author: Justice Marshall,

text:
    No. 85-5534.
    Mitchell v. Kemp, Warden.
   C. A. 11th Cir. Certiorari denied.

Justice Marshall,

with whom

Justice Brennan and Justice Blackmun join, dissenting.

In Strickland v. Washington, 466 U. S. 668 (1984), this Court held that the Sixth Amendment’s promise of effective assistance of counsel is not breached unless the criminal defendant can show that his attorney’s conduct fell beyond the bounds of professional competence and thereby prejudiced his defense. Id., at 687. Since Strickland was decided, the Court has never identified an instance of attorney dereliction that met its stringent standard. Most recently, this Court rejected a claim that inadequate investigation of mitigating circumstances constituted ineffective assistance of counsel in a capital case. See Burger v. Kemp, ante, p. 776. Lest we permit the lower courts to conclude that the Sixth Amendment guarantees no more than that “a person who happens to be a lawyer is present at trial alongside the accused”— a notion expressly disavowed in Strickland, supra, at 685—the Court should now give life to the Strickland standard. Accordingly, I would grant certiorari to consider the substantial allegation that counsel’s performance, before the tribunal that sentenced petitioner to die, fell short of minimally effective representation.

I

On November 5, 1974, petitioner pleaded guilty to the murder of a 14-year-old boy in the course of a convenience-store robbery. At the sentencing proceeding conducted without a jury, the State called five witnesses and introduced documentary evidence in support of its contention that petitioner should receive the death penalty. Defense counsel called no witnesses and presented no. mitigating evidence. The court sentenced petitioner to die. After affirmance of his conviction, petitioner sought a writ of habeas corpus on the ground that he was denied effective assistance of counsel at the sentencing phase of his trial. The District Court concluded that the “tactical decisions” of petitioner’s counsel were professionally reasonable. Mitchell v. Hopper, 564 F. Supp. 780, 786 (SD Ga. 1983). The Court of Appeals, acknowledging that counsel’s performance raised a “difficult question,” nevertheless affirmed on the ground that it was the result of strategic choices. 762 F. 2d 886, 889-890 (CA11 1985).

The habeas corpus record before the District Court demonstrates that petitioner’s appointed attorney made no attempt to interview any potential mitigating witnesses. 5 Record 21-22. He spoke to no member of petitioner’s family, with the exception of petitioner’s father, with whom he spoke by telephone on two occasions. Counsel apparently initiated these contacts for the purpose of requesting that the family hire an attorney to relieve him of his obligation to represent petitioner. Id., at 23-24. Counsel made no inquiries into his client’s academic, medical, or psychological history.

Nor did counsel pursue a vigorous defense with respect to the circumstances of the crime. He did not interview the police officer who witnessed petitioner’s confession, which the State used to establish the existence of certain aggravating circumstances in support of the death sentence, even though petitioner had told him that the officer — the cousin of the victim — had held a gun to petitioner’s head to extract the confession. Counsel’s reason for not speaking to the officer was that “I personally don’t like the man.” 6 Record 35. Counsel did not interview the sole witness to the crime, who provided the key testimony for the prosecution at sentencing. Id., at 37. He filed no pretrial motions on petitioner’s behalf. Id., at 45.

Counsel’s failure to investigate mitigating circumstances left him ignorant of the abundant information that was available to an attorney exercising minimal diligence in fighting for Billy Mitchell’s life. The affidavits of individuals who would have testified on petitioner’s behalf fill 170 pages of the record in the District Court. Among these potential witnesses are family members, a city councilman, a former prosecutor, a professional football player, a bank vice president, and several teachers, coaches, and friends.

Had defense counsel tapped these resources, he would have been able to present the sentencing judge with a picture of a youth who, despite growing up in “the most poverty-stricken and crime-ridden section of Jacksonville, Florida,” 4 Record 989, had impressed his community as a person of exceptional character. He had been captain of the football team; leader of the prayer before each game; an above-average student; an active member of the student council, school choir, church choir, glee club, math club, and track team; a Boy Scout; captain of the patrol boys; and an attendant to the junior high school queen.

Examples of the favorable impression that petitioner left on his community abound in the record. One such example is the statement of petitioner’s former teacher and athletic coach at Butler High School:

“To understand what an exceptional person Billy Mitchell was at that time, one must understand that, while a comprehensive high school, Butler at the time was a segregated school in the middle of a very impoverished area — what might be called today a ghetto. In that locale and setting, Billy Mitchell was a rarity because of the exceptional character he displayed at Butler.” Id., at 958-959.

Acquaintances and professionals described petitioner as “the type of person people naturally got along with,” id., at 967; “the kind of person you could depend on for assistance in everything,” id., at 956; “a hard worker who devoted a lot of time to school activities, especially activities involving younger kids,” ibid.; “a fine student and athlete,” id., at 980; a person of “character and personality ... so atypical for someone convicted of a serious crime,” id., at 1001; “not . . . the type of person that should be executed and given no further chance to live out a meaningful life,” id., at 967. Petitioner’s sisters explained that petitioner took care of his 11 brothers and sisters while his mother worked, id., at 953, and that petitioner took a job in the eighth grade to help support his family, id., at 941.

An account of what happened to this well-adjusted young person was also readily available to anyone who took the time to ask. When petitioner was 16 years old, his parents were divorced, and soon thereafter petitioner got into trouble. He and two friends were arrested for attempted robbery. Petitioner professed his innocence, but was persuaded by his father to plead guilty, id., at 948, because “things would go easier for him,” id., at 963. The charges against the two friends were dropped. Petitioner was sentenced to six months in prison, where he was subjected to repeated violent homosexual attacks, experienced severe depression, and lost 30 pounds. Id., at 996-997. When he was released, he continued to be highly depressed, and eventually committed the crime for which he received a sentence of death.

II

Counsel’s explanation for his total lack of preparation for the sentencing hearing is that he carried an “ace in the hole.” 6 Record 43. His sole strategy for representing his client’s interest rested on his belief that, under Georgia law, the State would not be permitted to introduce any evidence of aggravating circumstances of which the defense had not been notified in writing. Prior to sentencing, the State had provided petitioner’s counsel with oral notice of the aggravating circumstances upon which it would rely, but had not furnished written notice. Although the state statute upon which counsel’s theory relied did not mention written notice, and no court decision had ever required that such notice be in writing, counsel was content to rest his entire defense, and the fate of his client, on an untried legal theory. At sentencing, counsel took the first opportunity to object to the admission of aggravating evidence of which he had not received prior written notice; the court promptly overruled his objection, and the “ace in the hole” was gone. Id., at 198. Even if counsel had been correct in his interpretation of state law, of course, the State could have provided the requisite written notice at any time before the hearing, which would have left petitioner equally defenseless.

At the habeas corpus hearing, petitioner’s attorney also claimed that he had not wished to present any mitigating character evidence because that would have opened the door to the State’s introduction of petitioner’s prior conviction. 5 Record 16. Under some circumstances, such a decision might be considered a reasonable strategy. In this case, however, it was patently unreasonable. Counsel conceded, at the habeas proceeding, that he had known nothing of the facts and circumstances of the prior conviction, other than that it was a felony. 6 Record 47. If he had made an inquiry, and if he had acquainted himself at all with what type of mitigating character evidence was available, he might have been in a position to make a professional judgment as to whether the substantial mitigating evidence would be outweighed by the prejudice resulting from the introduction of petitioner’s guilty plea to attempted robbery at the age of 16, the two alleged accomplices to which had been released. Further, he might have decided to emphasize to the court that the prior conviction was intimately connected to the entire sequence of events that formed a compelling case for mitigation. But no such balancing was made, for counsel had no information to place on either side of the scales. Moreover, under state law, the prior conviction would have been admissible even though the defense put on no evidence. See 762 F. 2d, at 890. If counsel in this case made any decisions at all, they were barren of even minimal supporting information or knowledge.

Counsel’s final excuse for conducting no defense is a vague perception that the client was reluctant to have the attorney probe into his background, for reasons counsel did not know and did not attempt to find out. 6 Record 63. Counsel felt that petitioner, who had finished two years in a junior college, was intelligent and capable of making his own decisions. There is no indication, however, that counsel took any steps to inform his client of the consequences of the various alternatives. Although counsel explained to petitioner his “ace in the hole” strategy for the sentencing hearing, ibid., it is not clear that he warned petitioner that the strategy might fail, or that petitioner stood a good chance of being sentenced to death. Nor is there any indication that the attorney explained the importance of mitigating evidence at a sentencing proceeding, or the potential value of petitioner’s taking the stand himself. Counsel has not alleged that petitioner insisted on any particular line of defense or on any particular conduct by counsel. Rather, he provided no services on behalf of his client because he felt that the client was reluctant to involve his family and friends, perhaps out of a “sense of embarrassment.” Ibid.

Our decisions have recognized that attorneys must have a wide degree of latitude to make strategic decisions on the basis of their knowledge of the law. We have stressed that the judgment of an attorney should not be second-guessed, as long as it falls within the sphere of professional reasonableness. Strickland v. Washington, 466 U. S., at 689. Nevertheless, an attorney’s decision to advance a defense that is wholly unfounded in law, combined with a failure to investigate the merit of accepted and persuasive defenses, cannot be characterized as “sound trial strategy.” See Michel v. Louisiana, 350 U. S. 91, 101 (1955). Indeed, such a decision is not strategic at all; it is incompetent. “The failure of an attorney to inform his client of the relevant law clearly satisfies the first prong of the Strickland analysis . . . .” Hill v. Lockhart, 474 U. S. 52, 62 (1985) (WHITE, J., concurring in judgment). In this case, that failure was aggravated by the additional failure to discover what meritorious defenses were available before rejecting them in favor of a frivolous technical defense. This conduct is professionally unreasonable.

As a result of counsel’s nonfeasance, no one argued to the sentencing judge that petitioner should not die. The judge heard only a technical argument regarding the admissibility of aggravating circumstances without prior written notice, which he consistently rejected, in addition to a reference to petitioner’s youth. These arguments were hardly an effective rebuttal to the testimony of the victim’s mother and the police officers. Prejudice to petitioner’s case is obvious when not even a suggestion that his life had some value, that his crime was aberrational, or that he was suffering from severe depression reached the ears and the conscience of the sentencing judge. See Burger v. Kemp, ante, at 816 (Blackmun, J., dissenting). The judge heard not even a plea for mercy.

Ill

This Court has repeatedly insisted that unfettered consideration of mitigating evidence is an essential aspect of the process by which the States adjudicate the appropriateness of putting a person to death. See, e. g., Sumner v. Shuman, ante, at 76; Eddings v. Oklahoma, 455 U. S. 104, 112 (1982); Lockett v. Ohio, 438 U. S. 586, 605 (1978); Woodson v. North Carolina, 428 U. S. 280, 303 (1976). Accordingly, we have not permitted a State to insulate the capital sentencer from considerations favorable to the defendant. The reliability of the process depends upon the sentencer’s consideration of both tangibles and intangibles, see Caldwell v. Mississippi, 472 U. S. 320, 330 (1985), in evaluating the individual character of the defendant and his acts. In light of the importance that this Court has placed upon the role of mitigating evidence in capital-sentencing decisions, I cannot believe that Strickland was intended to permit a defendant to be sentenced to death solely on the basis of the State’s evidence, when a powerful defense easily could have been marshaled on his behalf. Any reasonable standard of professionalism governing the conduct of a capital defense must impose upon the attorney, at a minimum, the obligation to explore the aspects of his client’s character that might persuade the sentencer to spare his life. Without even this effort by the defense, the adversarial process breaks down.

By denying certiorari in this compelling case, the Court has refused to apply Strickland in a manner that gives meaning to the constitutional values from which it was derived. I dissent.


source: Caselaw Access Project

license: Public Domain

text:
    No. 86-419.
    Patton et al. v. Sourbeer.
   C. A. 3d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Justice White,

text:
    No. 86-1505.
    Prestress Engineering Corp. v. Gonzalez et al.
   Sup. Ct. 111. Certiorari denied.

Justice White,

dissenting.

This case raises the question whether a state-law claim for retaliatory discharge is pre-empted by § 301 of the Labor-Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185(a), when the suing employee is covered by a collective-bargaining agreement. The Illinois Supreme Court here, relying on its earlier opinion in Midgett v. Sackett-Chicago, Inc., 105 Ill. 2d 143, 473 N. E. 2d 1280, cert. denied, 472 U. S. 1032 (1984) and 474 U. S. 909 (1985), held that the state claim was not pre-empted. The Court of Appeals for the Eighth Circuit, faced with an almost identical state-law claim for retaliatory discharge, concluded that under our opinion in Allis-Chalmers Corp. v. Lueck, 471 U. S. 202 (1985), § 301 pre-empted the state-law claim. Johnson v. Hussmann Corp., 805 F. 2d 795, 797 (1986) (Missouri). One other Court of Appeals has come to a similar conclusion. See Vantine v. Elkhart Brass Manufacturing Co., 762 F. 2d 511, 517-518 (CA7 1985) (Indiana). The Second Circuit, just three months ago, concluded that Connecticut’s retaliatory-discharge claim was not pre-empted by § 301. Baldracchi v. Pratt & Whitney Aircraft Div., United Technologies Corp., 814 F. 2d 102 (1987). The Illinois Supreme Court has interpreted federal law in a manner consistent with the Second Circuit but directly contrary to the Seventh and Eighth Circuits. I would grant the petition and resolve the conflict, rather than wait until the conflict invites more litigation and becomes more acute.


text:
    No. 86-1800.
    Atkinson et al. v. Anadarko Bank & Trust Co.
   C. A. 5th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 86-1815.
    Credit Bureau Services-New Orleans, dba Chilton Corp. v. Pinner.
   C. A. 5th Cir. Motions of Trans Union Credit Information Co., Associated Credit Bureaus, Inc., and Credit Bureau, Incorporated of Georgia for leave to file briefs as amici curiae granted. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 86-5391.
    No. 86-6506.
    No. 86-6825.
    No. 86-6921.
    No. 86-6969.
    Williams v. Louisiana. Smith v. Oklahoma. Beaver v. Virginia. Tompkins v. Florida. Smith v. Armontrout, Warden.
   Sup. Ct. La.; Ct. Crim. App. Okla.; Sup. Ct. Va.; Sup. Ct. Fla.; and C. A. 8th Cir. Certiorari denied.

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.


text:
    No. 86-6224.
    Tafero v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Motion of National Association of Criminal Defense Lawyers for leave to file a brief as amicus curiae granted. Certiorari denied.

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 sentence in this case.


text:
    No. 86-6985 (A-942).
    Evans v. Thigpen, Commissioner, Mississippi Department of Corrections.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.

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 the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    No. 85-2121.
    No. 86-1136.
    No. 86-1669.
    No. 86-6702.
    Arizona v. Mauro, Pacyna v. Marsh, Secretary of the Army, Branson v. Northington et al., Cosner v. Oregon,
   481 U. S. 520; 481 U. S. 1048; 481 U. S. 1044; and 481 U. S. 1066. Petitions for rehearing denied.


text:
    No. 85-2102.
    No. 86-6429.
    Montauk-Caribbean Airways, Inc., dba Long Island Airlines v. Hope et al., McCone v. District Court of Albany County et al.,
   479 U. S. 872; and 481 U. S. 1020. Motions for leave to file petitions for rehearing denied.


text:
    No. 86-1363.
    Wangrud v. Oregon,
   481 U. S. 1009. Petition for rehearing and other relief denied..


text:
    No. 86-6750.
    Coleman v. Brown, Warden, et al.,
   482 U. S. 909. Motion of respondents for leave to file response to petitioner’s petition for rehearing denied. Petition for rehearing denied.


text:
    July 6, 1987
    No. 87-5038 (A-17).
    Whitley v. Muncy, Warden, et al.
   C. A. 4th Cir. Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    July 7, 1987
    No. 87-5052 (A-23).
    Thompson v. Lynaugh, Director, Texas Department of Corrections.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.

Justice Stevens would grant the application for stay.

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 the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    No. 87-5053 (A-24).
    Thompson v. Lynaugh, Director, Texas Department of Corrections.
   C. A. 5th Cir. Appli-

cation for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.

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 the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    No. 87-5070.
    Evans v. Cabana, Acting Commissioner, Mississippi Department of Corrections.
   C. A. 5th Cir. Certio-

rari denied.

Justice O’Connor took no part in the consideration or decision of this petition.

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 sentence in this ease.


text:
    No. 86-6985 (A-3).
    Evans v. Cabana, Acting Commissioner, Mississippi Department of Corrections,
   ante, p. 1033. Application for stay of execution of sentence of death, addressed to Justice Brennan and referred to the Court, denied.

Justice Brennan and Justice Marshall would grant the application. Petition for rehearing denied.


text:
    July 9, 1987
    No. 86-2057.
    Jenness, Trustee v. OFH, Inc.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 86-793.
    Kansas City Power & Light Co. v. State Corporation Commission of Kansas et al.
   Sup. Ct. Kan. [Probable jurisdiction noted, 479 U. S. 1082.] Appeal dismissed under this Court’s Rule 53.


text:
    July 19, 1987
    No. 87-5130 (A-56).
    Celestine v. Butler, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.

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 the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    July 23, 1987
    No. A-65.
    Lincoln Park Nursing & Convalescent Home v. Kahn, Guardian ad Litem of Jobes, et al.
   Sup. Ct. N. J. Application for stay, addressed to Justice Scalia and referred to the Court, denied.

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


text:
    No. A-78 (87-5161).
    Watson v. Butler, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Stevens would grant the application.

Justice Brennan and Justice Marshall,

with whom

Justice Blackmun joins in Parts II and III, dissenting.

I

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 (1976) (Brennan, J., dissenting), we would grant the stay application and the petition for writ of certiorari.

II

Even if we did not hold these views, we would nonetheless grant the stay application in order to hold the case for Lowenfield v. Phelps, No. 86-6867. At issue in Lowenfield is the constitutionality of a death-sentencing procedure where the aggravating factor found by the jury duplicates the jury’s findings in the guilt phase and thus fails to narrow the class of defendants eligible for the death penalty.

In this case, Watson was found guilty of first-degree murder because he killed while “engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery.” La. Rev. Stat. Ann. § 14.30(A)(1) (West 1986). Louisiana law requires that the sentencing jury find beyond a reasonable doubt that at least one statutory aggravating factor exists before a death sentence may be imposed. La. Code Crim. Proc. Ann., Art. 905.3 (West Supp. 1987). Article 905.4 of the Louisiana Code of Criminal Procedure (West 1984 and Supp. 1987) provides that “[t]he following shall be considered aggravating circumstances,” and lists 10 circumstances, which are labeled as subsections (a) through (j). The jury in Watson’s case found that Watson had committed the acts described in subsection (a): he “was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, aggravated arson, aggravated escape, armed robbery, or simple robbery.” Specifically, the jury determined that Watson committed armed robbery and aggravated rape.

If the commission of armed robbery and aggravated rape constitutes only a single aggravating circumstance, then Watson presents exactly the same claim as Lowenfield. In the majority of cases that have required a tally of aggravating circumstances, the Louisiana Supreme Court has considered the presence of more than one felony under Article 905.4(a) to count as only a single aggravating factor. See, e. g., State v. Carmouche, 508 So. 2d 792 (1987); State v. Bates, 495 So. 2d 1262 (1986); State v. Andrews, 452 So. 2d 687 (1984); State v. Jordan, 420 So. 2d 420 (1982); State v. Myles, 389 So. 2d 12 (1979). In some other cases, including this one, State v. Watson, 449 So. 2d 1321 (1984), the Louisiana Supreme Court appears to have viewed each felony as a separate aggravating factor. That court, however, has not had the opportunity to address this issue explicitly. In our view, until the Louisiana Supreme Court gives the statute a definitive interpretation, this Court should grant the application for stay, in order to hold for Lowenfield.

Ill

Four Members of this Court consider the above view sufficiently compelling to have voted to hold this case until Lowenfield is decided. Three votes suffice to hold a case, but it takes five votes to stay an execution. The Court today thus permits Mr. Watson’s legal claim to stay alive while condemning Watson himself to die under a sentencing scheme that within a matter of months the Court may conclude is unconstitutional. Half the Members of this Court believe that Watson’s claim might be indistinguishable from Lowenfield’s, yet tonight Watson will be executed while Lowenfield may prevail and be spared. This prospect is the ultimate derogation of the Court’s duty to provide equal justice under law.

We dissent.

       The jury also found a second aggravating circumstance that Watson had “a significant prior history of criminal activity.” This aggravating circumstance has since been invalidated by the Louisiana Supreme Court as unconstitutionally vague under the Eighth Amendment. State v. David, 468 So. 2d 1126 (1984).

       The District Court denied Watson’s claim and stated only: “Suffice it to say that the Fifth Circuit Court of Appeals, whose ruling binds this court has decided this claim adversely to petitioner. Lowenfield v. Phelps, 817 F. 2d 285 (1987).” No. 87-3391 (ED La. July 21, 1987). The Court of Appeals affirmed the judgment, agreeing with the “reasons stated succinctly and correctly” by the District Court. 823 F. 2d 842, 843 (CA5 1987).


text:
    July 29, 1987
    No. A-909.
    Polyak v. Hamilton, Judge, Circuit Court of Lawrence County, et al.
   C. A. 6th Cir. Motion to compel the Clerk to docket a jurisdictional statement and a petition for writ of certiorari, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. A-910.
    Polyak v. Buford Evans & Sons.
   Motion to compel the Clerk to file a petition for writ of common-law certiorari, addressed to. Justice Blackmun and referred to the Court, denied.


text:
    No. A-934.
    Stein v. United States.
   Application for bail, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-8 (86-7154).
    White v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Application for stay of execution of sentence of death, addressed to Justice Brennan and referred to the Court, denied.

Justice Brennan and Justice Marshall would grant the application.


text:
    No. D-597.
    In re Disbarment of Fabré.
   Disbarment entered. [For earlier order herein, see 479 U. S. 1026.]


text:
    No. D-612.
    In re Disbarment of Bing.
   Disbarment entered. [For earlier order herein, see 480 U. S. 913.]


text:
    No. D-620.
    In re Disbarment of DeCello.
   Disbarment entered. [For earlier order herein, see 480 U. S. 943.]


text:
    No. D-624.
    In re Disbarment of Hallows.
   Disbarment entered. [For earlier order herein, see 481 U. S. 1002.]


text:
    No. D-626.
    In re Disbarment of Mazelis.
   Disbarment entered. [For earlier order herein, see 481 U. S. 1002.]


text:
    No. D-629.
    In re Disbarment of Mirto.
   Disbarment entered. [For earlier order herein, see 481 U. S. 1011.]


text:
    No. D-631.
    In re Disbarment of Burke.
   Disbarment entered. [For earlier order herein, see 481 U. S. 1027.]


text:
    No. D-633.
    In re Disbarment of Monaghan.
   Disbarment entered. [For earlier order herein, see 481 U. S. 1045.]


text:
    No. D-638.
    In re Disbarment of Haeberle.
   Disbarment entered. [For earlier order herein, see 482 U. S. 903.]


text:
    No. D-647.
    In re Disbarment of Elden.
   It is ordered that William Elden, of Chicago, 111., 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-648.
    In re Disbarment of Monoker.
   It is ordered that David Monoker, of Baltimore, Md., 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-649.
    In re Disbarment of Filsoof.
   It is ordered that Fred F. Filsoof, of Atlanta, Ga., 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. 87-5193 (A-94).
    Brogdon v. Butler, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.

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 the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    No. 86-1640. No. 86-1648. No. 86-1671.
    Pace Resources, Inc. v. Shrewsbury Township et al., West et al. v. Multibanco Comermex, S. A., et al., Coker v. Gielow, Chairman, Railroad Retirement Board, et al.,
   482 U. S. 906; 482 U. S. 906; and 482 U. S. 906. Petitions for rehearing denied.


text:
    No. 86-1730.
    No. 86-5984.
    No. 86-6175.
    No. 86-6491.
    No. 86-6519.
    No. 86-6677.
    No. 86-6713.
    No. 86-6730.
    No. 86-6732.
    No. 86-6753.
    No. 86-6776.
    No. 86-6786.
    No. 86-6804.
    Setera v. Texas A & M University et al., Bates v. Louisiana, Wilson v. Denton et al., Jackson v. Florida, Cofield v. Merit Systems Protection Board, Gaskins v. South Carolina, Williams v. Blackburn, Warden, Turner v. Fuerst, Pruett v. Virginia, Attwell v. Metropolitan Atlanta Rapid Transit Authority et al., Butler v. Welschmeyer, Martin v. Little, Brown & Co., Inc., et al., Brown-Bey v. United States Marshal,
   482 U. S. 928; 481 U. S. 1042; 482 U. S. 931; ante, p. 1010; 482 U. S. 916; 482 U. S. 909; 482 U. S. 917; 482 U. S. 917; 482 U. S. 931; 482 U. S. 908; 482 U. S. 918; 482 U. S. 930; and 482 U. S. 908. Petitions for rehearing denied.


text:
    August 3, 1987
    No. 86-1927.
    Chicago Commodities, Inc., et al. v. Commodities Futures Trading Commission et al.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. A-69.
    Castille, District Attorney, Philadelphia County v. Harris et al.
   C. A. 3d Cir. Application for recall and stay of mandate, presented to Justice White, and by him referred to the Court, denied. The temporary stay heretofore entered on July 23, 1987, is vacated and the application for recall and stay is in all respects denied.


text:
    August 5, 1987
    No. 87-123.
    Schulman v. United States.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    August 20, 1987
    No. A-147.
    Whitley, Warden v. Neuschafer.
   Application of the Attorney General of Nevada for an order to vacate the stay of execution of sentence of death entered by the United States District Court for the District of Nevada, presented to Justice O’Connor, and by her referred to the Court, denied.


text:
    August 21, 1987
    No. 87-5319 (A-148).
    Rault v. Butler, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied. Certiorari denied.

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 the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    August 26, 1987
    No. A-932.
    Bechtel et al. v. Superior Court of California, County of Los Angeles, et al.
   Sup. Ct. Cal. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-14.
    Winslow et al. v. Coyte, Judge, Morgan County District Court, Colorado, et al.
   Application for injunction and other relief, addressed to Justice Blackmun and referred to the Court, denied.

Justice White took no part in the consideration or decision of this application.


text:
    No. A-35.
    Ambulance Service of Reno, Inc., dba 911 Paramedics v. Nevada Ambulance Services, Inc., dba Medic I, et al.
   Application for temporary restraining order and other relief, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. A-62.
    Benjamin v. Committee on Professional Standards.
   Ct. App. N. Y. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. 85-2079.
    Laborers Health and Welfare Trust Fund for Northern California et al. v. Advanced Lightweight Concrete Co., Inc.
   C. A. 9th Cir. [Certiorari granted, 479 U. S. 1083.] Motions of Chamber of Commerce of the United States and Associated General Contractors of America, Inc., for leave to file briefs as amici curiae granted.


text:
    No. 86-492.
    Boyle, Personal Representative of the Heirs and Estate of Boyle v. United Technologies Corp.
   C. A. 4th Cir. [Certiorari granted, 479 U. S. 1029.] Motion of Chamber of Commerce of the United States for leave to file a supplemental brief amicus curiae granted.


text:
    No. 86-761.
    Forrester v. White.
   C. A. 7th Cir. [Certiorari granted, 479 U. S. 1083.] Motion of Illinois Judges Association for leave to file a brief as amicus curiae granted.


text:
    No. 86-935.
    Regents of the University of California v. Public Employment Relations Board et al.
   Ct. App. Cal., 1st App. Dist. [Probable jurisdiction noted, ante, p. 1004.] Motion of appellant to dispense with printing the joint appendix granted.


text:
    No. 86-1415.
    Marino et al. v. Ortiz et al.; and Costello et al. v. New York City Police Department et al.
   C. A. 2d Cir. [Certiorari granted, 481 U. S. 1047 and 482 U. S. 912.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Motion of Dov Hikind et al. for leave to file a brief as amici curiae granted.


text:
    No. 86-1141.
    Vakalis v. Kagan et al.,
   ante, p. 1020. Petition for rehearing denied.


text:
    No. 86-1599.
    No. 86-1727.
    No. 86-1742.
    No. 86-1759.
    No. 86-1808.
    No. 86-6221.
    No. 86-6506.
    No. 86-6645.
    No. 86-6654.
    No. 86-6685.
    No. 86-6767.
    No. 86-6802.
    No. 86-6821.
    No. 86-6844.
    No. 86-6872.
    No. 86-6876.
    No. 86-6883.
    No. 86-6927.
    Sanchez v. Illinois, Connor v. Sachs et al., Marmott et al. v. Maryland Lumber Co. et al., Wood et al. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 406, et al., Costigan v. Pennsylvania, Jones v. First American Title Insurance Co. et al., Smith v. Oklahoma, Sawyer v. Illinois, Guest v. Illinois, Glenn v. Ohio, In re Caldwell, Linder v. Linder, Jroe v. Carhart et al., Foreman v. Merit Systems Protection Board, Foreman v. National Treasury Employees Union et al., Harrison v. Lynaugh, Director, Texas Department of Corrections, Martin v. Seiter, Aaron v. Alabama,
   ante, p. 1010; ante, p. 1001; 482 U. S. 929; ante, p. 1006; ante, p. 1022; ante, p. 1023; ante, p. 1033; 482 U. S. 930; ante, p. 1010; 482 U. S. 931; ante, p. 1004; ante, p. 1008; ante, p. 1011; ante, p. 1001; ante, p. 1024; ante, p. 1025; ante, p. 1025; and ante, p. 1025. Petitions for rehearing denied.


text:
    No. 85-5348.
    Buchanan v. Kentucky,
   ante, p. 402. Petition for rehearing or modification of opinion denied.


text:
    No. 86-6758.
    No. 86-6816.
    Hatton v. Minnesota, Moore v. American Savings & Loan Assn. et al.,
   482 U. S. 911; and ante, p. 1001. Motions for leave to file petitions for rehearing denied.


text:
    August 27, 1987
    No. 86-7154.
    White v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.

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 sentence in this case.


author: Justice Brennan,

text:
    No. 87-5362 (A-172).
    White v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Certiorari denied.

Justice Brennan,

with whom

Justice Marshall joins, dissenting.

The State of Florida will execute Beauford White tomorrow morning without so much as a determination by its own courts that his death sentence is currently legal. I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U. S. 153, 227 (1976) (dissenting opinion). But even were I not of that view, I would dissent from this Court’s tacit approval of a death sentence whose factual predicate the executing State has not reviewed for consistency with intervening Supreme Court precedent. I would vote to stay White’s execution, grant his petition for writ of certiorari, and reverse the judgments below denying habeas relief.

I

As summarized by the Florida Supreme Court, the relevant facts of this case are as follows: White and two companions entered a home under a subterfuge to rob its occupants. All three were armed and wore masks covering their faces from the nose down. After blindfolding and binding the sole occupant, the three robbers ransacked the house in search of valuables. Within an hour, seven acquaintances of the occupant appeared at the house. The three robbers bound the newcomers. At some point, the mask of one of White’s companions fell off, exposing his face to the victims. Consequently, the three discussed the need to kill the victims. White voiced his opposition, but to no avail; his companions overrode him. White’s two companions separated the victims into two rooms and systematically shot all eight in the back of the head, killing six. White remained in the house throughout, but did not participate in the shootings. The three co-felons then returned to White’s motel room to divide their loot. A fourth participant, a wheelman who never entered the home, testified that he and White were both duped into what he later discovered was a planned contract murder of one or two of the victims. He also testified that White was visibly shaken afterwards and refused to help dispose of the weapons.

A Florida jury convicted White of six counts of first-degree murder, two counts of attempted first-degree murder, and four counts of robbery, and unanimously recommended a life sentence. The trial judge, disregarding the jury’s unanimous recommendation, imposed a death sentence. After this Court’s decision in Enmund v. Florida, 458 U. S. 782 (1982), the Florida courts entertained a petition for postconviction relief to determine whether White’s conduct exhibited the requisite intent to sustain a death sentence under that intervening case. The Florida Supreme Court reversed a lower court finding that Emnund was not satisfied. The court held that White had the requisite intent (within the meaning of Emnund) because, “whatever [White] might have originally intended or contemplated about lethal force being used in the robbery, it can hardly be said that he did not realize that lethal force was going to be used in carrying out the robbery.” State v. White, 470 So. 2d 1377, 1380 (Fla. 1985).

Since then, White has twice sought postconviction relief from the Florida courts. He has argued, among other things, that he is entitled to a new determination as to whether his conduct was sufficiently culpable to satisfy the new culpability standard that this Court articulated in Tison v. Arizona, 481 U. S. 137 (1987). On each occasion, the state courts barred his application as untimely. White then filed a habeas petition in the United States District Court for the Southern District of Florida. The District Court denied relief, and the Court of Appeals for the Eleventh Circuit affirmed. 828 F. 2d 10 (1987). This evening, less than 11 hours before his death, White filed the instant petition for a writ of certiorari and application for a stay of execution.

II

While the Florida Supreme Court purported to have found White’s conduct sufficiently culpable to satisfy the Emnund test, it has to date never reconsidered that determination in light of this Court’s rereading of Enmund in Tison. After briefly summarizing how Tison modified the Enmund inquiry, I will explain why, in my view, the modified analysis demands that we vacate White’s death sentence, just as we did in Tison, until such time as the Florida courts have established the factual predicate that a majority of this Court has deemed a constitutional prerequisite to the imposition of a death penalty.

In Enmund, supra, at 798, this Court declared that a State may not constitutionally execute a defendant who “did not kill or attempt to kill” and who had no “intention of participating in or facilitating a murder.” This Term a majority of this Court departed from that holding when it held in Tison that a death penalty could constitutionally be imposed for felony murder. The Tison Court assumed for the sake of argument that the Tison brothers “did not ‘intend to kill’” in the traditional sense: “Traditionally, ‘one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts.’” 481 U. S., at 150. (quoting W. LaFave & A. Scott, Criminal Law § 28, p. 196 (1972)). Accordingly the Court rejected the creative attempt of the Arizona Supreme Court (and others) to expand the traditional definition of intent to encompass foreseeable consequences. But the Court held that, Enmund notwithstanding, a defendant who did not intend to kill (in that traditional sense) could constitutionally be sentenced to death for “major participation in [a] felony” coupled with “reckless indifference to human life.” 481 U. S., at 158 (footnote omitted).

The correctness of the Tison overlay on Enmund is not at issue here. More relevant to the issue of the proper disposition of this case, is the Tison Court’s disposition of the case before it. Having assumed that the Tison brothers lacked traditional intent, the Court vacated the sentence and remanded for a determination whether the Tison brothers’ participation amounted to “reckless indifference.” 481 U. S., at 158. In so doing, it minced no words about its view of the matter: “[T]he record,” the Court observed, “would support a finding of the culpable mental state of reckless indifference to human life.” Id., at 151; see also ibid. (“These facts . . . would clearly support a finding that. . . both [defendants] subjectively appreciated that their acts were likely to result in the taking of innocent life”). Despite its clear leaning, the Court declined to enter the requisite Tison findings itself. Nor did it attempt to divine from what the Arizona courts had said in applying Enmund, what they would say in applying the new Tison overlay.

The Court’s citation to Cabana v. Bullock, 474 U. S. 376 (1986), suggests that it considered such psychoanalysis improper. Under Cabana, “it is [the State] . . . not the federal . . . court, which should first provide [the defendant] with that which he has not yet had and to which he is constitutionally entitled — a reliable determination as to whether he is subject to the death penalty,” under whatever standards this Court may most recently have articulated. Id., at 391. As there explained, the right arises not only because justice demands that the same judicial system that sentences a defendant to death find the requisite factual predicate for the sentence, but also because “[considerations of federalism and comity counsel respect for the ability of state courts to carry out their role as the primary protectors of the rights of criminal defendants . . ..” Ibid, (citation omitted).

I see no reason not to extend to White the same constitutional entitlement that we extended to the Tison brothers. Nor does the Florida Supreme Court in this case deserve any less respect than we afforded the Arizona Supreme Court in Tison. The state court here no more addressed the Tison overlay than did the Tison state court. Obviously, it could not have, since at the time of the Florida Supreme Court's last decision on the merits, Tison had not yet been decided. See 474 U. S., at 389 (“[T]he [State] Supreme Court obviously was not addressing the specific requirements set forth in Enmund, for that case had not yet been decided”).

The only conceivable difference then between this case and Tison is that here, unlike in Tison, this Court assumes (as did the courts below) that the State Supreme Court’s pre-Tison analysis encompassed some finding that the petitioner intended, in (what Tison deems) the traditional sense, that his actions would kill the victims. I am willing to make no such assumption, however, when a man’s life is at stake. To be sure, the State Supreme Court observed that there came a point (once White’s two accomplices overruled his objections to murder) at which “it can hardly be said that he did not realize that lethal force was going to be used in carrying out the robbery.” State v. White, 470 So. 2d, at 1380. It then reiterated its finding that White “stood-by while the victims were shot one by one.” Ibid, (citation and internal quotes omitted). But inaction in the face of an expected murder is a far cry from the traditional definition of intent to kill. The Florida Supreme Court never found that White did anything (after coming to the rude “realization]” that his co-felons were about to commit murder) to further the murders. Nor did it find that he could have done anything to prevent the murders, short of killing his accomplices or otherwise risking his own life. There is not even any state finding that White had either the time or the freedom to dissociate himself from the sordid affair in the brief interval between the realization and the murders.

Since the death sentence cannot stand without the requisite findings by a state court and the state court’s findings are inadequate, I would reverse the judgment of the Court of Appeals. “[T]he District Court should be directed to issue the writ of habeas corpus vacating [White’s] death sentence but leaving to the State of [Florida] the choice of either imposing a sentence of life imprisonment or, within a reasonable time, obtaining a determination from its own courts of the factual question” that it never clearly decided— whether White either intended to kill the victims in the traditional sense, or acted with reckless indifference to human life. Cabana, supra, at 392.

Ill

This Court’s refusal to stay White’s execution is inexcusable for yet another reason. It permits the State to put him to death based, in part, on two aggravating circumstances whose application to this case is constitutionally suspect, at best. The trial judge found that the murders committed by White’s companions were “especially heinous, atrocious or cruel” and “were committed in an effort to avoid arrest by eliminating witnesses to the crime.” White v. State, 403 So. 2d 331, 338 (Fla. 1981). In Tison we left open the issue whether a court may constitutionally attribute to a defendant as an aggravating factor the manner in which other individuals carried out the killings. See 481 U. S., at 146, n. 2; id., at 160, n. 3 (Brennan, J., dissenting). Nor has this Court ever addressed the related question whether the purposes for which other individuals committed a crime can be constitutionally attributed to a defendant as an aggravating circumstance. Such vicarious attribution “would seem to violate the core Eighth Amendment requirement that capital punishment be based upon an ‘individualized consideration’ of the defendant’s culpability,” ibid, (quoting Lockett v. Ohio, 438 U. S. 586, 605 (1978)).


text:
    No. 87-5363 (A-174).
    Selby, aka Pierre v. Cook, Warden, et al.
   C. A. 10th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.

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 the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    September 1, 1987
    No. 86-2045.
    Kiwanis Club of Ridgewood, Inc., et al. v. Kiwanis International.
   C. A. 3d Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 87-5382 (A-180).
    Mitchell v. Kemp, Superintendent, Georgia Diagnostic and Classification Center, et al.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Certiorari denied.

Justice Marshall,

with whom

Justice Brennan and Justice Blackmun join, dissenting.

Two months ago, we dissented from the Court’s decision to deny Billy Mitchell’s petition for a writ of certiorari to review his first federal habeas proceeding. Mitchell v. Kemp, ante, p. 1026. We stated then that the failure of Mitchell’s attorney to investigate Mitchell’s background and character or the circumstances of his crime, and the consequent failure to present any mitigating evidence at the sentencing proceeding, constituted a violation of Mitchell’s Sixth Amendment rights. Mitchell’s current petition for a writ of certiorari, which reveals yet further instances of his attorney’s dereliction and incompetence, only confirms our prior view. We again call upon the Court to give life and meaning to the Sixth Amendment’s promise of effective assistance of counsel, and we again dissent.


text:
    September 4, 1987
    No. A-44 (86-6942).
    GOREE v. CUNNINGHAM.
   C. A. 6th Cir. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-111 (86-2023).
    Shepard v. United States.
   C. A. 11th Cir. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-121.
    Rosenthal v. State Bar of California.
   Sup. Ct. Cal. Application for stay and other relief, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. A-122.
    Rosenthal v. United States District Court for the Northern District of California et al.
   C. A. 9th Cir. Application for stay and other relief, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. D-605.
    In re Disbarment of Clarke.
   Disbarment entered. [For earlier order herein, see 479 U. S. 1078.]


text:
    No. D-630.
    In re Disbarment of Allen.
   Disbarment entered. [For earlier order herein, see 481 U. S. 1027.]


text:
    No. D-635.
    In re Disbarment of Fleischer.
   Disbarment entered. [For earlier, order herein, see 482 U. S. 903.]


text:
    No. D-636.
    In re Disbarment of Brown.
   Disbarment entered. [For earlier order herein, see 482 U. S. 903.]


text:
    No. D-641.
    In re Disbarment of Wechsler.
   Disbarment entered. [For earlier order herein, see 482 U. S. 911.]


text:
    No. D-643.
    In re Disbarment of Rosenbleet.
   Disbarment entered. [For earlier order herein, see ante, p. 1002.]


text:
    No. D-650.
    In re Disbarment of Slotkin.
   It is ordered that Paul Simon Slotkin, of Cherry Hill, N. J., 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-651.
    In re Disbarment of Rigolosi.
   It is ordered that Vincent Paul Rigolosi, of Hackensack, N. J., 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-652.
    In re Disbarment of Conway.
   It is ordered that Donald R. Conway, of Hackensack, N. J., 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-653.
    In re Disbarment of Vaughn.
   It is ordered that Paul A. Vaughn, of Danville, Ind., 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-654.
    In re Disbarment of Miller.
   It is ordered that Donald Joseph Miller, of San Mateo, Cal., 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:
    September 8, 1987
    No. 86-2007.
    Spencer Gifts, Inc. v. Chipollini.
   C. A. 3d Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    September 9, 1987
    No. 86-1878.
    Tennessee Valley Authority et al. v. Alco Standard Corp.
   C. A. Fed. Cir. Certiorari dismissed under

this Court’s Rule 53.


text:
    No. A-209.
    Starvaggi v. Lynaugh, Director, Texas Department of Corrections.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

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 the application for stay of execution in order to give the applicant time to file a petition for writ of certiorari and would grant the petition and vacate the death sentence in this case.


text:
    September 21, 1987
    No. A-26 (87-5204).
    Williams v. Oklahoma.
   Ct. Crim. App. Okla. Application for stay and other relief, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. A-177.
    Morgan v. Foretich.
   Super. Ct. D. C. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-646.
    In re Disbarment of Madsen.
   Disbarment entered. [For earlier order herein, see ante, p. 1017.]


text:
    No. 86-495. No. 86-624. No. 86-625.
    K mart Corp. v. Cartier, Inc., et al.; 47th Street Photo, Inc. v. Coalition to Preserve the Integrity of American Trademarks et al.; and United States et al. v. Coalition to Preserve the Integrity of American Trademarks et al.
   C. A. D. C. Cir. [Certiorari granted, 479 U. S. 1005.] Motion of Yamaha International Corp. 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. 86-684.
    California v. Greenwood et al.
   Ct. App. Cal., 4th App. Dist. [Certiorari granted, ante, p. 1019.] Motion of Americans for Effective Law Enforcement, Inc., et al. for leave to file a brief as amici curiae granted.


text:
    No. 86-803.
    Boos et al. v. Barry, Mayor of the District of Columbia, et al.
   C. A. D. C. Cir. [Certiorari granted, 479 U. S. 1083.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 86-805.
    Pinter et al. v. Dahl et al.
   C. A. 5th Cir. [Certiorari granted, 481 U. S. 1012.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 86-946. No. 86-947.
    Employment Division, Department of Human Resources of the State of Oregon, et al. v. Smith; and Employment Division, Department of Human Resources of the State of Oregon, et al. v. Black.
   Sup. Ct. Ore. [Certiorari granted, 480 U. S. 916.] Motion of American Civil Liberties Union Foundation et al. for leave to participate in oral argument as amici curiae and for divided argument denied.


text:
    No. 86-1387.
    Mackey et al. v. Lanier Collection Agency & Service, Inc.
   Sup. Ct. Ga. [Certiorari granted, ante, p. 1004.] Motion of National Conference of State Legislatures et al. for leave to file a brief as amici curiae granted.


text:
    No. 86-1415.
    Marino et al. v. Ortiz et al.; and Costello et al v. New York City Police Department et al.
   C. A. 2d Cir. [Certiorari granted, 481 U. S. 1047 and 482 U. S. 912.] Motions of Lawyers’ Committee for Civil Rights Under Law, Equal Employment Advisory Council, and National League of Cities et al. for leave to file briefs as amici curiae granted.


text:
    No. 86-1419.
    Oregon Department of Human Resources et al. v. Coos Bay Care Center et al.
   C. A. 9th Cir. [Certiorari granted, 481 U. S. 1036.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 86-1430.
    Peralta v. Heights Medical Center, Inc., dba Heights Hospital, et al.
   Ct. App. Tex., 1st Dist. [Probable jurisdiction noted, 481 U. S. 1067.] Motion of appellant to dispense with printing the joint appendix granted.


text:
    No. 86-1461.
    Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council et al.
   C. A. 11th Cir. [Certiorari granted, 482 U. S. 913.] Motion of the Solicitor General for divided argument granted to be divided as follows: 20 minutes for petitioner and 10 minutes for the Solicitor General.


text:
    No. 86-1650.
    Trans World Airlines, Inc. v. Independent Federation of Flight Attendants.
   C. A. 8th Cir. [Certiorari granted, 482 U. S. 913.] Motions of Crossover Flight Attendants and Some Working TWA Flight Attendants for leave to file briefs as amici curiae granted.


text:
    No. 86-6284.
    Satterwhite v. Texas.
   Ct. Crim. App. Tex. [Certiorari granted, 482 U. S. 905.] Motion of petitioner for divided argument to permit amicus curiae NAACP Legal Defense and Educational Fund, Inc., to present oral argument denied. Motion of Coalition for the Fundamental Rights and Equality of Ex-Patients for leave to file a brief as amicus curiae out of time denied.


text:
    No. 86-6867.
    Lowenfield v. Phelps, Secretary, Louisiana Department of Corrections, et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 1005.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument denied.


text:
    No. 87-5491 (A-234).
    McCorquodale v. Kemp, Warden.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice O’Connor, and by her referred to the Court, denied. Certiorari denied.

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 the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    No. 87-5516 (A-244).
    McCorquodale v. Kemp, Warden.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice O’Connor, and by her referred to the Court, denied. Certiorari denied.

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 the application for stay of execution and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    No. 85-1581.
    No. 85-1835.
    No. 85-2064.
    No. 85-2068.
    No. 86-44.
    No. 86-1079.
    No. 86-1631.
    No. 86-1948.
    No. 86-5020.
    No. 86-5375.
    No. 86-5391.
    Solorio v. United States, California v. Rooney, Greer, Warden v. Miller, Rankin et al. v. McPherson, Shearson/American Express Inc. et al. v. McMahon et al., Koczak et al. v. Dixon et al., Margoles v. Johns et al., Anderson v. Oregon State Bar et al., Booth v. Maryland, Burger v. Kemp, Warden, Williams v. Louisiana,
   ante, p. 435; ante, p. 307; ante, p. 756; ante, p. 378; 482 U. S. 220; 479 U. S. 1073; 482 U. S. 905; ante, p. 1013; 482 U. S. 496; ante, p. 776; and ante, p. 1033. Petitions for rehearing denied.


text:
    No. 86-1801.
    Huntzinger v. United States,
   ante, p. 1022. Motion for leave to file petition for rehearing denied.


text:
    September 30, 1987
    No. A-251 (87-5546).
    Franklin v. Lynaugh, Director, Texas Department of Corrections.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, is granted pending the disposition by this Court of the petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.


text:
    October 2, 1987
    No. 87-276.
    Association for Retarded Citizens of Texas v. Kavanagh et al.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 86-1827.
    Guild et al. v. Brock, Secretary of Labor.
   C. A. 11th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    DEAVER v. UNITED STATES
    No. A-10.
    Decided July 1, 1987
   Chief Justice Rehnquist, Circuit Justice.

Applicant requests that I stay his imminent criminal trial pending this Court’s disposition of his petition for certiorari. In certain cases, the Ethics in Government Act, 28 U. S. C. §§ 49, 591-598 (1982 ed. and Supp. III), provides for appointment of an independent counsel to investigate alleged impropriety of Government officials. After an investigation by an independent counsel, applicant was indicted for perjury, and is set to be tried on July 13, 1987. In a motion to dismiss, applicant challenged the constitutionality of the Act, claiming that appointment of an independent counsel violates the separation of powers. The District Court denied the motion. Applicant appealed, and the Court of Appeals for the District of Columbia Circuit dismissed the appeal because the District Court’s order is not a final decision. See 28 U. S. C. § 1291. Applicant has filed a petition for certiorari seeking review of that judgment, and asks that I stay the proceedings below pending disposition of that petition.

The standards for granting a stay pending disposition of a petition for certiorari are well settled. A Circuit Justice is required “ ‘to determine whether four Justices would vote to grant certiorari, to balance the so-called “stay equities,” and to give some consideration as to predicting the final outcome of the case in this Court. ’ ” Heckler v. Redbud Hospital District, 473 U. S. 1308, 1311-1312 (1985) (Rehnquist, J., in chambers), quoting Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980).

In my view, there is not a fair prospect that a majority of this Court would find the decision below erroneous. “Congress has limited the jurisdiction of the Courts of Appeals to ‘final-decisions of the district courts.’ 28 U. S. C. § 1291. This Court has long held that the policy of Congress embodied in this statute is inimical to piecemeal appellate review of trial court decisions which do not terminate the litigation, and that this policy is at its strongest in the field of criminal law.” United States v. Hollywood Motor Car Co., 458 U. S. 263, 264-265 (1982). It is clear that the District Court’s denial of applicant’s motion to dismiss did not terminate the litigation. Although applicant claims that his challenge to the constitutionality of the Act is sufficiently collateral to fall within the limited exception enumerated in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), I do not think the exception covers this case. “[I]f [applicant’s] principle were to be applied, questions as to the constitutionality of the statutes authorizing the prosecution and doubtless numerous other questions would fall under such a definition, and the policy against piecemeal appeals in criminal cases would be swallowed by ever-multiplying exceptions.” Hol lywood Motor Car, supra, at 270. There will be time enough for applicant to present his constitutional claim to the appellate courts if and when he is convicted of the charges against him.

Accordingly, the application for a stay and recall of the-mandate of the Court of Appeals is

Denied.


text:
    BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. KENDRICK et al.
    No. A-99.
    Decided August 10, 1987
   Chief Justice Rehnquist, Circuit Justice.

The applicant requests that I stay an order of the United States District Court for the District of Columbia enjoining the enforcement of parts of the Adolescent Family Life Act, 42 U. S. C. § 300z et seq. (1982 ed. and Supp. III). It has been the unvarying practice of this Court so long as I have been a Member of it to note probable jurisdiction and decide on the merits all cases in which a single district judge declares an Act of Congress unconstitutional. In virtually all of these cases the Court has also granted a stay if requested to do so by the Government. “The presumption of constitutionality which attaches to every Act of Congress is not merely a factor to be considered in evaluating success on the merits, but an equity to be considered in favor of applicants in balancing hardships.” Walters v. National Association of Radiation Survivors, 468 U. S. 1323, 1324 (1984) (Rehnquist, J., in chambers). “Given the presumption of constitutionality granted to all Acts of Congress,” it is both likely that the Court will note probable jurisdiction here and appropriate that the statute remain in effect pending such review. Schweiker v. McClure, 452 U. S. 1301, 1303 (1981) (Rehnquist, J., in chambers).

Respondents contend that the merits of the case are controlled by the Court’s recent decisions in Wallace v. Jaffree, 472 U. S. 38 (1985), Aguilar v. Felton, 473 U. S. 402 (1985), and Grand Rapids School District v. Ball, 473 U. S. 373 (1985). The District Court agreed with respondents, but the applicant contends that the merits are instead controlled by cases such as Roemer v. Maryland Public Works Board, 426 U. S. 736 (1976), Hunt v. McNair, 413 U. S. 734 (1973), and Tilton v. Richardson, 403 U. S. 672 (1971). The issue seems to me fairly debatable, and I believe that there is a “fair prospect” that the Court will ultimately reverse the judgment below. See Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers).

The application for a stay pending timely docketing of the applicant’s appeal and this Court’s ultimate disposition of the case is granted.


author: Justice Blackmun, Circuit Justice.

text:
    AMERICAN TRUCKING ASSOCIATIONS, INC., et al. v. GRAY, DIRECTOR, ARKANSAS HIGHWAY AND TRANSPORTATION DEPARTMENT, et al.
    No. A-100.
    Decided August 14, 1987
   Justice Blackmun, Circuit Justice.

This is an application for an injunction that would require Arkansas state officials to establish an escrow fund in which payments of the Arkansas Highway Use Equalization (HUE) Tax, see Ark. Stat. Ann. §§ 75-817.2 and .3 (Supp. 1985), shall be placed, pending further proceedings challenging the constitutionality of that tax in Arkansas courts. The applicants, American Trucking Associations, Inc., et al. (ATA), brought suit in 1983 to challenge the HUE tax under the Commerce Clause, Art. I, § 8, cl. 3, of the Federal Constitution. The Chancery Court of Pulaski County sustained the constitutionality of the tax, and a divided Arkansas Supreme Court affirmed. American Trucking Assns., Inc. v. Gray, 288 Ark. 488, 707 S. W. 2d 759 (1986). ATA appealed to this Court under 28 U. S. C. § 1257(2). We held the case pending our decision in No. 86-357, American Trucking Assns., Inc. v. Scheiner, which involved a similar constitutional challenge to two flat highway use taxes enacted by the Commonwealth of Pennsylvania. On June 23, 1987, this Court ruled in the Pennsylvania case that the Commonwealth’s highway taxes violated the Commerce Clause because “the taxes are plainly discriminatory” in that they impose a heavier burden on out-of-state businesses that compete in an interstate market than they impose on local businesses that engage in similar commerce. Ante, at 285-286. The Court explained further that the Pennsylvania taxes failed the “internal consistency” test because “[i]f each State imposed flat taxes for the privilege of making commercial entrances into its territory, there is no conceivable doubt that commerce among the States would be deterred.” Ante, at 284. We then vacated the judgment of the Arkansas Supreme Court and remanded the present case for further consideration in light of Scheiner. Ante, p. 1014. On July 16, 1987, pursuant to this Court’s Rule 52.2, I granted ATA’s motion for immediate issuance of the mandate.

Upon remand, ATA moved for further remand to the Chancery Court so that it could petition for a preliminary injunction either to enjoin enforcement of the HUE tax or to order an escrow of the funds collected. The Arkansas Supreme Court denied the motion. It also denied ATA’s application for temporary relief, in the form of an escrow, pending decision in this case. That court is now in summer recess and consequently will not consider the merits of ATA’s challenge until this fall, at the earliest. Applicants have requested that I order an escrow of the tax revenues pending final disposition of the case on the merits.

Several factors control a single Justice’s consideration of an application for writ of injunction pursuant to this Court’s Rule 44. If there is a “significant possibility” that the Court would note probable jurisdiction of an appeal of the underlying suit and reverse, and if there is a likelihood that irreparable injury will result if relief is not granted, the Justice may issue an injunction. See Nebraska Press Assn. v. Stuart, 423 U. S. 1327, 1330 (1975) (Blackmun, J., in chambers). See also, e. g., Ledbetter v. Baldwin, 479 U. S. 1309, 1310 (1986) (Powell, J., in chambers); Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers). Applying these principles to the facts before me, I grant the application.

After considering the submissions of applicants and respondents, I have concluded that ATA is likely to succeed on the merits of its challenge to the Arkansas HUE tax. The effect of the HUE tax is substantially similar to that of the Pennsylvania unapportioned flat taxes invalidated in Scheiner. For most motor carriers, the HUE tax is a flat amount that is not assessed in proportion to the taxpayer’s presence in the State. According to the statistics presented to the Arkansas courts, in its practical operation the tax discriminates against interstate motor carriers whose trucks are registered outside Arkansas. On average, trucks registered outside Arkansas pay a per-mile HUE tax that is more than three times greater than the per-mile tax paid by trucks registered in Arkansas. Respondents argue that the validity of this statistical evidence has not been established. But given the structure of the tax, which benefits trucks that travel extensively within the State, it appears probable that any further analysis would confirm the discriminatory impact. Moreover, the tax exposes trucks that engage in extensive interstate operations to a cumulative tax burden that is not shared by trucks that operate in only one or a few States. The tax thus works to deter interstate commerce. I therefore find that there is a significant possibility that the Arkansas courts will declare the HUE tax unconstitutional under the “internal consistency” test pronounced by this Court in Scheiner. If they fail to do so, I believe that there is a significant possibility that four Justices will consider the issue sufficiently meritorious to note probable jurisdiction and that this Court will reverse the decision.

I have also concluded that the applicants risk irreparable injury absent injunctive relief. Arkansas officials have expressed their intention to continue collecting the HUE taxes during the pendency of the case and have refused to accept payment of the taxes “under protest.” Motor carriers operating interstate must pay the annual HUE tax by August 31. If motor carriers refuse to pay the tax pending a determination of its constitutionality, they will be barred from the State’s highways and will suffer substantial economic losses. On the other hand, if motor carriers pay the tax, there is a substantial risk that they will not be able to obtain a refund if the tax ultimately is declared unconstitutional. Applicants assert, by way of affidavit, that the Arkansas Highway Department has informed them that, should the tax be invalidated, the State will assert immunity from any subsequent refund order. Respondents have not denied that they will adopt this stance. There is a risk that, like other state courts, the Arkansas courts would deny restitution of taxes found to have been unconstitutionally collected. See, e. g., Private Truck Council of America, Inc. v. New Hampshire, 128 N. H. 466, 473-477, 517 A. 2d 1150, 1155-1157 (1986); American Trucking Assns., Inc. v. Conway, 146 Vt. 579, 586-588, 508 A. 2d 408, 413-414 (1986), cert. denied, ante, p. 1019. Such a denial would constitute irreparable injury.

For their part, respondents will not be irreparably injured by the issuance of the injunction. Respondents have not argued that the temporary loss of revenues, while the funds are held in escrow, will adversely affect the State’s operations. Rather, they contend that the State will be harmed if the funds are returned to the motor carriers, because the HUE tax is intended to defray the cost of wear on Arkansas’ highways attributable to the heavy trucks subject to the tax. But the requested injunction would not direct a refund. If the funds are escrowed and the HUE tax is invalidated, the issue of the appropriate remedy will be a separate matter for the Arkansas courts to determine. On balance, therefore, I conclude that the equities favor issuance of the injunction. Accordingly, I have today entered an order enjoining respondents to escrow the HUE taxes to be collected, until a final decision on the merits in this case is reached.


author: Per Curiam.

text:
    REAGAN, PRESIDENT OF THE UNITED STATES, et al. v. ABOUREZK et al.
    No. 86-656.
    Argued October 5, 1987
    Decided October 19, 1987

      Deputy Solicitor General Wallace argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Roger Clegg, Michael Jay Singer, and Abraham D. Sofaer.

      Steven R. Shapiro argued the cause for respondents. With him on the brief were Arthur N. Eisenberg, John A. Powell, Charles S. Sims, Peter L. Zimroth, Michael D. Young, and Leonard Boudin

        Daniel J. Popeo and Paul D. Kamenar filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Bar Association by Eugene C. Thomas, William A. Bradford, Jr., and David W. Burgett; for the Committee on Immigration and Nationality Law of the New York City Bar Association et al. by Robert M. Kaufman, Carl R. Baldwin, and Steven M. Freeman; for the International Human Rights Law Group by Eli Whitney Debevoise II and Kimberly Till;
        and for the Lawyers Committee for Human Rights et al. by Arthur C. Helton.

        Ann H. Franke and Jacqueline W. Mintz filed a brief for the American Association of University Professors et al. as amici curiae.

   Per Curiam.

The judgment below is affirmed by an equally divided Court.

Justice Blackmun took no part in the decision of this case. Justice Scalia took no part in the consideration or decision of this case.


author: Per Curiam. Justice Marshall,

text:
    COMMISSIONER OF INTERNAL REVENUE v. McCOY, EXECUTOR OF THE ESTATE OF McCOY
    No. 87-75.
    Decided October 19, 1987
   Per Curiam.

In this case, we are asked to determine whether the United States Court of Appeals exceeded its jurisdictional authority when, after affirming a decision of the United States Tax Court, it granted the taxpayer-estate’s request to forgive interest on the determined deficiency in estate tax and also to forgive a statutorily imposed late-payment penalty. We are constrained to hold that the Court of Appeals did exceed its authority.

I

Arthur H. McCoy died testate on April 23, 1980. His son, Robert McCoy, the respondent here, was appointed executor of his will. At his death, the decedent was the owner of an undivided interest in a family farm in Clinton County, Ohio. The then fair market value of that interest was $235,140. Under §2032A of the Internal Revenue Code of 1954, as amended, 26 U. S. C. § 2032A (1982 ed. and Supp. Ill), however, an estate may elect a special method for valuing certain real property for federal estate tax purposes. This alternative usually is elected if it produces a lower valuation and a lower tax. At the time relevant for the McCoy estate, the election was available only if the land in question was “qualified real property,” see § 2032A(b)(l), and only if the election was made “not later than the time prescribed by section 6075(a) for filing the [estate tax] return . . . (including extensions thereof) . . . .” 26 U. S. C. §2032A(d)(l) (1976 ed.). Since § 6075(a) provided that the return was to be filed within nine months of the decedent’s death, and since no extension of time was obtained, respondent was required to make any election under §2032A not later than January 23, 1981.

Respondent, however, did not file the return for the decedent’s estate until February 11. In the return, the election as to the interest in the farm — which, it is conceded, would have been “qualified real property” — was asserted. The Commissioner of Internal Revenue, however, took the position that the election was untimely under §§2032A and 6075(a), and that the farm interest therefore was to be valued at the date-of-death figure of $235,140, rather than at the special-use figure of $103,304.70 claimed in the return as filed. The lower value would have produced no tax. The Commissioner, using the higher value, determined a deficiency in estate tax of $22,159.72.

Respondent sought redetermination of the asserted deficiency in the United States Tax Court. He contended that the time for making the election under § 2032A had been extended retroactively by amendments to the statute effected by the Economic Recovery Tax Act of 1981, Pub. L. 97-34, § 421(k)(5), 95 Stat. 314, note following 26 U. S. C. § 2032A.

The Tax Court rejected respondent’s contention and sustained the deficiency. Estate of McCoy, 50 TCM 1194 (1985), ¶ 85,509 P-H Memo TC. The Court of Appeals affirmed. 809 F. 2d 333 (CA6 1987). After the Tax Court’s decision, respondent did not file the appeal bond required by 26 U. S. C. § 7485, if assessment and collection of the deficiency were to be stayed. Despite the pendency of the appeal to the Sixth Circuit, the Commissioner therefore assessed the deficiency and issued a notice and demand for payment. When the deficiency was not paid within 10 days, an addition to tax accrued under 26 U. S. C. § 6651(a)(3). Shortly after the Court of Appeals issued its affirming opinion, respondent paid the tax but filed a petition with the Court of Appeals asking that that court “forgive” interest on the assessment and also the late-payment penalty. Respondent asserted that the case was one of first impression and that the estate would otherwise be the victim of an obscure after-the-fact statutory amendment. Respondent also claimed that he had litigated in good faith the validity of his § 2032A election.

The Court of Appeals on March 2, 1987, entered an order granting the relief requested by respondent’s petition. App. to Pet. for Cert. la. It noted that “the interest and penalties now exceed the assessed tax,” and it concluded that the interest and penalties should be forgiven “in order to achieve a fair and just result.” Ibid. The Commissioner seeks a writ of certiorari.

II

Under 26 U. S. C. § 7482(a), the regional federal courts of appeals have jurisdiction to review decisions of the Tax Court “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” Section 7482(c)(1) provides that “such courts shall have power to affirm or, if the decision of the Tax Court is not in accordance with law, to modify or to reverse the decision of the Tax Court.” It follows that in reviewing a Tax Court decision, the duty of the court of appeals is to consider whether the Tax Court committed error. Plainly, the court of appeals lacks jurisdiction to decide an issue that was not the subject of the Tax Court proceeding or to grant relief that is beyond the powers of the Tax Court itself. Taylor v. Commissioner, 258 F. 2d 89, 91 (CA2 1958); Vandenberge v. Commissioner, 147 F. 2d 167, 168 (CA5), cert. denied, 325 U. S. 875 (1945). See Commissioner v. Gooch Milling & Elevator Co., 320 U. S. 418 (1943). But cf. Hormel v. Helvering, 312 U. S. 552 (1941); Singleton v. Wulff, 428 U. S. 106, 120-121 (1976).

The Court of Appeals in this case clearly exceeded its jurisdictional bounds. Its only jurisdiction, under § 7482(a), was “to review the decisio[n] of the Tax Court.” The latter court’s decision was that “there is a deficiency in the amount of $22,159.72 in [respondent’s] Federal estate tax.” App. to Pet. for Cert. 28a. The Court of Appeals ruled that that decision was correct. Its duty, then, was to affirm the decision. It was not empowered to proceed further to decide other questions relating to interest and penalty — questions that were not presented, and could not possibly have been presented, to the Tax Court — or to grant relief that the Tax Court itself had no jurisdiction to provide.

Interest on a tax deficiency is separately mandated by 26 U. S. C. § 6601(a). A penalty that accrues under § 6651(a)(3) is also separate and outside the scope of the petition to the Tax Court. The deficiency asserted here was not assessed, and could not have been assessed, until after the Tax Court had rendered its decision. See § 6213(a). The Tax Court is a court of limited jurisdiction and lacks general equitable powers. Commissioner v. Gooch Milling & Elevator Co., supra.

The estate, of course, was not without an opportunity to litigate the validity of the interest and the late-payment penalty. The proper procedure was for respondent to pay the interest and penalty and sue for their refund in an appropriate federal district court or in the Claims Court. The Sixth Circuit in the former case, and the Federal Circuit in the latter, then would have had jurisdiction to consider those issues on appeal.

We note in passing that the fact that the Court of Appeals’ order under challenge here is unpublished carries no weight in our decision to review the case. The Court of Appeals exceeded its jurisdiction regardless of nonpublication and regardless of any assumed lack of precedential effect of a ruling that is unpublished.

Certiorari is therefore granted and the order of March 2, 1987, is reversed.

It is so ordered.

Justice Marshall,

dissenting.

I continue to be troubled by this Court’s willingness to dispose of appeals and petitions for certiorari through summary per curiam opinions, without the benefit of briefing on the merits or review of the full record of proceedings below. I have elaborated this view before, see Montana v. Hall, 481 U. S. 400, 405, n. 1 (1987) (Marshall, J., dissenting), as have other Justices of this Court, see id., at 405, n. 2, but the admonition bears repeating.

My doubts about summary dispositions encompass concerns about both the parties who seek our review and the integrity, perceived and actual, of our proceedings. The Rules of this Court urge litigants filing petitions for certiorari to focus on the exceptional need for this Court’s review rather than on the merits of the underlying case. Summary disposition thus flies in the face of legitimate expectations of the parties seeking redress in this Court and deprives them of any opportunity to argue the merits of their claims before judgment. Moreover, briefing on the merits should be encouraged not only because parties expect and deserve it, but because it leads to greater accuracy in our decisions. Briefing helps this Court to reduce as much as possible the inevitable incidence of error and confusion in our opinions each Term. Finally, the practice of summary disposition demonstrates insufficient respect for lower court judges and for our own dissenting colleagues on this Court.

I adhere to the view that whenever the Court contemplates a summary disposition, it should review the full record below and invite the parties to file supplemental briefs on the merits if they wish. I remain unconvinced that this slight modification of our practice would unduly burden the Court. The benefits of increasing the fairness and accuracy of our decisionmaking and the value of according greater respect to our colleagues on this and other courts more than justify these modest accommodations.