly for this Court to “second chair” the prosecutor to alter his strategy or guard him from mistakes. Under this Court’s Rule 21.1(a), “[o]nly the questions set forth in the petition or fairly included therein will be considered by the Court.” Given petitioner’s express disclaimer that the Miranda issue is presented, that question obviously is not “fairly included” in the question submitted. The Court’s direction that the parties address it anyway makes meaningless in this case the provisions of this Rule and is plainly cause for concern, particularly since it is clear that a similar dispensation would not be granted a criminal defendant, however strong his claim. In asking the parties to address issues that the State chose not to present in the petition for certiorari, the Court goes beyond a mere philosophic inclination to facilitate criminal prosecution: the Court gives the appearance of being not merely the champion, but actually an arm, of the prosecution.

I realize that, in itself, this order is not a matter of great significance. But even matters of small effect can cloak issues of great moment. In making the specific guarantees of the Bill of Rights a part of our fundamental law, the Framers recognized that limitless state power afflicts the innocent as well as the guilty, that even a crime-free world is not worth the fear and oppression that inevitably follow unrestricted police power, and that a truly free society is one in which every citizen — guilty or innocent — is treated fairly and accorded dignity and respect by the State. Of course, the Framers could not foresee the shape our society would take as the Nation developed. Nor could they foresee how the police function would evolve to keep pace. Rather, it has fallen to this Court — the “ultimate interpreter of the Constitution,” Baker v. Carr, 369 U. S. 186, 211 (1962) — to enforce the rights enshrined in the Bill of Rights and preserve the principles established in 1789. Ours is the duty to prevent encroachment on these principles by overzealous police in the discharge of their great responsibility to prevent crime. Every law-abiding citizen shares with the Court the belief that the prevention of crime is an essential governmental function. However, the Members of this Court have the special responsibility to recognize that, as essential as is the goal of preventing crime, “the Court must be ever mindful of its primary role as the protector of the citizen and not the warden or the prosecutor.” Florida v. Meyers, 466 U. S., at 387 (Stevens, J., dissenting). This Court has, sadly, lost sight of this role, to the detriment of the rights of each of us. I can only repeat: “One can only hope that this day too will soon pass.” Wainwright v. Witt, 469 U. S., at 463 (Brennan, J., dissenting).

       The four eases since Florida v. Meyers decided in favor of a criminal defendant are: Payne v. Virginia, 468 U. S. 1062 (1984) (per curiam); Thompson v. Louisiana, 469 U. S. 17 (1984) (per curiam); Smith v. Illinois, 469 U. S. 91 (1984) (per curiam); and Lanier v. South Carolina, ante, p. 25 (per curiam). The seven cases decided in favor of the warden or prosecutor during that same period are: Massachusetts v. Upton, 466 U. S. 727 (1984) (per curiam); Florida v. Rodriguez, 469 U. S. 1 (1984) (per curiam); United States v. Woodward, 469 U. S. 105 (1984) (per curiam); United States v. Gagnon, 470 U. S. 522 (1985) (per curiam); United States v. Benchimol, 471 U. S. 453 (1985) (per curiam); Delaware v. Fensterer, ante, p. 15 (per curiam); and Pennsylvania v. Goldhammer, ante, p. 28 (per curiam). Payne, Thompson, and Smith followed closely after Justice Stevens’ dissent in Florida v. Meyers. Since Smith was decided on December 10, 1984, however, five of the last six summary dispositions have been in favor of the prosecution.
      1 am not suggesting that all the summary judgments awarded to the prosecution were incorrect or improper, although I did not agree with the result in many of the cases. It is the Court’s selective employment of its summary disposition power only in favor of the prosecution that is most disturbing.

       This action is even less justifiable than the improper decision to order reargument in New Jersey v. T. L. O., 469 U. S. 325 (1985), since here the Court cannot even point to having heard oral argument as justification for revising the issues presented to suit its own desires.

       1 express no views about the merits of the issues on which certiorari is now granted. See Ohio ex rel. Eaton v. Price, 360 U. S. 246 (1959) (statement of Brennan, J.).


source: Caselaw Access Project

license: Public Domain

text:
    No. 85-954.
    No. 85-955.
    Japan Whaling Assn. et al. v. American Cetacean Society et al.; and Baldrige, Secretary of Commerce, et al. v. American Cetacean Society et al.
   C. A. D. C. Cir. Motion of respondents to expedite consideration of the petitions for writs of certiorari granted. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Cases are scheduled for oral argument this Term. Reported below: 247 U. S. App. D. C. 309, 768 F. 2d 426.


text:
    No. 84-951.
    Gulf Coast Cable Television Co. v. Affiliated Capital Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-1604.
    Guzman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-1800.
    Walters et al. v. Spruytte.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6826.
    Wiley v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6848.
    Aragon v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-6913.
    Simons v. Montgomery County Department of Police et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6981.
    Payne v. Coughlin et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-6993.
    Lopez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-137.
    Lavado v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-259.
    Misleh v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-294.
    Hudspeth v. North Mississippi Savings & Loan Assn. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-329.
    Bryant v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-346.
    Schwender v. Department of Labor.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-386.
    Pappy, Kaplon, Vogel & Phillips et al. v. Aragon.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-392.
    Securities Industry Assn. v. Comptroller of the Currency et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-405.
    Uviedo v. Steves Sash & Door Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-408.
    Quivira Mining Co. et al. v. United States Environmental Protection Agency.
   C. A. 10th Cir. Cer-tiorari denied.


text:
    No. 85-411.
    Vivitar Corp. v. United States et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-431.
    Humana Inc. et al. v. Bowen, Secretary of Health and Human Services.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-438.
    Simmons v. Interstate Commerce Commission et al. (two cases).
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-445.
    DeFazio et al. v. City of Springfield et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-456.
    American Postal Workers Union, AFL-CIO v. United States Postal Service et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-469.
    Town of Belmont, New Hampshire v. Dole, Secretary of Transportation.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-504.
    Lunday-Thagard Co. v. United States Department of the Interior.
   Temp. Emerg. Ct. App. Certio-rari denied.


text:
    No. 85-508.
    Avery v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-512.
    Foster et al. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-515.
    Gronowicz v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-529.
    Hou Hawaiians v. Hawaii et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-562.
    Spika et al. v. Village of Lombard, Illinois.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-574.
    Thoele et al. v. City of Chicago et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-592.
    Natural Gas Pipeline Company of America v. Federal Energy Regulatory Commission.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-601.
    No. 85-764.
    Currey v. Waffenschmidt et ux.; and Waffenschmidt et al. v. First National Bank of Mount Vernon, Texas.
   C. A. 5th Cir. Certiorari denied. Reported below: 763 F. 2d 711.


text:
    No. 85-602.
    Bankers & Shippers Insurance Company of New York v. Marshall et al.
   Sup. Ct. App. W. Va. Certio-rari denied.


text:
    No. 85-603.
    Estate of Smith v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-604.
    Scarnati v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-613.
    Community Health Services of Crawford County, Inc. v. Travelers Insurance Cos. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-653.
    City of Cleveland Heights, Ohio, et al. v. Smith.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-675.
    Four Million, Two Hundred Fifty-Five Thousand, Six Hundred Twenty-Five Dollars and Thirty-Nine Cents ($4,255,625.39), et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-681.
    Western Reserve Oil & Gas Co., Ltd., et al. v. New et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-683.
    Kwang-Wei Han v. Pilato et ux.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 85-704.
    Call et al. v. City of Albany, California, et al.
   Sup. Ct.. Cal. Certiorari denied.


text:
    No. 85-712.
    John E. Koerner & Co. et al. v. Plaintiff Class Representatives, Corn Derivatives Antitrust Litigation, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-725.
    Mauget v. Kaiser Engineers, Inc., et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-731.
    Sinclair International et al. v. Maxfield.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-740.
    State Savings & Loan Assn. v. Federal Home Loan Bank Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-743.
    Stewart v. Sears et al.
   Ct. App. Ohio, Franklin County. Certiorari denied.


text:
    No. 85-752.
    Michaels et al. v. Michaels.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-753.
    Pennington, Administrator for the Estate of Torres v. Flota Mercante Grancolombiana, S.A., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-754.
    Greater Baton Rouge Port Commission v. Jacintoport Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-762.
    Metge, Executrix of the Estate of Metge, et al. v. Bankers Trust Co.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-763.
    White v. Minnesota.
   Ct. App. Minn. Certio-rari denied.


text:
    No. 85-768.
    Leone et al. v. Pierce County Medical Bureau et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-771.
    Baron v. Meloni, Individually and as Sheriff of Monroe County, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-772.
    Brown v. Washington.
   Super. Ct. Wash., King County. Certiorari denied.


text:
    No. 85-774.
    Palazzo v. Gulf Oil Corp.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-776.
    Varnes v. Forbes et al.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 85-778.
    Worre v. Department of Revenue of Oregon.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 85-779.
    No. 85-780.
    Kahn v. Alexander Grant & Co.; and Tiffany Industries, Inc. v. Alexander Grant & Co.
   C. A. 8th Cir. Certiorari denied. Reported below: 770 F. 2d 717.


text:
    No. 85-788.
    Bogarat v. Emerson et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-789.
    Hiegel v. Hill et al.
   C. A. 8th Cir. Certio-rari denied.


text:
    No. 85-795.
    Bennett et al. v. United States Trust Company of New York.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-803.
    Turner et al. v. C F & I Steel Corp. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-806.
    Elliott v. Ohio.
   Ct. App. Ohio, Hamilton County. Certiorari denied.


text:
    No. 85-807.
    Ohio v. Akron Airport Post No. 8975, Veterans of Foreign Wars of the United States.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 85-808.
    Gleason v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-809.
    Plummer v. Aman et al.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 85-810.
    Michigan United Food & Commercial Workers Unions et al. v. Baerwaldt, Commissioner of Insurance of Michigan, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-811.
    Wilson et ux. v. Sears, Roebuck & Co.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-812.
    Vanterpool et ux. v. Hess Oil Virgin Islands Corp.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-813.
    Minnesota Timber Producers Assn., Inc. v. American Mutual Insurance Company of Boston.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-814.
    Kaplus v. Phillips et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-817.
    Ajac Transmission Parts Corp. et al. v. Transgo, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-818.
    Black et al. v. Wyche.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 85-819.
    Air Line Stewards & Stewardesses Assn., Local 550, TWU, AFL-CIO, et al. v. American Airlines, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-820.
    Norwood v. INA Life Insurance Co. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-823.
    Georgia Department of Medical Assistance v. Bowen, Secretary, Department of Health and Human Services, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-826.
    Golin v. Brookhaven National Laboratory.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-827.
    Stevens et al. v. California.
   App. Dept., Super. Ct. Cal., County of San Francisco. Certiorari denied.


text:
    No. 85-828.
    Local Union 542, International Union of Operating Engineers v. Pennsylvania et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-829.
    George A. Creed & Son, Inc. v. Trident Technical College et al.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 85-831.
    Hotel & Restaurant Employees & Bartenders Union, Local 28 v. Seritis et al.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 85-832.
    Whittaker Corp. v. Olympic Sports Products, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-835.
    Morton v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 85-836.
    Gel Spice Co., Inc., et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-837.
    Karapinka v. Union Carbide Corp.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-838.
    Karam, Special Administratrix of the Estate of Karam v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-839.
    Lachica v. Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-841.
    Currie et al. v. Barry, Mayor of the District of Columbia, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-842.
    City of Des Moines, Iowa, et al. v. Moore et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-852.
    Preston Carroll Co., Inc., et al. v. Morrison Assurance Co.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 85-864.
    Da-Chuan Zheng et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-853.
    McLain, Sheriff, Lincoln County, Oklahoma v. Walker.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-866.
    Holmes v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-880.
    Directory Service Company of Colorado, Inc., et al. v. Rockford Map Publishers, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-893.
    Hunt et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-903.
    Certain Unnamed Prospective Defendants v. Newspapers, Inc., et al.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 85-905.
    Salisbury v. James River Corp. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-906.
    In re Martin-Trigona.
   C. A. 2d Cir. Certio-rari denied.


text:
    No. 85-909.
    Namenwirth v. Board of Regents of the University of Wisconsin System.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-911.
    Marty v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-915.
    Law Firm of Daniel P. Foster, P. C. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-916.
    Law Firm of Daniel P. Foster, P. C. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-923.
    Mills et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-931.
    Kirkley v. Louisiana.
   Ct. App. La., 1st Cir. Certiorari denied.


text:
    No. 85-932.
    Marin et al. v. Department of Health and Human Services et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-933.
    Carrollo et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-939.
    Ramie v. City of Hedwig Village, Texas, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-943.
    Mallet v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-947.
    School Board of Pinellas County, Florida v. Manecke et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-957.
    Vignes v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 85-962.
    Hershey v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 85-963.
    Holman v. United States.
   Ct. Mil. App. Certiorari denied.


text:
    No. 85-981.
    Contact Lens Manufacturers Assn. v. Food and Drug Administration of the Department of Health and Human Services.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-996.
    Hilbmann v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5011.
    Barrientos v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5013.
    Darwin v. Rison et al.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 85-5100.
    Aldridge v. Morris, Superintendent, Southern Ohio Correctional Facility, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5205.
    Cochran v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5227.
    Garmany v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5234.
    Bezold v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5240.
    Price v. McCotter, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5248.
    Scott v. Rockview State Correctional Institution et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5293.
    Perpignand v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5302.
    Sawyer v. Fulcomer, Superintendent, State Institution at Huntingdon.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5307.
    Kabongo v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5350.
    Stauffer et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5362.
    Dunlap v. Massey, Superintendent, Union Correctional Institution, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5371.
    Corbett v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5380.
    Jackson v. General Dynamics, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5439.
    Johnson v. Manson, Commissioner of Corrections of Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 85-5449.
    Dunbar v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 85-5467.
    Lopes v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5481.
    Barker v. Morris, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5502.
    Doe et al. v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 85-5512.
    Graves v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-5520.
    Treadwell, aka Barry v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-5522.
    Reeves v. Bowen, Secretary of Health and Human Services.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5532.
    No. 85-5543.
    Campman v. United States; and Streeter v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 770 F. 2d 171.


text:
    No. 85-5546.
    McKnight v. Wainwright, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5565.
    Lundien v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5572.
    Royster v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5594.
    Petty v. New York.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 85-5615.
    Brown v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-5617.
    Amadi v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5653.
    Owens v. Ryan, Superintendent, State Correctional Institution at Dallas.
   C. A. 3d Cir. Certio-rari denied.


text:
    No. 85-5656.
    McQueen v. U. S. District Court, Middle District of Florida, Tampa Division.
   C. A. 11th Cir. Cer-tiorari denied.


text:
    No. 85-5679.
    Paskuly v. Marshall Field & Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5700.
    Cody v. De Iorio et al.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 85-5703.
    Kearson v. Southern Bell Telephone & Telegraph Co. et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5707.
    Geringer v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 85-5712.
    Baltezore v. Concordia Parish Sheriff’s Department et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5715.
    Tinker-Bey v. District of Columbia.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-5717.
    Walker v. Prisoner Review Board et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5718.
    St. Amand v. Jones et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5720.
    Wilson v. McMackin.
   C. A. 6th Cir. Certio-rari denied.


text:
    No. 85-5723.
    Fuller v. North Carolina et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5724.
    Day v. Amoco Chemicals Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5725.
    Gentsch v. Roberson et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5726.
    Bernard v. Nickels et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5730.
    Shaffer-Corona v. District of Columbia Teachers Federal Credit Union.
   Ct. App. D. C. Certio-rari denied.


text:
    No. 85-5735.
    Westfall v. Supreme Court of Appeals of West Virginia.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 85-5738.
    Cossett et al. v. Ledford, Trustee.
   C. A. 6th Cir. Certiorari before judgment denied.


text:
    No. 85-5746.
    Mitchell v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5748.
    West v. Cain, Warden.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 85-5752.
    Richards v. New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5753.
    Lipsman v. New York.
   Ct. App. N. Y. Cer-tiorari denied.


text:
    No. 85-5756.
    Geison v. Firestone, Secretary of State of Florida, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5757.
    Carroll v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 85-5763.
    Thomas v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5764.
    Sellner v. Maryland.
   Ct. App. Md. Cer-tiorari denied.


text:
    No. 85-5765.
    Harrison v. McDade.
   Sup. Ct. Ga. Certio-rari denied.


text:
    No. 85-5766.
    Green v. Maryland.
   Ct. App. Md. Certio-rari denied.


text:
    No. 85-5767.
    Holsey v. Maryland.
   Ct. App. Md. Certio-rari denied.


text:
    No. 85-5769.
    Evans v. Fulcomer, Superintendent, State Correctional Institution at Huntingdon, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No, 85-5775.
    Felder v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 85-5777.
    Parker v. Fairman, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5778.
    Ross v. Missouri.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 85-5779.
    Poole v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5782.
    Lojuk v. Johnson.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5783.
    Knight v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5785.
    Reddick v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 85-5788.
    Daniel v. United States Parcel Service et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-5789.
    Cannin v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5791.
    Myrick v. Petsock, Superintendent, State Correctional Institution and Diagnostic and Classification Center.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5796.
    Ivy v. Reed, Former Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5797.
    Ahmed v. Hughes Aircraft Co.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5798.
    Hennessy v. Arizona.
   Sup. Ct. Ariz. Cer-tiorari denied.


text:
    No. 85-5801.
    Bunch v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5804.
    Hunter v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5806.
    Chaney v. Maryland.
   Ct. App. Md. Certio-rari denied.


text:
    No. 85-5807.
    Lucien v. Chrans, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5808.
    Stanford v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5809.
    Buckley v. Commercial Federal Savings & Loan et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5810.
    Hooks v. Phelps, Secretary, Louisiana Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5811.
    Anderson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5813.
    Shabazz v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 85-5814.
    Oliva v. United States.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 85-5816.
    Graewe v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5817.
    Allen v. California.
   Sup. Ct. Cal. Certio-rari denied.


text:
    No. 85-5820.
    Jones v. Brown, Former Governor of Kentucky, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5826.
    Busby v. Holt, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5827.
    Knight v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-5828.
    Gonzales v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5832.
    McCallister v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5834.
    Smith v. City of Omaha, Nebraska, et al.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 85-5836.
    Devan v. City of Des Moines, Iowa, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5837.
    Cameron v. Oregon.
   Ct. App. Ore. Certio-rari denied.


text:
    No. 85-5839.
    Gray v. Department of Transportation, Federal Aviation Administration.
   C. A. Fed. Cir. Certio-rari denied.


text:
    No. 85-5841.
    Toomey v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5842.
    Vargas v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5848.
    Graewe v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-5849.
    Lovett v. Michigan.
   Ct. App. Mich. Certio-rari denied.


text:
    No. 85-5851.
    Kendricks v. Brown et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5860.
    Holleman v. Duckworth, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5889.
    Rispoli v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5924.
    Mullins v. Newsome, Superintendent, Georgia State Prison.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5968.
    Cooper v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-1287.
    Liphete et al. v. Stierheim et al.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.

Justice Marshall and Justice Blackmun would grant certiorari.


text:
    No. 84-1745.
    Schilling, Commissioner of Savings and Loan Associations for Illinois v. Telegraph Savings & Loan Association of Chicago et al.
   Sup. Ct. Ill. Certiorari denied.

Justice White and Justice Blackmun would grant certiorari.


text:
    No. 85-332.
    Parish of St. Bernard et al. v. United States.
   C. A. 5th Cir. Certiorari denied.

Justice Black-mun and Justice O’Connor would grant certiorari.


text:
    No. 85-334.
    No. 85-376.
    Firestone Tire & Rubber Co. et al. v. United States; and Ethyl Corp. v. United States et al.
   C. A. 5th Cir. Certiorari denied.

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

Reported below: 761 F. 2d 1153.


author: Justice White,

text:
    No. 85-391.
    Young v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.

Justice White,

with whom Justice Brennan joins,

dissenting.

Arkansas Stat. Ann. §41-1812 (1977) provides, in pertinent part, that “[a] person commits indecent exposure if, with purpose to arouse or gratify the sexual desire of himself or of any other person, he exposes his sex organs ... in a public place or public view . . . Petitioner was a nude dancer at D.L.’s Darkroom, a tavern in Little Rock, Arkansas. Along with nearly every other nude dancer in the metropolitan area, petitioner was arrested in one of two “sweep” operations conducted in February 1984. At a bench trial, an undercover police officer testified that once during her dance, petitioner touched her breasts, and then touched the inside of her thighs. At no time did petitioner expose her vaginal area or touch her genitals. The Municipal Court convicted petitioner for indecent exposure under § 41-1812, fined her $700, and gave her a 30-day suspended sentence.

The Pulaski County Circuit Court conducted a trial de novo on appeal. .The court held that mere nude dancing violated the statute, and rejected petitioner’s First Amendment defense on the grounds that her nude dancing had no articulated message. Pet. for Cert. 13-14. The court affirmed petitioner’s conviction, and imposed a 1-year suspended sentence on the condition that she not “display herself in a public place . . . .” App. to Pet. for Cert. 8-a.

The Arkansas Supreme Court affirmed, both on the ground that petitioner’s conduct violated the statute and because such behavior was not protected by the First Amendment. 286 Ark. 413, 692 S. W. 2d 752 (1985). With respect to the statutory argument, the court noted that §41-1812 was intended to cover both nude dancing and “‘flashers.’” Id., at 415, 692 S. W. 2d, at 753. Turning to petitioner’s constitutional argument, the court “d[id] not take issue” with petitioner’s contention that “ ‘mere nude dancing’ ” is entitled to First Amendment protection, but found under the facts of this case that petitioner’s conduct “was not simply nudity . . . .” Id., at 417, 692 S. W. 2d, at 754. Instead, “while dancing [petitioner] ran her hand over her breast, down over her stomach and rubbed herself on the inner thigh below the vaginal area.” Ibid. Because petitioner did not argue that such conduct is constitutionally protected, the court did not address the remaining aspects of her constitutional argument. Ibid.

Petitioner maintains that, as applied to mere nude dancing, §41-1812 is overbroad and substantially abridges First Amendment rights. Regardless of whether and how petitioner might have touched herself during her performance, she has standing to raise this overbreadth challenge. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 958-959 (1984); Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 633-635 (1980); Broadrick v. Oklahoma, 413 U. S. 601, 611-612 (1973).

In New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981) and California v. LaRue, 409 U. S. 109 (1972), the Court held that States may regulate nude dancing in establishments licensed to serve liquor by virtue of the power conferred under the Twenty-first Amendment. In both cases, however, the Court intimated that statutes which seek to regulate nude dancing in public places other than bars and taverns might contravene the dictates of the First Amendment, as this form of entertainment might be entitled to constitutional protection. New York State Liquor Authority v. Bellanca, supra, at 718; California v. LaRue, supra, at 118. Indeed, in Schad v. Mount Ephraim, 452 U. S. 61, 66 (1981), the Court expressly stated that “nude dancing is not without its First Amendment protections from official regulation.” See also Doran v. Salem Inn, Inc., 422 U. S. 922, 933-934 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557-558 (1975).

Given these repeated indications that barroom-type nude dancing is a type of expression that is protected under the First Amendment under some circumstances, the Court should grant the petition for certiorari in this case in order to explore the propriety of Arkansas’ regulation. Section 41-1812 does not prohibit nudity only in establishments possessing liquor licenses. Instead, it criminalizes nonobscene nudity in any public place so long as its purpose is to gratify the sexual desires of another person. Arkansas thus cannot rely on the Twenty-first Amendment as a sufficient basis to justify its statute, and instead, must demonstrate a compelling state interest sufficient to prohibit the exercise of a protected form of expression. See Doran v. Salem Inn, Inc., supra, at 933-934; United States v. O’Brien, 391 U. S. 367, 377 (1968).

In his dissent in New York State Liquor Authority v. Bellanca, supra, Justice Stevens noted that “[although the Court has written several opinions implying that nude or partially nude dancing is a form of expressive activity protected by the First Amendment, the Court has never directly confronted the question.” Id., at 718-719. I believe it is time to do so. The state courts are in disagreement over the reach of the First Amendment in this area. See generally Barbre, Topless or Bottomless Dancing or Similar Conduct as Offense, 49 A.L.R. 3d 1084, §§ 3, 5 (1973 and Supp. 1985) (collecting cases). In addition, this case does not present the complications of local police power over zoning, as found in Schad v. Mount Ephraim, supra, or the question of States’ rights under the Twenty-first Amendment present in California v. LaRue, supra, Doran v. Salem Inn, Inc., supra, and New York State Liquor Authority v. Bellanca, supra.

For these reasons, I would grant the petition for certiorari.

       Arkansas Stat. Ann. § 41-1812 (1977) provides in full as follows:
      “Indecent exposure. (1) A person commits indecent exposure if, with purpose to arouse or gratify the sexual desire of himself or of any other person, he exposes his sex organs:
      “(a) in a public place or public view; or
      “(b) under circumstances in which he knows his conduct is likely to cause affront or alarm.
      “(2) Indecent exposure is a class A misdemeanor.”


text:
    No. 85-555.
    Bankers Trust Co. v. Metge, Executrix of the Estate of Metge, et al.
   C. A. 8th Cir. Motion of American Bankers Association for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 85-702.
    Madrid et al. v. Montelongo et al.
   C. A. 5th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.

Justice White and Justice O’Connor would grant certiorari.


text:
    No. 85-816.
    Connecticut v. Sutton.
   Sup. Ct. Conn. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 85-894.
    McCotter, Director, Texas Department of Corrections v. Lyons.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 85-881.
    No. 85-5058.
    No. 85-5126.
    No. 85-5705.
    No. 85-5844.
    No. 85-5846.
    No. 85-5867.
    No. 85-5880.
    Austin v. Tennessee. Penry v. Texas. Hatch v. Oklahoma. Hooper v. Arizona. Smith v. Montana. Cartwright v. Oklahoma. Martin v. Ohio. Jones v. Smith, Commissioner, Alabama Department of Corrections.
   Ct. Crim. App. Tenn.;

Ct. Crim. App. Tex.;

Ct. Crim. App. Okla.;

Sup. Ct. Ariz.;

Sup. Ct. Mont.;

Ct. Crim. App. Okla.;

Sup. Ct. Ohio; and

C. A. 11th Cir. Certiorari denied. Reported below: No. 85-5058, 691 S. W. 2d 636; No. 85-5126, 701 P. 2d 1039; No. 85-5705, 145 Ariz. 538, 703 P. 2d 482; No. 85-5844,-Mont.-and-, 705 P. 2d 1087 and 1110; No. 85-5846, 708 P. 2d 592; No. 85-5867, 19 Ohio St. 3d 122, 483 N. E. 2d 1157; No. 85-5880, 772 F. 2d 668.

Justice Brennan and 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.


author: Justice Brennan, Justice Marshall,

text:
    No. 85-5815.
    Adams v. Wainwright, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certio-rari denied.

Justice Brennan,

dissenting.

Adhering to my view 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 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice Marshall,

dissenting.

Because the Court’s refusal to grant certiorari ■ in this case allows the State of Florida to proceed with the execution of a defendant whose conviction may well rest upon a ground that the Florida Supreme Court has held invalid, I must dissent from the denial here.

Since Stromberg v. California, 283 U. S. 359 (1931), this Court has recognized that “a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground.” Zant v. Stephens, 462 U. S. 862, 881 (1983). See Chiarella v. United States, 445 U. S. 222, 237, n. 21 (1980); Leary v. United States, 395 U. S. 6, 31-32 (1969). Although in Stromberg, the Court was concerned that the jury might have held the defendant criminally liable for conduct protected by the First Amendment, the rationale of that decision should not be limited to cases in which a general verdict may be based upon a ground repugnant to the Federal Constitution. Where a jury has been instructed that it may convict a defendant upon an invalid ground, the reason for that invalidity is not important. See Chiarella v. United States, supra, at 237, n. 21 (“We may not uphold a criminal conviction if it is impossible to ascertain whether the defendant has been punished for noncriminal conduct”). What offends the Due Process Clause is the possibility that the jury may have condemned the defendant for reasons that as a matter of law — be it statutory or constitutional — cannot support the verdict. The existence of such a possibility is all too real in this case and demands that petitioner’s conviction be set aside.

Petitioner was arrested and charged with the murder of an 8-year-old girl. In statements to the police, he admitted removing the victim’s clothes, using rope to tie her hands, and placing plastic bags over her body. He said he thought he had tried to have sexual relations with the victim but either could not do it or could not bring himself to do it. 764 F. 2d 1356, 1358 (CA11 1985). The indictment brought against petitioner alleged that he had “murdered the victim, unlawfully, from a premeditated design by strangling.” Adams v. State, 412 So. 2d 850, 852 (Fla. 1982). The circumstances of the crime might easily have led jurors to believe that even if petitioner had not premeditated the homicide, he nevertheless had killed the girl in the course of an attempted rape. Under state law, such a felony-murder theory was not foreclosed by the indictment, ibid., and it does not appear that the prosecution ever indicated its intention to rely solely upon a theory of premeditated murder.

The trial court’s instruction made clear the availability of either felony murder or premeditated murder as a basis for a first-degree murder conviction. At the close of trial, the court instructed the jury that it would not have to find that petitioner had a “premeditated design to kill” in order to convict him of first-degree murder. The court explained:

“The killing of a human being in committing, or in attempting to commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping is murder in the first degree, even though there is no premeditated design or intent to kill.
“If a person kills another while he is trying to do or commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping, or while escaping from the immediate scene of such crime the killing is in the perpetration of or in the attempt to perpetrate such arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping and is murder in the first degree.” Ibid.

The jury proceeded to convict petitioner of first-degree murder. Long before petitioner’s trial, however, the Florida Supreme Court had held the statutory term “crime against nature” too vague to sustain a conviction. Franklin v. State, 257 So. 2d 21 (Fla. 1971). Indeed, in affirming petitioner’s conviction, the Florida Supreme Court admitted that the instruction here “included references to two crimes which do not exist, to wit: rape and an abominable and detestable crime against nature.” 412 So. 2d, at 852. Were it possible, therefore, that in reaching their general verdict the jury relied on a felony-murder theory based upon the sexual aspects of the killing, the conviction unquestionably would have to be overturned under Stromberg.

Finding no such possibility, the Court of Appeals affirmed the District Court’s refusal to grant petitioner’s habeas petition. The Court of Appeals concluded:

“The trial court’s reference to the capital felony of killing during the commisssion of or an attempt to commit rape, a crime against nature, or kidnapping as murder in the first degree appears early in the instructions as part of what were, in essence, statutory definitions. The actual and controlling charge came later in the instructions, when the trial court told the jurors that, if the elements of homicide were found, their next task would be to determine its degree. At this point, premeditated murder was the only killing stated to constitute murder in the first degree. Therefore, the jurors were actually instructed to consider only premeditated murder as murder in the first degree.” 764 F. 2d, at 1362-1363.

I cannot accept the Court of Appeals’ distinction between the “statutory” section of the trial court’s instructions and the later, “controlling” part. Although the trial court’s focus on premeditated murder came in the context of its “summary” of the entire charge, the jury can hardly be presumed to have forgotton the lengthy explanation of first-degree murder that had come before. The sexual overtones of the crime make it impossible to eliminate the possibility that the jury seized upon the references to rape and “crime against nature” and made them dispositive here. So long as such a possibility exists, Stromberg requires that petitioner’s conviction be set aside.

This Court’s refusal to grant certiorari in Dobbert v. Wainwright, 468 U. S. 1231 (1984), a case raising a Stromberg claim very similar to the one here, might have been attributed to the majority’s belief that the constitutional claim there had not been properly preserved. Id., at 1244-1246 (Marshall, J., dissenting from denial of stay of execution and of certiorari). No such procedural bar exists here, and the Court’s refusal to consider petitioner’s claims is even less excusable. I dissent.


text:
    No. 85-5843.
    Rovetuso et al. v. United States.
   C. A. 7th Cir. Certiorari denied.

Justice White would grant certio-rari.


text:
    No. 84-6717.
    No. 85-56.
    No. 85-130.
    No. 85-191.
    No. 85-222.
    No. 85-263.
    No. 85-269.
    No. 85-287.
    No. 85-318.
    No. 85-374.
    No. 85-378.
    No. 85-439.
    No. 85-582.
    No. 85-5107.
    No. 85-5351.
    No. 85-5361.
    No. 85-5376.
    No. 85-5378.
    No. 85-5471.
    No. 85-5495.
    No. 85-5504.
    No. 85-5508.
    No. 85-5510.
    No. 85-5511.
    Holsey v. Maryland, Connor v. United States Department of Labor, Bureau of Labor Statistics, California State Board of Equalization et al. v. Chemehuevi Indian Tribe, Zerman et al. v. Avant Garde Condominium Assn., Inc., et al.; and Zerman v. White, Clerk of the Florida Supreme Court, et al., Baker, Individually and dba Baker Coal Co. v. United States, Maggette v. Cook County Police and Corrections Merit Board et al., Nabors v. United States, Court House Plaza Co. v. City of Palo Alto et al., El Shahawy v. Elliott, Denson v. Department of Health and Human Services, Roberts et al. v. Simpson, Executrix of the Estate of Beel, et al., California ex rel. Cooper, City Attorney of Santa Ana, California v. Mitchell Brothers’ Santa Ana Theater et al., Sparrow v. Devine, Director, U. S. Office of Personnel Management, et al., Burton v. Reed et al., Dano v. Szombathy, Coleman et al. v. Delaware et al., Holliday v. Hauptman, Trustee in Bankruptcy, Bishop v. Davis, Howell v. Maryland, McGlory v. Yoka, In re Schmid, Haddix v. Ohio Liquor Control Commission, Burton v. Wilson et al., Burton v. Smith,
   ante, p. 1004;

ante, p. 998;

ante, p. 9;

ante, p. 895;

ante, p. 945;

ante, p. 945;

ante, p. 851;

ante, p. 945;

ante, p. 980;

ante, p. 946;

ante, p. 946;

ante, p. 948;

ante, p. 949;

ante, p. 949;

ante, p. 950;

ante, p. 950;

ante, p. 950;

ante, p. 950;

ante, p. 996;

ante, p. 997;

ante, p. 993;

ante, p. 997;

ante, p. 997; and

ante, p. 997. Petitions for rehearing denied.


text:
    No. 84-6742.
    Bailey et al. v. Buckeye Cellulose Corp.,
   ante, p. 863. Petition for rehearing denied.

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


text:
    No. 85-17.
    Vernon v. Maggio, Warden,
   ante, p. 945. Motion of petitioner for leave to proceed further herein in forma pauperis granted. Petition for rehearing denied.


text:
    No. 85-5041.
    Chandler v. Lord,
   ante, p. 853. Motion for leave to file petition for rehearing denied.


text:
    No. 85-5316.
    Wilson v. United States et al.,
   ante, p. 921. Motion of petitioner for leave to file petition for rehearing out of time denied.


text:
    January 18, 1986
    No. 85-173.
    Key International Manufacturing, Inc. v. Morse/Diesel, Inc., et al.
   C. A. 2d Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    January 21, 1986
    No. 85-714.
    Texas et al. v. United States.
   Affirmed on appeal from D. C. W. D. Tex.


text:
    No. 84-1706.
    Pacyna v. Marsh, Secretary of the Army.
   C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded to the Court of Appeals to transfer the case pursuant to 28 U. S. C. § 1631 to the United States Court of Appeals for the Federal Circuit. See 28 U. S. C. § 1295(a)(2).


text:
    No. 84-1750.
    Ballam v. United States.
   C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded to the Court of Appeals to transfer the case pursuant to 28 U. S. C. § 1631 to the United States Court of Appeals for the Federal Circuit. See 28 U. S. C. § 1295(a)(2).


text:
    No. A-483.
    Schuchman et ux. v. United States.
   D. C. S. D. Ill. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-522.
    In re Disbarment of Kaminsky.
    [For earlier order herein, see ante, p. 896.]
   Disbarment entered.


text:
    No. D-532.
    In re Disbarment of Hefner.
    [For earlier order herein, see ante, p. 992.]
   Disbarment entered.


text:
    No. D-536.
    In re Disbarment of Lovett.
   It is ordered that Lee Gilson Lovett, of Washington, D. C., 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. D-542.
    In re Disbarment of Bowles.
   It is ordered that Robert William Bowles, Jr., of Orlando, Fla., 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. D-543.
    In re Disbarment of Deglow.
   It is ordered that Riner Ernest Deglow, of Spokane, Wash., 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. 84-902.
    Wardair Canada Inc. v. Florida Department of Revenue.
   Sup. Ct. Fla. [Probable jurisdiction noted, ante, p. 943.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion of Aer Lingus et al. for leave to participate in oral argument as amici curiae, for divided argument, and for additional time for oral argument denied.


text:
    No. 84-1903.
    Posadas de Puerto Rico Associates, dba Condado Holiday Inn v. Tourism Company of Puerto Rico et al.
   Sup. Ct. P. R. [Probable jurisdiction postponed, ante, p. 917.] Motion of Association of National Advertisers, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 84-2030.
    Brown-Forman Distillers Corp. v. New York State Liquor Authority.
   Ct. App. N. Y. [Probable jurisdiction noted, ante, p. 814.] Motion of Wine & Spirits Wholesalers of America, Inc., for leave to file a brief as amicus curiae granted.

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


text:
    No. 85-21.
    Square D Co. et al. v. Niagara Frontier Tariff Bureau, Inc., et al.
   C. A. 2d Cir. [Certiorari granted, ante, p. 815.] Motions of Association of American Railroads, American Information Technologies Corp. et al., and National Motor Freight Traffic Association, Inc., et al. for leave to file briefs as amici curiae granted.


text:
    No. 85-93.
    Bazemore et al. v. Friday et al.
   C. A. 4th Cir. [Certiorari granted, ante, p. 978.] Motion of National Committee on Pay Equity et al. for leave to file a brief as amici curiae granted.


text:
    No. 85-195.
    Icicle Seafoods, Inc. v. Worthington et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 900.] Motion of Maryland Casualty Co. for leave to file a brief as amicus curiae granted.


text:
    No. 85-390.
    City of Los Angeles et al. v. Preferred Communications, Inc.
   C. A. 9th Cir. [Certiorari granted, ante, p. 979.] Motions for leave to file briefs as amici curiae filed by the following are granted: UNDA-USA, National Catholic Association for Broadcasters & Allied Communicators; Office of Communication of United Church of Christ et al.; National Association of Broadcasters; Mountain States Telephone & Telegraph Co. et al.; Wisconsin Bell, Inc.; and National Federation of Cable Programmers et al.


text:
    No. 85-1085.
    Afro-American Police Assn., Inc., et al. v. United States.
   C. A. 2d Cir. Motion of petitioners to expedite consideration of this case denied.


text:
    No. 85-5404.
    Allen v. Illinois.
   Sup. Ct. Ill. [Certiorari granted, ante, p. 979.] Motion of Mental Health Information Service, Second Judicial Department, for leave to file a brief as amicus curias granted.


text:
    No. 85-495.
    Ansonia Board of Education et al. v. Philbrook et al.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 85-5915.
    Wright et al. v. City of Roanoke Redevelopment and Housing Authority.
   C. A. 4th Cir. Motion of petitioners for leave to proceed in forma ‘pauperis and certiorari granted.


text:
    No. 85-513.
    Kendall v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-526.
    No. 85-576.
    Love et al. v. United States; and Lee v. United States.
   C. A. 4th Cir. Certio-rari denied. Reported below: 767 F. 2d 1052.


text:
    No. 85-549.
    California v. Callahan.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 85-573.
    Public Service Company of Colorado v. Federal Energy Regulatory Commission et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-598.
    Grumman Ohio Corp. et al. v. City of New York et al.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Cer-tiorari denied.


text:
    No. 85-614.
    Taylor v. Local 980, United Automobile, Aerospace & Agriculture Implement Workers of America.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-625.
    Northern California Retail Clerks Union & Food Employers Joint Pension Trust Fund v. Award Service, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-654.
    Hurvitz v. Division of Medical Quality, Board of Medical Quality Assurance, Department of Consumer Affairs of California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 85-666.
    Allbriton Communications Co. et al. v. National Labor Relations Board et al.
   C. A. 3d Cir. Certio-rari denied.


text:
    No. 85-668.
    Wheeler et al. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-674.
    Kenton Meadows Co., Inc., et al. v. Commissioner of Internal Revenue.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-685.
    No. 85-703.
    Eschler et al. v. Boeing Co.; and Schoenborn et al. v. Boeing Co.
   C. A. 3d Cir. Certiorari denied. Reported below: 769 F. 2d 115.


text:
    No. 85-691.
    Ramsey v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-706.
    Lombard’s Inc. v. Prince Manufacturing, Inc.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-716.
    Veal v. DeRobertis, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-718.
    American Methyl Corp. v. Motor Vehicle Manufacturers Association of the United States, Inc., et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-724.
    Mandanici v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-734.
    Bressler v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-748.
    Keller v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-761.
    Borys v. United States.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 85-802.
    John Holman & Sons, Ltd., et al. v. Superior Court of California, County of San Diego (Correia et al., Real Parties in Interest).
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 85-824.
    National Rifle Association of America et al. v. Minnesota State Ethical Practices Board.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-856.
    Fidelity & Casualty Company of New York v. Philadelphia Resins Corp.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-870.
    Metropolitan County Board of Education of Nashville and Davidson County, Tennessee, et al. v. Kelley et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-872.
    Schor et al. v. ContiCommodity Services, Inc., et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 85-887.
    Basin Electric Power Cooperative v. Midwest Processing Co.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-892.
    Ohle et al. v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 85-901.
    Sheffer et al. v. Mallonn, Auditor, City of Canton, Ohio, et al.
   Ct. App. Ohio, Stark County. Certio-rari denied.


text:
    No. 85-910.
    Whitehead v. Southern Railway Co.
   Ct. App. Ky. Certiorari denied.


text:
    No. 85-919.
    Gillespie v. Wisconsin et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-921.
    Carl E. Widell & Sons v. Ellison et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5127.
    Lawrence v. Cunningham, Warden.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5147.
    Haynes v. Verdeyen et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5163.
    Carr v. Holland, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 85-5264.
    Thornton v. Holland, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 85-5437.
    Mora v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-5535.
    Wright v. Bourbeau et al.
   App. Ct. Conn. Certiorari denied.


text:
    No. 85-5600.
    Brown v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5610.
    Pruitt v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5619.
    Campbell v. Department of Transportation, Federal Aviation Administration.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-5625.
    Sakellar v. Lockheed Missiles & Space Co.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5628.
    Dodson v. Cooper, Superintendent, Shadow Mountain Correctional Facility.
   Sup. Ct. Colo. Certiorari denied.


text:
    No. 85-5633.
    Calpin v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5830.
    Arney et al. v. Black et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-5838.
    Hayes v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 85-5840.
    Glick v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5847.
    Brown v. Woods et al.
   Ct. App. Ga. Certio-rari denied.


text:
    No. 85-5850.
    Lillard v. Greer, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5854.
    Hughs v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5855.
    Crawford v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5856.
    Goodwin v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5857.
    Dampier v. Lane, Director, Illinois Department of Corrections, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5861.
    Baxter v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5862.
    Chindawongse v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5863.
    Flowers v. General Motors Corp., Buick Motor Division.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 85-5864.
    Brancewicz v. C. E. Lummus Co.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 85-5869.
    Layne v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5870.
    Boag v. Raines, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-5871.
    Pritchard v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 85-5876.
    McQueen v. Barton, Assistant Superintendent, Operations, Florida State Prison.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-5877.
    Zeno v. Maggio, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5883.
    Welch v. Smith, Superintendent, Attica Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5884.
    Muhammed, aka Griffith v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5885.
    Tucker v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-5887.
    Owens v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 85-5888.
    McKenzie et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 85-5909.
    Wharton v. Abbeville School District No. 60 et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-5945.
    Luqman v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 85-6027.
    West v. Warren County Fiscal Court et al.
   C. A. 6th Cir. Certiorari before judgment denied.


text:
    No. 85-472.
    Bulloch et al. v. United States.
   C. A. 10th Cir. Certiorari denied.

Justice White, Justice Blackmun, and Justice O’Connor would grant certiorari. The Chief Justice took no part in the consideration or decision of this petition.


text:
    No. 85-581.
    Bulloch et al. v. Pearson et al.
   C. A. 10th Cir. Certiorari denied.

Justice White, Justice Blackmun, and Justice O’Connor would grant certiorari. The Chief Justice took no part in the consideration or decision of this petition.


text:
    No. 85-509.
    Sestric v. Clark et al.
   C. A. 7th Cir. Cer-tiorari denied.

Justice White and Justice Blackmun would grant certiorari.


text:
    No. 85-528.
    Goldfarb v. Supreme Court of Virginia et al.
   C. A. 4th Cir. Motion of American Corporate Counsel

Association for leave to file a brief as amicus curiae granted. Certiorari denied.

Justice White and Justice Blackmun would grant certiorari.


text:
    No. 85-735.
    Siripan v. United States.
   C. A. 4th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 85-898.
    Geiger, Conservator of the Estate of Geiger v. United States et al.
   C. A. 9th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 85-847.
    Mason et al. v. Continental Group, Inc., et al.
   C. A. 11th Cir. Certiorari denied.

Justice White,

with whom Justice Brennan joins,

dissenting.

In this case, the United States Court of Appeals for the Eleventh Circuit ruled that beneficiaries of an Employee Retirement Income Security Act (ERISA) plan must exhaust internal plan remedies before suing plan fiduciaries on the basis of an alleged violation of duties imposed by the statute. Although this ruling is consistent with the law of the Seventh Circuit, see Kross v. Western Electric Co., 701 F. 2d 1238 (1983), it is at odds with a decision of the Ninth Circuit, Amaro v. Continental Can Co. 724 F. 2d 747 (1984), which held that plaintiffs alleging a statutory violation (as opposed to a mere denial of benefits owing under an ERISA plan) need not exhaust internal remedies. The Third Circuit has.noted the existence of this conflict but failed to take a direct position on it, see Barrowclough v. Kidder, Peabody & Co., 752 F. 2d 923, 939, n. 15 (1985), although that court’s acceptance of the notion that statutory ERISA claims are normally not arbitrable seems to reflect agreement with the Ninth Circuit’s approach. See id., at 941.

I believe that the Court should grant certiorari in this case in order to resolve the uncertainty over the existence of an exhaustion requirement in cases of this kind. The increasing significance of ERISA litigation is apparent from the growing number of such cases that appear on our docket; in a field so productive of federal litigation, the need for clear procedural rules governing access to the federal courts is imperative. Moreover, because the coverage of particular ERISA plans frequently extends to beneficiaries in more than one State — and, no doubt, in more than one judicial circuit — differences in the rules governing access to federal court for the purpose of pressing a claim under ERISA may have the troubling effect of encouraging forum shopping by plaintiffs. Accordingly, the conflict among the Circuits over the issue of an exhaustion requirement under ERISA can hardly be passed over as an unimportant one unworthy of this Court’s attention. I therefore dissent from the denial of certiorari.

      Cf. Amato v. Bernard, 618 F. 2d 559 (CA9 1980) (adopting exhaustion requirement where beneficiary merely seeks benefits due under the terms of an ERISA plan).


author: Justice Marshall,

text:
    No. 85-5571.
    Messer v. Kemp, Warden.
   C. A. 11th Cir. Certiorari denied.

Justice Blackmun dissents from the denial of the petition for writ of certiorari.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Petitioner in this case, James Messer, was sentenced to death by a jury that was unable in any meaningful fashion to give him the “individualized consideration” to which he has a constitutional right, Lockett v. Ohio, 438 U. S. 586, 605 (1978) (plurality opinion), because of egregiously unprofessional assistance by his trial counsel. I believe that petitioner has clearly met the standard that this Court set in Strickland v. Washington, 466 U. S. 668 (1984), for establishing ineffective assistance during the sentencing phase of his trial, and I would accordingly grant the petition and vacate petitioner’s sentence.

I

Petitioner was convicted of kidnaping and murdering his 8-year-old niece. After his conviction and sentence were affirmed on direct review, he sought a writ of habeas corpus in state court, alleging, inter alia, ineffective assistance of counsel. The court declined to hold a hearing, made no findings, and denied the writ. Petitioner then sought federal habeas relief. The Magistrate to whom the case was referred recommended that the writ be granted as to the sentence, concluding that petitioner had received ineffective assistance during the penalty phase. The District Court nevertheless denied the writ. It concluded that petitioner had not established prejudice, as required by Strickland, supra, and therefore did not reach the question whether counsel gave adequate assistance. The Court of Appeals affirmed, 760 F. 2d 1080 (CA11 1985), with one judge dissenting, id., at 1093 (Johnson, J.).

II

The only factfinder that has considered the question, the Federal Magistrate, found that petitioner has met the first Strickland criterion — that counsel’s performance at the sentencing phase was “outside the wide range of professionally competent assistance,” Strickland, supra, at 690. Even the most cursory review of petitioner’s trial demonstrates that the Magistrate’s conclusion was inescapable.

At petitioner’s hearing before the Magistrate, counsel testified that he had decided as a matter of strategy to adopt a “low-key” approach during the guilt phase, in hopes of establishing credibility with the jury. He had then hoped to “humanize” petitioner during the sentencing phase and try to convince the jury to spare petitioner’s life. 760 F. 2d, at 1088. Both the majority and the dissenter in the Court of Appeals concluded that this strategy was not unreasonable in light of the overwhelming evidence of petitioner’s guilt. Id., at 1090, 1095.

Counsel succeeded admirably in implementing the first part of his strategy. He made no opening statement and put on no case in chief. He performed only cursory cross-examination, and did not object to any evidence. Id., at 1089. Counsel’s attempts to carry out the second prong of his strategy, however, were piteously deficient. His brief summation during the guilt phase, after acknowledging his “frustration” with the case, App. B to Pet. for Cert. 14 (opinion of District Court), went on to “emphasize the horror of the crime,” 760 F. 2d, at 1095 (Johnson, J., dissenting), to the very jury that would soon be called upon to determine whether the murder was “outrageously or wantonly vile, horrible, or inhuman,” Ga. Code Ann. § 17-10-30(b)(7) (1982).

During the penalty phase, counsel put on a single witness, petitioner’s mother. She testified concerning petitioner’s childhood, which was marred by mistreatment at the hands of his father and his parents’ subsequent divorce. The effect of this implied plea for pity, however, was then destroyed when counsel, despite having previously warned the witness to avoid the topic, asked her what petitioner had told her about his expectations. She replied “he and I both, my sister, and my mother expect the death penalty here.” 760 F. 2d, at 1096.

It was counsel’s summation during the penalty phase, however, that led the Magistrate to conclude that petitioner’s Sixth Amendment right to counsel had been violated. His statement, which the Magistrate called a “nonargument,” id., at 1097, made no mention of petitioner’s mother’s testimony nor of any other mitigating evidence. Counsel did not inform the jury, during summation or at any other time, that petitioner had no prior criminal history, had been steadily employed, had an honorable military record, had been a regular churchgoer, and had cooperated with the police. See id., at 1096, n. 2. Counsel did not give the jury a single reason why it should spare petitioner’s life. As the Magistrate noted, counsel “utterly failed to point out any matters which were favorable to [petitioner] — to ‘humanize’ him, even though this was his alleged ‘tactic.’” App. C to Pet. for Cert. 51 (Magistrate’s Report and Recommendation). Instead, counsel repeatedly hinted that death was the most appropriate sentence for petitioner. He “focused on the awesome burden placed on the jury in determining Messer’s fate and the fortitude that would be required of a juror to decide to let him live, as if the easiest and most obvious verdict were the death sentence.” 760 F. 2d, at 1097.

The net result was that petitioner was without an advocate at the sentencing phase. “No one addressed the jury and said that Messer did not deserve to die.” Ibid. Like the Magistrate and the dissenter in the Court of Appeals, I cannot help but conclude that a total breakdown in the adversarial process occurred in this case.

Ill

The District Court rejected the Magistrate’s conclusion because it felt that petitioner had not established the second Strickland criterion — that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” Strickland, supra, at 694. The Court of Appeals held that counsel’s performance was not constitutionally deficient. Yet it never even mentioned counsel’s summation nor the Magistrate’s finding that the summation was unreasonable and ineffective. I can only presume that the Court of Appeals failed to find prejudice as to the summation, based on its conclusory statement that “petitioner has failed to show that [counsel’s] performance during the sentencing phase was deficient to the extent that this court cannot rely on the result as being just.” 760 F. 2d, at 1092 (citation omitted).

The result below is thus an example of the gross unfairness that results when the Strickland prejudice standard is applied without regard to the special characteristics of a capital sentencing proceeding. See Strickland, 466 U. S., at 715-717 (Marshall, J., dissenting). Those proceedings have a much different function than the relatively mechanical inquiry of the guilt phase, and the likelihood that an appellate court can accurately divine a jury’s probable response to evidence or arguments is accordingly less. Just last Term this Court reiterated that a capital defendant has a constitutional right to the consideration of “[wjhatever intangibles a jury might consider in its sentencing determination.” Caldwell v. Mississippi, 472 U. S. 320, 330 (1985); see also Lockett v. Ohio, 438 U. S. 586 (1978) (defendant has constitutional right to consideration of mitigating factors). Yet as applied by the courts below, Strickland permits unprofessional conduct by trial counsel to deprive a capital defendant of that right.

Viewed in the correct light — that is, considering what the jury in this case might have done if presented with a true adversarial debate on the appropriateness of sentencing petitioner to death— one cannot possibly conclude that there is no “reasonable probability” that the outcome would have been different. This is not a case in which, despite unreasonable errors by counsel, the jury was presented with a substantially accurate picture of the defendant and with some cogent argument in favor of life. The jury here was never apprised of several substantial mitigating factors. More important, counsel presented the jury with no reasons to spare petitioner’s life and, indeed, strongly intimated that he could think of none.

Despite these strong indicia of unreliability, the District Court found the absence of prejudice as to the sentencing phase based primarily on its conclusion that the evidence of petitioner’s guilt was overwhelming, App. B to Pet. for Cert. 3, and the Court of Appeals blithely assumed the jury’s role, finding the result “just,” 760 F. 2d, at 1092. If the Strickland prejudice standard has any vitality at all, it requires a more searching inquiry than that. I dissent.

APPENDIX TO OPINION OF MARSHALL, J., DISSENTING

“Your Honor, ladies and gentlemen, since ya’ll were selected I might add I haven’t taken the opportunity to talk to ya’ll a lot but I have been honest and in that honesty I haven’t tried in any form or fashion to do anything other than see that the facts in this case were presented and they were very ably presented, there’s no question about that.

“Now, I knew that when I got involved in this case at the beginning they would be. The question in this case is not the facts. Twenty-nine times I said ‘no questions.’ Thirty times I said ‘no objections’ to a witness being excused. Each and every one of us knows the young girl died. Like Mr. Foster, I have two young children of my own and believe you me that makes it more difficult for me to stand here in front of you all right now, each and every one of you, than it does for Mr. Foster, I dare say. I don’t ask you to appreciate that. I don’t ask for that at all. I just want to be straight up and honest about this whole thing and where we’re all coming from. Each and every one of you in this jury box know before this case started, or had some slight idea, that we were going to be at this point today where we are now and the decision was going to come down to the twelve of you and what you determine to be Mr. Messer’s fate.

“I dare say, and it has been suggested to me, and I say this in all humble candor, by some both here and in Rome that I ought to argue to this jury to leave him alive is a more cruel punishment because he’s got to live with it, so I don’t know what to say to you. I really don’t. I know that at this particular point there is no question in my mind that the verdict this jury spoke in this court room today was the truth. I don’t contest that at all. The question is when the judge tells you what the law is in this situation and what is considered to make something aggravating circumstances, what is considered to mitigate circumstances, he’s also going to tell you that in a situation like this you can almost disregard those and leave it up to yourselves, your gut feeling as to what it is you feel speaks the voice of the community.

“Now, the community, a great part of the community, has been here in this court room as potential jurors and as members of the audience, and it concerns Polk County. Interestingly enough Judge Winn told me two weeks ago that he didn’t think there would be anyone here by the end of the trial that it had been a long time since there had been a trial like this and the last time a good many years ago he could remember that there just wasn’t ten or fifteen people by the time the trial got done with, people were just that uninterested. But that’s not true in this situation because people have been very interested, and very interested right now with what is this community’s voice through ya’ll going to be.

“Unfortunately I do not agree again with Mr. Foster as to his position that each and every one of you by rendering a verdict that speaks for the death penalty are being brave. In not doing that you’re showing people outside of Polk County that you don’t know how to deal with people who take the lives of others in Polk County. That’s not the issue. Nor is it the bravest thing to do in this situation to vote the death penalty. It would take a heck of a lot more guts to say that there’s something in that human being who sits over there, sits over there having to remember what ya’ll have just learned about him. There’s something that put him on this earth and it’s worth leaving on this earth. Ya’ll have the power to extinguish him from this earth, a legal right to do that if you so desire. The District Attorney does not have that right. You are but his implement to do that, each one of you, all twelve of you, to the extent that you choose to use that the law allows each and every one of you to do it. That’s an awesome responsibility and I dare say I would rather be over here than in ya’ll’s seats, because as a parent under these circumstances . . . but that’s for ya’ll to decide. Please however, as the judge "will charge you, the decision is each and every one of yours individually and then as a group, your decision be it give him life or death is your decision, you need not worry about what happens after that decision as to how it’s carried out. That makes it a lot easier as far as the decision is concerned in having to live with it but it’s still your decision, and if your decision is life that is a decision that you have come about to make freely and honestly based upon all that you’ve heard in the case and there might be some reason to leave this man on the face of the earth then hold onto that decision, if not then let it go, but make it your own decision each and every one of you, don’t make it a decision of your friends and neighbors that you just adopt. I dare say ten years ago had any of you ever pictured yourselves being in this situation and having to make this decision ten years from then you wouldn’t.

“Thank you.” Tr. 516-519.

      Counsel’s summation at the penalty phase, in its entirety, is set out in an Appendix to this opinion.


text:
    No. 85-5678.
    No. 85-5727.
    No. 85-5831.
    McKenna v. Nevada. Johnson v. Maryland. Stano v. Florida. Griffin v. Florida. Butler v. South Carolina. Francis v. Florida.
   Sup. Ct. Nev.;

Ct. App. Md.;

Sup. Ct. Fla.;

No. 85-5882.

No. 85-5926.

No. 85-5930.

Sup. Ct. Fla.;

Sup. Ct. S. C.; and

Sup. Ct. Fla. Certiorari denied. Reported below: No. 85-5678, 101 Nev. 338, 705 P. 2d 614; No. 85-5727, 303 Md. 487, 495 A. 2d 1; No. 85-5831, 473 So. 2d 1282; No. 85-5882, 474 So. 2d 777; No. 85-5926, 286 S. C. 441, 334 S. E. 2d 813; No. 85-5930, 473 So. 2d 672.

Justice Brennan and 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.


author: Justice Blackmun,

text:
    No. 85-5747.
    Wright v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Justice Blackmun,

with whom Justice Brennan and Justice Marshall join,

dissenting.

I would grant certiorari in this capital case to ensure that the Florida courts have not sentenced a man to die based on a conviction obtained in violation of the Sixth Amendment.

On February 6, 1983, a woman was found murdered in the bedroom of her home. She apparently had died the previous night after being raped and stabbed. All the doors to her home were locked, but a back window was found open. Several weeks later, Charles Westberry told his wife that petitioner Joel Wright had come to Westberry’s trailer shortly after daylight on the morning of February 6 and had confessed to killing the victim. Wright lived with his parents near the victim’s home. Westberry’s wife notified the police, and Wright was arrested and tried for the crime. At trial, Westberry was the State’s principal witness. He testified that Wright had told him on the morning of February 6 that Wright had entered the victim’s house through the back window to steal money, that the victim had discovered him as he was wiping his fingerprints from her purse, and that he had killed her because he did not want to return to prison. According to Westberry, Wright counted out $290 he claimed to have taken from the victim’s home, and he asked Westberry to tell the authorities that Wright had spent the previous night at Westberry’s trailer. Another witness for the State testified that, approximately one month before the murder, he and Wright had stolen money from the victim’s home after entering through the window later found open on February 6. The jury also was told that a fingerprint identified as Wright’s had been found on a portable stove in the victim’s bedroom.

Wright took the stand and denied involvement in the murder. He testified that he had returned home from a party at approximately 1 a. m. on February 6, but had found himself locked out. He claimed that he then had walked along Highway 19 to West-berry’s trailer, where he had spent the night. He also presented a witness who testified that, late on the night of February 5 and early in the morning of February 6, he had seen a group of three men, whom he had not recognized, in the general vicinity of the victim’s home.

■ After the close of evidence but prior to final arguments, the defense moved to reopen the case in order to introduce the testimony of a newly discovered witness, Kathy Waters. Waters apparently had read newspaper accounts of the trial, had listened to parts of the testimony, and had discussed the trial with friends in attendance. She offered to testify that, shortly after midnight on February 6, she had seen a person who could have been Wright walking along Highway 19, and had also observed three persons she did not recognize near the victim’s home. Waters claimed that she had not realized she possessed relevant information until the morning her testimony was proffered, and that she had come forward of her own volition. The trial judge denied Wright’s motion, noting that Florida’s sequestration rule would be rendered “meaningless” if, after discussing the case with others, a witness were permitted “to testify in support of one side or the other, almost as if that testimony were tailor-made.” 473 So. 2d 1277, 1279 (1985). Although the State acknowledged that the violation of the sequestration rule had been inadvertent, it argued that the prosecution “could very well be substantially prejudiced” if Waters were permitted to testify. Id., at 1280. Wright was convicted and sentenced to die.

On appeal, the Supreme Court of Florida held that the trial judge’s rigid application of the State’s sequestration rule was inconsistent with Wright’s Sixth Amendment right to present -witnesses in his behalf. The court affirmed the conviction, however, because it deemed the error harmless:

“The record already contained unrefuted testimony that three individuals were gathered near the victim’s home. The defense did not contend that the proffered witness would purport to identify [Wright] as the person she observed on the road or that her testimony, if accepted by the jury, would require a finding by the jury that [Wright] did not commit the murder. Based upon our review of the record, including the nature of the proffered testimony, we conclude that the excluded evidence would not have affected the verdict and its exclusion was harmless beyond a reasonable doubt.” 473 So. 2d, at 1280-1281.

The State Supreme Court thus recognized that a conviction resulting from a trial marred by constitutional error must be reversed unless the error was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U. S. 18, 24 (1967); see also, e. g., United States v. Hasting, 461 U. S. 499 (1983). It seems to me, however, that the court failed to show the requisite attentiveness to the possibility of prejudice. A constitutional violation may be excused under Chapman only if the State “prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U. S., at 24. It is not sufficient for a reviewing court to conclude, as the Supreme Court of Florida appears to have done in this case, that in its judgment the error did not change the verdict. The question is whether the State has disproved any “reasonable possibility” that the error made a difference. Ibid.; Fahy v. Connecticut, 375 U. S. 85, 86 (1963).

The State of Florida may well be able to carry that burden in this case, but nothing in the Supreme Court’s opinion or in the State’s brief before this Court convinces me that it has done so. Since Wright’s fingerprint could have been left during the alleged earlier break-in, this case comes down to Wright’s word against Westberry’s. Waters’ testimony obviously would not have proved Wright innocent, but it would have provided some corroboration for Wright’s story. Questions of witness credibility, of course, are within the “special province” of the factfinder, Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 856 (1982), and I cannot say “beyond a reasonable doubt” that the corroboration Waters offered could not have altered the jury’s assessment of the conflicting stories. More to the point, I do not see how the Supreme Court of Florida could make that statement, particularly given the prosecution’s claim of potentially substantial prejudice and the trial judge’s suggestion that Waters’ testimony appeared almost “tailor-made” for the defense.

The Chapman rule was meant to be more than merely a formula to incant before affirming the results of constitutionally infirm prosecutions. For the rule to have content, a reviewing court must not declare a constitutional error harmless without first conducting a careful and probing inquiry into the possibility of prejudice. Nothing less will suffice if the court is to be convinced “beyond a reasonable doubt” that the error had no effect on the verdict. Furthermore, at least in any case where the harmlessness of an error is as questionable as it is here, an appellate court should spell out its reasoning in sufficient detail to permit this Court to verify compliance with Chapman. Our concern of course must be not merely that Chapman is cited, but that it is followed conscientiously. For me, that concern is not satisfied by the opinion of the Florida Supreme Court in this case, particularly given the sentence imposed. Consequently, I would grant certiorari, vacate the judgment, and remand for a determination whether there is any “reasonable possibility” that the automatic exclusion of Waters’ testimony contributed to Wright’s conviction.


text:
    No. 85-48.
    No. 85-247.
    No. 85-295.
    No. 85-583.
    No. 85-650.
    No. 85-5121.
    No. 85-5547.
    No. 85-5647.
    Suarez v. Heckler, Secretary of Health and Human Services, Cranberg v. Consumers Union of United States, Inc., et al., County of Los Angeles et al. v. Kling, Fahey v. Beckley et al., McCorstin v. United States Steel Corp., Freeland v. United States, Spellman v. Integon General Insurance Corp., Wilson v. United States,
   ante, p. 844;

ante, p. 850;

ante, p. 936;

ante, p. 1001;

ante, p. 1008;

ante, p. 1009;

ante, p. 1010; and

ante, p. 1012. Petitions for rehearing denied.


text:
    No. 84-6943.
    No. 85-5177.
    Mazak v. United States, Gordon v. Idaho,
   ante, p. 840; and

ante, p. 803. Motions for leave to file petitions for rehearing denied.


text:
    January 27, 1986
    No. 85-616.
    Sharon Steel Corp. v. City of Fairmont, West Virginia, et al.
   Appeal from Sup. Ct. App. W. Va. dismissed for want of substantial federal question.

Justice Brennan, Justice White, and Justice Blackmun would note probable jurisdiction and set case for oral argument.


text:
    No. 85-871.
    Willardo v. Indiana.
   Appeal from Ct. App. Ind. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 85-967.
    Smith et ux. v. United States et al.
   Appeal from C. A. 11th 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. 85-5786.
    Davis v. First State Bank.
   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. 85-193.
    U. S. Trust Corp. v. Board of Governors of the Federal Reserve System et al.
   C. A. 11th Cir. Cer-tiorari granted, judgment vacated, and case remanded for further consideration in light of Board of Governors of Federal Reserve System v. Dimension Financial Corp., ante, p. 361.


text:
    No. 85-833.
    Chula Vista City School District et al. v. Bennett, Secretary of Education.
   C. A. 9th Cir. Certio-rari granted, judgment vacated, and case remanded to the Court of Appeals to transfer the case pursuant to 28 U. S. C. § 1631 to the United States Court of Appeals for the Federal Circuit. See 28 U. S. C. § 1295(a)(2).


text:
    No.-.
    Pescosolido et al. v. Secretary of Agriculture.
   Motion to direct the Clerk to file petition for writ of certiorari out of time denied.


text:
    No. A-551.
    Dole, Secretary of Transportation, et al. v. Railway Labor Executives’ Assn. et al.
   Application of the Solicitor General to vacate a stay entered January 3, 1986, by the United States Court of Appeals for the Ninth Circuit, presented to Justice Rehnquist, and by him referred to the Court, granted.


text:
    No. D-527.
    In re Disbarment of Mann.
    [For earlier order herein, see ante, p. 917.]
   Disbarment entered.


text:
    No. D-531.
    In re Disbarment of Camacho.
    [For earlier order herein, see ante, p. 991.]
   Disbarment entered.


text:
    No. 84-2030.
    Brown-Forman Distillers Corp. v. New York State Liquor Authority.
   Ct. App. N. Y. [Probable jurisdiction noted, ante, p. 814.] Motion of National Conference of State Legislatures et al. for leave to file a brief as amici curiae granted.

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


text:
    No. 85-93.
    No. 85-428.
    Bazemore et al. v. Friday et al.; and United States et al. v. Friday et al.
   C. A. 4th Cir. [Certiorari granted, ante, p. 978.] Motion of the Solicitor General for divided argument granted, and the Solicitor General is allotted 12 minutes for oral argument and petitioners Bazemore et al. are allotted 18 minutes for oral argument.


text:
    No. 85-217.
    International Longshoremen’s Assn., AFL-CIO v. Davis.
   Sup. Ct. Ala. [Probable jurisdiction noted, ante, p. 899.] Motion of National Right to Work Legal Defense Foundation, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 85-385.
    Brock, Secretary of Labor v. Pierce County.
   C. A. 9th Cir. [Certiorari granted, ante, p. 944.] Motion of National Association of Counties et al. for leave to participate in oral argument as amici curiae and for divided argument denied.


text:
    No. 85-390.
    City of Los Angeles et al. v. Preferred Communications, Inc.
   C. A. 9th Cir. [Certiorari granted, ante, p. 979.] Motion of National Institute of Municipal Law Officers for leave to file a brief as amicus curiae granted.


text:
    No. 85-546.
    United States v. Mottaz.
   C. A. 8th Cir. [Certiorari granted, ante, p. 994.] Motion of American Land Title Association for leave to file a brief as amicus curiae granted.


text:
    No. 85-5404.
    Allen v. Illinois.
   Sup. Ct. Ill. [Certiorari granted, ante, p. 979.] Motion of Edwin F. Mandel Legal Aid Clinic for leave to file a brief as amicus curiae granted.


text:
    No. 85-5749.
    No. 85-5835.
    No. 85-5973.
    In re St. Claire; In re Patrascu; and In re Thanh.
   Petitions for writs of mandamus denied.


text:
    No. 85-5875.
    No. 85-5878.
    In re May; and In re May.
   Petitions for writs of mandamus and/or prohibition denied.


text:
    No. 85-5866.
    In re Griffin.
   Petition for writ of prohibition denied.


text:
    No. 84-1947.
    Cerbone, Justice of the Village Court, Village of Mt. Kisco, New York, et al. v. Conway.
   C. A. 2d Cir. Certiorari granted limited to Questions 1, 2, 3, and 4 presented by the petition.


text:
    No. 84-1867.
    Gillies v. Delozier et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-6216.
    Ausley et al. v. Mitchell, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-155.
    Coughlin et al. v. Patterson.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-210.
    Town of Saugus et al. v. Voutour.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 85-535.
    Quinault Indian Nation et al. v. Washington et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-547.
    No. 85-5476.
    No. 85-5485.
    No. 85-5488.
    Harrell v. United States; Gibson v. United States; Graves v. United States; Marcaccio v. United States; White v. United States; Keating v. United States; Seaver v. United States; Lackey v. United States; Hart v. United States; and Ruby v. United States.
    No. 85-5493.
    No. 85-5500.
    No. 85-5506.
    No. 85-5516.
    No. 85-5517.
    No. 85-5523.
   C. A. 11th Cir. Certiorari denied. 2d 1493. Reported below: 761 F. 2d 1459 and 766 F.


text:
    No. 85-634.
    Kirchner v. Kirchner.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 85-638.
    Clemente v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-700.
    Allen v. National Labor Relations Board.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-715.
    Moore v. Lavicky.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 85-729.
    Bronger et al. v. Office of Personnel Management.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 85-742.
    Jeppesen & Co. v. Brocklesby et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-747.
    No. 85-5473.
    Timberlake v. United States; and Engelhart v. United States.
   C. A. 10th Cir. Certiorari denied. Reported below: 767 F. 2d 1479.


text:
    No. 85-756.
    Adams v. McIlhany.
   C. A. 5th Cir. Certiorari denied.