text:
    No. 105,
    Orig.
    Kansas v. Colorado.
   It is ordered that the Honorable Wade H. McCree, Jr., of Ann Arbor, Mich., be appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and the authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.

It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court. [For earlier order herein, see 475 U. S. 1079.]


source: Caselaw Access Project

license: Public Domain

text:
    No. 85-5.
    Pennsylvania et al. v. Delaware Valley Citizens’ Council for Clean Air et al.
   C. A. 3d Cir. [Certio-rari granted, 474 U. S. 815.] Case restored to the calendar for reargument insofar as it poses the issue whether a presumptively reasonable attorney’s fee award under § 304(d) of the Clean Air Act, 42 U. S. C. § 7604(d), may be “multiplied” or otherwise enhanced to reflect the risk that plaintiffs might not have prevailed and, therefore, might have obtained from defendants no attorney’s fees at all.


text:
    No. 85-1347.
    Pennsylvania v. Ritchie.
   Sup. Ct. Pa. [Certiorari granted, 476 U. S. 1139.] Motion of respondent for leave to proceed further herein informa pauperis denied. John H. Corbett, Jr., Esquire, of Pittsburgh, Pa., a member of the Bar of this Court, is invited to brief and argue this case as amicus curiae in support of the judgment below.


text:
    No. 85-1129.
    Johnson v. Transportation Agency, Santa Clara County, California, et al.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 85-999.
    United States v. Paradise et al.
   C. A. 11th Cir. Certiorari granted limited to Question 3 presented by the petition.


text:
    No. 84-6811.
    McCleskey v. Kemp, Superintendent, Georgia Diagnostic and Classification Center.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted limited to Questions 1, 2, 3, 4, and 5 presented by the petition.


text:
    No. 84-5878.
    Lockett v. Arn, Superintendent, Ohio Reformatory for Women.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-6791.
    Earnest v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 84-6983.
    Bosque v. Henderson, Superintendent, Auburn Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-177.
    Orr, Secretary of the Air Force, et al. v. Turner et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-276.
    Lockhart, Director, Arkansas Department of Correction v. Walker.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 85-556.
    Kemp, Warden v. Drake.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-908.
    Cranke et al. v. Haygood.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-1071.
    Rayburn v. General Conference of Seventh-Day Adventists et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 85-1085.
    No. 85-1404.
    Afro-American Police Assn., Inc., et al. v. United States; and United States v. Afro-American Police Assn., Inc., et al.
   C. A. 2d Cir. Certiorari denied. Reported below: 779 F. 2d 881.


text:
    No. 85-1104.
    Seiter, Director, Ohio Department of Rehabilitation and Correction v. Fuson.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 85-1341.
    Johnson, Director, Michigan Department of Corrections, et al. v. Manzie.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1394.
    No. 85-1550.
    Hagler v. Callahan, Warden; and Callahan, Warden, et al. v. Hagler.
   C. A. 9th Cir. Certiorari denied. Reported below: 764 F. 2d 711.


text:
    No. 85-1592.
    Burke et al. v. Massachusetts Association of Afro-American Police, Inc., et al.
   C. A. 1st Cir. Cer-tiorari denied.


text:
    No. 85-1635.
    Butts et al. v. City of New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-1688.
    Johns-Manville Sales Corp. v. Cathey et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-1837.
    Block et al. v. Meese, Attorney General of the United States, et al.
   C. A. D. C. Cir. Certiorari before judgment denied.


text:
    No. 85-5474.
    Aillon v. Connecticut et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5589.
    Russell v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 85-5624.
    Steinberg v. United States Department of Agriculture et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 85-5913.
    Martin v. Foltz, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6045.
    Lescallett v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 85-6064.
    Middleton v. Cupp, Superintendent, Oregon State Penitentiary.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 85-6158.
    Agnew v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6283.
    Slinker v. Keplinger et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 85-6329.
    Bowen v. Kemp, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 85-492.
    Devereaux et al. v. Geary et al.
   C. A. 1st Cir. Motion of Phil Caruso for leave to file a brief as amicus curiae out of time denied. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 85-976.
    Bell v. United States.
   C. A. 7th Cir. Cer-tiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 85-1225.
    No. 85-1251.
    No. 85-1412.
    No. 85-1512.
    Baker v. Wade, District Attorney of Dallas County, Texas, et al.; Texas v. Hill, 47th District Attorney of Texas; Hill, 47th District Attorney of Texas v. Texas; and Hill, 47th District Attorney of Texas, et al. v. Baker.
   C. A. 5th Cir. Certiorari denied.

Justice Marshall would grant certiorari.

Reported below: 769 F. 2d 289 and 774 F. 2d 1285.


text:
    No. 85-1317.
    Tucker v. United States.
   C. A. 7th Cir. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 85-5802.
    Brooks v. Kemp, Warden.
   C. A. 11th Cir. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 85-6022.
    Church v. Kincheloe, Superintendent, Washington State Penitentiary.
   C. A. 9th Cir. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 85-6240.
    Hamilton v. Louisiana.
   Sup. Ct. La. Cer-tiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 85-1583.
    Johns-Manville Sales Corp. et al. v. Jackson.
   C. A. 5th Cir. Motion of Keene Corp. for leave to file a brief as amicus curiae granted. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 85-5451.
    No. 85-6447.
    No. 85-6671.
    No. 85-6748.
    No. 85-6818.
    No. 85-6834.
    Riley v. Delaware. Tucker v. Kemp, Warden. Roberts v. Aiken, Warden, et al. Williams v. Illinois. Williams v. Kemp, Warden. Rook v. Rice, Warden.
   Sup. Ct. Del.;

C. A. 11th Cir.;

Ct. Common Pleas S. C., Berkeley County;

Sup. Ct. Ill.;

Sup. Ct. Ga.; and

C. A. 4th Cir. Cer-tiorari denied. Reported below: No. 85-5451, 496 A. 2d 997; No. 85-6447, 776 F. 2d 1487; No. 85-6748, 109 Ill. 2d 391, 488 N. E. 2d 255; No. 85-6818, 255 Ga. 380, 338 S. E. 2d 669; No. 85-6834, 783 F. 2d 401.

Justice Brennan and Justice Marshall,

dissenting.

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


author: Justice Brennan, Justice Marshall,

text:
    No. 85-6648.
    Huffington v. Maryland.
   Ct. App. Md. Certiorari denied.

Justice Brennan,

dissenting.

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

Justice Marshall,

dissenting in this case and in No. 85-6649, Evans v. Maryland, cert. denied, ante, p. 1010, and No. 85-6650, Foster v. Maryland, ante, p. 1010.

Petitioners were sentenced to death pursuant to a procedural scheme that they strenuously contend is unconstitutional. The Maryland Court of Appeals, through a highly creative reading of Maryland law and a heavy dose of procedural technicality, managed to affirm petitioners’ sentences without reaching their constitutional claim. I consider such evasion repugnant, and I dissent from the Court’s denial of certiorari.

The dispute in these cases rests on Md. Ann. Code, Art. 27, § 413(h) (1957). That section, designed to guide the deliberations of the sentencing jury in capital cases, provides:

“(1) If the court or jury finds that one or more of these mitigating circumstances exist, it shall determine whether, by a preponderance of the evidence, the mitigating circumstances outweigh the aggravating circumstances.
“(2) If it finds that the mitigating circumstances do not outweigh the aggravating circumstances, the sentence shall be death.
“(3) If it finds that the mitigating circumstances outweigh the aggravating circumstances, the sentence shall be imprisonment for life.”

The language of these provisions is clear: death shall be imposed whenever mitigating circumstances do not outweigh aggravating circumstances. It follows that death must be imposed when mitigating and aggravating circumstances are in equipoise. Put another way, death must be imposed unless mitigating circumstances outweigh aggravating circumstances: the burden of proof on the question of whether mitigating circumstances outweigh aggravating circumstances is on the defendant.

This understanding of the statute is confirmed by Maryland Rule 4-343, a recodification of Md. Rules Proc. 772A (superseded), which prescribes the verdict sheet used in Maryland capital sentencing proceedings. In Section I of that verdict sheet, the jury lists the aggravating circumstances it has found. In Section II, it lists the mitigating circumstances it has found. In Section III, it is instructed to answer “yes” or “no” to the following statement: “Based on the evidence, we unanimously find that it has been proven by A PREPONDERANCE OF THE EVIDENCE that the mitigating circumstances marked ‘yes’ in Section II outweigh the aggravating circumstances marked ‘yes’ in Section I.” The jury is further instructed that if Section III is marked “no,” it must enter a sentence of death. This rule, enacted contemporaneously with §413, effectuates the plain language of the statute — the jury must return a sentence of death unless the defendant affirmatively proves that mitigating outweigh aggravating circumstances.

Despite the apparent clarity of the statutory language and the verdict sheet, the Maryland Court of Appeals in Tichnell v. State, 287 Md. 695, 730, 415 A. 2d 830, 848-849 (1980), appeared to read the statute differently. It stated:

“Section 413 does not explicitly specify which party has the burden of producing evidence and the burden of persuasion. . . . [I]f the sentencing authority finds, by a preponderance of the evidence, that the mitigating circumstances do not outweigh the aggravating circumstances, the death penalty must be imposed. § 413(h)(2). Because the State is attempting to establish that the imposition of the death penalty is an appropriate sentence, the statute places the risk of nonpersuasion on the prosecution with respect to whether the aggravating factors outweigh the mitigating factors.”

The court did not attempt to reconcile this reading with the language of § 413(h), or indeed with the court rule it had approved two years earlier.

Pronouncements of the Maryland Court of Appeals in cases subsequent to Tichnell were conflicting. The Maryland courts continued to agree that the rule established by that court as Md. Rules Proc. 772A and 4-343, instructing the jury that it must return a sentence of death if mitigating circumstances do not outweigh aggravating, was valid under the Court of Appeals’ decisions. Capital defendants, in case after case, continued unsuccessfully to challenge § 413(h) as unconstitutionally allocating that burden. See Stebbing v. Maryland, 469 U. S. 900 (1984) (Marshall, J., dissenting from denial of certiorari) (Court should review constitutionality of § 413(h) because it appears to place burden on defendant); Foster v. State, 304 Md. 439, 471, 499 A. 2d 1236, 1253 (1985) (argument that Maryland capital punishment statute places improper burden on defendants at sentencing phase “made in virtually all death sentence appeals in this Court”). The Maryland Court of Appeals did not return to the point directly, except occasionally to refer back to Tichnell or to quote or paraphrase the language of the statute. E. g., Johnson v. State, 303 Md. 487, 537, 495 A. 2d 1, 26 (1985), cert. denied, 474 U. S. 1093 (1986); Trimble v. State, 300 Md. 387, 415, n. 16, 478 A. 2d 1143, 1157, n. 16 (1984), cert. denied, 469 U. S. 1230 (1985); Johnson v. State, 292 Md. 405, 438, 439 A. 2d 542, 560-561 (1982). The jury instruction required by Rules 772A and 4-343 continued in use.

In these cases, petitioners were convicted of murder and sentenced to death. At the trial and appellate levels, they strenuously challenged the burdens established by Maryland law, attacking § 413(h) “as implemented by Md. Rule 772A” as placing the burden on the capital defendant to convince the sentencer that mitigating circumstances outweigh aggravating circumstances. See Evans v. State, 304 Md. 487, 554, 499 A. 2d 1261, 1296 (1985) (McAuliffe, J., concurring and dissenting) (quoting petitioner Evans’ appellate brief).

The Maryland Court of Appeals rejected petitioners’ challenge. Their attack, it explained, reflected a misunderstanding of Tich-nell and of Maryland law. The language of the Maryland statute, the court stated, in fact did not speak to the “case where the sentencing authority found the aggravating and mitigating circumstances to be evenly balanced or was unable to determine which outweighed the other.” Foster, supra, at 478-479, 499 A. 2d, at 1256. The burden of proof in such cases, the court definitively stated, was on the prosecution.

One might think that this ruling would have been cause for celebration by petitioners. Petitioners were condemned to death pursuant to instructions that had put the burden of proof on them at a key point in the sentencing proceeding. They had strenuously challenged that scheme both at the trial and appellate levels. And the Maryland Court of Appeals had just held that state law would not permit such an imposition of the burden. One might forgive petitioners for believing that they were therefore due to receive new sentencing proceedings. The Maryland Court of Appeals, however, disagreed.

The Maryland Court of Appeals did not contest that petitioners had challenged the constitutionality of the statute at length both at the trial and appellate levels. It held, however, that petitioners had committed a fatal error in drafting their appellate briefs. They had limited their challenge to the statute, and had neglected explicitly to challenge the state-prescribed instructions and verdict sheet, which tracked the statutory language. Since the statute as interpreted was constitutional, the court reasoned, and petitioners had preserved no other challenges, there was no cause for reversal. The court noted that counsel for at least one petitioner had expressly objected at trial when the trial judge, instructing the jury on the weighing of aggravating and mitigating circumstances, used the language of § 413(h). Even were the issue not waived on appeal, the court ruled, there was no error, because the language of § 413(h) itself “ ‘does not place any burden . . . upon the accused.’” Foster v. State, 305 Md. 306, 318, 503 A. 2d 1326, 1332 (1986).

I find this result unconscionable. I have long believed that the Maryland statute, as written, unconstitutionally places the burden of proof on capital defendants at the sentencing phase of their trials. See Stebbing v. Maryland, supra. I am gratified that the Maryland Court of Appeals has read that burden of proof out of the statute. But I am wholly unconvinced by the reasoning that that court used to avoid extending the benefits of its decision to petitioners.

First, it is plain that any rational juror would understand the language of § 413(h) and Rule 4-343 as placing the burden of persuasion on the accused. Indeed, I cannot imagine any other way to read the statute that does not completely ignore its words. No fair-minded juror could have understood from these instructions that the burden was upon the State to prove by a preponderance of the evidence that aggravating circumstances must outweigh mitigating circumstances before a sentence of death could be returned. “It is distressing to accept a judicial construction that black is white; it is folly to suggest that jurors will arrive at the same conclusion.” Evans, supra, at 558, 499 A. 2d, at 1298 (McAuliffe, J., concurring and dissenting).

The Court of Appeals’ resolution of the waiver issue, further, allowed it to frustrate key federal rights only by means of technicality worthy of 17th-century pleading. Once petitioners attacked the burden of proof imposed by the language of the statute, their failure explicitly to argue that instructions precisely tracking the language of the statute were similarly flawed was, to say the least, understandable. Reasonably prudent counsel could have assumed that if the Court of Appeals had found that the language of the statute impermissibly imposed the ultimate burden on defendants, it would have similarly disapproved instructions to the same effect. Only the court’s “interpretation” of § 413(h) to obviate the constitutional claim created petitioners’ dilemma. The court stated that it was merely reaffirming what had been the law since Tichnell; yet, as the partially dissenting judge below remarked:

“[T]he frequency with which defense counsel have argued since Tichnell I that the statute improperly places the burden of ultimate persuasion upon the defendant, and the failure of experienced and able defense counsel to argue for an instruction to the opposite effect upon the authority of Tichnell I suggests to me that the ‘interpretation’ announced [in this case] must be ranked among the best kept secrets in this State.” Evans, supra, at 556, n. 5, 499 A. 2d, at 1297, n. 5 (McAuliffe, J., concurring and dissenting).

I do not complain about the fact that the Maryland Court of Appeals has chosen to correct the error of the Maryland Legislature in drafting § 413(h). Its decision to deny petitioners the benefit of that change, however, epitomizes the arbitrary and capricious administration of the death penalty in this Nation. I would grant the petitions for certiorari.


text:
    No. 85-1823.
    No. 85-5022.
    No. 85-5082.
    No. 85-5640.
    No. 85-5736.
    No. 85-5957.
    No. 85-6639.
    No. 85-6729.
    No. 85-6774.
    Stroom v. Carter, Former President of the United States, et al., Rushing v. Louisiana, Watson v. Blackburn, Warden, Liles v. Oklahoma, McDowell v. North Carolina, In re Shewchun, Tornero v. United States, Gordon v. Nucci et al., Judd v. United States et al.,
   476 U. S. 1154;

476 U. S. 1153;

476 U. S. 1153;

476 U. S. 1164;

476 U. S. 1165;

476 U. S. 1156;

476 U. S. 1143;

476 U. S. 1173; and

476 U. S. 1184. Petitions for rehearing denied.


text:
    July 8, 1986
    No. A-5.
    Messer v. Kemp, Warden.
   Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, is granted pending the timely filing and disposition by this Court of a petition for writ of certio-rari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.


text:
    July 11, 1986
    No. 85-1985.
    Waldron et ux. v. Shell Oil Co.
   C. A. 11th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    July 14, 1986
    No. 85-2073.
    Northern Petrochemical Co. v. Studiengesellschaft Kohle, mbH.
   C. A. Fed. Cir. Certiorari dismissed under this Court’s Rule 58.


text:
    July 22, 1986
    No. 85-663.
    Washington Department of Social and Health Services v. Purser et al.
   Sup. Ct. Wash. Certio-rari dismissed under this Court’s Rule 53.


text:
    No. 85-2009.
    Coca-Cola Bottling Company of the Southwest et al. v. Texas.
   Appeal from Ct. App. Tex., 4th Sup. Jud. Dist., dismissed under this Court’s Rule 53.


text:
    No. 85-1726.
    Escalante v. Bowen, Secretary of Health and Human Services.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    July 28, 1986
    No. A-53.
    Arave, Warden, et al. v. Creech.
   Application of the Solicitor General of Idaho for an order to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Ninth Circuit, presented to Justice Rehnquist, and by him referred to the Court, denied.

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


text:
    July 31, 1986
    No. A-72.
    Smith v. Murray, Director, Virginia Department of Corrections.
   Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied.

Justice Blackmun would grant the application. Justice Stevens took no part in the consideration or decision of this application.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    August 5, 1986
    No. A-75 (86-5026).
    Wingo v. Blackburn, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, is granted pending the disposition by this Court of the petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.


text:
    August 6, 1986
    No. A-67.
    Berry v. Phelps, Secretary, Louisiana Department of Corrections, et al.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, is granted pending the timely filing and disposition by this Court of a petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.


text:
    August 12, 1986
    No. 85-184.
    Stringfellow et al. v. Concerned Neighbors in Action et al.
   C. A. 9th Cir. [Certiorari granted, 476 U. S. 1157.] Writ of certiorari as to petitioners Alumex Inc. and Hunter Engineering Inc. dismissed under this Court’s Rule 53.


text:
    August 19, 1986
    No. 86-187.
    Texaco Inc. et al. v. United States Department of Energy et al.
   Temp. Emerg. Ct. App. Certiorari dismissed under this Court’s Rule 53.


text:
    No. A-940 (85-7002).
    Dawson v. United States.
   C. A. 3d Cir. Application for bail, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. A-1006.
    City of Yonkers et al. v. United States et al.
   D. C. S. D. N. Y. Application for stay, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. A-1008 (85-1535).
    Verez et al. v. Virginia.
   Sup. Ct. Va. Application for bail, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. 86-5299 (A-114).
    Woolls v. McCotter, Director, Texas Department of Corrections.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Cer-tiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 84-1948.
    No. 85-755.
    No. 85-1411.
    No. 85-1459.
    No. 85-1641.
    No. 85-1648.
    No. 85-1711.
    Lyng, Secretary of Agriculture, et al. v. Payne et al., Reed v. Campbell, Individually and as Administratrix of the Estate of Ricker, McCallum v. United States, Powell v. Powell, Mulligan v. Hazard et al., California Hospital Assn. et al. v. Henning, Labor Commissioner, Division of Labor Standards Enforcement, Department of Industrial Relations of California, Grimes v. Louisville & Nashville Railroad Co.,
   476 U. S. 926;

476 U. S. 852;

476 U. S. 1182;

476 U. S. 1180;

476 U. S. 1174;

477 U. S. 904; and

476 U. S. 1160. Petitions for rehearing denied.


text:
    No. 85-1740.
    No. 85-1793.
    No. 85-1872.
    No. 85-1875.
    No. 85-5466.
    No. 85-5886.
    No. 85-5986.
    No. 85-6308.
    No. 85-6347.
    No. 85-6389.
    No. 85-6498.
    No. 85-6710.
    No. 85-6717.
    No. 85-6742.
    No. 85-6826.
    No. 85-6843.
    No. 85-6948.
    Kananen et ux. v. Sun Bank Okeechobee, fka Commercial Bank Okeechobee, Florida, et al., Wainwright, Secretary, Florida Department of Corrections v. Smith, Cook v. Peter Kiewit Son’s Co. et al., Schuchman et ux. v. United States et al., Celestine v. Blackburn, Warden, Rault v. Louisiana, Jones v. Louisiana, Lowenfield v. Louisiana, Birdsell v. United States, Foster, aka Lee v. Missouri, Cardinal v. United States, Koenig v. Fosheim et al., Obolensky v. Potter et al., Johnston v. Perrott, Sellner v. Panagoulis, aka Hudnall, et al., Bryant v. Vose, Superintendent, Massachusetts Correctional Institution, In re Gay,
   476 U. S. 1182;

477 U. S. 905;

476 U. S. 1183;

477 U. S. 905;

476 U. S. 1164;

476 U. S. 1178;

476 U. S. 1178;

476 U. S. 1153;

476 U. S. 1119;

476 U. S. 1178;

476 U. S. 1161;

476 U. S. 1172;

476 U. S. 1172;

476 U. S. 1166;

477 U. S. 907;

477 U. S. 907; and

477 U. S. 903. Petitions for rehearing denied.


text:
    No. 85-6404.
    Kepford v. Thomas, Administrator, Environmental Protection Agency, et al.,
   476 U. S. 1158. Motion for leave to file petition for rehearing denied.


text:
    August 21, 1986
    No. A-131.
    Smith v. Texas.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Rehnquist and Justice O’Connor took no part in the consideration or decision of this application.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    August 25, 1986
    No. A-140.
    Wicker v. McCotter, Director, Texas Department of Corrections.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Blackmun and Justice Stevens would grant the application.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    September 2, 1986
    No. 86-5137.
    Park Hung Quan v. United States.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    September 3, 1986
    No. A-12 (85-1722).
    O’Lone, Administrator, Leesburg Prison Complex, et al. v. Estate of Shabazz et al.
   C. A. 3d Cir. Application for recall and stay of mandate, addressed to Justice White and referred to the Court, denied.

Justice Rehnquist would grant this application.


text:
    No. A-49 (85-2132).
    Kehoe v. Hofmann.
   C. A. 3d Cir. Application for stay, addressed to Justice White and referred to the Court, denied.


text:
    No. D-550.
    In re Disbarment of Michaels.
   Disbarment entered. [For earlier order herein, see 475 U. S. 1092.]


text:
    No. D-551.
    In re Disbarment of Nichols.
   Disbarment entered. [For earlier order herein, see 475 U. S. 1093.]


text:
    No. D-562.
    In re Disbarment of Drake.
   It is ordered that Robert F. Drake, of Hattiesburg, Miss., 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-563.
    In re Disbarment of James.
   It is ordered that Edith L. James, of Austin, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring her to show cause why she should not be disbarred from the practice of law in this Court.


text:
    No. 85-5.
    Pennsylvania et al. v. Delaware Valley Citizens’ Council for Clean Air et al.
   C. A. 3d Cir. [Certiorari granted, 474 U. S. 815.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-129.
    Wimberly v. Labor and Industrial Relations Commission of Missouri et al.
   Sup. Ct. Mo. [Certio-rari granted, 475 U. S. 1118.] Motion of American Civil Liberties Union et al. for leave to file a brief as amici curiae granted.


text:
    No. 85-495.
    Ansonia Board of Education et al. v. Philbrook et al.
   C. A. 2d Cir. [Certiorari granted, 474 U. S. 1080.] Motions of Council on Religious Freedom, Catholic League for Religious and Civil Rights, American Jewish Congress, and General Conference of Seventh-day Adventists for leave to file briefs as amici curiae granted.


text:
    No. 85-608.
    Illinois v. Krull et al.
   Sup. Ct. Ill. [Certiorari granted, 475 U. S. 1080.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-693.
    Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County (Cheng Shin Rubber Industrial Co., Ltd., Real Party in Interest).
   Sup. Ct. Cal. [Certiorari granted, 475 U. S. 1044.] Motion of California Manufacturers Association for leave to participate in oral argument as amicus curiae and for divided argument denied.


text:
    No. 85-792.
    No. 85-793.
    Interstate Commerce Commission v. Brotherhood of Locomotive Engineers et al.; and Missouri-Kansas-Texas Railroad Co. v. Brotherhood of Locomotive Engineers et al.
   C. A. D. C. Cir. [Certiorari granted, 475 U. S. 1081.] Motion of respondents Brotherhood of Locomotive Engineers et al. for divided argument granted.


text:
    No. 85-1180.
    Meese, Attorney General of the United States, et al. v. Keene.
   D. C. E. D. Cal. [Probable jurisdiction noted, 475 U. S. 1117.] Motion of Washington Legal Foundation et al. for leave to file a brief as amici curiae granted.


text:
    No. 85-1513.
    Edwards, Governor of Louisiana, et al. v. Aguillard et al.
   C. A. 5th Cir. [Probable jurisdiction noted, 476 U. S. 1103.] Motion of appellants for divided argument denied.


text:
    No. 85-5221.
    Griffith v. Kentucky.
   Sup. Ct. Ky. [Cer-tiorari granted, 476 U. S. 1157.] Motion of petitioner to reschedule oral argument denied.


text:
    No. 85-5915.
    Wright et al. v. City of Roanoke Redevelopment and Housing Authority.
   C. A. 4th Cir. [Certiorari granted, 474 U. S. 1081.] Motion of National Association of Housing and Redevelopment Officials et al. for leave to file a brief as amici curiae out of time denied.


text:
    No. 85-6461.
    Martin v. Ohio.
   Sup. Ct. Ohio. [Certiorari granted, 475 U. S. 1119.] Motion of Ohio Public Defender Commission for leave to file a brief as amicus curiae granted. Motion of Ohio Public Defender Commission for leave to participate in oral argument as amicus curiae and for divided argument denied.


text:
    No. 84-2015.
    No. 85-162.
    No. 85-1225.
    No. 85-1317.
    No. 85-1380.
    MacDonald, Sommer & Frates v. County of Yolo et al., New Mexico v. Earnest, Baker v. Wade, District Attorney of Dallas County, Texas, et al., Tucker v. United States, Woodhouse v. United States Bureau of Indian Affairs et al.,
   477 U. S. 340;

477 U. S. 648;

ante, p. 1022;

ante, p. 1022; and

476 U. S. 1181. Petitions for rehearing denied.


text:
    No. 85-1500.
    No. 85-1876.
    No. 85-1965.
    No. 85-5319.
    No. 85-5990.
    No. 85-6022.
    No. 85-6541.
    No. 85-6671.
    No. 85-6748.
    No. 85-6877.
    No. 85-6899.
    Acosta v. Louisiana Department of Health and Human Resources et al., Comsia v. Magnone et al., In re Gaunce, Darden v. Wainwright, Secretary, Florida Department of Corrections, Montgomery v. Seiter et al., Church v. Kincheloe, Superintendent, Washington State Penitentiary, Spann v. Clark, Roberts v. Aiken, Warden, et al., Williams v. Illinois, Midwife v. Tucson Citizen Newspaper et al., In re Fisher,
   ante, p. 251;

ante, p. 1006;

ante, p. 1003;

477 U. S. 168;

476 U. S. 1160;

ante, p. 1022;

475 U. S. 1143;

ante, p. 1022;

ante, p. 1022;

ante, p. 1007; and

ante, p. 1003. Petitions for rehearing denied.


text:
    September 4, 1986
    No. A-161 (86-5379).
    Watson v. Blackburn, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, is granted pending the disposition of the petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.

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


text:
    September 11, 1986
    No. A-87 (86-5436).
    Glass v. Blackburn, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, is granted pending the disposition by this Court of the petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.


text:
    No. A-130.
    Moore v. Blackburn, Warden.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, is granted pending appeal to the United States Court of Appeals for the Fifth Circuit.

The Chief Justice would deny the application for stay.


text:
    No. A-186 (86-5426).
    Brodgon v. Blackburn, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, is granted pending the disposition of the petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.


text:
    No. D-557.
    In re Disbarment of Keiden.
   Disbarment entered. [For earlier order herein, see 476 U. S. 1138.]


text:
    No. D-564.
    In re Disbarment of Holzer.
   It is ordered that Reginald Jack Holzer, of Chicago, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-565.
    In re Disbarment of McCloskey.
   It is ordered that James Burns McCloskey, of Timonium, 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-566.
    In re Disbarment of Frazin.
   It is ordered that Barry Stephan Frazin, of Chicago, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-567.
    In re Disbarment of Kirwan.
   It is ordered that Joseph Kevin Kirwan, of St. Joseph, Mo., 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-568.
    In re Disbarment of Mountain.
   It is ordered that Richard Keith Mountain, of Newton, Kan., 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-569.
    In re Disbarment of Christakis.
   It is ordered that Lee J. Christakis, of Gary, Ind., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-570.
    In re Disbarment of Payne.
   It is ordered that K. Richard Payne, of Fort Wayne, Ind., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-571.
    In re Disbarment of Williams.
   It is ordered that David F. Williams, of Springfield, Mo., 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-573.
    In re Disbarment of Shields.
   It is ordered that William J. Shields, of Garfield Heights, Ohio, 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-574.
    In re Disbarment of Brannen.
   It is ordered that Joseph Carchner Brannen, of Coral Gables, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-575.
    In re Disbarment of Sickmen.
   It is ordered that Russell T. Sickmen, of Hauppauge, 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-576.
    In re Disbarment of Weiss.
   It is ordered that Steven J. Weiss, 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-577.
    In re Disbarment of Harrison.
   It is ordered that Charles Julian Harrison, 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. 85-140.
    Bowers, Attorney General of Georgia v. Hardwick et al.,
   ante, p. 186. Petition for rehearing denied.


text:
    September 15, 1986
    No. 85-2122.
    Hope et al. v. International Brotherhood of Electrical Workers Local Union 1245 et al.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    September 16, 1986
    No. A-205.
    Riles v. McCotter, Director, Texas Department of Corrections.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. A-213.
    McCotter, Director, Texas Department of Corrections v. Riles.
   Application of the Attorney General of Texas for an order to vacate the stay of execution of sentence of death entered by the United States District Court for the Southern District of Texas, presented to Justice White, and by him referred to the Court, denied.


text:
    September 17, 1986
    No. A-207.
    Rault v. Blackburn, Warden.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, is granted pending the timely filing and disposition by this Court of a petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay teminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.


author: Justice Brennan,

text:
    September 18, 1986
    No. A-211 (86-5500).
    Rook v. Rice, Warden.
   C. A. 4th Cir. Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied.

Justice Blackmun and Justice Stevens would grant the application for stay.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

I

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant the stay application and the petition for certiorari and would vacate the sentence in this case.

II

But even if I did not hold this view, I would grant the stay of execution in this case and vote to hold the petition for cer-tiorari pending this Court’s disposition of McCleskey v. Kemp, cert. granted, ante, p. 1019, and Hitchcock v. Wainwright, cert. granted, 476 U. S. 1168 (1986). Rook contends that newly available social science evidence demonstrates unconstitutional, sys-temwide racial disparities in North Carolina’s capital sentencing system. He maintains that the evidence is sufficient to warrant a hearing on his claim. These questions are similar to those presented in McCleskey and Hitchcock, cases that will be argued in October of the 1986 Term, and other petitions that are before the Court and upon which the Court has not yet acted.

Other petitioners have presented similar claims of systemwide racial disparities in capital sentencing and have requested stays of execution from this Court in light of our grants of certiorari in McCleskey and Hitchcock. This Court has granted stays of execution in Berry v. Phelps, ante, p. 1030; Wingo v. Blackburn, ante, p. 1030; Watson v. Blackburn, ante, p. 1036; Glass v. Blackburn, ante, p. 1036; Moore v. Blackburn, ante, p. 1037; Brogdon v. Blackburn, ante, p. 1037; and most recently, Rault v. Blackburn, ante, p. 1039.

In this case, the District Court and the Fourth Circuit, 783 F. 2d 401 (1986), have refused to grant a stay of execution on the ground that Rook’s petition for habeas corpus relief is successive and therefore barred pursuant to Habeas Corpus Rule 9(b). Rook concedes that his arguments regarding the unconstitutional application of the death penalty in North Carolina were presented in his previous federal petition; he maintains, however, that his petition should be heard pursuant to the “ends of justice” exception recognized by this Court in Sanders v. United States, 373 U. S. 1 (1963). He contends that a new study, Arbitrariness of the Capital Death Penalty (to be published in January 1987 by University Press), authored by Professors Nakell and Hardy of the University of North Carolina, does not suffer from the inadequacies which the District Court found in the evidence submitted in support of his first petition. Moreover, the study was not available at the time Rook filed his initial petition for habeas relief. He further argues that the new study provides substantial support for his theory that the administration of the death penalty in North Carolina suffers from a systemic unconstitutional flaw.

The Fourth Circuit held that Rook had not made the necessary showing that he did not receive a “full and fair” hearing on the question and found that the new evidence did not “bear upon the constitutionality of the applicant’s detention.” See Townsend v. Sain, 372 U. S. 293, 317 (1963). This Court evidently agrees that the petition is successive, and I therefore dissent.

Initially, I note that Rule 9(b) is phrased in permissive, and not mandatory terms:

“A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.”

In Sanders v. United States, supra, this Court set forth guidelines for cases involving potentially successive petitions:

“Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.” Id., at 15.

The Court recently stated that, as a means of identifying those cases in which federal courts should exercise their discretion to hear a successive petition, we will “continue to rely on the reference in Sanders to the‘ends of justice.’” Kuhlmann v. Wilson, 477 U. S. 436, 451 (1986) (plurality opinion). See also id., at 470-471 (Brennan, J., dissenting).

Petitioner has made the necessary showing that the “ends of justice” will be served by the hearing of his second petition. When petitioner initially raised his racial-disparity claim in petitions for both state and federal postconviction relief, the study upon which he now relies, which examines the imposition of the death penalty in North Carolina between 1977 and 1978, was not available. When Rook filed the instant petition, he raised only the racial-disparity claim and presented in support of that claim the Nakell and Hardy manuscript.

The Fourth Circuit felt that petitioner’s new evidence was inadequate because (1) it does not address the time period in which Rook’s punishment was assessed, and (2) it does not demonstrate that Rook’s sentence was the result of intentional discrimination. As to the first point, the significance of the new study is a matter to be determined at an evidentiary hearing and not in haste on a stay application. The question presented in Hitchcock involves the evidentiary showing necessary to obtain a hearing on one’s claim that the imposition of the death penalty in a certain State is tainted by a systemic flaw. We simply do not now know whether the Nakell and Hardy study would raise a serious question about the constitutionality of petitioner’s sentence. The Court has, in effect, prejudged the value of petitioner’s proffered evidence. As to the second point, the necessity of proof of intentional discrimination is the subject of the upcoming McCleskey case.

Under these circumstances, it cannot be said that petitioner has not presented sufficient evidence to invoke the “ends of justice” exception to the successive petition rule. Petitioner has not deliberately withheld evidence; he has at no point abandoned his claim. He has persisted in asserting the unconstitutionality of his sentence and now seeks to present evidence supporting his claim, which he could not have 'presented at any earlier moment. His petition is nonetheless deemed successive and is summarily rejected. I suggest that today’s action leaves habeas petitioners with a cold choice: omit the claim from the initial federal petition and be deemed to abuse the writ when the claim is raised in a second petition after the discovery of new evidence, or include the claim in the initial petition and be deemed to have filed a successive petition in the event new evidence arises to justify a second petition. Under well-established standards of this Court, the petition is not successive.

Ill

Finally, the Court finds itself once again in the morally compromised position taken in Straight v. Wainwright, 476 U. S. 1132, 1134 (1986). Four Justices have voted to stay Rook’s execution and hold the case until a decision is reached in McCleskey. Thus, there are four votes to stay the execution, and four votes to hold the petition for certiorari, but not a fifth vote to stay the execution. Under normal circumstances, then, this case would be held pending the decision of this Court in McCleskey. “It is unthinkable to me that the practice that four votes to grant certiorari trigger an ‘automatic’ fifth vote to stay an execution should not apply to a ‘hold’ when a man’s life is in the balance.” 476 U. S., at 1135.

I dissent.

      Most recently, in Kuhlmann v. Wilson, 477 U. S. 436 (1986), this Court examined the boundaries of the “ends of justice” exception to the successive petition rule, and a plurality suggested that the “ends of justice” are served by successive review only where the petitioner supplements his constitutional claim with a colorable showing of factual innocence. Initially, I note that the plurality’s analysis plainly has no bearing on the instant case, which involves the constitutionality of a sentence of death, rather than the constitutionality of a conviction. The presence of aggravating circumstances and the legitimacy of the sentencing procedures are the crucial questions when one assesses the validity of the death sentence, not the justification for the conviction. See id., at 471-472, n. 7 (Brennan, J., dissenting).


text:
    September 22, 1986
    No. 86-124.
    Habersham at Northridge v. Fulton County, Georgia, et al.
   C. A. 11th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 85-2060.
    Mingey et al. v. Llaguno et al.
   C. A. 7th Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Powell,

text:
    September 23, 1986
    No. A-224.
    Davis v. Wainwright, Secretary, Florida Department of Corrections, et al.
   Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, is granted pending the timely filing and disposition by this Court of a petition for writ of certio-rari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the issuance of the mandate of this Court.

Justice Rehnquist and Justice O’Connor would deny the application for stay.

Justice Powell,

with whom The Chief Justice joins,

concurring.

Allen Davis and Kenneth Hardwick were scheduled to be executed on September 23, 1986. On the morning of September 22, Davis and Hardwick filed habeas corpus petitions in the Florida Supreme Court, that has original jurisdiction to issue extraordinary writs under Florida Rule of Appellate Procedure 9.030(a)(3). The Florida court denied both applications by order, stating in each case that it would “file an opinion at a later date setting forth its reasons for the denial of the Petition.” At 10:25 p.m. on that day, less than nine hours before the scheduled executions, Davis and Hardwick filed applications with me, as Circuit Justice, seeking stays of execution until this Court can consider their petitions for writs of certiorari to review the Florida decisions. The sole basis for their request is a claim that in Florida capital punishment is applied discriminatorily on the basis of the race of the victim. I granted a temporary stay until September 23 at 3 p.m. and referred the applications to the full Court.

I

The State asks us to deny the applications, claiming that Davis and Hardwick were barred by state law from raising their claims in the Florida Supreme Court. The State asserts that Davis’ claim was barred because he did not raise it on direct appeal from his conviction. See Stone v. State, 481 So. 2d 478, 479 (Fla. 1985). The State also asserts that Hardwick’s claim was filed in the wrong forum. See Ford v. Wainwright, 451 So. 2d 471 (Fla. 1984) (a claim may not be raised for the first time in original habeas proceedings in the Florida Supreme Court). According to the State, Hardwick’s claim should have been filed in a Florida trial court under Florida Rule of Criminal Procedure 3.850. Davis and Hardwick ask us to ignore these procedural questions.

We note that Davis filed a habeas petition last night, September 22, in the Federal District Court for the Middle District of Florida (Black, J.). This morning, that court denied the petition and refused to grant a certificate of probable cause. Judge Black concluded that Davis had abused the "writ by “intentionally delaying the raising of grounds for habeas relief.” 644 F. Supp. 269, 270 (1986).

Despite this record of unexplained delay, I concur in the Court’s decision to grant these applications. They now raise claims similar to the issue presented in Hitchcock v. Wainwright, 476 U. S. 1168 (1986) (writ of certiorari granted), to be argued here on October 15, 1986. No Florida court has specifically addressed the State’s contentions that the claims are procedurally barred. The Florida Supreme Court decisions may rest on those grounds, but that court has not published an opinion. In the past I have found procedural bars apparent on the face of a stay application. See Woodard v. Hutchins, 464 U. S. 377, 378 (1984) (Powell, J., concurring). I am reluctant to do so here, however, because the alleged bars depend on an interpretation of state law. In these applications, I am unwilling to assume that the Florida Supreme Court decisions rest on procedural grounds not apparent on the face of the orders.

II

No explanation has been offered either by Davis or by Hard-wick for waiting more than a month, and until the eve of the execution date, to assert the present claims in any court, state or federal. It is my understanding that the Florida Bar, at least since 1984, has assured state and federal courts that it would provide counsel promptly when needed in capital cases. Although unlikely, it may be that neither Davis nor Hardwick knew that counsel always were available. Nor are we informed as to when counsel were engaged in these cases. In any event, I suggest that counsel owe this Court a duty to explain why no action was taken until the day before the execution date, making it difficult both for the courts below and for this Court to make the carefully considered judgments so essential in capital cases. In the future, and here I can write only for myself, I will expect counsel whose papers are filed with me as Circuit Justice on the eve of the execution date to make an appropriate explanation. Respect for this Court, as well as duty to the client, requires no less. If there has been deliberate or inexcusable delay, the appropriate Committee of the Florida Bar will be advised.

       Cf. Habeas Corpus Rule 9(a) (a petition may be dismissed if the State is “prejudiced in its ability to respond to the petition by delay in its filing” unless the petitioner shows that it is based on newly discovered grounds).

       Indeed, such an explanation should not be limited to the period following the setting of an execution date. As noted above, counsel are made available in Florida in every capital case. Following conviction and exhaustion of appeal remedies, counsel have a duty to proceed with reasonable promptness to pursue state and federal postconviction remedies without awaiting the setting of execution dates.


text:
    No. A-225.
    Hardwick v. Wainwright, Secretary, Florida Department of Corrections, et al.
   Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, is granted pending the timely filing and disposition by this Court of a petition for writ of certio-rari. Should the petition for writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the issuance of the mandate of this Court.

Justice Rehnquist and Justice O’Connor would deny the application for stay.


text:
    September 24, 1986
    No. A-35.
    Melendez-Carrion et al. v. United States.
   Application for release from pretrial confinement, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. A-69.
    Baronowski v. Secretary of the Treasury et al.
   C. A. 5th Cir. Application for stay, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. A-93 (86-182).
    Polyak v. Buford Evans & Sons.
   C. A. 6th Cir. Application for stay of mandate, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. A-94 (85-1991).
    In re Polyak.
   Application for recall, stay, and other relief, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. A-223 (86-5544).
    Welcome v. Blackburn, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, is granted pending the disposition by this Court of the petition for writ of certiorari. Should the petition for writ of certio-rari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending the sending down of the judgment of this Court.


text:
    No. D-558.
    In re Disbarment of Mishkin.
   Disbarment entered. [For earlier order herein, see ante, p. 1018.]


text:
    No. D-572.
    In re Disbarment of Chase.
   It is ordered that Sydney J. Chase, of Plainview, 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. 85-184.
    Stringfellow et al. v. Concerned Neighbors in Action et al.
   C. A. 9th Cir. [Certiorari granted, 476 U. S. 1157.] Motion of the Solicitor General for divided argument granted.


text:
    No. 85-495.
    Ansonia Board of Education et al. v. Philbrook et al.
   C. A. 2d Cir. [Certiorari granted, 474 U. S. 1080.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-899.
    Connecticut v. Barrett.
   Sup. Ct. Conn. [Certiorari granted, 476 U. S. 1114.] Motion of National District Attorneys Association for leave to file a brief as amicus curiae granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-971.
    No. 85-972.
    Clarke, Comptroller of the Currency v. Securities Industry Assn.; and Security Pacific National Bank v. Securities Industry Assn.
   C. A. D. C. Cir. [Certiorari granted, 475 U. S. 1044.] Motion of the Solicitor General for divided argument granted.


text:
    No. 85-1092.
    Keystone Bituminous Coal Assn. et al. v. Duncan, Secretary, Pennsylvania Department of Environmental Resources, et al.
   C. A. 3d Cir. [Certiorari granted, 475 U. S. 1080.] Motion of Pennsylvania State Grange et al. for leave to file a brief as amici curiae granted.


text:
    No. 85-1222.
    No. 85-1267.
    Interstate Commerce Commission v. Texas et al.; and Missouri-Kansas-Texas Railroad Co. et al. v. Texas et al.
   C. A. 5th Cir. [Certiorari granted, 476 U. S. 1157.] Motion of the Solicitor General for divided argument granted.


text:
    No. 85-1244.
    City of Pleasant Grove v. United States.
   D. C. D. C. [Probable jurisdiction noted, 476 U. S. 1113.] Motion of Democratic National Committee for leave to file a brief as amicus curiae granted.


text:
    No. 85-1277.
    School Board of Nassau County, Florida, et al. v. Arline.
   C. A. 11th Cir. [Certiorari granted, 475 U. S. 1118.] ' Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-1347.
    Pennsylvania v. Ritchie.
   Sup. Ct. Pa. [Certiorari granted, 476 U. S. 1139.] Motion of Appellate Committee of the District Attorneys Association of California for leave to file a brief as amicus curiae granted.


text:
    No. 85-1370.
    Arkansas Writers’ Project, Inc. v. Ragland, Commissioner of Revenue of Arkansas.
   Sup. Ct. Ark. [Probable jurisdiction noted, 476 U. S. 1113.] Motions for leave to file briefs as amici curiae filed by the following are granted: City & Regional Magazine Association, Time Inc., Magazine Publishers Association, Times Mirror Co. et al., American Civil Liberties Union Foundation et al., and Miami Herald Publishing Co. et al.


text:
    No. 85-1517.
    Colorado v. Spring.
   Sup. Ct. Colo. [Cer-tiorari granted, 476 U. S. 1104.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 85-1581.
    Solorio v. United States.
   Ct. Mil. App. [Certiorari granted, 476 U. S. 1181.] Motion of American Civil Liberties Union for leave to participate in oral argument as ami-cus curiae and for divided argument granted.


text:
    No. 85-1658.
    No. 85-1660.
    Federal Communications Commission et al. v. Florida Power Corp. et al.; and Group W Cable, Inc., et al. v. Florida Power Corp. et al.
   C. A. 11th Cir. [Probable jurisdiction noted, 476 U. S. 1156.] Motion of the Solicitor General for divided argument granted.


text:
    No. 85-1804.
    West v. Conrail et al.
   C. A. 3d Cir. [Cer-tiorari granted, ante, p. 1004.] Motion of petitioner to dispense with printing the joint appendix granted.


text:
    October 3, 1986
    No. 86-7.
    Connecticut General Life Insurance Co. v. Dredge et al.
   C. A. 10th Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Brennan and Justice Marshall, Justice Stevens,

text:
    No. A-252.
    Stewart v. Wainwright, Secretary, Florida Department of Corrections, et al.
   Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall,

dissenting.

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

Justice Stevens,

with whom Justice Brennan, Justice Marshall, and Justice Blackmun join,

dissenting.

Roy Allen Stewart was convicted of first-degree murder in Dade County Circuit Court and sentenced to death. The Florida Supreme Court affirmed the conviction and sentence. Stewart v. State, 420 So. 2d 862 (1982), cert. denied, 460 U. S. 1103 (1983). The Governor signed Stewart’s death warrant. Stewart filed a petition for postconviction relief under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. The court stayed the execution, held an evidentiary hearing, and denied the petition. The Florida Supreme Court affirmed. Stewart v. State, 481 So. 2d 1210 (1985).

The Governor signed a second death warrant scheduling the execution for 7 a.m. on October 7, 1986. Stewart then filed a post-trial motion and application for stay of execution in the Florida Supreme Court, arguing that the State’s administration of the death penalty violates the Eighth and Fourteenth Amendments because capital punishment is imposed disproportionately on prisoners whose victims were members of the white race. This question is similar to those presented in McCleskey v. Kemp, No. 84-6811, and Hitchcock v. Wainwright, No. 85-6756, cases that are to be argued before this Court on October 15, 1986. The Florida Supreme Court denied Stewart’s motion and application for stay, ruling that “Stewart did not raise this claim in his previous 3.850 motion, and he is procedurally barred from raising it in this petition.” Stewart v. Wainwright, 494 So. 2d 489, 490 (1986). Stewart then filed a second motion for postconviction relief and application for stay in Circuit Court, raising the McCleskey/Hitchcock claim. The Circuit Court denied the petition and stay application. State v. Stewart, No. 79-6621, slip op., at 2 (Sept. 26, 1986). The Florida Supreme Court affirmed the Circuit Court’s finding of a procedural bar, reasoning that Stewart had shown no justification for his failure to raise the McCleskey/Hitchcock claim in his first motion for post-conviction relief. Stewart v. State, 495 So. 2d 164, 165 (1986).

On October 1, 1986, Stewart filed an application for stay of execution pending filing of a petition for certiorari with this Court. A majority of this Court today denies that application. Because this denial may rest, in part, on an incomplete application of the doctrine of procedural default, as recently set forth in Smith v. Murray, 477 U. S. 527 (1986), I respectfully dissent.

Smith requires that, before refusing to consider a state prisoner’s constitutional challenge to his conviction and sentence on the ground of procedural default, a federal court must answer two separate questions: (1) As a matter of state law, is consideration of the claim foreclosed by a valid procedural bar? And (2) as a matter of federal law, notwithstanding the state procedural bar, would rejection of the claim result in a “fundamental miscarriage of justice?” Id., at 538.

In Smith, a state prisoner failed to raise, on direct appeal of his conviction and sentence to the Virginia Supreme Court, his constitutional challenge to the prosecution’s use of the testimony of a psychiatrist, to whom the prisoner had related information about a prior incident of deviant sexual conduct on a school bus. This Court, reviewing the denial of Smith’s petition for federal habeas corpus relief, held that the prisoner had failed to demonstrate cause for his noncompliance with state procedural rules. The Court then proceeded to the second inquiry of whether application of the doctrine of procedural bar would offend principles of justice:

“As we noted in Engle and reaffirmed in Carrier, ‘“[i]n appropriate cases” the principles of comity and finality that inform the concepts of cause and prejudice “must yield to the imperative of correcting a fundamentally unjust incarceration.’” Murray v. Carrier, [477 U. S. 478, 495 (1986)], quoting Engle v. Isaac, 456 U. S. [107, 135 (1982)]. Accordingly, ‘where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal ha-beas court may grant the writ even in the absence of a showing of cause for the procedural default.’ Murray v. Carrier, [supra, at 496].
“We acknowledge that the concept of ‘actual,’ as distinct from ‘legal,’ innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense. Nonetheless, we think it clear on this record that application of the cause and prejudice test will not result in a ‘fundamental miscarriage of justice.’ Engle, supra, at 135. There is no allegation that the testimony about the school bus incident was false or in any way misleading. Nor can it be argued that the prospect that Dr. Pile might later testify against him had the effect of foreclosing meaningful exploration of psychiatric defenses. While that concern is a very real one in the abstract, here the record clearly shows that Dr. Pile did ask petitioner to discuss the crime he stood accused of committing as well as prior incidents of deviant sexual conduct. Although initially reluctant to do so, ultimately petitioner was forthcoming on both subjects. In short, the alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones. Thus, even assuming that, as a legal matter, Dr. Pile’s testimony should not have been presented to the jury, its admission did not serve to pervert the jury’s deliberations concerning the ultimate question whether in fact petitioner constituted a continuing threat to society. Under these circumstances, we do not believe that refusal to consider the defaulted claim on federal habeas carries with it the risk of a manifest miscarriage of justice.” Id., at 537-538.

In this case, Roy Allen Stewart predicates his application for a stay of execution on a claim that “because the State of Florida has applied its capital sentencing statute in an arbitrary and capricious manner by allowing race to determine, in significant part, who will receive the death penalty, his sentence was imposed in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States.” As noted, his claim is similar to the claims advanced by the petitioners in McCleskey v. Kemp, No. 84-6811, and Hitchcock v. Wainwright, No. 85-6756.

As a matter of Florida law, it appears that Stewart’s claim is procedurally barred. No one, however, has yet carried out the second inquiry mandated by Smith: whether as a matter of federal law the refusal to consider his claim on the merits would constitute a “fundamental miscarriage of justice” if, as Stewart asserts, the fact that his victim was a member of the white race was a critical element in the decision to impose the death sentence upon him. No federal court has yet decided whether this claimed racially discriminatory factor, in the Court’s words in Smith, served “to pervert the jury’s deliberations concerning the ultimate question” whether he should be put to death.

Today the Court declines to grant Stewart’s application for stay of execution even though his procedurally barred claims, if true, raise profoundly serious and as yet unresolved questions about the federal'constitutionality of his capital sentence. Arguably, the Court’s decision is justified by the facts that this case comes to us as a request, for review of the Florida courts’ denial of collateral relief and the “fundamental miscarriage of justice” inquiry can better be performed by a federal district court in a federal habeas corpus proceeding which Stewart may now commence. Nevertheless, in order to make sure that this critical inquiry may be performed before the case becomes moot, I would stay Stewart’s execution until the Court has decided the McCleskey and Hitchcock cases.

I respectfully dissent.

      Application for Stay of Execution Pending Filing and Disposition of Petition for Writ of Certiorari to the Supreme Court of Florida, filed in the Supreme Court of the United States on October 1, 1986, App. 10 (Initial Brief of Appellant in the Supreme Court of Florida filed September 29, 1986).


author: Chief Justice Burger, Circuit Justice.

text:
    ARANETA et al. v. UNITED STATES
    No. A-18.
    Decided July 19, 1986
   Chief Justice Burger, Circuit Justice.

Applicants, a daughter and son-in-law of former President Ferdinand Marcos, ask that I stay a contempt order of the United States District Court for the Eastern District of Virginia requiring their incarceration if they fail to testify before a grand jury on July 22. They contend that requiring them to so testify would violate their Fifth Amendment privilege against self-incrimination because their testimony might be used against them in related criminal proceedings currently pending in the Philippines. They assert they will file a petition for certiorari on this issue.

Soon after their arrival in the United States, applicants were served with subpoenas requiring their testimony before a grand jury sitting in the Eastern District of Virginia to investigate alleged corruption relating to arms contracts made with the Government of the Philippines. The District Court denied the applicants’ motion to quash the subpoenas on Fifth Amendment grounds, and granted instead the Government’s motion to give the applicants use and derivative use immunity as to prosecutions in the United States. The court also entered a restrictive order designed to protect the secrecy of their testimony and held that no constitutional question was presented because the applicants had not demonstrated a real and substantial danger of prosecution abroad.

The Court of Appeals affirmed, 794 F. 2d 920 (1986), but on different grounds. It acknowledged that applicants faced a substantial possibility of prosecution in the Philippines. It also found the District Court’s restrictive order insufficient to protect against disclosures to the Philippine Government because, inter alia, the order itself contemplates permitting disclosure of applicants’ testimony at a future date, and because the order does not prohibit the United States from revealing evidence derived from that testimony. The court therefore reached the constitutional question, and held that the Fifth Amendment privilege is not violated simply because compelled testimony might be used in a foreign prosecution. The court denied rehearing on July 3.

The requirements for obtaining a stay pending certiorari are well established. Such a stay should be granted only when (1) there is a reasonable probability that four Justices will vote to grant certiorari; (2) there is a fair prospect that a majority of the Justices will find the decision below erroneous; and (3) a balancing of the equities weighs in the applicant’s favor. See, e. g., National Collegiate Athletic Assn. v. Board of Regents, 463 U. S. 1311, 1313 (1983) (White, J., in chambers); Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (Rehnquist, J., in chambers); Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in chambers). In assessing whether each of these factors has been met, a Circuit Justice acts as a “surrogate for the entire Court.” Holtzman v. Schlesinger, 414 U. S. 1304, 1313 (1973) (Marshall, J., in chambers).

As to the first requirement, I conclude that four Justices will likely vote to grant certiorari on the issue that presumably will be presented in the applicants’ petition, namely, whether the privilege against self-incrimination protects a witness from being compelled to give testimony that may later be used against him in a foreign prosecution. Substantial confusion exists on this issue. Moreover, this Court voted to consider the question in Zicarelli v. New Jersey State Comm’n of Investigation, 406 U. S. 472, 478 (1972), but did not reach it because, in the view of the majority, the appellant there “was never in real danger of being compelled to disclose information that might incriminate him under foreign law,” id., at 480. We did, however, reserve the issue, observing that if the appellant should later be questioned about “matters that might incriminate him under foreign law and pose a substantial risk of foreign prosecution,. . . then a constitutional question will be squarely presented.” Id., at 481.

Against this background, it is more likely than not that at least five Justices will agree with the Court of Appeals that the applicants face the kind of risk found lacking in Zicarelli, and will therefore reach and decide the question reserved in that case. And although such matters cannot be predicted with certainty, I conclude there is a “fair prospect” that a majority of this Court will decide the issue in favor of the applicants. Murphy v. Waterfront Comm’n of New York Harbor, 378 U. S. 52 (1964), contains dictum which, carried to its logical conclusion, would support such an outcome. That case held only that the privilege against self-incrimination protects a witness against compelled disclosures in state court which could be used against him in federal court or vice versa. However, the Court also discussed with apparent approval several English cases holding that the privilege protects a witness from disclosures which could be used against him in a foreign prosecution. See id., at 58-63, 77; United States v. McRae, 3 L. R. 79 (Ch. App. 1867); Brownsword v. Edwards, 2 Ves. sen. 244, 28 Eng. Rep. 157 (Ex. 1750-1); East India Co. v. Campbell, 1 Ves. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749).

Finally, I conclude that the equities weigh in applicants’ favor, particularly if the stay is appropriately conditioned. Applicants clearly will suffer irreparable injury if the Court of Appeals is right about the likelihood of prosecution and the inability of the District Court’s restrictive order to prevent disclosure. Cf. Garrison v. Hudson, 468 U. S. 1301, 1302 (1984). If that secrecy order is enforceable under all circumstances, it may afford applicants protection should they later be extradited for trial in the Philippines; however, that will depend, in part, on what protection is afforded to accused persons under Philippine law.

The Government and the public plainly have a strong interest in moving forward expeditiously with a grand jury investigation, but on balance the risk of injury to the applicants could well be irreparable and the injury to the Government will likely be no more than the inconvenience of delay. Accordingly, I grant the stay, conditioned upon applicants’ filing their petition for certiorari by August 5, 1986. This should permit the Court to act on the petition during its first conference of the coming Term.

      Compare Mishima v. United States, 507 F. Supp. 131, 135 (Alaska 1981); United States v. Trucis, 89 F. R. D. 671, 673 (ED Pa. 1981); and In re Cardassi, 351F. Supp. 1080, 1085-1086 (Conn. 1972), with In re Parker, 411 F. 2d 1067, 1070 (CA10 1969), vacated and remanded, 397 U. S. 96 (1970); and Phoenix Assurance Co. of Canada v. Runck, 317 N. W. 2d 402, 413 (N.D.), cert. denied, 459 U. S. 862 (1982).


author: Justice Stevens, Circuit Justice.

text:
    MIKUTAITIS v. UNITED STATES
    No. A-195.
    Decided September 17, 1986
   Justice Stevens, Circuit Justice.

The United States District Court for the Northern District of Illinois is holding applicant, Mecislovas Mikutaitis, in civil contempt of court because he refuses to testify at a deposition in Chicago despite a grant of immunity by the United States District Court for the Middle District of Florida, where denaturalization proceedings against one Jurgis Joudis are pending. The papers before me indicate that the testimony the Government seeks from Mikutaitis will tend to prove that he, as well as Joudis, cooperated with the Nazi Government, committed war crimes, and engaged in treasonous activity against the Soviet Union after it invaded Lithuania during World War II. Mikutaitis asserts that the testimony the Government seeks to compel may be used by the Soviet Union in a criminal proceeding against him in the event that he is denaturalized and deported there and his testimony comes to the attention of the Soviet Government. Thus, he contends that because the grant of immunity does not adequately protect against the use of his testimony against him in a criminal prosecution by a foreign sovereign, he has a Fifth Amendment privilege against testifying.

In support of his theory, Mikutaitis argued before the District Court that there is a probability that he too will eventually be denaturalized and deported since his deposition testimony may be used against him in such a civil proceeding. In this regard, a lawyer for the Government’s Office of Special Investigations testified that the United States is actively engaged in seeking to denaturalize and deport those who cooperated with the Nazi Government and concealed their involvement to obtain entry into the United States. Miku-taitis also presented an expert in Soviet law, who testified that the Soviet Union is likely to prosecute Mikutaitis for treason if he is deported there. The District Court recognized that Mikutaitis has a “realistic fear of prosecution,” but nonetheless found Mikutaitis .in contempt. The District Court held that the court order sealing the deposition sufficiently protected him from the risk that his testimony would ever be disclosed to the Soviet Union. See United States v. Joudis, 800 F. 2d 159, 161 (CA7 1986). The District Court allowed Mikutaitis to remain free on bail pending appeal.

The United States Court of Appeals for the Seventh Circuit affirmed the contempt order, concluding that “the sealing order [was] adequate to protect Mikutaitis from Soviet acquisition of his testimony and thus override his Fifth Amendment claim.” Id., at 162. In light of this conclusion, it was not necessary for the court to decide whether the constitutional privilege against self-incrimination provides any protection against compelled testimony when there is a substantial risk that a foreign sovereign will prosecute the witness. See Zicarelli v. New Jersey Investigation Comm’n, 406 U. S. 472, 478 (1972) (declining to Teach constitutional issue since there was no “real and substantial” danger that witness’ testimony would be used against him in a foreign prosecution).

On September 5, 1986, a panel of the Court of Appeals granted the Government’s motion for immediate issuance of the mandate, and on September 10, the District Court ordered Mikutaitis to surrender himself to the custody of the United States Marshal on the following day. Mikutaitis complied with that order. He now asks me, in my capacity as Circuit Justice, to stay the issuance of the Court of Appeals’ mandate and the District Court’s order requiring him to report for custody, thereby allowing him to remain free on bond pending his filing a suggestion for rehearing to the Court of Appeals, or a petition for certiorari to this Court. Pursuant to my request, the United States has filed a memorandum in opposition to the application.

In my opinion the question raised by this application is sufficiently similar to the question identified by The Chief Justice in Araneta v. United States, ante, p. 1301 (Burger, C. J., in chambers), to make it appropriate for the full Court to consider this application for a stay at the same time it decides whether or not to grant certiorari in Araneta. In Araneta, The Chief Justice granted a stay of the contempt order pending a petition for certiorari, based in part on his prediction that it is “more likely than not” that five Justices will agree with the United States Court of Appeals for the Fourth Circuit that the sealing of the grand jury testimony under Federal Rule of Criminal Procedure 6(e) in that case did not provide adequate protection against future disclosure of testimony to the Government of the Philippines. Ante, at 1304. That conclusion was supported by the risk that the testimony might be disclosed inadvertently, the fact that the order did not forbid disclosure of evidence derived from the testimony, and the possibility that the grand jury record might be opened at a later date. See United States v. (Under Seal), 794 F. 2d 920 (CA4 1986). All of these factors are relevant in this case as well.

It does not appear that the Government will be significantly prejudiced by an additional short delay in obtaining Mikutaitis’ deposition. On the other hand, it is possible that continued enforcement of the contempt order' may have the practical consequence of rendering the proceeding moot if Mikutaitis is pressured into testifying because of the prospect of lengthy imprisonment pending consideration of his petitions for review by the en banc Court of Appeals or this Court. In light of these considerations, I have decided to grant the application. Accordingly, the enforcement of the contempt order entered by the District Court on March 11, 1986, which had been stayed until September 5, 1986, is stayed until further order of this Court.

       A suggestion for rehearing en banc was filed with the Court of Appeals on September 16, 1986.

       A petition for certiorari was filed in Araneta on August 4, 1986, and the Court should be able to act upon it during its conference later this month. See Araneta, ante, at 1305.

       Recognizing that two courts have now ruled that the sealing order eliminates Mikutaitis’ substantial fear of disclosure, I nonetheless believe that the legal question of whether sealing orders adequately protect against disclosure for Fifth Amendment purposes is one of the two key issues presented in Arcmeta, and that the full Court should have the opportunity to consider this stay application in light of its action on the petition in Araneta. As it stands, some of the United States Courts of Appeals appear to have reached differing conclusions on this issue. See United States v. (Under Seal), 794 F. 2d, at 925 (acknowledging that three Circuits have deemed Rule 6(e) orders sufficiently protective, but holding that the “contrary authority [is the] more compelling”).

       The Government initially sought to depose Mikutaitis in 1983, the order requiring him to testify was issued in October 1985, and he was found to be in contempt on March 11, 1986.

       The entry of this order shall not in any way affect the jurisdiction of the Court of Appeals to take whatever action it deems appropriate in response to the pending suggestion for rehearing. Nor does this order preclude the District Court from entering whatever orders it deems appropriate to insure that Mikutaitis will be available to testify in the event that the judgment of the panel of the Court of Appeals is ultimately upheld. Finally, issuance of this order is in no way intended to discourage either Mikutaitis or the Government from seeking a broader sealing order. See United States v. Joudis, 800 F. 2d 159, 163 (CA7 1986).


author: Justice Rehnquist, Circuit Justice.

text:
    PRUDENTIAL FEDERAL SAVINGS & LOAN ASSOCIATION v. FLANIGAN
    No. A-229.
    Decided September 25, 1986
   Justice Rehnquist, Circuit Justice.

The application for a writ of injunction pending appeal is denied. The constitutional issues addressed in the application were not properly presented to the Montana Supreme Court until the applicants filed for rehearing. The court denied the petition for rehearing without comment, consistent with its practice of refusing to consider issues not pressed at each stage of the litigation. See Femling v. Montana State University, - Mont. -, 713 P. 2d 996, 999 (1986); Dodd v. East Helena, 180 Mont. 518, 523, 591 P. 2d 241, 244 (1979). Under these circumstances, the claims presented by the applicants are not properly before me. “Questions first presented to the highest State court on a petition for rehearing come too late for consideration here . . . .” Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 128 (1945).

Denied.


author: Per Curiam. Justice Marshall

text:
    ROSE v. ARKANSAS STATE POLICE et al.
    No. 85-1388.
    Decided November 3, 1986
   Per Curiam.

In December 1982, Arkansas State Trooper William Rose was killed in the line of duty. His widow, petitioner in this action, received a $50,000 benefit from the Federal Government pursuant to the Public Safety Officers’ Death Benefits Act, 93 Stat. 1219, 42 U. S. C. § 3796 et seq. The Benefits Act provides for a $50,000 payment to the survivors of a state law enforcement officer who dies as a result of job-related injuries. The federal statute also provides that “[t]he benefit payable under this subchapter shall be in addition to any other benefit that may be due from any other source,” with two exceptions not relevant here. § 3796(e).

Petitioner also applied for death benefits under the Arkansas Workers’ Compensation Act. See Ark. Stat. Ann. § 12-3601 et seq. (1979). Respondent Public Employee Claims Division of the Arkansas Insurance Department acknowledged that the claim was compensable, but insisted on reducing the amount owed to Rose by the amount she had received under the federal Benefits Act. In support of its position, respondent relied on a state statute that provides:

“In the event that any public employee who is entitled to receive workers’ compensation ... as a result of injury, disability or death, and such injuries, disabilities, or death gives rise to an entitlement of benefits under . . . an Act of Congress providing benefits for public safety officers . . . the state workers’ compensation fun[d] shall be entitled to a credit against its liability ... to the extent of the [federal] benefits received . . . .” Ark. Stat. Ann. § 12-3605(G) (Supp. 1985).

Rose filed a complaint with the Arkansas Workers’ Compensation Commission, claiming that her state benefits should not be offset by the federal payment. An Administrative Law Judge ordered respondent to compensate petitioner in full, noting that the Benefits Act plainly states that the federal money is intended to supplement all other benefits. The ALJ ruled that the state statute was in direct conflict with the Benefits Act, and that under the Supremacy Clause of the United States Constitution, the Arkansas provision must give way. The full Commission reversed the ALJ and allowed the offset, finding no inconsistency between the state and federal laws.

The Arkansas Court of Appeals affirmed the Commission’s decision. 16 Ark. App. 96, 697 S. W. 2d 927 (1985). The court first cited Richardson v. Belcher, 404 U. S. 78 (1971), for the proposition that there is nothing inherently unconstitutional about offsetting state and federal benefits. The state court then concluded that the offset in this case was proper, because the Benefits Act does not show a congressional intent to intrude on the States’ right to set workers’ compensation benefits. Therefore, said the court, “[w]e fail to see a supremacy clause argument.” 16 Ark. App., at 99, 697 S. W. 2d, at 928. The Arkansas Supreme Court denied petitioner’s request for review.

There can be no dispute that the Supremacy Clause invalidates all state laws that conflict or interfere with an Act of Congress. Hayfield Northern R. Co. v. Chicago & North Western Transportation Co., 467 U. S. 622, 627, and n. 4 (1984) (citing Gibbons v. Ogden, 9 Wheat. 1, 211 (1824)). In this case, the conflict between the Arkansas law and the Benefits Act is clear from the language of the statutes. The Benefits Act unambiguously provides that the $50,000 payment “shall be in addition to any other benefit that may be due from any other source.” 42 U. S. C. § 3796(e) (emphasis added). Congress plainly intended to give supplemental benefits to the survivors, not to assist the States by subsidizing their benefit programs. The Arkansas statute, however, passed three years after the Benefits Act was enacted, provides that the state award shall be reduced by the full amount of the federal payment. The state statute authorizes the precise conduct that Congress sought to prohibit and consequently is repugnant to the Supremacy Clause.

The state court nevertheless failed to perceive a tension between the two statutes, concluding that the federal law did not alter the States’ traditional right to set the level of workers’ compensation benefits. This reasoning misses the point. The Benefits Act does not require a State to set a particular benefit level for its citizens; it simply prohibits a State from reducing the compensation it otherwise would provide to account for the federal payment. This reading of the Benefits Act is consistent with the legislative history, that shows that Congress was concerned about the inadequacy of death benefits paid to police officers by some States. See H. R. Rep. No. 94-1032, p. 3 (1976); see also 122 Cong. Rec. 12005 (1976) (remarks of Rep. Biaggi). Congress intended that the $50,000 would be a “gratuity,” and would provide payment “over and above all other benefits.” See S. Rep. No. 96-142, p. 58 (1979) (“gratuity”); 122 Cong. Rec. 12002 (remarks of Rep. Eilberg).

The Arkansas court’s reliance on Richardson v. Belcher, supra, is misplaced. In that case the Court upheld a law allowing the reduction of federal benefits to account for state awards of workers’ compensation. See id., at 78-79, and n. 1. Belcher did not present a Supremacy Clause issue.

Because the Benefits Act prohibits States from offsetting their death benefits against the federal payment, § 12-3605(G) of the Ark. Stat. Ann. (Supp. 1985) is invalid. We therefore grant the petition for certiorari, reverse the decision of the Arkansas Court of Appeals, and remand for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Marshall

dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See, e. g., Acosta v. Louisiana Dept. of Health and Human Resources, 478 U. S. 251 (1986) (Marshall, J., dissenting).

       “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI, cl. 2.