author: Justice Brennan, Justice White,

text:
    No. 80-5589.
    Simpson v. Georgia.
   Ct. App. Ga. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Wood v. Georgia, ante, p. 261.

Justice Brennan,

dissenting.

I agree with Justice White that the record in this case presents clear evidence of waiver and that remand is therefore inappropriate. Rather than grant the petition for a writ of certiorari, however, I would vote to summarily reverse the conviction for distributing obscene materials in violation of Ga. Code §26-2101 (1975) under the view I have frequently expressed, and to which I adhere, that such an obscenity statue is facially unconstitutional. See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73, 113 (1973) (Brennan, J., dissenting); McKinney v. Alabama, 424 U. S. 669, 678 (1976) (separate opinion of Brennan, J.).

Justice White,

dissenting.

We granted certiorari in Wood v. Georgia, ante, p. 261, in order to decide whether it is permissible under the Equal Protection Clause for a State to revoke an offender’s probation for failure to make regular payments toward the satisfaction of a fine when nonpayment is due to the offender’s indigency. This case raises the identical issue.

The majority vacated and remanded Wood v. Georgia on the ground that petitioners were perhaps deprived of their constitutional right to adequate assistance of counsel by the possibly divided loyalties of their counsel. For reasons that I have explained in my dissent in that case, ante, at 275-281, I do not believe that the Court’s disposition of Wood falls within the limits of our jurisdiction. The same jurisdictional limits apply to this case: petitioner at no point sought relief in the Georgia courts on the basis of a claim of ineffective assistance of counsel, nor has there been a final decision on this issue by the highest state court in which a decision could be had, as is required by 28 U. S. C. § 1257 (3). Beyond that, however, the State abandoned any suggestion of conflicting interest and has not raised it here.

There is, in my view, even less justification for the majority’s disposition of this case than there is for the conclusion reached in Wood. Here, the potential conflict of interest was explained by the trial court to petitioner, and petitioner waived whatever constitutional right he might have had to a different attorney. The transcript in this case shows that the State’s attorney raised the conflict of interest issue:

“It is my contention, and the facts would show, . . . that [petitioner] worked for an organization headquartered on Marietta Street; that they promised they would pay all fines, if any, the lawyer’s fees, bond fees and what not and he is now in a position that if his fine had been paid, he would not be where he is. He would not be in jail. . . . [T]he people who promised him that were the people that employed Mr. Zell to come and represent him. ... If he has employed Mr. Zell, that is one thing, but if they have employed Mr. Zell to come down here and act on his behalf in this matter, I say that there is a clear and distinct conflict of interest.” Tr. 2.

The trial court responded to this charge by asking petitioner if Mr. Zell was representing him and petitioner answered: “He is right now.” The court continued:

“Well, do you understand that if you do not have an attorney and desire an attorney, that I will appoint an attorney to represent you or if you do not know that, I am informing you now.” Id., at 4.

Petitioner responded that he “agreed to allow Mr. Zell to represent [him] because he is totally familiar with the case.” He responded specifically that he knew of no possible conflict of interest between himself and Mr. Zell and of none between himself and any client represented by Mr. Zell, including his former employer. The discussion ended with the following exchange:

“THE COURT: I will let Mr. Zell — -if you want me to appoint someone to represent you, I will appoint someone to represent yoü. I mean, you are free to have Mr. Zell or to have the Court appoint someone.
“MR. SIMPSON: Well, as I stand right now, I just as soon would go ahead with the hearing with Mr. Zell representing me here.” Id., at 7.

As I read this record, the possible conflict was fully explained to petitioner, the trial judge made perfectly clear that petitioner could have alternative counsel appointed, and petitioner voluntarily and knowingly decided that he would prefer to have Mr. Zell represent him. Even if there was a possible conflict of interest in Mr. Zell's representation— a proposition with which I do not agree, as I explained in Wood — I do not understand how the majority can read this record as failing to establish a valid waiver. Since there is no contention that the right to conflict-free counsel cannot be waived, I can perceive no possible bar to our reaching and resolving the equal protection issue presented in this case and in Wood.

Accordingly, I dissent from the Court’s disposition of this case. Even if Wood was properly vacated and remanded, the petition in this case should be granted and the underlying constitutional issue resolved. With all due respect, I dissent.


source: Caselaw Access Project

license: Public Domain

text:
    No.-.
    Homan & Crimen, Inc., et al. v. Schweiker, Secretary of Health and Human Services.
   C. A. 5th Cir. Motion of petitioners to direct the Clerk to accept and docket the petition for writ of certiorari denied.


text:
    No. A-611 (80-1418).
    Stevlich et al. v. United States.
   C. A. 7th Cir. Application for recall and stay of mandate, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. A-625.
    Atiyeh, Governor of Oregon, et al. v. Capps et al.
   D. C. Ore. Motion to vacate the stay heretofore entered by Justice Rehnquist is denied.

Justice Brennan and Justice Stevens would vacate the stay.


text:
    No. A-720.
    Bureau of Economic Analysis, United States Department of Commerce v. Long et al.
   Application for stay, presented to Justice Stevens, and by him referred to the Court, granted. The order of the United States District Court for the Western District of Washington, filed January 12, 1981, is stayed pending disposition of the appeal currently pending before the United States Court of Appeals for the Ninth Circuit.


text:
    No. A-737.
    No. A-741.
    Yip v. United States; and Gan v. United States.
   Applications for continuation of bail, presented to Justice Marshall, and by him referred to the Court, denied.


text:
    No. D-197.
    In re Disbarment of Campbell.
   Disbarment entered. [For earlier order herein, see 449 U. S. 978.]


text:
    No. D-206.
    In re Disbarment of Kerpelman.
   Disbarment entered. [For earlier order herein, see 449 U. S. 979.]


text:
    No. D-211.
    In re Disbarment of Barbuto.
   Disbarment entered. [For earlier order herein, see 449 U. S. 990.]


text:
    No. D-212.
    In Re Disbarment of Gross.
   Disbarment entered. [For earlier order herein, see 449 IT. S. 1007.]


text:
    No. D-219.
    In re Disbarment of Rospond.
   It is ordered that Robert P. Rospond, of Andover, 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-220.
    In re Disbarment of Ostroff.
   It is ordered that Geoffrey Ostroff, 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-221.
    In re Disbarment of Leighton.
   It is ordered that Elliott Leighton, of Santa Rosa, 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:
    No. D-222.
    In re Disbarment of Strickland.
   It is ordered that Maurice R. Strickland, of East Orange, 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-224.
    In re Disbarment of Klauber.
   It is ordered that Gerald Ney Klauber, of Towson, 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-223.
    In re Disbarment of Wolf.
   It is ordered that Edward H. Wolf, of New York, N. Y., 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-225.
    In re Disbarment of Florsheim.
   It is ordered that Robert Florsheim, of New York, N. Y., 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, Orig.
    California v. Texas.
   Application of California for a temporary restraining order granted, and it is ordered that enforcement of the emergency order, No. 176.22.20.001, dated February 17, 1981, and effective March 1, 1981, promulgated by the Texas Department of Agriculture, is stayed pending action on the motion for leave to file a bill of complaint or further order of the Court.

Justice White, Justice Rehnquist, and Justice Stevens dissent.

[For earlier order herein, see ante, p. 961.]


text:
    No. 79-1711.
    No. 79-1754.
    No. 79-1760.
    No. 80-12.
    Middlesex County Sewerage Authority et al. v. National Sea Clammers Assn. et al.; Joint Meeting of Essex and Union Counties v. National Sea Clammers Assn. et al.; City of New York et al. v. National Sea Clammers Assn. et al.; and Environmental Protection Agency et al. v. National Sea Clammers Assn. et al.
   C. A. 3d Cir. [Certiorari granted, 449 U. S. 917.] Motion of petitioners in No. 79-1711 for leave to file a supplemental brief after argument granted.


text:
    No. 80-850.
    Jones, Warden v. Helms.
   C. A. 5th Cir. [Probable jurisdiction noted, 449 U. S. 1122.] Motion of appellant for divided argument denied.


text:
    No. 80-317.
    University of Texas et al. v. Camenisch.
   C. Á. 5th Cir. [Certiorari granted, 449 IT. S. 950.1 Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 80-441.
    Gulf Oil Co. et al. v. Bernard et al.
   C. A. 5th Cir. [Certiorari granted, 449 U. S. 1033.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 80-544.
    First National Maintenance Corp. v. National Labor Relations Board.
   C. A. 2d Cir. [Certiorari granted, 449 U. S. 1076.] Motion of Washington Legal Foundation, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 80-1188.
    No. 80-6045.
    Edgar v. MITE Corp. et al. Kremer v. Chemical Construction Corp.
   C. A. 7th Cir.; and

C. A. 2d Cir. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 80-1491.
    Teltronics Services, Inc. v. L. M. Ericsson Telecommunications, Inc.
   C. A. 2d Cir. Motion of petitioner to expedite consideration of the petition for writ of certiorari denied.


text:
    No. 80-1320.
    No. 80-5533.
    In re Ramirez; and In re Dorty.
   Petitions for writs of mandamus denied.


text:
    No. 80-990.
    Cabell, Acting Chief Probation Officer of Los Angeles County, et al. v. Chavez-Salido et al.
   Appeal from D. C. C. D. Cal. Probable jurisdiction noted.


text:
    No. 78-1545.
    No. 78-1549.
    No. 80-951.
    Zipes et al. v. Trans World Airlines, Inc.; Trans World Airlines, Inc. v. Zipes et al.; and Independent Federation of Flight Attendants v. Trans World Airlines, Inc., et al.
   C. A. 7th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument.

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

Reported below: Nos. 78-1545 and 78-1549, 582 F. 2d 1142; No. 80-951, 630 F. 2d 1164.


text:
    No. 80-419.
    Arizona v. Maricopa County Medical Society et al.
   C. A. 9th Cir. Motions of The Gray Panthers and The American Association of Retired Persons et al. for leave to file briefs as amici curiae granted. Certiorari granted.


text:
    No. 80-518.
    U. S. Industries/Federal Sheet Metal, Inc., et al. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 80-931.
    Charles D. Bonanno Linen Service, Inc. v. National Labor Relations Board et al.
   C. A. 1st Cir. Certiorari granted.


text:
    No. 80-1070.
    Ridgway et al. v. Ridgway et al.
   Sup. Jud. Ct. Me. Motion of respondent Furbush for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 80-278.
    Munson, Prosecuting Attorney for the Sixth Judicial District of Arkansas v. Womack.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-681.
    Local Lodge No. 875, Brotherhood Railway Carmen of the United States and Canada, AFL-CIO v. Donovan, Secretary of Labor.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-782.
    Olegario v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-841.
    Hensler et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-889.
    Malik v. Hidden Valley Civic Club et al.
   Ct. Civ. App. Tex., 1st Sup. Jud. Dist. Certiorari denied.


text:
    No. 80-893.
    No. 80-1128.
    No. 80-1139.
    Kirkland et al. v. Arkansas-Best Freight System, Inc., et al.; International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, et al. v. Arkansas-Best Freight System, Inc., et al.; and Arkansas-Best Freight System, Inc. v. Kirkland et al.
   C. A. 8th Cir. Certiorari denied. Reported below: 629 F. 2d 538.


text:
    No. 80-921.
    Brooklier et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-958.
    Hopland Nokomis Assn. et al. v. Watt, Secretary of the Interior, et al.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 80-983.
    United States Steel Corp. v. Christ.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-992.
    Fitzpatrick et al. v. Kirkland et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-995.
    Saunders v. Lehman, Secretary of the Navy, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1043.
    Gerdes v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1047.
    Georgia Power Co. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 80-1049.
    Western Catholic Church v. Commissioner of Internal Revenue.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-1093.
    Bromley Corp., dba Roberts Airways, et al. v. Cortese, Administratrix, et al.
   Certiorari denied.


text:
    No. 80-1109.
    Teichgraeber et al. v. Commissioner of Internal Revenue.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1122.
    Schwarz v. Coastal Resources Management Council et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-1142.
    Soweco, Inc. v. Shell Oil Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1151.
    Hahn et al. v. Atlantic Richfield Co. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-1156.
    Gibbs v. Welsh et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-1159.
    Hollingsworth v. Georgia.
   Ct. App. Ga.

Certiorari denied.


text:
    No. 80-1161.
    Johnson v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 80-1165.
    Hanigan et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1172.
    Buttke et al. v. Commissioner of Internal Revenue.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-1177.
    Cummings, Sheriff, et al. v. Dobbs et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-1182.
    No. 80-1196.
    Meserve, Reorganization Trustee, et al. v. Chesapeake & Ohio Railway Co. et al.; and Chesapeake & Ohio Railway Co. et al. v. Meserve et al., Trustees.
   C. A. 1st Cir. Certiorari denied.

Reported below: 634 F. 2d 1359.


text:
    No. 80-1185.
    Wilson v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 80-1187.
    Spencer, dba Irving Equipment & Construction Co. v. Howe Richardson Scale Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1194.
    Weidman Metal Masters Co., Inc. v. Glass Master Corp. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1198.
    Shapiro v. Florida.
   Sup. Ct. Fla. Cer-tiorari denied.


text:
    No. 80-1202.
    Baxter v. California Unemployment Insurance Appeals Board et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 80-1209.
    O’Biso v. Board of Education of the Borough of Lincoln Park, Morris County.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-1211.
    General Portland Cement Co. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1212.
    Watts v. Civil Service Board for the City of Columbia, Tennessee.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 80-1243.
    Franks v. Louisiana.
   Sup. Ct. La. Cer-tiorari denied.


text:
    No. 80-1279.
    Hill v. American Airlines, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1311.
    Shelnut et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1323.
    DeLucca et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1324.
    Cariello v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-1328.
    Egan et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1355.
    Dean et al. v. County of Brazoria, Texas, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5584.
    Outlaw v. Illinois.
   Sup. Ct. Ill. Certio-rari denied.


text:
    No. 80-5671.
    Zeldes v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-5768.
    McDonald v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 80-5859.
    McDonald v. Draper, Judge.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 80-5894.
    Antoni v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-5895.
    DeVincent v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-5919.
    Muse v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-6007.
    No. 80-6032.
    Bradenburg v. Beaman et al.; and Bradenburg v. Shillinger, Warden, et al.
   C. A. 10th Cir. Certiorari denied. Reported below: 632 F. 2d 120.


text:
    No. 80-6021.
    Dock v. Morris, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6023.
    No. 80-6094.
    Coleman v. Sowders, Warden; and Coleman v. Sowders, Warden.
   C. A. 6th Cir. Certiorari denied. Reported below: 642 F. 2d 450.


text:
    No. 80-6027.
    Johnson v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6028.
    Kinnell v. Clerk of the Court of Appeals of Kansas et al.; Kinnell v. Carlin et al.; and Kinnell v. Willcott et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6033.
    Ramos v. Puerto Rico.
   Super. Ct. P. R., Aquadilla Part. Certiorari denied.


text:
    No. 80-6035.
    Shepphard v. Circuit Court of Clark County, Indiana, et al.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 80-6036.
    Holsey v. Watkins, U. S. District Judge.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-6037.
    Maynard v. Engle, Correctional Superintendent.
   C. A.. 6th Cir. Certiorari denied.


text:
    No. 80-6040.
    Phillips v. Carey et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6041. No. 80-6042.
    Doak v. Maryland; and Doak v. Maryland.
   Ct. App. Md. Cer-tiorari denied.


text:
    No. 80-6046.
    Rahman, aka McGee v. Michigan.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 80-6047.
    Caliguri v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-6049.
    Owchariw v. Lahr et al.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 80-6050.
    Harris v. Spain, Judge, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-6052.
    Orpiano v. Horsley et al.
   C. A. 4th Cür. Certiorari denied.


text:
    No. 80-6053.
    Mullins v. Ohio.
   Ct. App. Ohio, Montgomery County. Certiorari denied.


text:
    No. 80-6060.
    Young v. Ohio.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 80-6061.
    MacArthur v. Philippine Air Lines, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-6066.
    Sarsycki v. Hess, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6091.
    Henderson v. Schweiker, Secretary of Health and Human Services.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6140.
    Lininger v. Massachusetts et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-6153.
    Widemon v. Petrovsky, Warden, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-6162.
    D’Angelo v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-6166.
    Ingram v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-6175.
    Gonzalez v. United States.
   C. A. 2d Cir. Certiorari denied.


author: Justice Brennan,

text:
    No. 80-871.
    Briddle v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.

Justice Brennan,

with whom Justice Stewart joins,

dissenting.

Petitioner, who has been acquitted of speeding, has filed a petition for a writ of certiorari, claiming that his pending prosecution for perjury and obstruction of justice would constitute double jeopardy under the Fifth and Fourteenth Amendments if the prosecution were allowed to proceed. I would grant the petition for certiorari and reverse the judgment below insofar as it permitted prosecution of the perjury charge.

At petitioner’s trial for speeding, the arresting state trooper testified that, after clocking petitioner’s speed by radar, he stopped petitioner’s car and took his license. When petitioner told the trooper that he was a county board member and was late for an important meeting at the office of the Forest Preserve District, the trooper allowed petitioner to proceed to that office. The trooper followed petitioner, parked behind petitioner’s car after arriving at the office of the Forest Preserve^District, and then wrote up the citation. The citation listed petitioner’s name, address, and driver’s license number and described his vehicle as a 1978 silver Chevrolet, bearing Illinois dealer license plates, number D/L 80E. Petitioner signed his name and address on the back of the ticket.

Petitioner, appearing pro se, testified that, on the day in question, he was driving a green Cadillac which did not bear dealer plates. When the prosecutor asked whether petitioner had borrowed or rented a car that day, petitioner responded that he had never driven a car with dealer plates, had never driven a silver Chevrolet, and had not driven a Chevrolet in the preceding 15 years. Petitioner was acquitted of the speeding charge.

After the acquittal, petitioner was indicted for perjury and for obstruction of justice. The perjury charge was based on petitioner’s testimony that he was driving a Cadillac, not a Chevrolet. The trial court dismissed the indictment on tjhe ground that prosecution of these charges was barred “under the doctrine of collateral estoppel.” App. to Pet. for Cert. 2. The Appellate Court of Illinois reversed, concluding that the doctrine of collateral estoppel embodied in the Double Jeopardy Clause of the Fifth Amendment was inapplicable and that, accordingly, Ashe v. Swenson, 397 U. S. 436 (1970), did not bar prosecution of the indictment. 84 Ill. App. 3d 523, 405 N. E. 2d 1357 (1980).

I believe that the Court’s opinion in Ashe v. Swenson forbids prosecution of petitioner for perjury. In Ashe, we held that the double jeopardy guarantee encompasses the doctrine of collateral estoppel as a constitutional requirement. Determining the applicability of that doctrine “requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ ” 397 U. S., at 444. Thus, in Ashe, petitioner’s acquittal of the charge of robbing one of six men playing poker precluded a prosecution for robbing another of the six men, because “[t]he single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the' robbers. And the jury by its verdict found that he had not.” Id., at 445.

At petitioner’s speeding trial, “[t]he single rationally conceivable issue in dispute,” ibid., was- whether petitioner was driving the automobile described in the citation, a 1978 silver Chevrolet, or whether he was driving a “green Cadillac.” There is no need to speculate over whether petitioner’s acquittal might have rested on some other basis since the trial judge in the speeding case testified at the hearing on petitioner’s motion to dismiss the perjury and obstruction of justice charges. He stated:

“The officer testified very specifically that Mr. Briddle had been driving a new model silver Chevrolet. Mr. Brid-dle was very specific. He was asked the question a number of times about driving his 1973 Cadillac and that he always drove the Cadillac and never borrowed or leased a Chevrolet on that date.
“He was certain he was driving his Cadillac. I felt that there was some possibility at the time that since the officer did not write the ticket until he was at the Forest Preserve meeting that he may have pulled behind the wrong vehicle and written up the wrong car since the specific charge was speeding in a 1978, I believe it was, Chevrolet. That issue was not completely resolved to my satisfaction beyond a reasonable doubt.”

This testimony makes clear that the trial judge found that there was not proof beyond a reasonable doubt that petitioner was driving the Chevrolet, and that the acquittal rested on that basis. Therefore, a necessary fact to sustain a perjury conviction — that petitioner was really driving the silver Chevrolet — was conclusively rejected at the speeding trial. This conclusion is entitled to collateral-estoppel effect. Ibid. Any further prosecution of the perjury count of the indictment would negate the beneficial effect of the factfind-ing at the speeding trial to which petitioner is constitutionally entitled.

I therefore dissent.

       In reversing the trial court, the Illinois Appellate Court did not discredit the testimony of the trial judge.


author: Justice Brennan and Justice Marshall,

text:
    No. 80-6034.
    No. 80-6151.
    Gall v. Kentucky. King v. Florida.
   Sup. Ct. Ky.; and

Sup. Ct. Fla. Certiorari denied. Reported below: No. 80-6034, 607 S. W. 2d 97; No. 80-6151, 390 So. 2d 315.

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. 80-806.
    No. 80-872.
    No. 80-888.
    No. 80-5674.
    No. 80-5715.
    Drociak v. Supreme Court of New Hampshire, Illinois v. Savory, Rowbotham v. American Airlines, Inc., et al., Hamilton v. Georgia, Clark v. Louisiana,
   449 U. S. 1106;

449 U. S. 1101;

449 U. S. 1084;

449 U. S. 1103; and

449 U. S. 1103. Petitions for rehearing denied.


text:
    March 23, 1981
    No. 79-1733.
    W. D. R. v. Taylor County Child Welfare Unit.
   Appeal from Ct. Civ. App. Tex., 11th Sup. Jud. Dist., dismissed for want of substantial federal question.


text:
    No. 79-6370.
    Able et ux. v. Delaware.
   Appeal from Sup. Ct. Del. dismissed for want of substantial federal question.


text:
    No. 80-537.
    In re J. W. B. et al.
   Appeal from Ct. Civ. App. Tex., 11th Sup. Jud. Dist., dismissed for want of substantial federal question.


text:
    No. 80-545.
    Lowrey v. Morris.
   Appeal from Sup. Ct. Miss, dismissed for want of substantial federal question.


text:
    No. 80-5302.
    Howell v. Coshocton County Children’s Services Board.
   Appeal from Ct. App. Ohio, Coshocton County, dismissed, it appearing that the judgment below rests upon independent and adequate state grounds.


text:
    No. 80-5492.
    Whack v. Maryland.
   Appeal from Ct. App. Md. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Justice Stewart, Justice Marshall, and Justice Stevens would note probable jurisdiction and set case for oral argument.


text:
    No. 80-6090.
    Stein v. Frank et ux.
   Appeal from Ct. Civ. App. Tex., 11th Sup. Jud. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-754.
    Missouri v. Counselman; Missouri v. McGee; Missouri v. Payne; Missouri v. White; and Missouri v. Williams.
   Ct. App. Mo., Eastern Dist. Motions of respondents Williams and McGee for leave to proceed in forma pauperis granted. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of Albernaz v. United States, ante, p. 333.

Justice Stewart, Justice Marshall, and Justice Stevens dissent.

Reported below: 603 S. W. 2d 3 (first case); 602 S. W. 2d 709 (second case); 607 S. W. 2d 822 (third case); 610 S. W. 2d 646 (fourth case); 610 S. W. 2d 644 (fifth case).


text:
    No. 80-283.
    Delaware v. Hunter.
   Sup. Ct. Del. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Albernaz v. United States, ante, p. 333.

Justice Stewart, Justice Marshall, and Justice Stevens dissent.


text:
    No. 80-749.
    Delaware v. Evans.
   Sup. Ct. Del. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Albernaz v. United States, ante, p. 333.

Justice Stewart, Justice Marshall, and Justice Stevens dissent.


text:
    No. A-687 (80-1569).
    Johnson v. United States.
   Application to recall and stay the mandate of the United States Court of Appeals for the Tenth Circuit, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. A-779.
    Dorta v. Forsht, United States Marshal.
   D. C. S. D. Fla. Application for stay, presented to Justice Stevens, and by him referred to the Court, denied.


text:
    No. A-785.
    BP Oil, Inc. v. Donovan, Secretary of Labor.
   D. C. E. D. Pa. Application for stay and injunction pending appeal to the United States Court of Appeals for the Third Circuit, presented to Justice Brennan, and by him referred to the Court, denied.


text:
    No. 80-242.
    Lehman, Secretary of the Navy v. Nakshian.
   C. A. D. C. Cir. [Certiorari granted sub nom. Hidalgo v. Nakshian, 449 U. S. 1009.] Motion of Claude Pepper et al. for leave to file a brief as amici curiae granted.


text:
    No. 80-581.
    Commonwealth Edison Co. et al. v. Montana et al.
   Sup. Ct. Mont. [Probable jurisdiction noted, 449 U. S. 1033.] Motion of Arizona for leave to adopt the brief amici curiae of Wyoming et al. denied.


text:
    No. 78-1088.
    Kissinger v. Reporters Committee for Freedom of the Press et al.,
   445 U. S. 136. ' Motion of Reporters Committee for Freedom of the Press for clarification of the judgment denied.

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


text:
    No. 80-396.
    City of Newport et al. v. Fact Concerts, Inc., et al.
   C. A. 1st Cir. [Certiorari granted, 449 U. S. 1060.] Motion of National Institute of Municipal Law Officers for leave to file an untimely brief as amicus curiae denied. Motion of Washington et al. for leave to file a brief as amici curiae out of time granted.


text:
    No. 80-802.
    National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City et al.
   C. A. 8th Cir. [Certiorari granted, 449 U. S. 1123.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for additional time for oral argument granted, and 15 additional minutes allotted for that purpose. Respondents also allotted an additional 15 minutes for oral argument.


text:
    No. 80-824.
    Polk County et al. v. Dodson.
   C. A. 8th Cir. [Certiorari granted, ante, p. 963.] Motion for appointment of counsel granted, and it is ordered that John D. Hudson, Esquire, of Des Moines, Iowa, be appointed to serve as counsel for respondent in this case.


text:
    No. 80-1012.
    No. 80-1030.
    No. 80-1052.
    Rice, Director, Department of Alcoholic Beverage Control of California v. Norman Williams Co. et al. Bohemian Distributing Co. v. Norman Williams Co. et al. Wine & Spirits Wholesalers of California v. Norman Williams Co. et al.
   Ct. App. Cal.; 3d App. Dist. ;

Ct. App. Cal., 3d App. Dist.; and

Ct. App. Cal., 3d App. Dist. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 80-5887.
    White v. New Hampshire Department of Employment Security et al.
   C. A. 1st Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 80-5392.
    Howe v. Smith, Attorney General, et al.
   C. A. 2d Cir. [Certiorari granted sub nom. Howe v. Civiletti, 449 U. S. 1123.] Motions of Kansas Defender Project and Families & Friends of Prisoners, Inc., et al. for leave to file briefs as amici curiae granted. Motion of the Solicitor General for divided argument granted.


text:
    No. 80-6111.
    In re Davis.
   Petition for writ of mandamus denied.


text:
    No. 80-767.
    United States v. Lee.
   Appeal from D. C. W. D. Pa. Motion of appellee for leave to proceed in forma pauperis granted. Probable jurisdiction noted.


text:
    No. 80-965.
    No. 80-1018.
    Texaco, Inc., et al. v. Short et al.; and Pond et al. v. Walden et al.
   Appeal from Sup. Ct. Ind. Probable jurisdiction noted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: -Ind.-, 406 N. E. 2d 625.


text:
    No. 80-1121.
    United States v. Clark et al.
   Ct. Cl. Certiorari granted.


text:
    No. 80-5889.
    Santosky et al. v. Kramer, Commissioner, Ulster County Department of Social Services, et al.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Motion of petitioners for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 80-1251.
    United States v. Vogel Fertilizer Co.
   Ct. Cl. Certiorari granted.


text:
    No. 79-1941.
    Diamond, Commissioner of Patents and Trademarks v. Sherwood.
   C. C. P. A. Certiorari denied.


text:
    No. 80-2049.
    Mann et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6682.
    Martinez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 79-6731.
    Caldwell v. Carroll County Welfare Department.
   Ct. App. Ohio, Carroll County. Certiorari denied.


text:
    No. 79-6860.
    Guardiola v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-13.
    Diamond, Commissioner of Patents and Trademarks v. Hirschfeld et al.
   C. A. D. C. Cir. Cer-tiorari denied.


text:
    No. 80-816.
    Bourque v. Louisiana.
   Sup. Ct, La. Cer-tiorari denied.


text:
    No. 80-875.
    Louisiana et al. v. Gary W. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-905.
    Gomez v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-937.
    Bagley v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-949.
    Michael Motors, Inc. v. Colorado Dealer Licensing Board.
   Sup. Ct. Colo. Certiorari denied.


text:
    No. 80-950.
    Nicoladze v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-975.
    Federation for American Immigration Reform et al. v. Baldrige, Secretary of Commerce, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-977. No. 80-1009.
    Hullum v. United States; and Lentz v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 624 F. 2d 1280.


text:
    No. 80-987.
    Nevada v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-994.
    Diamond v. Walter, Assistant United States Attorney, United States Department of Justice.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1000.
    Payte v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1004.
    Havens v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1016.
    Boise Cascade Corp. v. Union Pacific Railroad Co. et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-1021.
    Wood v. United States District Court for the Central District of California (Five Points Shopping Center, Real Party in Interest).
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1022.
    Pasco Petroleum Co., Inc. v. United States et al.
   Temp. Emerg. Ct. App. Certiorari denied.


text:
    No. 80-1061.
    Waters v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1069.
    Lay Faculty Assn., Local 1261 v. Bishop Ford Central Catholic High School et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1077.
    Factor et al. v. Commissioner of Patents and Trademarks.
   C. C. P. A. Certiorari denied.


text:
    No. 80-1085.
    Union Carbide Agricultural Products Co., Inc., et al. v. Costle, Administrator, Environmental Protection Agency, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1096.
    Aiken v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1110.
    Sand v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-1130.
    Peoples Bank of Indianola v. Equal Employment Opportunity Commission.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 80-1135.
    Hedstrom Co., a subsidiary of Brown Group, Inc. v. National Labor Relations Board.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-1140.
    Thomas v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1180.
    McCall et al. v. Watt, Secretary of the Interior, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1181.
    McCall et al. v. Watt, Secretary of the Interior, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1189.
    Bumpus et al. v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1191.
    Burt v. Justices of the Supreme Court of Idaho et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1195.
    Sewell v. Phillips Petroleum Co.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-1206.
    Grcich, Administrator v. Pittsburgh National Bank.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 80-1214.
    Compton v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 80-1215.
    American Fruit Purveyors, Inc. v. United States et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1219.
    Purvis v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1220.
    Ray v. Freeman et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1225.
    Mansfield v. State Bar of California et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 80-1226.
    Stadler v. City of Philadelphia.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 80-1229.
    Ehrman v. City of Philadelphia.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 80-1230.
    Newman et al., Co-Executrixes v. Commissioner of Internal Revenue.
   C. A. 5th Cir. Certio-rari denied.


text:
    No. 80-1232.
    Thill Securities Corp. et al. v. New York Stock Exchange et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-1238.
    Carothers et al. v. Rice et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-1241.
    Binkowski v. Michigan.
   Ct. App. Mich. Certiorari denied.


text:
    No. 80-1242.
    Missouri Pacific Railroad Co. v. Alcorn.
   Ct. Civ. App. Tex., 14th Sup. Jud. Dist. Certiorari denied.


text:
    No. 80-1250.
    Brown v. Brown et al.
   Sup. Ct; La. Certiorari denied.


text:
    No. 80-1255.
    Firestone v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 80-1259.
    Von Barta v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1263.
    Dunivant et al. v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 80-1272.
    County of San Mateo et al. v. Cantwell.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1273.
    McIlroy et al. v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 80-1283.
    Thornton v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 80-1287.
    Inexco Oil Co. v. Walters et al.
   C. A.

5th Cir. Certiorari denied.


text:
    No. 80-1288.
    International Association of Machinists & Aerospace Workers, AFL-CIO, et al. v. Iberia Air Lines of Spain.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1292.
    Johnson et al. v. Trueblood et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-1293.
    John L. Schulz Plumbing & Heating v. Pratte et al.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 80-1307.
    Camacho v. Wisconsin.
   Ct. App. Wis. Certiorari denied.


text:
    No. 80-1327.
    Hunter v. New York State Department of Civil Service et al.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 80-1337.
    McCorstin v. U. S. Department of Labor et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1351.
    Beran v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-1352.
    Bollotin v. Kaufman, Taylor, Kimmel & Miller et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1371.
    Wegner v. United States.
   C. A. 5th Cir. Certiorari' denied.


text:
    No. 80-1378.
    Casarez-Ulloa, aka Molina v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1411.
    Baskes v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-1418.
    No. 80-6242.
    Stevlich et al. v. United States; and Kavaja v. United States.
   C. A. 7th Cir. Certiorari denied. Reported below: 639 F. 2d 786.


text:
    No. 80-1424.
    Cantera-Duyos v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1428.
    Rosario v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1440.
    Baptiste v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1448.
    Burns v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5214.
    Walker v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5752.
    Wilkey v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5763.
    Couch v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5793.
    Cooper v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 80-5796.
    Tabb v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 80-5864.
    Kett v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5888.
    Smothers v. Missouri.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 80-5899.
    Eades v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-5908.
    Jurek v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-5914.
    Shell v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-5938.
    Goolsby v. Virginia.
   Sup. Ct. Va. Cer-tiorari denied.


text:
    No. 80-5953.
    Hackett v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-5954.
    Owensby v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 80-6005.
    Outing v. Smith, Attorney General, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-6038.
    Galvan v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 80-6067.
    Laurents v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6069.
    Boney v. ITT Community Development Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6071.
    Forman v. Smith, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-6074.
    Richey v. Blackburn, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6077.
    Williams v. Evangelical Retirement Homes of Greater St. Louis, dba Friendship Village.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-6080.
    Sheldon v. North Dakota.
   Sup. Ct. Ñ. D. Certiorari denied.


text:
    No. 80-6084.
    Burton v. Kansas.
   Sup. Ct. Kan. Cer-tiorari denied.


text:
    No. 80-6085.
    Hooker v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6087.
    Barham v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6088.
    Davis v. Warden, Central Prison, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-6092.
    Caldwell v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-6097.
    Macon v. Mitchell, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-6098.
    Akbar v. Cannery et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6100.
    Lomax v. Alabama.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 80-6101.
    Mabry v. Cenla Finance, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6106.
    Hayton v. Anderson, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6110.
    McDonald v. Metropolitan Airport Authority et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6114.
    Marshall v. District of Columbia et al.
   Ct. App. D. C. Certiorari denied.


text:
    No. 80-6115.
    Friedman v. Jewish Family Services.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 80-6116.
    Nylon v. Wyrick, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-6117.
    Richards v. Parsons et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-6119.
    Dukes v. Darcy et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-6121.
    Brown v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 80-6124.
    Bumpus v. Gunter et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 80-6128.
    Houston v. Lane, Warden, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6130.
    McMillian v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 80-6132.
    Grice v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 80-6133.
    Zdanis v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 80-6134.
    DePaul v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 80-6143.
    Martin v. North Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-6156.
    Lake v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 80-6172.
    Johnson v. Overberg, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6173.
    Stanmore v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-6176.
    DeJarnette v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-6180.
    Watson v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 80-6183.
    Stacks v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6185.
    Bertrand v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6187.
    Puchala v. Cointelpro et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-6189.
    Whitney v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-6201.
    Sparrow v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6203.
    Holland v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 80-6204.
    Gabbard v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6207.
    McWilliams v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6215.
    Willis v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-6218.
    Feliciano v. Secretary of Health and Human Services.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-6220.
    Cimino v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-6221.
    Francis v. Government of the Virgin Islands.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-6230.
    Kelley v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 80-6238.
    Haymes v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-6251.
    De Vincent v. Putnam, Warden.
   C. A. 9th Cir. Certiorari denied.


author: Justice Powell,

text:
    No. 80-299.
    John Nuveen & Co., Inc., et al. v. Sanders et al.
   C. A.. 7th Cir. Certiorari denied.

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

Justice Powell,

with whom Justice Rehnquist joins,

dissenting.

This securities controversy, which has been in litigation for 11 years, involves sales of commercial paper in the 1960’s. The Court of Appeals for the Seventh Circuit has heard the case four times on various issues over the years, and the present petition for certiorari is the third to come before the Supreme Court. The Court today denies further review, and it is indeed long past time that this litigation should come to rest. I dissent from the denial of certiorari, however, because I believe that the Court of Appeals has seriously misapplied the Securities Act of 1933. Its decision could affect adversely the efficiency of the Nation’s short-term financing markets.

John Nuveen & Co. (hereinafter petitioner) is a broker and dealer registered with the Securities and Exchange Commission (SEC). In the late 1960’s, petitioner undertook to sell the short-term promissory notes — commercial paper — of Winter & Hirsch, Inc. (W&H), a consumer finance company. Relying on (i) the company’s certified financial statements, (ii) responses to inquiries from banks, and (iii) a brief inspection of company records, petitioner issued a “Commercial Paper Report,” similar to a prospectus, on W&H commercial paper. The report reviewed the data in certified financial statements and noted that “ [t]he ratio of debt to capital funds came to 311% — Excellent! . . . Bad debts charged off came to $375,000, and recoveries in relation were $173,000 — 46%, an excellent showing.” Respondents and other customers of petitioner made purchases.

Unknown to petitioner and to the public, W&H at the time was in serious financial trouble. W&H officers had conspired with auditors from the certified public accounting firm of Lieber, Bleiweis & Co. to tamper with the company’s financial statements to make the company appear profitable. Its financial statement for 1968 showed that W&H had earned $500,000; in fact, it had lost about $1 million.

When the fraud was discovered in 1970, officials from W&H and Lieber, Bleiweis were convicted of federal fraud charges. Holders of W&H commercial paper were paid about 65 cents on the dollar. A class of plaintiffs, respondents here, sued under a variety of theories to recover the remainder. The issue presently before the Court concerns liability under § 12 (2) of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U. S. C. § 771 (2), which provides, in pertinent part:

“Any person who—
“(2) offers or sells a security ... by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact . . . and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable to the person purchasing such security from him . . . .”

The District Court held that petitioner was liable under § 12 (2) because it had failed to use “reasonable care” when it issued the misleading report and recommended orally to some individuals that they buy W&H paper. The Court of Appeals affirmed. Sanders IV, 619 F. 2d 1222 (1980). It reasoned that petitioner had failed to use “reasonable care” because petitioner had not made a reasonable investigation of W&H’s financial health. Instead, petitioner had relied principally on the certified financial statements. Its independent investigation consisted of inquiries to banks and a one-day spot check of company records. The Court of Appeals thought that petitioner also should have examined the company’s tax returns, its minute books, and the workpapers of the independent accountants. Id., at 1228, citing Sanders 11, 524 F. 2d 1064, 1069 (1975).

II

Although the opinion of the Court of Appeals is not explicit, it appears to impose a duty of “reasonable investigation” rather than § 12 (2)’s requirement of “reasonable care.”

A

Section 11 (a) of the 1933 Act, 15 U. S. C. § 77k (a), imposes liability on certain persons for selling securities in a registered public offering pursuant to a materially false or misleading registration statement. A registered offering is the class of financial transactions for which Congress prescribed the most stringent regulation. The standard of care imposed on an underwriter is that it must have “had, after reasonable investigation, reasonable ground to believe and did believe” that the registration statement was accurate. § 11 (b)(3)(A) of the Act, 15 U. S. C. § 77k (b)(3)(A) (emphasis added).

Liability in this case was not imposed on petitioner under § 11, but under § 12 (2). Under the latter, section, it is necessary for sellers to show only that they “did not know, and in the exercise of reasonable care could not have known,” that their statements were false or misleading. (Emphasis added.)

In providing standards of care under the 1933 Act, Congress thus used different language for different situations. “Reasonable investigation” is required for registered offerings under § 11, but nothing more than “mer[e] . . . 'reasonable care’” is required by § 12 (2). Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L. J. 171, 208 (1933). The difference in language is significant, because in the securities Acts Congress has used its words with precision. See, e. g., Ernst & Ernst v. Hochfelder, 425 U. S. 185, 198-201 (1976); Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 755, 756 (1975) (Powell, J., concurring). “Investigation” commands a greater undertaking than “care.” See Douglas & Bates, supra, at 208, n. 205.

In a brief filed in this case with the Court of Appeals, the SEC expressly stated that the standard of care under § 12 (2) is less demanding than that prescribed by § 11:

“[I]t would be inconsistent with the statutory scheme to apply precisely the same standards to the scope of an underwriter’s duty under Section 12 (2) as the case law appropriately has applied to underwriters under Section 11. Because of the vital role played by an underwriter in the distribution of securities, and because the registration process is integral and important to the statutory scheme, we are of the view that a higher standard of care should be imposed on those actors who are critical to its proper operations. Since Congress has determined that registration is not necessary in certain defined situations, we believe that it would undermine the Congressional intent — that issuers and other persons should be relieved of registration — if the same degree of investigation were to be required to avoid potential liability whether or not a registration statement is required.” Brief for SEC in Nos. 74-2047 and 75-1260 (CA7), Sanders III, p. 69.

The Court of Appeals’ opinion may be read as holding that petitioner’s duty of “reasonable care” under § 12 (2) required it independently to investigate the accuracy and completeness of the certified financial statements. It was customary, however — and in my view entirely reasonable — for petitioner to rely on these statements as accurately reflecting W&H’s financial condition. Even under § 11 of the Act, an underwriter is explicitly absolved of the duty to investigate with respect to “any part of the registration statement purporting to be made on the authority of an expert” such as a certified accountant if “he had no reasonable ground to believe and did not believe” that the information therein was misleading. § 11 (b)(3)(C) of the Act, 15 U. S. C. § 77k (b)(3)(C); see § 11 (a)(4), 15 U. S. C. § 77k (a)(4). This provision is in the Act because, almost by definition, it is reasonable to rely on financial statements certified by public accountants. Yet, in this case, the Court of Appeals nevertheless seems to have imposed the higher duty prescribed by § 11 to investigate, but denied petitioner the right to rely on “the authority of an expert” that also is provided by § ll.

B

The Solicitor General at this Court’s request has filed a brief amicus curiae. He does not embrace the decision of the Court of Appeals, see supra, at 1009, but nevertheless suggests that we deny certiorari because, inter alia, courts in the future “will undoubtedly recognize” that the decision in this case is confined to its “unusual fact situation.” Brief for United States as Amicus Curiae 7.

If it were clear that the decision fairly must be read as thus limited, I would not dissent from denial of certiorari. My concern is that the opinion of the Court of Appeals will be read as recognizing no distinction between the standards of care applicable under §§11 and 12 (2), and particularly as casting doubt upon the reasonableness of relying upon the expertise of certified public accountants. Dealers may believe that they must undertake extensive independent financial investigations rather than rely on the accuracy of the certified financial statements. If this is so, the efficiency of the short-term financial markets will be impaired. I would grant certiorari.

       The District Court also found petitioner liable under §12(1) of the Act, 15 U. S. C. § Til (1). The Court of Appeals did not decide whether petitioner was liable under this theory, 619 F. 2d, at 1224, n. 1, although in a prior opinion it had expressed “great doubt” about the validity of that legal theory, Sanders III, 554 F. 2d 790, 794 (1977).

       The Court of Appeals noted that petitioner had an “ ‘honest belief that [the] financial statements . . . correctly represented’ ” W&H’s financial condition. Sanders IV, 619 F. 2d, at 1224, quoting Sanders II, 524 F. 2d 1064, 1066 (1975). The court assumed for purposes of its decision that the audit reports and certified financial statements were not defective on their face and that nothing in them gave petitioner any reason to question their accuracy. Sanders IV, supra, at 1227, n. 10. Lieber, Bleiweis represented that its audit had been conducted “in accordance with generally accepted auditing standards applicable in the circumstances and comprised such tests of the accounting records and supporting evidence and such other procedures as we considered necessary.” The auditor’s opinion also noted that no “detailed audit” of certain transactions had been performed. Petitioner erroneously stated in its Commercial Paper Report that Lieber, Bleiweis had performed a detailed audit. The Court of Appeals did not suggest that petitioner’s error in this respect was relevant to the question of petitioner’s care in relying on the data.

       Although it appears that petitioner, in accord with general custom, relied primarily on the financial statements of the independent auditors, petitioner did take an additional precaution: it checked with the major banks that extended millions of dollars of credit to W&H. The Court of Appeals held that this inquiry was insufficient because the banks themselves may not have acted with “prudence.” See Sanders II, 524 F. 2d, at 1071, and n. 20. In my view, the fact that petitioner ascertained that banks with national and international reputations were extending credit to W&H is highly relevant to whether petitioner exercised reasonable care even assuming, arguendo, that petitioner was not entitled simply to rely on the certified financial statements.

         Reliance upon facially unexceptionable certified financial statements, as to the correctness of the financial data shown therein, is essential to the proper functioning of securities marketing, to the trading in securities, to the lending of money by banks and financial institutions, and to the reliance by stockholders on the reports of their corporations. For the most part, certified public accountants faithfully have fulfilled the trust placed on them. But where breaches by accountants occur, it is the accountants themselves — not those who rely in good faith on their professional expertise — who are at fault and who should be held responsible.

       Moreover, the duty to investigate imposed by the Court of Appeals rarely would uncover the type of fraud involved in this case. According to the Court of Appeals, petitioner would have learned of the fraud if it had examined W&H’s minute books, the accountant’s workpapers, and company tax returns. Sanders II, supra, at 1069. I accept this finding, but observe that this would be most unusual. What one normally finds in minute books sheds no light whatever on the accuracy 'of audited financial statements. Nor would it be enlightening to examine the workpapers of the certified public accountants. The drafters of corporate minutes and accountants bent on fraud hardly are likely to reflect the fraud in records or papers that are easily subpoenaed. Similarly, information can be gleaned from tax returns only if they are honestly prepared. The Court of Appeals itself noted: “Experience teaches us that fraud can be skillfully hidden.” Sanders II, supra, at 1071.

       Commercial paper, for example, normally is issued for periods of 30 to 90 days, and in no event more than 270 days. It is useful for borrowers with fluctuating temporary cash needs. Dealers such as petitioner buy commercial paper from issuers and resell it to investors. A dealer’s compensation is the “spread” between the price at which he buys the paper from the issuer and the price charged the investor. Comment, The Commercial Paper Market and the Securities Acts, 39 U. Chi. L. Rev. 362, 367-368 (1972). The dealer’s “spread” historically has been relatively small. Id,., at 368; see Pet. for Cert. 17, n. 20. The additional expense and legal exposure made necessary by the Court of Appeals’ decision will increase the “spread,” and hence also the cost of borrowing.


author: Justice Rehhquist,

text:
    No. 80-653.
    Alioto et al. v. Williams et al.
   C. A. 9th Cir. Certiorari denied.

Justice Rehhquist,

with whom Justice White joins,

dissenting.

This case presents the question whether attorney’s fees may be awarded under 42 U. S. C. § 1988 to plaintiffs in a civil rights action who obtain a preliminary injunction against a city when the city is later denied the right to appeal the issuance of the injunction because of mootness. In my view, the award of attorney’s fees in such a situation is not authorized by any statute, and I dissent from the denial of the petition for a writ of certiorari.

Respondents brought this action under 42 U. S. C. §§ 1981 and 1983 against officials of the city of San Francisco and its police department challenging certain police practices which took place in April 1974 during what became known as “Operation Zebra.” Beginning in late 1973, a series of vicious random killings and attempted killings took place on the streets of San Francisco. These murders became known as the “Zebra” killings. Between December 1973 and April 1974, 12 persons were murdered and 6 others were wounded. The police department of San Francisco responded to this violence by initiating a special investigatorial procedure known as “Operation Zebra” to attempt to identify and capture the killers. Police directives and memoranda authorized officers to stop and frisk black males resembling two composite drawings and having described physical characteristics. Over 600 persons were stopped and “pat searched” in the course of the operation.

Respondents brought two separate actions seeking declaratory and injunctive relief on behalf of black males who were stopped or were subject to being stopped pursuant to Operation Zebra practices. The District Court preliminarily enjoined the police procedure and also concluded that respondents were entitled to attorney’s fees. Petitioners appealed the entry of the preliminary injunction but before the appeal was heard the Zebra killers were apprehended, convicted, and sentenced. The police investigation of the Zebra killings having ceased, the Court of Appeals dismissed the appeal as moot and the judgment of the District Court was vacated. Williams v. Alioto, 549 F. 2d 136 (CA9 1977). Subsequently, the District Court enteréd an order awarding respondents a total of $45,000 in attorney’s fees. The Court of Appeals affirmed that order, finding that “by obtaining the preliminary injunction [respondents] ‘prevailed on the merits of at least some of their claims.’ . . . The preliminary injunction prevented [petitioners] from continued enforcement of their original guidelines, which is precisely the relief [respondents] sought.” 625 F. 2d 845, 847 (1980).

In my view, an award of attorney’s fees under these circumstances is not authorized by 42 U. S. C. § 1988. That section provides in pertinent part:

“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

To treat respondents as “prevailing parties” under § 1988 because they secured a preliminary injunction is to ignore the fact that petitioners exercised their right to appeal the entry of that order and the fact that the propriety of the injunction was being challenged on appeal at the time the case became moot and the appeal dismissed. No permanent injunction ever issued and there has been no settlement or consent decree.

The question raised here is of significance because liability for attorney’s fees inflicts severe financial penalties. Exposure of any party to such penalties when mootness deprives him of the appeal authorized by law which he had already initiated should result only from a clear authorization by Congress or settled precedent of this Court. Here the settled precedent is exactly contrary to what was done by the court below. Over three decades ago we explained in United States v. Munsingwear, Inc., 340 U. S. 36 (1950), that the practice of this Court in dealing with a civil case which has become moot is to reverse or vacate the judgment below. That is exactly what the Court of Appeals did here. However, we also explained in Munsingwear that when the procedure of vacating the judgment is followed, “the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary.” Id., at 40. The Court of Appeals failed to follow this rule and petitioners have unquestionably been “prejudiced by a decision which in the statutory scheme was only preliminary.”

The decision below has spawned harsh consequences which are contrary to the policy espoused in Munsingwear, supra. Accordingly, I would grant the petition for a writ of certio-rari and reverse the judgment of the Court of Appeals.


author: Justice Rehnquist,

text:
    No. 80-763.
    Estelle, Corrections Director v. Jurek.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

Justice Rehnquist,

dissenting.

In light of the facts of this case and the legal issues it presents, it is inexplicable to me why this Court fails to grant the petition for certiorari and give the case plenary consideration. Against the backdrop of a death sentence, this case involves the voluntariness of a series of confessions, the proper standard of review of state and federal lower court determinations of “voluntariness” in a habeas corpus proceeding, and the applicability of the harmless-error doctrine. To be sure, the issues presented are difficult. But that is surely no reason for this Court to avoid its responsibility of resolving a case as important to the integrity of our judicial system as this.

Jurek is no stranger to this Court. In early 1974, Jurek was convicted by a jury of the murder of a 10-year-old girl and sentenced to death. The Texas Court of Criminal Appeals affirmed, rejecting Jurek’s contention that his oral and two written confessions were involuntary and should. not have been admitted into evidence. Jurek v. State, 522 S. W. 2d 934 (1975). We granted certiorari to decide only whether Texas’ death penalty statute was constitutional and affirmed, finding that the statute satisfied the principles announced in Furman v. Georgia, 408 U. S. 238 (1972). Jurek v. Texas, 428 U. S. 262 (1976). Jurek then unsuccessfully sought a writ of habeas corpus in the state courts. We denied his petition for a writ of certiorari, after granting a temporary stay of execution pending timely filing for that writ. Jurek v. Estelle, 430 U. S. 951 (1977).

But, as in so many criminal cases these days, Jurek’s conviction was still not final. He next commenced habeas corpus proceedings in the federal courts, again challenging the voluntariness of his confessions. The District Court held an exhaustive evidentiary hearing and — like the jury, the state trial court and the state appellate court before it — found the confessions to be voluntary. A panel of the Court of Appeals for the Fifth Circuit nevertheless reversed, concluding that the confessions were involuntary. The 25 judges of the Court of Appeals sitting en banc also reversed, albeit on somewhat different grounds. 623 F. 2d 929 (1980). Judge Garza’s opinion, embraced in its entirety by only three other judges, represents the result reached by a majority of the court. The majority found that although the oral confession and the first written confession were voluntary, the second written confession was involuntary. Judge Godbold, joined by one other judge, would have found both written confessions involuntary. Judge Frank M. Johnson, joined by six judges, would have held all of the confessions involuntary. Judges Brown and Reavely filed separate opinions, joined by 10 and 8 judges respectively, which would have held all of the confessions voluntary.

Briefly stated, these are the facts surrounding the confessions. Jurek was arrested late at night in Cuero, Tex., in connection with the disappearance of Wendy Adams. He was taken to police headquarters, given Miranda warnings and questioned for 45 minutes. He was not questioned again until 9 o’clock the next morning. He asked to take a polygraph test and was driven to Austin, Tex., for that purpose. When confronted with the results of the test, he orally admitted killing Wendy and told the police where the body might be found. The police then returned Jurek to Cuero and immediately took him before a Magistrate where Jurek declined a request for counsel. After searching unsuccessfully for the body, the police again questioned Jurek and late that night took a written confession from Jurek, witnessed by two members of the community, in which he stated he killed Wendy because she made disparaging remarks about his family. For security reasons, the police then transferred Jurek for the night to a jail in Victoria, Tex., about 50 miles away. The next day the police found Wendy’s body and that afternoon again questioned Jurek. In a second written confession, again witnessed by two other members of the community, Jurek stated that he killed Wendy because she refused to have sexual relations with him.

There are several reasons why this case is worthy of review. In the first place, Judge Garza’s attempt to distinguish between the first and second written confessions is, to me, wholly unpersuasive. Indeed, other than Judge Garza and the three judges who joined him, no one had ever suggested that the second confession was less voluntary than the first. In cases involving multiple confessions, we have held that some of the confessions may be found involuntary and others not only if such a distinction is justified by a sufficiently isolating “break in the stream of events.” Darwin v. Connecticut, 391 U. S. 346, 349 (1968). There is no such break here.

Judge Garza attempted to distinguish the second confession on the ground that the police were motivated by a desire to secure a death sentence for Jurek. But, as even Judge Johnson recognized in his separate opinion, the record reveals that the prosecutors believed they already had enough evidence to obtain a death verdict. 623 F. 2d, at 943. The record shows that the prosecutors sought the second confession simply because they wanted a signed statement of the “true” events. Each time the police learned of something new relating to Wendy’s disappearance, they went to Jurek to confirm it. Surely nothing in the Constitution prevents the police from asking questions to discern the facts and solve a crime. Judge Garza also relied heavily on the alleged difference in “style” between the two confessions, that Jurek had less input in the second confession because it contained some “legalese.” But even if there is a significant difference in style between the confessions — which I doubt — that may well be explained simply by the fact that the confessions were “transcribed” by two different persons. And all of the witnesses to the second confession have testified that they believed the confession to be voluntary. The opinion also relies on the fact that there was a 16-hour time difference between the two confessions, but such reliance is misplaced in light of our decisions holding that even a 6-month time difference is not enough to constitute a sufficiently isolating break between two confessions. United States v. Bayer, 331 U. S. 532 (1947). Finally, Judge Garza criticized the police for not informing Jurek that if he admitted to attempting to have sexual relations with Wendy, he “was in effect” signing his “death warrant.” 623 F. 2d, at 935. But even if it were true that the police were seeking the death sentence, our cases have never required the police to give such unsolicited legal advice. In short, nothing in the record reveals any police misconduct or any “coercion” visited upon Jurek. Quite the contrary, their performance strikes me as commendable. The evidence simply does not establish that Jurek’s will was overborne or that his confession was not the product of a rational intellect and a free will.

If the issue in this case was only whether Jurek’s confessions were voluntary, I might acquiesce in the denial of cer-tiorari because of the impracticality of this Court’s reviewing such fact-specific questions. But this case involves far more than simply whether a particular confession is voluntary. The decision below reveals tremendous confusion as to the proper standard of review in a federal habeas proceeding after a jury, a state trial court, a state appellate court, and a federal district court have determined a confession to be voluntary. Relying on Beckwith v. United States, 425 U. S. 341, 348 (1976), Judge Garza held that a court of appeals in a federal habeas case must “ ‘examine the entire record and make an independent determination of the ultimate issue of voluntariness.’” 623 F. 2d, at 931. Judge Brown, on the other hand, found that Jurek’s confessions were admissible under even the “independent review” standard, and thus found it unnecessary to choose between that standard and the “clearly erroneous” test. Id., at 962. This issue is important and should be resolved by the Court. As Judge Brown recognized, we have never explicitly applied the “independent review” test in the federal habeas corpus context, and even in those cases where we have suggested that a broader standard of review might be appropriate we have made clear that “great weight, of course, is to be accorded to the inferences which are drawn by the state courts. In a dubious case, it is appropriate, with due regard to federal-state relations, that the state court’s determination should control.” Culombe v. Connecticut, 367 U. S. 568, 605 (1961). In this case, the Court of Appeals gave little deference to findings of historical facts, see n.*, supra, much less to the lower court’s inferences as to the ultimate issue of voluntariness.

In my view, the Court of Appeals also erred in ignoring the applicability of the harmless-error doctrine to the facts of this case. In Milton v. Wainwright, 407 U. S. 371 (1972), we clearly held that the harmless-error doctrine should be applied in cases involving multiple confessions. We explained:

“The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but, rather, to review for violation of federal constitutional standards. In that process we do not close our eyes to the reality of overwhelming evidence of guilt fairly established in the state court 14 years ago by use of evidence not challenged here; the use of the additional evidence challenged in this proceeding and arguably open to challenge was, beyond reasonable doubt, harmless.” Id., at 377-378.

What is particularly troubling about this case is that I have no doubt that the decision below was colored by the fact that this is a capital punishment case. The severity of a defendant’s punishment, however, simply has no bearing on whether a particular confession is voluntary or on the extent to which federal habeas courts should defer to state-court findings. Following the decision in Furman v. Georgia, 408 U. S. 238 (1972), holding invalid a state capital punishment statute, the State of Texas, like 34 other States, enacted new death penalty statutes. Those States determined that capital punishment, though an extreme form of punishment, is a suitable sanction for the most extreme of crimes. One of the principal goals of our Federal Government, set forth in the preamble to the Constitution, is “[to] insure domestic Tranquility.” Whether as means of deterring future crimes or as means of retribution, these States believed that a carefully designed and limited system of capital punishment would be one way of ensuring domestic tranquility.

In a series of decisions handed down in 1976 this Court upheld the constitutionality of those statutes, Gregg v. Georgia, 428 U. S. 153; Proffitt v. Florida, 428 U. S. 242, including the statute at issue here. Jurek v. Texas, 428 U. S. 262. The opinion announcing the judgment in Gregg v. Georgia reasoned that “[considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.” 428 U. S., at 186-187 (opinion of Stewart, Powell, and Stevens, JJ.). The opinion also squarely rejected the notion that “standards of decency” rendered the death penalty unconstitutional, noting that “it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction.” Id., at 179.

The murder in this case was committed in 1973. For eight years, the State of Texas has repeatedly presented its case against Jurek to state and federal courts. Yet, despite the fact that every court has concluded that at least one of Jurek’s written confessions was voluntary, the people of the State of Texas now find themselves no closer to enforcing their capital punishment statute than they were when they began eight years ago. By overturning Jurek’s conviction on the basis of a procedural nicety, the decision below not only renders Texas’ death penalty statute an ineffective deterrent, it also frustrates society’s compelling interest in having its constitutionally valid laws swiftly and surely carried out. A potential murderer will know that even if he is convicted and sentenced to death, he will very likely not be put to death. If he litigates the case long enough, the odds favor his finding some court which will accept a legal theory previously rejected by other courts.

As Judge Brown put it:

“This case presents in dramatic terms the tensions between promoting thorough and efficient enforcement of the laws and ensuring that the rights of the accused are scrupulously guarded. We have on the one hand a murder which could hardly have been more reprehensible; the violent, senseless slaying of a young girl. On the other hand, we have a decision by a panel of this Court throwing out Jurek’s two written confessions on the grounds of voluntariness, making it very unlikely that Jurek could again be convicted on retrial.” 623 F. 2d, at 956.

I agree with Judge Brown that the decision below makes it “very unlikely that Jurek could again be convicted on retrial.” Even though Jurek has made at least one “voluntary” confession, he may well escape all punishment for his violent, senseless slaying of a young girl. I, for one, am unwilling to subscribe to a decision of this Court which sanctions such an outcome. I do not think that this Court can, like Pontius Pilate, wash its hands of the numerous issues presented in this case, issues which are bound to arise not merely in this case, but in countless others. I would therefore grant the petition for certiorari and set the case for argument.

       To be sure, there is some dispute as to the facts. The panel found that Jurek was questioned throughout the first night and criticized the police for taking Jurek to Austin, Tex. 593 F. 2d 672 (1979). The Texas Court of Criminal Appeals and the United States District Court, however, found that Jurek was left alone during the night and that Jurek was transferred to Austin at his own request. Thus, the panel clearly ignored the requirement of 28 U. S. C. § 2254 (d) that state-court findings of fact are to be presumed correct. See Sumner v. Mata, 449 U. S. 539 (1981). To the extent Judge Garza’s opinion relied on the panel’s findings of facts, it too erred.


text:
    No. 80-794.
    Blews v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.

Justice Brennan, Justice Stewart, and Justice Marshall would grant certiorari and reverse the conviction.


text:
    No. 80-840.
    Weber et al. v. Barrett.
   C. A. 5th Cir. Certiorari denied.

Justice Rehnquist,

with whom The Chief Justice and Justice Stewart join,

dissenting.

Respondent is a former employee of the Sheriff of Dallas County, Tex., who brought suit against the Sheriff on behalf of himself and others to enjoin the enforcement of certain of the Sheriff’s rules on the grounds that they infringed certain First Amendment rights. Petitioners, Dallas County and various county officials, sought leave to intervene in this litigation because county funds might be liable for a judgment against the Sheriff. The trial court denied intervention and the United States Court of Appeals for the Fifth Circuit affirmed. The Court of Appeals then granted the respondent’s motion for an award of attorney’s fees under 42 U. S. C. § 1988, which provides in pertinent part:

“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

The Court of Appeals stated that respondent was a clear winner on the intervention issue and then explained:

“[Respondent] has prevailed on his underlying claim against defendant Sheriff Thomas. Part of the cost involved in so prevailing was the devotion of his attorney’s time and effort in successfully preventing the initial judgment against Thomas from being derailed as a result of [petitioners’] attempts to intervene. [Petitioners] cannot now be excused from bearing the burden of these costs simply because we did not hold they were liable for the judgment on the merits against Sheriff Thomas, an issue never raised or considered by the trial court.”

The decision of the Court of Appeals relies in part on the fact respondent prevailed in the trial court on his underlying civil rights claim against the Sheriff. The Court of Appeals, however, ignores the fact respondent has only prevailed in the trial court on this claim. Appeal from that decision is still pending in the Court of Appeals. The Court of Appeals therefore has authorized an award of attorney’s fees prior to there being a final determination that respondent prevailed in “an action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 . . . .” Petitioners are being prejudiced by a decision which in the statutory sense was only preliminary. United States v. Munsingwear, Inc., 340 U. S. 36, 40 (1950). The merits of the denial of the motion to intervene, which are entirely separate from the civil rights claim, is the only issue dealt with by the Court of Appeals in its opinion affirming the denial. See Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 524 (1947). Only last Term we explained in Hanrahan v. Hampton, 446 U. S. 754 (1980):

“Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. For only in that event has there been a determination of the 'substantial rights of the parties,’ which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney.” Id., at 758.

The award of attorney’s fees under § 1988 against the petitioners who were not defendants in this civil rights litigation is permissible, if at all, only after there has been a final determination that the respondent has prevailed on the merits on at least some of his claims against the Sheriff. Conceivably, the judgment against the Sheriff could be reversed and in that case § 1988 would provide no authorization for an award of fees against the petitioners. Because I think the award of such fees for successfully defending an appeal of a collateral order having nothing to do with civil rights is not authorized by § 1988 at this interim stage of the litigation, I dissent from the denial of the petition for a writ of certiorari.


text:
    No. 80-924.
    Shell Oil Co. et al. v. Department of Energy et al.
   C. A. 3d Cir. Certiorari denied.

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

Justice Powell,

dissenting.

The Energy Information Administration of the Department of Energy (DOE) compels 27 energy-producing companies, including petitioners, to submit data in response to 7,200 individual requests for information about their operations. These data concern virtually all aspects of these companies’ finances. Upon request, DOE releases data submitted under this compulsion to other federal departments and agencies, including the offices in the Departrrient of Justice and the Federal Trade Commission charged with enforcing the antitrust laws.

The dissemination of this extraordinary volume of data to those prosecutorial Government agencies raises a serious question, as these agencies thereby may obtain information that statutory and constitutional safeguards would bar them from obtaining directly in antitrust enforcement actions. The likelihood that rights of potential antitrust defendants will be violated increases as DOE demands increasingly more data from companies subject to its regulation and then disseminates the information to prosecutorial agencies. Congress has given DOE an investigative power that appears to be intrusive as well as excessively burdensome in its own right. But that power should not become a blanket discovery authority for the use of the Department of Justice and the Federal Trade Commission without the safeguards provided by law against abuse of legal rights.

Because of the seriousness of the question whether Congress intended that information obtained by DOE be put to such use, I would grant the petition for certiorari and set the case for plenary consideration.


text:
    No. 80-947.
    No. 80-1204.
    No. 80-5862.
    No. 80-6127.
    Chaney v. Oklahoma. Anderson v. Nebraska. Hochstein v. Nebraska. McDowell v. North Carolina.
   Ct. Crim. App. Okla.;

Sup. Ct. Neb.;

Sup. Ct. Neb.; and

Sup. Ct.

N. C. Certiorari denied. Reported below: No. 80-947, 612 P. 2d 269; Nos. 80-1204 and 80-5862, 207 Neb. 51, 296 N. W. 2d 440; No. 80-6127, 301 N. C. 279, 271 S. E. 2d 286.

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. 80-972.
    Oldag v. Catholic Charities of the Diocese of Galveston-Houston et al.
   Sup. Ct. Tex. Cer-tiorari denied.

Justice Brennan, Justice White, and Justice Marshall would grant certiorari.


text:
    No. 80-1137.
    No. 80-1145.
    No. 80-1178.
    Appalachian Insurance Co. et al. v. United States; Aid Insurance Co. et al. v. United States; and Aetna Insurance Co. et al. v. United States.
   C. A. 9th Cir. Certiorari denied.

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

Reported below: 628 F. 2d 1201.


text:
    No. 80-1221.
    Riggs v. Board of Trustees of the Ohio State University.
   C. A. 4th Cir. Certiorari denied.

Justice Brennan would grant certiorari.


text:
    No. 80-1269.
    Giddens v. Georgia.
   Ct. App. Ga. Cer-tiorari denied.

Justice Brennan would grant certiorari.


text:
    No. 80-1222.
    Joint Bar Association Grievance Committee, Tenth Judicial District v. Koffler et al.
   Ct. App. N. Y. Certiorari denied.

Justice Blackmun would grant certiorari.


text:
    No. 80-1234.
    Shaw v. University of Texas Health Science Center at Dallas.
   C. A. 5th Cir. Motion of petitioner for leave, to proceed as a veteran granted. Certio-rari denied.


text:
    No. 80-1235.
    Moody v. Forresster, Commissioner of Insurance of Alabama, et al.
   C. A. 5th Cir. Motion of Washington Legal Foundation for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 80-6073.
    Grooms v. Slabaugh et al.
   C. A. 7th Cir.

Certiorari denied.

Justice Marshall would grant certio-rari.


text:
    No. 80-5161.
    No. 80-5692.
    Johnson v. Oklahoma, Boyd v. City and County of Denver, Colorado, et al.,
   449 U. S. 1132; and

449 U. S. 1089. Petitions for rehearing denied.


text:
    No. 79-700.
    Walter Fleisher Co., Inc. v. County of Los Angeles et al.,
   449 U. S. 608. Petition for rehearing denied.

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


text:
    No. 79-1171.
    Minnesota v. Clover Leaf Creamery Co. et al.,
   449 U. S. 456. Petition for rehearing denied.

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


text:
    No. 80-887.
    Burns et al. v. Diocese of Newark et al.,
   449 U. S. 1131. Petition for rehearing denied.

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


text:
    March 27, 1981
    No. 87,
    Orig.
    California v. Texas.
   Motion to dismiss the application of California Avocado Commission et al. for a preliminary injunction or temporary restraining order and motion to intervene were dismissed under this Court’s Rule 53. [For earlier order herein, see, e. g., ante, p. 977.]


text:
    March 30, 1981
    No. 80-6161.
    Stein v. Hill, Judge, et al.
   Appeal from C. A. 5th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 80-1368.
    Missouri v. Brown; Missouri v. Collins; Missouri v. Greer; Missouri v. Hawkins; and Missouri v. Martin.
   Ct. App. Mo., Western Dist. Motions of respondents for leave to proceed in forma pauperis and certiorari granted. Judgments vacated and cases remanded for further consideration in light of Albernaz v. United States, ante, p. 333.

Justice Stewart, Justice Marshall, and Justice Stevens dissent.

Reported below: 607 S. W. 2d 801 (first case); 607 S. W. 2d 781 (second case); 609 S. W. 2d 423 (third case); 608 S. W. 2d 496 (fourth case); 610 S. W. 2d 18 (fifth case).


text:
    No. A-795.
    Levinson v. Finley, Clerk, Circuit Court of Cook County, et al.
   Cir. Ct., Cook County, Ill. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. 79-1420.
    Firestone Tire & Rubber Co. v. Risjord,
   449 U. S. 368. Motion of respondent to retax costs denied.


text:
    No. 80-328.
    New York v. Belton.
   Ct. App. N. Y. [Certiorari granted, 449 U. S. 1109.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for additional time for oral argument granted, and 15 additional minutes allotted for that purpose. Respondent also allotted an additional 15 minutes for oral argument.


text:
    No. 80-396.
    City of Newport et al. v. Fact Concerts, Inc., et al.
   C. A. 1st Cir. [Certiorari granted, 449 U. S. 1060.] The order heretofore entered on March 23,1981 [ante, p. 992], is vacated, and the brief amicus curiae of National Institute of Municipal Law Officers is ordered filed.


text:
    No. 80-780.
    Rowan Cos., Inc. v. United States.
   C. A. 5th Cir. [Certiorari granted, 449 U. S. 1109.] Motion of Mountain States Legal Foundation for leave to file a brief as amicus curiae granted.


text:
    No. 80-1365.
    Connecticut v. Mohegan Tribe.
   C. A. 2d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 80-901.
    Donovan, Secretary of Labor v. Dewey et al.
   D. C. E. D. Wis. [Probable jurisdiction noted sub nom. Marshall v. Dewey, 449 U. S. 1122.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a brief as amicus curiae granted.


text:
    No. 80-6139.
    In re Griffin.
   Petition for writ of mandamus denied.


text:
    No. 80-1045.
    Jacksonville Bulk Terminals, Inc., et al. v. International Longshoremen’s Assn. et al.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 80-1285.
    Brown v. Hartlage.
   Ct. App. Ky. Cer-tiorari granted.


text:
    No. 79-2010.
    Mark-Garner Associates, Inc. v. Bensalem Township et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 80-798.
    McFarland v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-928.
    Parks v. Virginia.
   Sup. Ct. Va. Certio-rari denied.


text:
    No. 80-941.
    Lomas & Nettleton Financial Corp. et al. v. Clark et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-991.
    George v. Kay.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-993.
    Patterson et al. v. National Labor Relations Board et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-1017.
    Loucas v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-1024.
    Newton v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 80-1075.
    Jenkins v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 80-1107.
    Caulfield et al. v. Board of Education of the City of New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1119.
    Ramapuram v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-1126.
    Taggart Corp. et al. v. Efros et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1127.
    C-F Air Freight, Inc. v. National Labor Relations Board.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1210.
    Burlinson et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 80-1245.
    Selco Supply Co. v. United States Environmental Protection Agency.
   C. A. 10th Cir. Certio-rari denied.


text:
    No. 80-1297.
    Dugas v. Kelly et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1298.
    Gilmer et al. v. Truck Drivers, Oil Drivers, Filling Station & Platform Workers Union, Local 705, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-1304.
    Page Airways, Inc., et al. v. Associated Radio Service Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1312.
    Elbert v. Board of Education of Lanark Community Unit School District #305, Carroll County, Illinois, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 80-1316.
    Bauer v. United States et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 80-1318.
    Godek v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 80-1321.
    Metropolitan Detroit Area Hospital Services, Inc. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 80-1347.
    Diorio et al. v. Kreisler-Borg Construction Co., Inc.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 80-1357.
    Winston, Sheriff, et al. v. Eby et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 80-1370.
    Peterson v. Sorlien et al.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 80-1387.
    Tann v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 80-1409.
    New York v. Warner-Lambert Co. et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 80-1412.
    Ihle et al v. Florida Publishing Co.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 80-1425.
    Weisensee v. Supreme Court of South Dakota.
   Sup. Ct. S. D. Certiorari denied.


text:
    No. 80-1427.
    Dizak et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 80-1455.
    Cotton v. United States.
   C. A. 5th Cir. Certiorari denied.