text:
    No. 83-6369.
    Neal v. Alabama.
   Ct. Crim. App. Ala. Cer-tiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 83-6371.
    Moore v. Lynch et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 83-6380.
    Thompson v. Missouri et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-6395.
    Ward v. General Motors Corp.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-6400.
    Brothers v. Marshall, Superintendent, Southern Ohio Correctional Facility.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 83-6401.
    Ferrin v. Jones, Superintendent, Great Meadows Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-6411.
    Jones v. Young, Superintendent, Waupun Correctional Institution.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-6412.
    Acuff v. Dallas Legal Services Foundation, Inc., et al.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 83-6460.
    Hidalgo v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-6484.
    Braggs v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 83-6485.
    Acharya v. Young et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-6498.
    Flick v. United States.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 83-6505.
    Williams v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6507.
    Heimann v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-6511.
    Berrio-Cordoba et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-6520.
    Poston et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-6521.
    Sommer v. United States et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-6522.
    Twyman v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 83-6525.
    Hafen v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-6531.
    McDuff v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-122.
    Hydrokinetics, Inc. v. Alaska Mechanical, Inc.
   C. A. 5th Cir. Certiorari denied.

Justice Powell would grant certiorari.


text:
    No. 83-1093.
    Michigan v. Parker.
   Sup. Ct. Mich. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 83-1421.
    Wainwright, Secretary, Florida Department of Corrections v. Thompson.
   C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 83-1118.
    Rockefeller v. United States.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 83-1254.
    Velde et al. v. National Black Police Assn., Inc., et al.
   C. A. D. C. Cir. Certiorari denied.

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


text:
    No. 83-1488.
    Global Terminal & Container Services, Inc. v. Colgate Palmolive Co. et al.
   C. A. 2d Cir. Motion of New York Shipping Association, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 83-1551.
    Brown Bear, Inc., et al. v. Kentucky.
   Cir. Ct. Ky., Campbell County. Certiorari denied.

Justice Brennan and Justice Marshall would grant the petition for writ of certiorari and reverse the judgments of conviction.


author: Justice Brennan and Justice Marshall,

text:
    No. 83-6230.
    No. 83-6390.
    No. 83-6397.
    No. 83-6456.
    Harris v. Florida. Johnson v. Florida. Hyman v. South Carolina. Johnson v. Florida.
   Sup. Ct. Fla.;

Sup. Ct. Fla.;

Ct. Common Pleas, Charleston County, S. C.; and

Sup. Ct. Fla. Certiorari denied. Reported below: No. 83-6230, 438 So. 2d 787; No. 83-6390, 442 So. 2d 193; No. 83-6456, 442 So. 2d 185.

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. 83-1081.
    No. 83-6188.
    Finvold et al. v. Sambs et al., Vereen v. Newsome, Warden, et al.,
   465 U. S. 1056; and

465 U. S. 1107. Petitions for rehearing denied.


text:
    No. 83-921.
    Commonwealth National Bank v. Ashe et al.,
   465 U. S. 1024. Motion for leave to file petition for rehearing denied.


text:
    MAY 7, 1984
    No. 82-1770.
    National Enquirer, Inc. v. Superior Court of California, County of Los Angeles (Jones et al., Real Parties in Interest),
   462 U. S. 1144. Petition for rehearing dismissed under this Court’s Rule 53.


author: Justice Marshall,

text:
    May 9, 1984
    No. A-910.
    Wainwright, Secretary, Florida Department of Corrections v. Adams.
   Application of the State of Florida to vacate the order of the United States Court of Appeals for the Eleventh Circuit, dated May 8, 1984, 734 F. 2d 511, staying the execution of sentence of death in case No. 84-5322, presented to Justice Powell, and by him referred to the Court, granted.

Justice Blackmun and Justice Stevens would deny the application to vacate the stay.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Yesterday, May 8, 1984, a majority of a panel of the Court of Appeals for the Eleventh Circuit stayed the impending execution of James Adams. The Court of Appeals concluded that Adams’ petition for federal habeas corpus relief presents the same issues that are currently pending before the Court of Appeals in Spencer v. Zant, 715 F. 2d 1562, vacated for rehearing en banc, 715 F. 2d 1583 (1983), and McCleskey v. Zant, No. 84-8176 (to be argued in June 1984), and that “the en banc cases [now] pending in the Eleventh Circuit require a stay in this case.” 734 F. 2d 511, 513. Adams, like the petitioners in Spencer and McCleskey, maintains that the death penalty is administered on the basis of impermissible factors, including race and geography. The panel, after full briefing and oral argument, and with the benefit of a record and complete filing of appendices, was satisfied that Adams, an indigent Negro, had raised this issue in state and federal court, but has never been afforded an evidentiary hearing or appointment of experts. The Court of Appeals was also satisfied that evidence on which Adams relies in his second petition for habeas corpus only became available to him after his first federal habeas proceedings.

After having had less than a day to consider the judgment of the Court of Appeals, this Court now vacates that judgment, thereby opening the way to Adams’ execution. The haste and confusion surrounding this decision is degrading to our role as judges. We have simply not had sufficient time with which to consider responsibly the issues posed by this case. Indeed, the Court is in such a rush to put an end to this litigation that it has denied my motion to defer its action for 24 hours in order for me to write a more elaborate dissent than that which is now possible given the pressing time restraints within which I have been forced to work.

The Court’s jurisprudence is increasingly being marked by an indecent desire to rush to judgment in capital cases. See, e. g., Autry v. McKaskle, 465 U. S. 1085 (1984) (MARSHALL, J., dissenting) (criticizing the Court’s “unseemly desire to bring litigation in a capital case to a fast and irrevocable end”); Woodard v. Hutchins, 464 U. S. 377, 383 (1984) (Brennan, J., dissenting) (criticizing “rush to judgment” in decision to vacate stay of execution); ibid. (White and Stevens, JJ., dissenting); id., at 383-384 (Marshall, J., dissenting); Autry v. Estelle, 464 U. S. 1, 3 (1983) (Stevens, J., dissenting) (criticizing decision to deny stay of execution pending filing and disposition of petition for certiorari); Barefoot v. Estelle, 463 U. S. 880, 914-916 (1983) (MARSHALL, J., dissenting) (criticizing suggestion that courts of appeals may adopt special, summary procedures for cases in which a stay of a death sentence has been requested).

This case, however, is especially egregious. In lifting the stay imposed by the Court of Appeals, the Court has resorted to an exercise of power that is unusual and that should only be resorted to on the rare occasion in which a lower court has flagrantly abused its discretion. Repeatedly, the Justices of this Court have recognized that the power of a single Justice or of the Court as a whole to vacate a stay entered by a lower court should be reserved for exceptional circumstances. See, e. g., Kemp v. Smith, 463 U. S. 1344 (1983) (Powell, J., in chambers); O’Connor v. Board of Education, 449 U. S. 1301, 1304 (1980) (STEVENS, J., in chambers) (“A Court of Appeals’ decision to enter a stay is entitled to great deference”); Holtzman v. Schlesinger, 414 U. S. 1304, 1308 (1973) (Marshall, J., in chambers) (power to vacate stay issued by court of appeals should be exercised “with the greatest of caution”); R. Stern & E. Gressman, Supreme Court Practice 881-882 (5th ed. 1978) (“[T]he Court is not likely to overturn the order of the lower court except for gross abuse of discretion”). Here, however, caution has been thrown to the winds with an impetuousness and arrogance that is truly astonishing. What appears to have been forgotten here is that we are not dealing with mere legal semantics; we are dealing with a man’s life. Because the Court has utterly failed to attend to this case with the careful deliberation that it deserves and has thus committed an error with respect to process as well as result, I respectfully dissent.


text:
    May 14, 1984
    No. 83-1552.
    Bacon et al. v. Carlin, Governor of Kansas, et al.
   Affirmed on appeal from D. C. Kan.

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


text:
    No. 83-357.
    Cunningham v. Golden et al.
   Appeal from Ct. App. Tenn. dismissed for want of substantial federal question.

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


text:
    No. 83-1346.
    Baham et al. v. Edwards, Governor of Louisiana, et al.
   Appeal from D. C. M. D. La. dismissed for want of jurisdiction.


text:
    No. 83-1505.
    City of Los Angeles et al. v. County of Los Angeles et al.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-1518.
    Heilig et al. v. Miller.
   Appeal from Ct-App. Cal., 4th App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-1532.
    McFather et al. v. Cotton States Mutual Insurance Co.
   Appeal from Sup. Ct. Ga. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-1562.
    Burg v. Municipal Court for the Santa Clara Judicial District of Santa Clara County et al.
   Appeal from Sup. Ct. Cal. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-6417.
    Hall v. Taylor.
   Appeal from Sup. Ct. Cal. dismissed for want of substantial federal question.


author: Justice Stevens,

text:
    No.-.
    Professional Positioners, Inc., et al. v. T. P. Laboratories, Inc.
   Motion to direct the Clerk to file a petition for writ of certiorari with an appendix that does not comply with the Rules of this Court denied.

Justice O’Connor would grant the motion.

Justice Stevens,

with whom Justice Blackmun joins,

dissenting.

Rule 33.1(d) generally requires that documents filed with this Court be reproduced on paper 6% by 9% inches in size, with margins of SA inch, to be bound along the left margin “so as to make an easily opened volume, and no part of the text shall be obscured by the binding.” It provides, however, that “appendices in patent cases may be duplicated in such size as is necessary to utilize copies of patent documents.”

Certain patent documents in this case could not be reproduced on paper 6Vs by 9Vi inches in size without violating the other requirements of the Rule. Hence, it seems, at least, that petitioner Professional Positioners, Inc., may reproduce those documents on larger paper. Petitioner now moves that “it be permitted to file a single appendix containing both the patent in suit and the decisions of the two courts below rather than preparing separate appendices,” arguing that it would be “more convenient for the court to have a single appendix” and would be “unduly clumsy and expensive to prepare a separate appendix solely for the opinions below of a size different than the appendix containing the patent.”

No set of procedural rules can anticipate every problem that may arise in litigation. Courts must therefore retain the power to grant exceptions when a litigant’s request fully accommodates the court’s needs and when strict compliance would be wasteful. This movant’s request to submit a single appendix on the same size paper as the patent at issue is perfectly reasonable and should be granted.

Presumably the Court has denied the motion because it believes the value of the time saved by simply requiring literal compliance with all of its Rules in all cases will outweigh the cost of occasional inconvenience and undue expense. My experience has persuaded me, however, that motions of this kind can be fairly processed so rapidly that the cost of exercising judgment and common sense will not only be trivial, but will actually produce a net savings to the Court in the long run. Surely less time would be spent than the Court has recently devoted to a careful scrutiny of every debatable motion to proceed in forma pauperis. See generally Brown v. Herald Co., 464 U. S. 928, 931 (1983) (Stevens, J., dissenting). I would grant petitioner’s sensible motion.

I respectfully dissent.


text:
    No. A-842.
    Wilson et al. v. Colorado.
   Ct. App. Colo. Application for stay, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. D-398.
    In re Disbarment of Armentrout.
   Disbarment entered. [For earlier order herein, see 465 U. S. 1017.]


text:
    No. D-400.
    In re Disbarment of Pracht.
   Andrew White Pracht, of Eglin, Fla., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on February 21, 1984 [465 U. S. 1017], is hereby discharged.


text:
    No. D-401.
    In re Disbarment of Ballard.
   Disbarment entered. [For earlier order herein, see 465 U. S. 1017.]


text:
    No. D-405.
    In re Disbarment of Gettinger.
   Disbarment entered. [For earlier order herein, see 465 U. S. 1018.]


text:
    No. D-407.
    In re Disbarment of Cates.
   Disbarment entered. [For earlier order herein, see 465 U. S. 1063.]


text:
    No. D-408.
    In re Disbarment of Levenstein.
   Disbarment entered. [For earlier order herein, see 465 U. S. 1076.]


text:
    No. D-428.
    In re Disbarment of Quello.
   It is ordered that Allan T. Quello, of Hopkins, Minn., 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-429.
    In re Disbarment of Cooper.
   It is ordered that Saul J. Cooper, of Miami, 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-431.
    In re Disbarment of Watson.
   It is ordered that Norma Mims Watson, of Houston, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring her to show cause why she should not be disbarred from the practice of law in this Court.


text:
    No. 86,
    Orig.
    Louisiana v. Mississippi et al.,
   ante, p. 96. Motion of defendant Avery B. Dille, Jr., for clarification of opinion denied.


text:
    No. 83-1545.
    Western Air Lines, Inc. v. Criswell et al.
   C. A. 9th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 83-6323.
    Jones v. East Baton Rouge Parish School Board et al.
   C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until June 4, 1984, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, and Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petition for writ of certiorari without reaching the merits of the motion to proceed in forma pauperis.


text:
    No. 83-6451.
    Omernick v. Richards et al.
   C. A. 7th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until June 4, 1984, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan and Justice Marshall,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petition for writ of certiorari without reaching the merits of the motion to proceed in forma pauperis.


text:
    No. 83-6436.
    No. 83-6509.
    No. 83-6535.
    In re Tepp; In re Sayles; and In re Johnson.
   Petitions for writs of mandamus denied.


text:
    No. 83-1084.
    Vista Resources, Inc., et al. v. Seagrave Corp.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 83-1416.
    National Labor Relations Board v. Action Automotive, Inc.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 83-502.
    Field Communications Corp. et al. v. Braig, Judge, Court of Common Pleas of Philadelphia County.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 83-619.
    Graves v. Lexington Herald-Leader Co.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 83-976.
    Hospital Service Association of New Orleans, Inc. v. St. Bernard General Hospital, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-1126.
    Maier v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-1129.
    Ciammitti et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-1162.
    Piccolo v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-1164.
    Phillips v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-1216.
    Jones et al. v. Berry, District Director, Internal Revenue Service, et al.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 83-1219.
    Macon Telegraph Publishing Co. v. Elliott.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 83-1220.
    Farrah v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-1231.
    No. 83-1291.
    Teslovich v. United States; and Solomon v. United States.
   C. A. 3d Cir. Certiorari denied. Reported below: No. 83-1231, 725 F. 2d 670; No. 83-1291, 725 F. 2d 671.


text:
    No. 83-1232.
    Murray v. New Mexico.
   Ct. App. N. M. Certiorari denied.


text:
    No. 83-1237.
    Sanchez-Martinez v. Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-1242.
    Sun Myung Moon et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-1298.
    Oil, Chemical & Atomic Workers International Union et al. v. Donovan, Secretary of Labor, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-1299.
    Kahalewai et al. v. Rodrigues (two cases).
   Sup. Ct. Haw. Certiorari denied.


text:
    No. 83-1302.
    Nava v. Merit Systems Protection Board.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 83-1308.
    Strick Corp. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-1311.
    Oklahoma ex rel. Department of Human Services v. Weinberger, Secretary of Defense.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-1315.
    No. 83-1332.
    Riverbend Farms, Inc. v. Agricultural Labor Relations Board et al.; and Rivcom Corp. v. Agricultural Labor Relations Board et al.
   Sup. Ct. Cal. Certiorari denied. Reported below: 34 Cal. 3d 743, 670 P. 2d 305.


text:
    No. 83-1326.
    Wissler v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-1337.
    Hero Lands Co. et al. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 83-1339.
    No. 83-1340.
    Eisenberg v. United States; and Dorison v. United States.
   C. A. 4th Cir. Certiorari denied. Reported below: 723 F. 2d 901.


text:
    No. 83-1381.
    Feinstein et al. v. Nettleship Co. of Los Angeles et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-1396.
    Easterday v. Coyer et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-1401.
    Felton et al. v. Commissioner of Internal Revenue.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-1405.
    Webb v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 83-1418.
    City of Little Rock et al. v. Gilbert et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-1480.
    Geosearch, Inc., et al. v. Clark, Secretary of the Interior, et al.
   C. A. 10th Cir. Certiorari denied.'


text:
    No. 83-1511.
    Stanton v. District of Columbia Court of Appeals.
   Ct. App. D. C. Certiorari denied.


text:
    No. 83-1521.
    Weiss v. Employer-Sheet Metal Workers Local 544 Pension Trust Plan et al.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 83-1525.
    Carroll v. Scott, Sheriff of De Kalb County, Illinois, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-1529.
    Robinson v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 83-1541.
    Porter v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 83-1547.
    Novel v. Louisiana Exposition et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-1548.
    Kustina v. City of Seattle et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-1550.
    Litton Systems, Inc. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-1556.
    Adams v. Providence & Worcester Co.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-1557.
    Pacific Intermountain Express Co. v. Johnson et al.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 83-1568.
    Coia et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-1570.
    Foster et al. v. Miller, Chairman, Federal Trade Commission.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 83-1571.
    Radigan v. Supreme Court of Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 83-1574.
    City of Perryton, Texas v. Jacks et ux.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-1575.
    Ayoob et al. v. Morrison et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-1580.
    Citron et al. v. Citron.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 83-1585.
    Wolters Village, Ltd. v. Village Properties, Ltd.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-1588.
    Cramer v. State Bar of Michigan et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-1595.
    Valeriano v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 83-1603.
    Burnworth v. Burnworth.
   Ct. App. Colo. Certiorari denied.


text:
    No. 83-1639.
    LaFontaine v. Chesapeake & Ohio Railway
   Co. C. A. 6th Cir. Certiorari denied.


text:
    No. 83-1641.
    Mullen v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-1644.
    Morris v. Attorney Grievance Commission of Maryland.
   Ct. App. Md. Certiorari denied.


text:
    No. 83-1665.
    Borrell v. United States Information Agency.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 83-1694.
    Primrose v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-1701.
    Boston v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-5869.
    Crowder v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-6005.
    Kindem v. Minnesota.
   Sup. Ct. Minn. Cer-tiorari denied.


text:
    No. 83-6024.
    Santana et al. v. Collazo et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-6057.
    Mock v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 83-6066.
    Glover v. New York.
   Ct. App. N. Y. Cer-tiorari denied.


text:
    No. 83-6130.
    Moreno v. McKaskle, Acting Director, Texas Department of Corrections.
   C. A. 5th Cir. Certio-rari denied.


text:
    No. 83-6142.
    Huffman v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-6169.
    Ferguson v. McCarthy, Superintendent, California Men’s Colony.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-6181.
    Hill v. McKaskle, Acting Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6218.
    Hockenbury v. Smith, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-6233.
    Sheehan et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6288.
    Perkins v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-6348.
    Shah v. Hutto et al.
   C. A. 4th Cir. Certio-rari denied.


text:
    No. 83-6377.
    Andrews v. Leeke, Commissioner, South Carolina Department of Corrections, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-6420.
    Douglas v. Robb et al.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 83-6423.
    Jameson v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-6428.
    Scarselli v. New York Telephone Co.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-6431.
    Rogers v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-6432.
    Smith v. Bordenkircher, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-6433.
    Wilkins v. Lyles, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-6434.
    Silver v. Mohasco Corp.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 83-6441.
    Logan v. Clerk, Sedgwick County Circuit Court, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-6442.
    Johnson v. Consolidated Freightways, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-6444.
    Jones v. McKaskle, Acting Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6448.
    Holman v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 83-6450.
    Schmidt v. California.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 83-6461.
    Caston v. Maggio, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6462.
    Wilson v. Morris, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-6464.
    Maldonado v. McKaskle, Acting Director, Texas Department of Corrections.
   C. A. 5th Cir. Certio-rari denied.


text:
    No. 83-6465.
    Knight v. Zimmerman, Superintendent, State Correctional Institution at Huntingdon.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-6472.
    Shaw v. Neece et al.
   C. A. 10th Cir. Cer-tiorari denied.


text:
    No. 83-6477.
    Diaz v. Martin, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6478.
    Fullard v. Florida.
   C. A. 11th Cir. Certio-rari denied.


text:
    No. 83-6489.
    Blair v. Pennsylvania et al.
   Pa. Commw. Ct. Certiorari denied.


text:
    No. 83-6491.
    Clinton v. Roble.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-6495.
    Petty v. Parke, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-6499.
    Woods v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 83-6517.
    Puchalski v. New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 83-6530.
    Bonner v. Philadelphia International Records et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-6534.
    Hall v. United States.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 83-6553.
    Casteel v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-6563.
    McDonald v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-6566.
    Gomez-Soto v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-6579.
    Crisco v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-6582.
    Floyd v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6588.
    Roman v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-859.
    Marshall, Superintendent, Southern Ohio Correctional Facility v. Clark.
   C. A. 6th Cir. Motion of respondent for leave to proceed informa pauperis granted. Cer-tiorari denied.


text:
    No. 83-1519.
    Florida v. Drake.
   Sup. Ct. Fla. Motion of respondent for leave to proceed in forma pauperis granted. Cer-tiorari denied.


author: Justice White,

text:
    No. 83-1187.
    International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. ITT Lighting Fixtures, Inc., Division of ITT Corp., et al.
   C. A. 2d Cir. Certiorari denied.

Justice White,

with whom Justice Brennan joins,

dissenting.

A majority of the employees at two facilities operated by respondent ITT Lighting Fixtures, Inc., chose petitioner International Union as their bargaining representative in an election conducted under the auspices of the National Labor Relations Board in February 1979. ITT contested the election results, challenging the ballots cast by a number of group leaders on the ground that these employees were supervisors and asserting that they had actively favored the union during the election campaign. The Board held that some of the group leaders were supervisors ineligible to vote but concluded that their pro-union activities did not impermissibly interfere with other employees’ free choice because they were only minor supervisors with no substantial authority to affect the employment status of other employees. 249 N. L. R. B. 441 (1980). The International Union was certified as bargaining representative, and, when ITT refused to bargain, the NLRB found that the company had committed an unfair labor practice. 252 N. L. R. B. 328 (1980).

The Court of Appeals for the Second Circuit refused to enforce the NLRB’s bargaining order, taking the view that the Board had failed to make sufficient findings concerning the precise supervisory authority of the group leaders and to articulate sufficiently its reasons for concluding that the group leaders’ pro-union activities did not impair other employees’ free choice. 658 F. 2d 934 (1981). On remand, the NLRB made new findings about each of the group leaders, reaffirmed its certification of the International Union, and ordered ITT to bargain. 265 N. L. R. B. 1480 (1982).

The Court of Appeals again refused enforcement, vacated the NLRB’s order, and set aside the election. 712 F. 2d 40 (1983). It concluded that the Board had given insufficient weight to group leaders’ power to reward employees in determining whether the group leaders were major supervisors whose involvement in the union campaign was coercive. Although the Board had concluded that the group leaders lacked the power to reward employees, the Court of Appeals examined the record and concluded that five group leaders possessed more than minimal power to reward employees and that “51 employees could possibly have been influenced by the pro-union activity” of these supervisors. Id., at 45. Since the outcome of the election depended on 12 votes, the court concluded that a new election should be held.

In its submission to this Court, the NLRB has taken the position that the Court of Appeals erred in rejecting its finding that ITT’s group leaders possessed insufficient authority over other employees to make their pro-union activities coercive but that review is unnecessary in light of the fact-bound nature of the Court of Appeals’ decision. In my view, however, the case warrants this Court’s attention. Not only did the Court of Appeals select isolated language from the Board’s Supplemental Decision and Order in concluding that the Board had failed to consider the group leaders’ power to reward employees as evidence of major supervisory power, but also it appears to have enunciated a standard against which pro-union supervisory conduct is to be judged that differs substantially from the standard adopted by its sister Circuits.

There is no doubt that the participation of supervisors in union elections may in some circumstances so undermine employees’ freedom of choice as to warrant setting aside the election. In rejecting ITT’s challenge to the election, the Board concluded both that the supervisors who expressed their support for the International Union lacked substantial authority over other employees and that the supervisors’ pro-union activities were not such as to give rise to a fear of possible retribution. Although the Court of Appeals recognized the need to consider both the degree of supervisory authority and the extent, nature, and openness of pro-union activity, e. g., 658 F. 2d, at 937, it concentrated its analysis almost exclusively on the former. After concluding that some of the group leaders possessed major supervisory authority, the Second Circuit held, without considering the specific conduct at issue, that the group leaders’ activity “could possibly have . . . influenced” some employees. Other Circuits that have addressed this question have concluded that “without evidence of any threats, express or implied, [the fact that certain supervisors favor a union] does not compel a finding of coercion.” Fall River Savings Bank v. NLRB, 649 F. 2d 50, 57 (CA1 1981). See NLRB v. Manufacturer’s Packaging Co., 645 F. 2d 223, 226 (CA4 1981); NLRB v. San Antonio Portland Cement Co., 611 F. 2d 1148, 1151 (CA5 1980); Global Marine Development of California, Inc. v. NLRB, 528 F. 2d 92, 95 (CA9 1975), cert. denied, 429 U. S. 821 (1976); Worley Mills, Inc. v. NLRB, 685 F. 2d 362, 365 (CA10 1982). The First Circuit, in fact, appears to have recognized that the Second Circuit’s standard differs from its own. NLRB v. Northeastern University, 707 F. 2d 15, 18 (1983). Although the Court of Appeals disavowed this intention, 658 F. 2d, at 937, it is difficult to escape the conclusion that the rule it announced comes close to a per se rule against supervisory involvement in union elections. Perhaps it is correct, but its approach seems at odds with that of the Board and other Circuits. I would grant certiorari.

Accordingly, I dissent.


text:
    No. 83-1290.
    Mobil Oil Corp. v. United States Environmental Protection Agency et al.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 83-6321.
    King v. Williams Industries, Inc., et al.
   C. A. 1st Cir. Certiorari denied.

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


text:
    No. 83-1297.
    United States v. Dahlstrom et al.
   C. A. 9th Cir. Motions of respondents Gaze Durst and Hiram E. Conley for leave to proceed in forma pauperis granted. Certio-rari denied.

Justice Brennan would grant certiorari.


text:
    No. 83-1544.
    Siebert et al. v. Conservative Party of New York State et al.
   C. A. 2d Cir. Motion of Center for Responsive Politics for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 83-1561.
    Commissioner of Internal Revenue v. Estate of Van Horne et al.
   C. A. 9th Cir. Certiorari denied. Justice White would grant certiorari.


text:
    No. 83-1567.
    Cross v. General Motors Corp.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 83-5785.
    No. 83-5966.
    No. 83-6199.
    Williams v. Illinois. Dixon v. Illinois. Yates v. Illinois.
   Sup. Ct. Ill.;

App. Ct. Ill., 1st Dist.; and

Sup. Ct. Ill. Certiorari denied. Reported below: No. 83-5785, 97 Ill. 2d 252, 454 N. E. 2d 220; No. 83-5966, 105 Ill. App. 3d 340, 434 N. E. 2d 369; No. 83-6199, 98 Ill. 2d 502, 456 N. E. 2d 1369.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgments of the Supreme Court of Illinois and the Appellate Court of Illinois insofar as they left undisturbed the death sentences imposed in these three cases. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (MARSHALL, J., dissenting). However, even if I believed that capital punishment were constitutional under certain circumstances, I would vote to grant these petitions because they present a substantial constitutional challenge to the Illinois state’s attorneys’ practice of using peremptory challenges to exclude Negro jurors from participating in capital cases.

Hernando Williams, Wendell Dixon, and Lonnie Yates are Negroes. In unrelated indictments, the people of Illinois charged each of these men with serious felonies, punishable by death under Illinois law. Each was tried by jury, and each now claims that the prosecution violated the Federal Constitution by using peremptory challenges to remove Negroes from the jury venire. In petitioner Dixon’s case, 20% of the jury venire were Negroes. The prosecution used five of seven peremptory challenges to exclude the Negro members from the venire. An all-white jury then convicted Dixon and sentenced him to death. In petitioner Williams’ case, 22% of the venire were Negroes. The prosecution used 11 of its 20 peremptory challenges to exclude Negroes, and an all-white jury sentenced Williams to death. In petitioner Yates’ case, the record does not indicate what percentage of the venire were Negroes, but the record does show that the State used 13 of 16 peremptory challenges to remove Negroes from the venire. The jury that convicted Yates and sentenced him to death included a single Negro.

The claim raised in these petitions is distressingly familiar. Whenever a Negro defendant is charged with a capital offense, there is a substantial chance that the prosecution will employ its peremptory challenges to remove Negroes and other minorities from the jury panel. See Gilliard v. Mississippi, 464 U. S. 867, 867-868, and n. 3 (1983) (Marshall, J., dissenting) (listing cases in 19 different jurisdictions raising the issue since 1979). Illinois provides a striking, but by no means isolated, illustration of the dimensions of the problem. Since 1959, the Supreme Court of Illinois has reviewed at least 33 cases in which criminal defendants have alleged prosecutorial misuse of peremptory challenges to exclude Negro jurors. See People v. Payne, 99 Ill. 2d 135, 152-153, 457 N. E. 2d 1202, 1210-1211 (1983) (Simon, J., dissenting) (list of cases). Petitioners in these three cases stand at the end of a long line of Negro criminal defendants who claim that the State of Illinois has denied them trial by a fair cross-section of the community.

The intentional exclusion of Negro jurors is particularly pronounced in capital cases in Illinois. Since the enactment of the latest Illinois Death Act, 29 juries have been empaneled to sentence Negro defendants in capital cases. Nineteen of these juries were all-white, and five had only one Negro juror. Illinois Coalition Against the Death Penalty, Death Sentences in Illinois (July 31, 1983). It is simply inconceivable that the racial composition of these juries was the result of statistical anomaly. According to the most recent census figures, 14.65% of the Illinois population is Negro. If the jury-selection process in Illinois were completely race-blind, roughly 17% of all juries would be expected to have one or no Negro jurors. In fact, more than 80% of the Illinois sentencing juries have had less than two Negro members when the defendant was a Negro.

In reviewing petitioner Williams’ appeal, the Illinois Supreme Court reviewed these jury-composition statistics prepared by the Illinois Coalition. 97 Ill. 2d 252, 278, 454 N. E. 2d 220, 230 (1983). Despite the clear import of the figures, the Illinois Supreme Court concluded that the statistics were insufficient to establish prosecutorial misconduct under Swain v. Alabama, 380 U. S. 202 (1965). Since in Illinois Swain presents the only limitations on a prosecutor’s use of peremptory challenges, the Illinois Supreme Court concluded that the procedure used to select petitioner Williams’ jury, like the procedures used in the trials of petitioners Yates and Dixon, was without constitutional defect.

A majority of this Court has already recognized that the exclusion of minority jurors through peremptory challenges is a significant constitutional issue this Court will some day have to address. McCray v. New York, 461 U. S. 961, 961-962 (1983) (opinion of Stevens, J., joined by Blackmun and Powell, JJ.); id., at 966-967 (Marshall, J., joined by Brennan, J., dissenting). As the years pass, it becomes increasingly clear that the problem will not be solved until this Court intervenes. See Gilliard v. Mississippi, supra, at 873. Over the last 12 months, I have twice urged the Court either to reconsider our decision in Swain v. Alabama, supra, or to address the distinct question whether the Sixth and Fourteenth Amendments prohibit the States from excluding potential jurors solely on the basis of race. See McCray v. New York, supra, at 963 (Marshall, J., dissenting); Gilliard v. Mississippi, supra. These petitions present the Court with three more opportunities to protect criminal defendants against jury-selection procedures that are clearly racially discriminatory. Again today, I urge my colleagues to grant certiorari on what I believe to be one of the gravest and most persistent problems facing the American judiciary today.

I dissent from the Court’s refusal to confront this issue.

       Petitioners Dixon and Yates were both convicted and sentenced by a jury. Petitioner Williams pleaded guilty, and a jury heard only the sentencing phase of his trial.

       Bureau of Census, County and City Data Book 130 (1983). The 14.66% figure is actually conservative since more than half of the capital cases involving Negro defendants were tried in Cook County, which is more than 25% Negro. Ibid.

       The Illinois Supreme Court was critical of the study prepared by the Illinois Coalition Against the Death Penalty and presented by petitioner Williams during his appeal because the study did not indicate how many times defense counsel and the prosecution employed peremptory challenges to exclude minorities in individual cases covered by the study. 97 Ill. 2d, at 273, 454 N. E. 2d, at 230. This criticism reflects the practical impossibility of obtaining relief under Swain, which offers defendants protection only if the prosecutor uses peremptory challenges to exclude Negro jurors in “case after case.” Not only does the Swain standard make a defendant’s constitutional rights contingent upon the facts of previous cases, see McCray v. New York, 461 U. S. 961, 964-965 (1983) (Marshall, J., dissenting), but a defendant’s opportunity to vindicate those rights depends on other defendants’ building adequate records in previous cases.


text:
    No. 83-5808.
    Porter v. McKaskle, Acting Director, Texas Department of Corrections.
   C. A. 5th Cir. Certio-rari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

This case presents a recurring question concerning the standard for determining when a trial judge has a constitutional obligation to order a psychiatric examination to determine a defendant’s competency to stand trial. Especially because the correct answer to that question determines whether petitioner lives or dies, I would grant the petition.

In 1976, petitioner, Henry Martinez Porter, was tried in Texas for the murder of a policeman. He was convicted and sentenced to death. However, the Texas Court of Criminal Appeals overturned his conviction on the ground that petitioner’s constitutional right to confront witnesses against him had been violated by the introduction into evidence of materials from a file pertaining to petitioner’s conduct while on federal parole during 1973 and 1974. Porter v. State, 578 S. W. 2d 742 (1979). Among those materials were various reports that cast doubt on petitioner’s sanity and capacity to understand legal proceedings. For example, the director of a drug abuse treatment center described petitioner’s debilitating and apparently incurable heroin addiction. The director went on to cite petitioner’s “‘serious mental and emotional handicaps,’” concluding that petitioner’s “‘[rehabilitative rating is very poor.’” Id., at 745. Another report quoted unnamed psychologists to the effect that petitioner had “‘a psychopathic personality’” and had manifested “‘paranoid schizophrenic behavior.’” Id., at 744.

Petitioner was retried before the same judge who had presided over his first trial. After the jury had been selected but before it was empaneled, the prosecutor for the first time discovered a presentence report, prepared in 1959, that described a psychiatric episode in petitioner’s past. The report revealed that, while incarcerated on a robbery charge, petitioner was sent from a reformatory to a psychiatric hospital, “because he had hallucinations of seeing his father and speaking to him.” After being held at the hospital for a month, petitioner escaped.

After receiving this report from the prosecutor, petitioner’s counsel informed the trial judge that he was concerned about the bearing of the newly revealed evidence on petitioner’s competency to stand trial and requested the judge to order a pyschiatric examination of petitioner. Counsel also asked for a ruling that the results of such an examination would be admissible only for the purpose of assessing petitioner’s competency, and would be excluded from the penalty phase of the trial. The prosecutor acceded to the request for an exam but objected to the proposed limitation on the admissibility of the results thereof. The trial judge ruled with the prosecutor on this issue, indicating that he would grant the request for a psychiatric exam only if the material disclosed thereby were admitted into the record and could be used by either side for any purpose. In the face of this ruling, defense counsel withdrew his request for a competency exam.

At the conclusion of the second trial, petitioner was once again convicted and sentenced to death. The Texas Court of Criminal Appeals affirmed, Porter v. State, 623 S. W. 2d 374 (1981), and this Court denied certiorari, 456 U. S. 965 (1982).

After exhausting his state remedies, petitioner brought this suit in Federal District Court, seeking a writ of habeas corpus on the ground, inter alia, that the trial judge’s ruling on his request for a psychiatric examination violated the Due Process Clause. The District Court denied relief without oral argument or an eviden-tiary hearing. No. C-82-159 (SD Tex., Oct. 28, 1982). The Court of Appeals for the Fifth Circuit affirmed. Porter v. Estelle, 709 F. 2d 944 (1983).

As the Court of Appeals acknowledged, if petitioner’s competency was questionable, the trial judge erred in refusing to order a psychiatric examination unless its results could be admitted by the prosecution in the penalty phase of the trial. See id., at 951. It is settled that, if evidence available to a trial judge raises a bona fide doubt regarding a defendant’s ability to understand and participate in the proceedings against him, the judge has an obligation to order an examination to assess his competency, even if the defendant does not request such an exam. Drope v. Missouri, 420 U. S. 162 (1975); Pate v. Robinson, 383 U. S. 375 (1966). It is equally clear that statements made by a defendant in the course of a court-ordered competency exam cannot be used against him in either the liability phase or the penalty phase of his trial unless the defendant makes an intelligent and voluntary waiver of his privilege against self-incrimination. Estelle v. Smith, 451 U. S. 454 (1981). A trial judge may not put a defendant to the choice of forgoing either his right to a competency exam or his right to limit the admissibility of statements he makes during such an exam. Cf. Simmons v. United States, 390 U. S. 377, 393-394 (1968).

Nevertheless, the Court of Appeals upheld the denial of habeas relief in this case on the ground that the evidence available to the trial judge at the time he made his ruling was insufficient to cast doubt on petitioner’s competency. The Court of Appeals made two points in support of this conclusion. First, the trial judge had had an opportunity to observe petitioner in the course of his first trial and in the preliminary stages of the second trial, and petitioner had participated competently in those proceedings. Second, the psychiatric episode that had recently come to the parties’ attention had occurred when petitioner was 17, 20 years before the time of the second trial, and thus had little probative value.

In my view, the factors relied upon by the Court of Appeals are insufficient to support its conclusion. In Drope v. Missouri, supra, at 180, we described as follows the standard to be applied by trial judges in situations of this sort:

“The import of our decision in Pate v. Robinson is that evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.”

At the time he was called upon to assess defense counsel’s motion, the trial judge in this case was aware of several reports describing petitioner’s “paranoid” and “schizophrenic” behavior. The judge was also aware that petitioner had a serious and seemingly ineradicable heroin addiction. Petitioner’s probation records contained reports from psychiatrists regarding petitioner’s “psychopathic personality.” Finally, the judge had just been informed that petitioner had been confined in a mental hospital at the age of 17 because of hallucinations. In sum, a substantial body of both medical evidence and evidence pertaining to petitioner’s behavior cast doubt upon petitioner’s ability to comprehend the proceedings against him. Surely the Court of Appeals erred in concluding that the cumulation of these data was insufficient to entitle petitioner to a competency exam.

The foregoing conclusion is reinforced by the fact that both the prosecutor and the state trial judge agreed that petitioner should have been given an examination. In response to defense counsel’s motion, the prosecutor conceded that, “the way the case law is,” both the trial court and defense counsel had an obligation to have petitioner examined. Tr. 1865. The judge thereupon expressed his willingness to order an examination; he simply refused to limit the admissibility of statements made by petitioner during that exam. Id., at 1866. In short, the persons best situated to assess petitioner’s state of mind were unanimous in their view that a competency examination was warranted.

In elaborating its argument rejecting petitioner’s constitutional claim, the Court of Appeals relied in part on this Court’s refusal hitherto to “prescribe a general standard with respect to the nature or quantum of evidence necessary to require resort to” a competency, exam, Drope v. Missouri, supra, at 172. See 709 F. 2d, at 950, n. 3. If our failure to clarify this area of the law has the effect of defeating claims as substantial as that made by petitioner, it is time we reconsidered the issue of a defendant’s entitlement to a competency exam and set a standard that would provide lower courts better guidance.

I would grant the petition and set the case for argument.

       Adhering to my view that the death penalty is unconstitutional in all circumstances, Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting), I would grant the petition and vacate the sentence even if petitioner had not presented the substantial claim discussed in the text.

       Cf. Acosta v. Turner, 666 F. 2d 949, 954-955 (CA5 1982); Bruce v. Estelle, 536 F. 2d 1051, 1062-1063 (CA5 1976) (discussing the potential impact of schizophrenia upon a defendant’s capacity to understand judicial proceedings), cert. denied, 429 U. S. 1053 (1977).

       The Court of Appeals brushed aside these concessions, discounting the judge’s expressed willingness to order an exam as irrelevant to the issue of petitioner’s right to an exam, and dismissing the prosecutor’s judgment as “mistaken.” Porter v. Estelle, 709 F. 2d 944, 953-954 (1983). Even if one concedes that the trial judge’s ruling did not rise to the level of a finding of fact, the judge’s receptivity to petitioner’s constitutional claim (reflected in the judge’s willingness to order a competency exam despite the fact that the jury had already been empaneled) surely is entitled to more weight than it was given by the Court of Appeals.

       Other Courts of Appeals have also emphasized the absence of any “general standard” enunciated in our two decisions in this field. See, e. g., Williams v. Bordenkircher, 696 F. 2d 464, 466 (CA6), cert. denied sub nom. Williams v. Sowders, 461 U. S. 916 (1983); United States ex rel. Rivers v. Franzen, 692 F. 2d 491, 496 (CA7 1982); Collins v. Housewright, 664 F. 2d 181, 183 (CA8 1981) (per curiam), cert. denied, 455 U. S. 1004 (1982).


text:
    No. 83-6080.
    Rector v. Arkansas.
   Sup. Ct. Ark. Certio-rari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting), I would vacate the judgment of the Supreme Court of Arkansas insofar as it left undisturbed the death sentence imposed in this case. However, even if I believed that capital punishment were constitutional under certain circumstances, I would vote to grant this petition because it raises an important and unresolved question about the composition of juries in capital cases.

Petitioner claims that he was denied his rights under the Sixth and Fourteenth Amendments to have his guilt determined by a fair cross-section of the community. Individuals with conscientious objections to the death penalty were excluded from participating in the liability phase of petitioner's trial. Even if it is permissible for the State to bar such jurors from serving on sentencing juries, see Witherspoon v. Illinois, 391 U. S. 510 (1968), there is a substantial question whether they may also be excluded from the guilt-determination process, particularly in light of recently compiled empirical evidence that jurors who favor the death penalty are more likely to vote to convict defendants than jurors who oppose capital punishment. See Berry, Death-Qualification and the “Fireside Induction,” 5 UALR L. J. 1 (1982); Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich. L. Rev. 1 (1982).

There can be no doubt that petitioner’s claim raises a substantial issue of federal constitutional law. In the past, this Court has acknowledged the potential validity of this issue. See, e. g., Bumper v. North Carolina, 391 U. S. 543, 545 (1968); Witherspoon v. Illinois, supra, at 516-518. Again this Term, the claim has come to the attention of the Court. Woodard v. Hutchins, 464 U. S. 377, 379 (1984) (Powell, J., concurring); id., at 382 (Brennan, J., dissenting). Although the Supreme Court of Arkansas rejected the claim in this case, a Federal District Court in that State recently granted a writ of habeas corpus raising precisely the same claim. See Grigsby v. Mabry, 569 F. Supp. 1273 (ED Ark. 1983), appeal pending, No. 83-2113 (CA8). These two decisions are squarely in conflict. In light of the conflict, the State of Arkansas “joins petitioner in requesting that this Court grant certiorari to decide this issue as a matter of federal constitutional law.” Brief for Respondent 2. Were this not a capital case, I seriously doubt whether this Court would ignore the request of the Arkansas Attorney General to address this unsettled area of federal law.

I dissent.


text:
    No. 83-6173.
    Hamilton v. Zant, Superintendent, Georgia Diagnostic and Classification Center.
   Sup. Ct. Ga. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Petitioner, Roland Paul Hamilton, and his friend, Billie Jean Rose, met John Shinall at a bar one evening, took a few drinks and accompanied Shinall to another bar. Later, Shinall suggested that they go to his house to eat, rest, and watch television before visiting more bars. Shinall died from injuries he suffered during this layover at his home. The State’s theory was that petitioner went to Shinall’s home with the intention of robbing him and killed him in the process. Petitioner claimed that he struck Shinall in order to prevent him from raping Rose and that Rose, too, participated in subduing Shinall by hitting him over the head with a bottle. According to petitioner, he robbed Shinall only as an afterthought and without knowledge that Shinall’s injuries were fatal.

Armed with Rose as its leading witness, the prosecution succeeded in convincing the jury to convict petitioner of felony murder. After a sentencing trial, the jury found that the murder was accompanied by two aggravating circumstances and condemned petitioner to death. On direct appeal to the Georgia Supreme Court, his conviction and sentence were affirmed. Hamilton v. State, 244 Ga. 145, 259 S. E. 2d 81 (1979). This Court vacated the sentence and remanded the case for reconsideration in light of Godfrey v. Georgia, 446 U. S. 420 (1980). 446 U. S. 961 (1980). On remand, the Georgia Supreme Court reaffirmed the imposition of the death sentence. Hamilton v. State, 246 Ga. 264, 271 S. E. 2d 173 (1980). This Court then denied a writ of certiorari. 449 U. S. 1103 (1981).

Petitioner next sought habeas corpus relief in the Superior Court of Butts County, Ga., claiming that at both the guilt-innocence and sentencing phases of his trial he had been denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution. The Superior Court granted a new trial to petitioner based upon evidence produced at five hearings over a span of 18 months. The Superior Court's meticulous review of the pertinent facts revealed that petitioner had been represented by a court-appointed counsel, John F. M. Ranitz, Jr., whose handling of the case fell far below constitutional standards. Counsel failed to pursue any independent, pretrial investigation on petitioner’s behalf, neglecting even to interview key witnesses. For example, according to the Superior Court, there were elements in the testimony of the medical examiner that corroborated petitioner’s account of the killing. Yet, after having failed to interview the medical examiner prior to trial, counsel displayed incompetence during the trial by failing to bring those corroborative facts before the jury.

Counsel’s handling of Billie Jean Rose was even more indicative of his inadequate representation. Although he knew prior to trial that the credibility of Rose’s testimony against petitioner would constitute a crucial, if not decisive, part of the case, defense counsel failed to investigate whether there were aspects of her background that could serve to impeach her. Nor did he seek to require the State to disclose that it had agreed not to prosecute Rose for her part in the events that led to the victim’s death.

Similarly egregious was counsel’s failure to develop possibly exculpatory evidence involving the victim’s propensity for violence. According to the Superior Court, the victim’s relationship with his common-law wife had been “stormy, even violent.” Exhibit C, App. to Pet. for Cert. 8. Petitioner’s defense relied in large part upon establishing the victim’s propensity for violence. Yet at trial counsel failed to inquire into the victim’s relationship with his wife.

This pattern of indifference and incompetence continued into the sentencing phase of the trial. In the words of Judge Etheridge of the Superior Court: “The sentencing phase is stark. There exists only the briefest speech on Paul Hamilton’s behalf, and no evidence whatever.” Id., at 10. According to Judge Etheridge, counsel “had done nothing to attempt to discover evidence that might have afforded the jury a basis for sparing his client’s life. Nothing was presented in evidence as a basis for mercy.” Id., at 11. To put the utter worthlessness of counsel’s representation in proper perspective, it should be noted that at the evidentiary hearing that accompanied the habeas corpus proceeding, petitioner’s mother testified that she had never been asked to testify on her son’s behalf; prior to trial, defense counsel failed to contact any member of his client’s family.

On appeal, the Georgia Supreme Court affirmed in part and reversed in part. 251 Ga. 553, 307 S. E. 2d 667 (1983). It affirmed the reversal of the death sentence, concluding that petitioner had been denied effective assistance of counsel at the sentencing phase of the trial. However it reversed the Superior Court’s order for a new trial, holding that petitioner had not been denied effective assistance at the guilt-innocence stage of his trial because he had not been prejudiced by his attorney’s deficient performance. In the court’s view, petitioner had not been prejudiced because the evidence led “inexorably to the conclusion that he is guilty of murder.” Id,., at 555, 307 S. E. 2d, at 669.

This Court should grant a writ of certiorari to review that part of the Georgia Supreme Court’s judgment reversing the order for a new trial because it is clear from the record that defense counsel’s substandard performance utterly deprived petitioner of effective assistance of counsel at both phases of his trial. In Strickland v. Washington, ante, p. 668, this Court today holds that in order to successfully advance an ineffective-assistance claim a defendant must show that his attorney’s performance fell below constitutional standards and that the deficient performance actually prejudiced his defense. To meet the prejudice prong of the Strickland test, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Ante, at 694. In this case, there exists a reasonable probability that the outcome would have been different but for the substandard performance of petitioner’s counsel. Had counsel sought to impeach the prosecution’s main witness, had he sought from the medical examiner favorable testimony that was later elicited at the habeas corpus hearing, had he brought before the jury the victim’s propensity towards violence — in short, had defense counsel functioned anywhere within the range of professional conduct expected of attorneys — it is indeed reasonably probable that the jury would have found petitioner guilty of something less serious than capital murder.

Counsel for petitioner displayed the same pattern of incompetence at both the guilt-innocence and sentencing phases of his trial. Yet the Georgia Supreme Court, while willing to recognize that counsel’s derelictions prejudiced the defendant at the sentencing phase of the trial, was unwilling to recoginize prejudice at the guilt-innocence phase. One expects a court to justify such differences in result, but the Georgia Supreme Court offered no explanation whatever for its divergent conclusions. It simply dictated a holding that suspiciously resembles an arbitrary, ad hoc compromise — one that appears to have traded the vacation of a death sentence for the reinstatement of a murder conviction. Splitting the loaf in two may constitute justice under certain conditions. However, in cases such as the one at bar, such compromise flies in the face of constitutional demands we are not at liberty to ignore. I therefore dissent from the Court’s denial of this petition for a writ of certiorari.

       Pursuant to Ga. Code Ann. §§ 17-10-30(b)(2) and 17-10-30(b)(7) (1982), the jury found that the murder was “outrageously or wantonly vile, horrible, or inhuman, in that it involved torture, depravity of mind, or an aggravated battery to the victim” and that the murder “was committed while the offender was engaged in the commission of another capital felony.” Pet. for Cert. 5

       The Georgia Supreme Court held that the Superior Court’s findings were supported by the evidence, 251 Ga. 553, 307 S. E. 2d 667 (1983), and summarized those findings as follows:
      “[T]hat although counsel knew only four or five members of the traverse jury panel, he questioned only three jurors on voir-dire examination, and only as to a matter unrelated to capital punishment; that he made no application for investigative funds and conducted no independent investigation; that no witnesses were personally interviewed prior to their testimony; that the autopsy report and other expert medical evidence revealed that two types of wounds, stabbing and tearing, were inflicted upon the deceased; that this supported Hamilton’s statement that Billie Jean Rose hit the victim on the head with a bottle; however, defense counsel failed to cross-examine Billie Jean Rose concerning this; that the deceased had a known propensity for violence, which was not investigated; that there was no investigation of grounds on which Billie Jean Rose’s testimony and her credibility could have been impeached; that there was no investigation of a prior criminal conviction entered against Hamilton when he was 18 years of age, even though defense counsel knew that this would be offered against Hamilton if he was convicted; that no member of Hamilton’s family was contacted prior to trial, even though they could have given evidence in mitigation; and that the state had an agreement not to prosecute Billie Jean Rose, which defense counsel did not require the state to disclose.” Id., at 554, 307 S. E. 2d, at 688.

       I continue to disagree with the Court’s analysis in Strickland. See ante, at 710, 712 (Marshall, J., dissenting). The point here is that petitioner is entitled to a new trial even under the unduly burdensome test imposed upon defendants by Strickland.


text:
    No. 83-6346.
    No. 83-6430.
    No. 83-6459.
    No. 83-6527.
    No. 83-6568.
    No. 83-6583.
    Tichnell v. Maryland; and Calhoun v. Maryland. Henry v. Wainwright, Secretary, Florida Department of Corrections. Luke v. Alabama. Kirkpatrick v. Louisiana. Battle v. Missouri. Foster v. Strickland, Warden, et al.
   Ct. App. Md.;

C. A. 5th Cir.;

Sup. Ct. Ala.;

Sup. Ct. La.;

Sup. Ct. Mo.; and

C. A. 11th Cir. Certiorari denied. Reported below: No. 83-6346, 297 Md. 432, 468 A. 2d 1 (first case), 297 Md. 563, 468 A. 2d 45 (second case); No. 83-6430, 721 F. 2d 990; No. 83-6459, 444 So. 2d 400; No. 83-6527, 443 So. 2d 546; No. 83-6568, 661 S. W. 2d 487; No. 83-6583, 707 F. 2d 1339.

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. 82-1256.
    No. 82-5857.
    No. 83-888.
    No. 83-956.
    No. 83-1120.
    No. 83-1160.
    No. 83-1419.
    No. 83-5736.
    No. 83-5998.
    No. 83-6121.
    No. 83-6228.
    No. 83-6311.
    No. 83-6331.
    No. 83-6372.
    Lynch, Mayor of Pawtucket, et al. v. Donnelly et al., Aponte v. United States, Jacob v. United States, Berryman v. United States, Scarselletti v. Aetna Casualty & Surety Co., McAuliffe et al. v. Penthouse International Ltd., Avery v. United States, Scott v. United States, Mally v. New York University et al., Nelson v. Willie, Warden, et al., Roche v. Maggio, Warden, Aponte v. Heckler, Secretary of Health and Human Services, Minor v. Veterans Administration et al., Di Silvestro v. United States,
   465 U. S. 668;

465 U. S. 1099;

ante, p. 903;

465 U. S. 1100;

465 U. S. 1029;

465 U. S. 1108;

ante, p. 905;

ante, p. 906;

465 U. S. 1035;

465 U. S. 1105;

ante, p. 907;

ante, p. 930;

ante, p. 930; and

ante, p. 931. Petitions for rehearing denied.


text:
    No. 82-914.
    Monsanto Co. v. Spray-Rite Service Corp.,
   465 U. S. 752. Petition for rehearing denied.

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


text:
    No. 83-851.
    South Street Seaport Museum, as Owner of the Bark Peking v. McCarthy et al.,
   465 U. S. 1078. Petition for rehearing denied.

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


text:
    No. 83-1200.
    National Association of Recycling Industries, Inc., et al. v. American Mail Line, Ltd., et al.,
   465 U. S. 1109. Petition for rehearing denied.

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


author: Justice O’Connor, Circuit Justice.

text:
    TATE, SUPERINTENDENT, CHILLICOTHE CORRECTIONAL INSTITUTE v. ROSE
    No. A-935 (83-1747).
    Decided May 19, 1984
   Justice O’Connor, Circuit Justice.

The petitioner in No. 83-1747 is the Superintendent of the Chillicothe Correctional Institute at Chillicothe, Ohio. The respondent is an Ohio prisoner in petitioner’s custody. Respondent applied to the United States District Court for the Southern District of Ohio for a writ of habeas corpus. The District Court granted the writ, and the United States Court of Appeals for the Sixth Circuit affirmed. Rose v. Engle, 722 F. 2d 1277 (1983). Petitioner challenges that decision in No. 83-1747.

Respondent, who is entitled to a new trial under the Court of Appeals’ ruling, has been ordered released on May 21, 1984, pending retrial. Petitioner seeks a stay of the Court of Appeals’ judgment until this Court completes its consideration of his petition. In deciding whether to grant the requested stay, I am obliged to determine whether four Justices are likely to vote to grant certiorari, to balance the “stay equities,” and to gauge the likely outcome of this Court’s consideration of the case on the merits. See Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (REHNQUIST, J., in chambers). I conclude that the stay should be granted.

Respondent was convicted of murder in 1979. At the trial, the prosecutor introduced certain statements that respondent made, after he had invoked his right to silence and to the presence of an attorney, in response to a police officer’s renewed questioning. Petitioner concedes that these statements were elicited in violation of Edwards v. Arizona, 451 U. S. 477 (1981), decided two years after respondent’s conviction.

The Court of Appeals affirmed the District Court’s grant of habeas relief because it concluded, following the analysis of United States v. Johnson, 457 U. S. 537 (1982), that Edwards should be applied retroactively to respondent’s case. The court observed that respondent’s conviction had not become final at the time Edwards was decided, since the time for filing a petition for a writ of certiorari on direct appeal expired at the end of the very day Edwards was handed down. The issue presented in the petition is whether the Edwards decision should have been applied to respondent’s case.

In Solem v. Stumes, 465 U. S. 638 (1984), this Court recently decided that Edwards v. Arizona “is not to be applied in collateral review of final convictions.” 465 U. S., at 650. The Court expressly declined to decide whether Edwards was retroactive in collateral proceedings for any case, such as respondent’s, in which the conviction was not yet final when Edwards was decided. The petition in No. 83-1747 accordingly presents a question left open in Solem v. Stumes.

The Court’s decision in Stumes, however, sheds considerable light on the correctness of the Sixth Circuit’s decision in respondent’s case. First, the Court concluded, contrary to the Sixth Circuit’s view, that the analysis adopted in United States v. Johnson, supra, is not applicable to the decision whether Edwards is retroactive. 465 U. S., at 643, n. 3. Thus, the Court of Appeals followed an erroneous approach in considering the retroactivity of Edwards. Second, the rationale of the Court in Solem v. Stumes casts into substantial doubt the Sixth Circuit’s conclusion that Edwards presents a ground for ordering a new trial in respondent’s case. The Court reasoned that Edwards “has only a tangential relation to truthfinding at trial,” 465 U. S., at 643-644; that police cannot “be faulted if they did not anticipate [the] per se approach” of Edwards, 465 U. S., at 647; and that “retroactive application of Edwards would have a disruptive effect on the administration of justice,” id., at 650. Although new arguments, of course, might be made to blunt the force of this reasoning in cases presenting different facts from those presented in Stumes, the reasoning of Stumes strongly suggests that Edwards should not retroactively render inadmissible a statement, such as those at issue in respondent’s case, obtained by police years before Edwards was decided.

Because the petition in No. 83-1747 presents an open question and because Solem v. Stumes makes highly doubtful the correctness of the decision of the Court of Appeals, I think it likely that four Justices will vote to grant the petition. As for disposition of the case on the merits, I think it likely that the Court will either (1) give plenary consideration to the question left open in Solem v. Stumes and reverse the judgment of the Court of Appeals or (2) vacate the Court of Appeals’ judgment and remand the case for reconsideration in light of Solem v. Stumes. I further conclude that the “stay equities” balance in petitioner’s favor: granting the stay for the time necessary to consider the petition should not cause a significant incremental burden to respondent, who has been incarcerated for several years, but doing so will relieve the State of Ohio of the burden of releasing respondent or retrying him.

I therefore grant the application for a stay of the judgment of the United States Court of Appeals for the Sixth Circuit in Rose v. Engle, supra, pending disposition of the petition for a writ of certiorari in No. 83-1747.

It is so ordered.