text:
    No. 84-629.
    Merrill Lynch, Pierce, Fenner & Smith, Inc. v. McCollum et al.
   Ct. App. Tex., 14th Sup. Jud. Dist. Certiorari denied.

Justice White,

with whom Justice Blackmun joins,

dissenting.

This petition presents the question whether § 3 of the Federal Arbitration Act, 9 U. S. C. § 3, bars a court from issuing a temporary injunction pending arbitration of a contractual dispute. Respondent McCollum (hereafter respondent) is a former employee of petitioner Merrill Lynch, Pierce, Fenner and Smith, Inc. The employment contract signed by Merrill Lynch and respondent provided that in the event that respondent’s employment with Merrill Lynch was terminated, respondent would not be allowed to remove client lists from the premises of Merrill Lynch nor to solicit any of Merrill Lynch’s clients for a period of one year from the date of termination. The contract also provided that “any controversy between [respondent] and Merrill Lynch arising out of [respondent’s] employment, or the termination of [respondent’s] employment with Merrill Lynch for any reason whatsoever shall be settled by arbitration at the request of either party . . . .”

Respondent left petitioner and obtained a position with one of petitioner’s competitors. Alleging that respondent had violated the terms of his contract by absconding with petitioner’s client lists and soliciting petitioner’s clients, petitioner sued respondent for damages and injunctive relief in the District Court for Harris County, Texas. After entering a temporary restraining order enjoining respondent from any actions in violation of the contract, the District Court concluded that the dispute was arbitrable and that the court therefore lacked authority to adjudicate it. Accordingly, although the court was of the opinion that petitioner would have been entitled to injunctive relief but for the arbitration clause, the court dissolved its restraining order, denied petitioner’s motion for a temporary injunction, and stayed all further proceedings in the action pending arbitration of the underlying dispute.

Petitioner appealed the District Court’s order to the Texas Court of Appeals. Petitioner attacked the trial court’s finding that the dispute was arbitrable, the denial of preliminary injunc-tive relief, and the order compelling arbitration. The Court of Appeals affirmed the lower court on all three issues. 666 S. W. 2d 604 (1984). In upholding the denial of the preliminary injunc-tive relief pending arbitration, the Court of Appeals interpreted § 3 of the Federal Arbitration Act (applicable, in the court’s view, to state as well as federal courts) to command an immediate halt to judicial proceedings once a court determines that the dispute underlying an action is arbitrable. Judicial resolution of the issues involved in a motion for injunctive relief, the court held, would be inconsistent with the Act’s command that the merits of the dispute be determined by the arbitrator. Thus, the court concluded that §3 of the Arbitration Act precludes a court from entering a preliminary injunction to maintain the status quo pending arbitration in any arbitrable dispute.

The Supreme Court of Texas denied petitioner’s application for a writ of error to review the judgment of the Court of Appeals, and petitioner filed this timely petition for certiorari.

The question presented by this case — whether the Arbitration Act bars a court from issuing a preliminary injunction in a case subject to arbitration — is one that has divided the state and federal courts. In adopting the position that preliminary injunctive relief is unavailable, the Texas Court of Appeals followed recent rulings of the Federal Courts of Appeals for the Eighth and Tenth Circuits, Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hovey, 726 F. 2d 1286, 1291 (CA8 1984); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Scott, No. 83-1480 (CA10, May 12, 1983) (unpublished order). However, the Second and Seventh Circuits, apparently untroubled by § 3 of the Arbitration Act, have routinely held that preliminary injunctions are available to maintain the status quo pending arbitration even in actions subject to the Arbitration Act's command that the court compel arbitration rather than adjudicating the underlying dispute. See Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F. 2d 348 (CA7 1983); Connecticut Resources Recovery Auth. v. Occidental Petroleum Corp., 705 F. 2d 31 (CA2 1983); Guinness-Harp Corp. v. Joseph Schlitz Brewing Co., 613 F. 2d 468 (CA2 1980); Erving v. Virginia Squires Basketball Club, 468 F. 2d 1064 (CA2 1972). The Supreme Court of Colorado has also recently held (without any discussion of the Arbitration Act) that a preliminary injunction to maintain the status quo is available in an action in which a court is otherwise obligated to stay its proceedings and compel arbitration. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. District Court of Denver, 672 P. 2d 1015 (1983).

The importance of resolving the question of the availability of preliminary injunctive relief in cases subject to arbitration is underscored by the confusion over the issue among the Federal District Courts — courts whose decisions on the issuance of preliminary relief are often effectively final, given that the imminence of arbitration may sharply limit a party’s incentives to appeal an adverse decision. In an opinion written in 1951, Judge Weinfeld of the Southern District of New York concluded that the power to issue a preliminary injunction pending arbitration follows from the court’s power to compel arbitration, for “[i]t would be an oddity in the law if the Court, after compelling a party to live up to his undertaking to arbitrate, had to stand idly by during the pendency of the arbitration which it has just directed and permit him to assert his ‘right to breach a contract and to substitute payment of damages for nonperformance.’” Albatross S.S. Co. v. Manning Bros., Inc., 95 F. Supp. 459, 463 (1920) (quoting O. Holmes, Collected Legal Papers 175). Judge Weinfeld’s reasoning was adopted by the District Court for the Eastern District of New York in Janmort Leasing, Inc. v. Econo-Car International, Inc., 475 F. Supp. 1282 (1979). In other recent cases, however, District Courts have concluded that they lack the power to issue a preliminary injunction in cases subject to §3 of the Arbitration Act. See, e. g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. DeCaro, 577 F. Supp. 616 (WD Mo. 1983); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Shubert, 577 F. Supp. 406 (MD Fla. 1983); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Thompson, 575 F. Supp. 978 (ND Fla. 1983); Smith v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 575 F. Supp. 904 (ND Tex. 1988); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Thomson, 574 F. Supp. 1472 (ED Mo. 1983). But cf. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. De Liniere, 572 F. Supp. 246 (ND Ga. 1983), in which the court, in a case governed by §3, apparently assumed it had the power to grant a preliminary injunction but denied the injunction on the merits.

Whether the Arbitration Act bars the issuance of a preliminary injunction pending arbitration appears to be a frequently litigated question of considerable importance to the parties to arbitration agreements. The issue is one well worth definitive resolution by this Court. The most obvious obstacle to review of this particular case is that the arbitration proceedings will likely have begun and ended — mooting the issue of relief pending arbitration — by the time this Court has the opportunity to resolve the issue. This obstacle, however, is more apparent than real. The Court has recognized an exception to its general mootness doctrine for cases presenting issues that are “capable of repetition, yet evading review.” See, e. g., Sosna v. Iowa, 419 U. S. 393 (1975); Dunn v. Blumstein, 405 U. S. 330 (1972). In Weinstein v. Bradford, 423 U. S. 147 (1975), we held that “the ‘capable of repetition, yet evading review’ doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Id., at 149. Both criteria are satisfied in this case. It would be the rare case indeed in which an arbitration proceeding compelled under the Arbitration Act would not have commenced before the issue of the propriety of injunctive relief pending arbitration found its way to this Court. Thus, unless the Court is willing to apply the “capable of repetition, yet evading review” doctrine, it is likely that the issue will never be conclusively resolved here. Moreover, the likelihood that petitioner will again find itself in the position of seeking injunctive relief pending arbitration of a contractual dispute with a former employee seems substantial: in fact, several of the courts that have so far examined the issue have done so in proceedings initiated by petitioner. The question, then, is one that is “capable of repetition, yet evading review”; and in view of its importance, I would grant certiorari to resolve it.

       Section 3 provides:
      “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.”

       Petitioner contends not only that the Texas Court of Appeals misconstrued § 3 of the Arbitration Act, but also that § 3 is inapplicable in state-court proceedings. Although this Court, in holding that state courts must apply § 2 of the Act, has reserved the question whether § 3 applies to the state courts, see Southland Corp. v. Keating, 465 U. S. 1, 16, n. 10 (1984), petitioner cites no authority for the proposition that § 3 does not apply, and there appears to be no substantial disagreement among the state courts over § 3’s applicability. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 26, n. 34 (1983); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Melamed,, 405 So. 2d 790 (Fla. App. 1981).


source: Caselaw Access Project

license: Public Domain

text:
    No. 84-646.
    No. 84-651.
    Peat, Marwick, Mitchell & Co. v. Lipton et al.; and Documation, Inc., et al. v. Lipton et al.
   C. A. 11th Cir. Certiorari denied. Justice Brennan would grant certiorari. Reported below: 734 F. 2d 740.


text:
    No. 84-654.
    Chevron Corp. et al. v. Arizona et al.
   C. A. 9th Cir. Certiorari denied.

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


text:
    No. 84-668.
    Western Airlines, Inc. v. California.
   Ct. App. Cal., 4th App. Dist. Motion of Air Transport Association of America for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 84-694.
    Arkansas Power & Light Co. et al. v. Union of Concerned Scientists et al.
   C. A. D. C. Cir. Certiorari denied.

Justice Blackmun would grant certiorari.


text:
    No. 84-707.
    Dunn v. United States et al.
   C. A. 11th Cir. Motion of petitioner to secure Rule 28.2 affidavit denied. Certiorari denied.


text:
    No. 84-711.
    Ronwin v. United States District Court for the District of Arizona.
   C. A. 9th Cir. Certiorari denied.

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


text:
    No. 84-731.
    Shumate v. Douthat, Substitute Trustee, et al.
   C. A. 4th Cir. Certiorari denied.

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


text:
    No. 84-5333.
    Spicer v. United States.
   C. A. 6th Cir. Certiorari denied.

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


author: Justice Brennan and Justice Marshall,

text:
    No. 84-5545.
    No. 84-5689.
    No. 84-5808.
    Spivey v. Georgia. Burris v. Indiana. Julius v. Alabama.
   Sup. Ct. Ga.;

Sup. Ct. Ind.; and

Sup. Ct. Ala. Certiorari denied. Reported below: No. 84-5545, 253 Ga. 187, 319 S. E. 2d 420; No. 84-5689, 465 N. E. 2d 171; No. 84-5808, 455 So. 2d 984.

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,

text:
    No. 84-5690.
    Songer v. Wainwright, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Petitioner Carl Songer was sentenced to death in 1974. At the sentencing hearing, Songer’s attorney did not offer available character evidence in mitigation, not because he had none, or as a strategic manuever, but because he reasonably concluded that Florida law did not permit admission of such evidence. We have consistently held, however, that in capital cases “the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record.” Lockett v. Ohio, 438 U. S. 586, 604 (1978) (opinion of Burger, C. J.). We have applied this rule not only when the preclusion of mitigating evidence results under the plain terms of a statute, as in Lockett, but also where a non-statutory application of state law violates the rule. Eddings v. Oklahoma, 455 U. S. 104 (1982). In Songer’s case, the District Court ruled that Florida’s capital sentencing statute was, in 1974, reasonably understood to preclude introduction of mitigating evidence unless the evidence fit into certain statutorily defined categories. Because that understanding, and Songer’s consequent death sentence, violated clear principles expressed in Lockett and Eddings, this Court should vacate Songer’s sentence and remand the case for a proper proceeding.

I

Songer was convicted in February 1974 of the first-degree murder of a Florida highway patrolman. The evidence at trial showed that Songer was asleep in the back seat of a car lawfully stopped off the highway when the investigating patrolman reached into the car with his pistol in a ready position. Suddenly thus awakened, Songer grabbed his own gun, and both Songer and the patrolman fired multiple shots. The patrolman died from the injuries he received.

After returning a verdict of guilty, the jury separately heard evidence under Florida’s recently enacted capital sentencing statute. Fla. Stat. § 921.141 (1973). At the time, that statute listed eight aggravating circumstances and seven mitigating circumstances. §§ 921.141(6) and (7). Although Songer informed his attorney that members of his family and friends were willing and available to testify to his general good character and normally nonviolent personality, Songer’s counsel called no witnesses other than Songer and offered no other mitigating evidence for the jury to consider. The jury recommended death, and the judge imposed that sentence.

In 1980, Songer filed a motion to vacate sentence in his Florida trial court. He raised his Lockett claim as part of a broad challenge to his trial attorney’s effective assistance and to the jury instructions used at sentencing. At the evidentiary hearing held on this motion, Songer’s trial counsel explained that he had not offered character or other evidence in mitigation because he had believed that only evidence relevant to the statutory mitigating circumstances was allowed:

“The only recollection I have is that was a new statute at that time, . . . going over the statutory grounds with him for aggravating circumstances and mitigating circumstances, and what would be available to us under the statutory language and what would be against us under the statutory language. ... [I examined] all the factors we had available to us.” R. II, at 379.

Without discussing whether Songer’s sentencing may have violated Lockett, the trial court ruled that Songer’s counsel had not been ineffective and denied the motion to vacate. The Florida Supreme Court affirmed, Songer v. State, 419 So. 2d 1044 (1982), also without mention of Lockett.

After the Florida Supreme Court again denied Songer’s claim without discussion when he filed a state habeas corpus petition, Songer v. State, 423 So. 2d 355 (1982), Songer filed this federal petition under 28 U. S.C § 2254. The District Court first concluded that Songer’s attorney had not been ineffective at the penalty stage. 571 F. Supp. 1384, 1393-1397 (MD Fla. 1983). The court found that the attorney had examined “the possibility of using particular character witnesses during the penalty stage,” and that “[h]is motivation for rejecting that [possibility] is unclear.” Id., at 1394. Then, based on the attorney’s testimony at the motion to vacate hearing quoted above, the court concluded that “it is quite possible that [the attorney] may have been laboring under the reasonable, but mistaken, belief that he could not introduce any nonstatutory mitigating factors.” Id., at 1395 (emphasis added). Despite this conclusion that Florida law in 1974 reasonably operated to preclude Songer’s attorney from introducing relevant and available mitigating evidence, the District Court failed to make any connection with our Lockett and Eddings holdings.

A few pages later, the District Court addressed Songer’s second claim: that the jury instructions concerning mitigating circumstances had violated Lockett. Without reference to its earlier conclusion that Songer’s attorney had reasonably concluded that Florida law precluded him from introducing nonstatutory mitigating evidence, the court stated that Songer “was not prevented from proffering any evidence in mitigation.” 571 F. Supp., at 1398. After discussing the scant mitigating evidence which the attorney had succeeded in eliciting from Songer’s own testimony at the sentencing hearing, and noting that the Florida Supreme Court had already rejected the “identical challenge” (as if that could ever be dispositive), the District Court dismissed the claim without further comment.

On appeal, the Eleventh Circuit affirmed the District Court’s factual findings. 733 F. 2d 788 (1984). These included (1) that Songer’s “[c]ounsel did discuss character witnesses with the defendant, but counsel rejected their use,” and (2) that the “character mitigating evidence would have been a general affirmation of good behavior as a child and young adult offered by family and friends.” Id., at 791, n. 2. Next, without specifically discussing the attorney's performance at sentencing, the court ruled that Songer had not adequately made out an ineffective assistance claim. The court then disposed of Songer’s attack on the jury instructions concerning mitigating circumstances. See n. 14, infra. Lockett and Eddings were not even cited in the Court of Appeals’ opinion.

II

The plain error of the courts below is that, although they perceived some vague tension between Songer’s sentencing and the principles expressed in Lockett and Eddings, they failed to consider precisely the impact of Florida law as understood and applied when Songer was sentenced in 1974. At that time, as Florida decisional law indicates, the Florida capital sentencing statute operated to preclude consideration of mitigating evidence outside the statutory categories. The District Court explained this forthrightly:

“[A]t the time of petitioner’s trial in 1974, it was by no means clear that a defense attorney should introduce mitigating character evidence during the penalty stage. ‘Florida’s capital sentencing statute was barely a year old at the time of appellant’s trial, and the only Florida Supreme Court case addressing its constitutionality supported an interpretation of the statute as limiting the mitigating evidence that could be considered to that falling within the seven statutory factors.’” 571 F. Supp., at 1395 (quoting Proffitt v. Wainwright, 685 F. 2d 1227, 1248 (CA11 1982)).

The conclusion that it was “by no means clear” in 1974 that nonstatutory mitigating evidence was admissible under Florida’s capital sentencing law is, to say the least, an understatement. The law had become effective in December 1972. In State v. Dixon, 283 So. 2d 1 (1973), the Florida Supreme Court had described the new statute as “a system whereby the possible aggravating and mitigating circumstances are defined” and only “the weighing process” is left to the jury and judge. Id., at 7 (emphasis added). Thus, Dixon stated, the statutory list of aggravating and mitigating circumstances “must be determinative of the sentence imposed.” Id., at 8 (emphasis added). If “one or more of the prescribed aggravating factors is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla. Stat. § 921.141(7).” Id., at 9 (emphasis added).

Three years later, in Cooper v. State, 336 So. 2d 1133 (1976), the Florida Supreme Court unambiguously reaffirmed this interpretation:

“The sole issue in a sentencing hearing under § 921.141 . . . is to examine in each case the itemized, aggravating and mitigating circumstances. Evidence concerning other matters have [sic] no place in that proceeding. . . .” Id., at 1139 (emphasis added).

Cooper concluded: “[T]he Legislature chose to list the mitigating circumstances which it judged to be reliable . . . , and we are not free to expand the list.” Ibid.; see also id., at 1139, n. 7.

Moreover, even if the general interpretation of § 921.141 in Florida in 1974 had been the same as today — and it obviously was not—that fact would be irrelevant in light of the record of this particular case. At the penalty stage of Songer’s trial, the judge informed the jury that it was to decide whether or not to impose the death penalty “based upon . . . whether sufficient mitigating circumstances exist, as hereafter enumerated. . . .” R. VI, at 445. The judge then stated that “[mjitigating circumstances by statute are . . . ,” and read the statutory list verbatim. Id., at 446. Thus Songer’s jury was instructed to base its decision only on the statutory list of mitigating circumstances, as enumerated by the judge.

In addition, Songer’s jury was provided a verdict form on which it could indicate its sentence. The preprinted introductory sentence on the form began with the words “We, the Jury, having heard the evidence ... as to whether . . . sufficient mitigating circumstances [as] defined in the Court’s charge [exist]. . . .” Id., at 447-448. This form, which accompanied the jury into the jury room, could only have reinforced the jury’s impression that it was limited to considering only the factors enumerated in the statute. These facts are unnecessary to Songer’s central claim: that Florida law operated to preclude his attorney from introducing relevant mitigating evidence. But they do add further support to the conclusion that all the relevant actors in Songer’s 1974 trial — attorney, judge and jury — were operating on the assumption that mitigating evidence in capital cases was limited to evidence relevant to the factors listed in § 921.141(7). Such an assumption would be unconstitutionally erroneous today. In light of Lockett and Eddings, it must also render Songer’s 1974 death sentence invalid as imposed.

Ill

The courts that have examined Songer’s claims heretofore as going solely to ineffective assistance or faulty jury instructions have been misguided, primarily because they failed to recognize the independent significance of Lockett and Eddings in the area of capital sentencing. A first principle apparent from those decisions is that mitigating evidence takes on constitutional significance in the Eighth Amendment context of capital sentencing. Thus the absence of such evidence, if the result of state law, can never be held “unlikely to make a difference” as the Eleventh Circuit suggested. 733 F. 2d, at 791, n. 2(h).

Moreover, the courts below consistently failed to recognize that the jury instruction issue is, in this case, largely irrelevant. The point here is that Florida law in 1974 operated to lead Songer’s attorney to conclude, reasonably, that nonstatutory mitigating evidence was precluded at sentencing. Once this decision was made, the constitutional damage was done. The jury instructions, which I believe were faulty in any case, did not matter; even if properly instructed, the jury did not have before it the nonstatutory mitigating evidence that Songer had discussed with his attorney. Thus the error of constitutional significance here arose before the jury was instructed — it was, however, no less the product of state law.

Florida’s only counter to Songer’s petition in this Court is to repeat that various courts have ruled, since Lockett, that the Florida statute does not impermissibly limit mitigating evidence to the factors listed in the statute. This unenlightening restatement of the obvious, see n. 9, supra, completely fails to address the significant facts of this case: that at the time of Songer’s trial, the reasonable and accepted understanding of § 921.141 was to the contrary, and that Songer’s attorney relied on that interpretation in deciding to put on no character evidence in mitigation. The current interpretation of § 921.141 simply has no bearing on whether these facts violated constitutional principles in 1974.

IV

Because I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 227 (1976) (BRENNAN, J., dissenting), I would vote to grant the petition for certiorari and vacate Songer’s sentence in any event. But even if I believed otherwise, I would vote to vacate the sentence in this case. This petition requires simply a straightforward application of Lockett and Eddings to the unusual facts of this case. Unlike other possible cases in which a pre-Lockett sentencing challenge might be raised, the record here plainly indicates that Songer’s attorney decided that, as a matter of law, he was precluded from offering mitigating evidence outside the categories listed in § 921.141(7). Cf. Eddings, 455 U. S., at 113 (trial judge found “as a matter of law” that he was unable to consider certain mitigating evidence). Because this accepted and reasonable interpretation of Florida law in 1974 operated to preclude Songer from presenting relevant character evidence in mitigation, it follows a fortiori that a Lockett violation occurred.

In any event, these facts raise serious questions of constitutional principle sufficient to warrant the Court’s plenary review. I therefore dissent from the denial of the petition for certiorari.

       Florida enacted this statute in 1972, following our decision in Furman v. Georgia, 408 U. S. 238 (1972).

       See 3 1972 Fla. Laws 20-22, ch. 72-724, § 9 (amending § 921.141, effective December 8, 1972); State v. Dixon, 283 So. 2d 1, 4-6 (Fla. 1973) (quoting statute in full as it existed prior to October 1974 amendment). The statute subsequently has been amended and its sections renumbered. See Fla. Stat. Ann. §§ 921.141(5) and (6) (West Supp. 1984).

       This motion was not filed until 1980 because on direct appeal this Court had vacated Songer’s sentence and remanded for resentencing in light of Gardner v. Florida, 430 U. S. 349 (1977). Songer v. Florida, 430 U. S. 952 (1977). After a hearing limited to the presentation of the presentence report to Songer’s attorney, the trial court reimposed Songer’s death sentence and the Florida Supreme Court affirmed. See Songer v. State, 365 So. 2d 696 (Fla. 1978), cert. denied, 441 U. S. 956 (1979). In due course thereafter, Songer’s motion to vacate the judgment and death sentence was filed pursuant to Florida Rule of Criminal Procedure 3.850.

       In his motion to vacate, Songer challenged (1) his trial counsel’s failure to present “available evidence as to Defendant's passive nature ... or to any other salient factors in Defendant’s character,” and (2) the “specific application of the [Florida capital sentencing] statute in this case,” citing Lockett, because “the court instructed the jury to limit its consideration of mitigating circumstances to those” specified in the statute. Record Volume (hereinafter R.) VI, Exhibit E.

       Songer’s counsel also testified that Songer’s trial was the first case he had tried under Florida’s new capital sentencing statute. R. II, at 398.

       The court stated that “[a]ppellant’s claim that the trial court failed to properly instruct the jury on the scope of mitigating circumstances . . . has already been considered by this Court,” and cited its decision rendered after Songer’s sentencing remand. 419 So. 2d, at 1046 (citing 365 So. 2d, at 700). See n. 3, supra. The resentencing opinion, however, had addressed only the facial validity of Florida’s capital sentencing statute in light of the recent Lockett decision. See n. 9, infra. At no point in that decision had the Florida Supreme Court explicitly addressed the particular facts of Songer’s sentencing proceeding. See 365 So. 2d, at 700. Thus the later refusal to discuss Songer’s arguments on this point was based on a premise that seems clearly erroneous. It nonetheless constitutes a decision on the merits of the claim.

       Just prior to stating this conclusion, the District Court also suggested that because the attorney’s motivations “do not appear from his testimony at the [motion to vacate] hearing, . . . this court may also presume . . . that counsel’s decision not to call character witnesses was strategic.” 571 F. Supp., at 1394-1395. This “presumption” is obviously not a factual finding. Moreover it is contradicted by the record of the attorney’s testimony at the state court hearing as well as by the District Court’s own conclusion quoted in the text. Finally, it is a legal presumption that this Court has never expressly approved. It thus carries no dispositive weight here.

       Judge Ervin’s dissent in Dixon indicated that this interpretation of Florida’s capital sentencing statute was unanimous. See 283 So. 2d, at 17. years after Songer was sentenced. The relevance of these later decisions to Songer’s case, therefore, is attenuated at best.

       Not until this Court examined Florida’s capital sentencing statute in Proffitt v. Florida, 428 U. S. 242 (1976), was there any suggestion that Florida’s law might permit nonstatutory mitigating evidence. Without citing Dixon, the only Florida case on point at the time, the Court speculated in Proffitt that it “seems unlikely” that Florida’s statute would be interpreted to bar consideration of nonstatutory mitigating evidence. 428 U. S., at 250, n. 8 (opinion of Stewart, Powell, and Stevens, JJ.); accord, id,., at 260 (opinion of White, J.); see also Lockett, 438 U. S., at 606 (“[T]his Court assumed in Proffitt. . . that the range of mitigating factors listed in the [Florida] statute was not exclusive”). Proffitt was handed down on July 2, 1976; Florida’s decision in Cooper was issued just six days later on July 8, 1976. It seems certain that the Florida Supreme Court was not aware of the details in Proffitt’s footnotes at the time. Thus each court interpreted Florida’s statute in 1976 with no clear understanding of how the other contemporaneously viewed the law.
      Once Lockett was decided in 1978, however, Florida necessarily accepted the suggestion that its statutory language was not exclusive in order to save the statute’s constitutionality. Thus, when Songer raised this issue in a petition for rehearing after this Court’s sentencing remand in 1978, see n. 3, supra, the Florida Supreme Court simply dismissed its prior language in Cooper as “not apropos,” and claimed that “[o]bviously, our construction of Section 921.141(6) has been that all relevant circumstances may be considered in mitigation.” Songer v. State, 365 So. 2d, at 700. The Florida cases cited in support of this position, however, do not “obviously” state it. Most relied expressly on the 1973 Dixon decision which, as shown above, suggests a contrary conclusion, and a number simply tracked the unilluminating statutory language. None stated explicitly that nonstatutory mitigating evidence would be admitted under § 921.141. More significant, however, is the fact that the earliest decision cited was decided in December 1975, almost two

       Indeed, the view that mitigating circumstances were limited to those listed in the statute was applied on direct review of Songer’s conviction. Expressly relying on Dixon, the Florida Supreme Court examined only “the statutorily enumerated mitigating circumstances,” and found that they were outweighed in Songer’s case. Songer v. State, 322 So. 2d 481, 484 (1975) (emphasis added).

       Florida’s statute expressly provides for resentencing in a capital case that is remanded. Section 921.141(1) states that if the original trial jury “is unable to reconvene for a hearing on the issue of penalty, . . . the trial judge may summon a special juror or jurors as provided in chapter 913 to determine the issue of the imposition of the penalty." Fla. Stat. Ann. § 921.141(1) (West Supp. 1984).

       Songer has squarely challenged the failure to introduce available mitigating character evidence since his original motion to vacate, citing Lockett throughout, see n. 4, supra, and the facts relevant to his claim were developed in the Florida trial court. Thus, in an even more specific sense than was the case in Eddings, “the question of whether the decisions below were consistent with our decision in Lockett is properly before us.” 455 U. S., at 113-114, n. 9.

       See Eddings, 455 U. S., at 119 (O’Connor, J., concurring): “I disagree with the suggestion in the dissent that remanding this case may serve no useful purpose. . . . [W]e may not speculate as to whether the [senteneer] . . . considered all of the mitigating factors and found them insufficient. . . . Woodson [v. North Carolina, 428 U. S. 280 (1976)] and Lockett require us to remove any legitimate basis for finding ambiguity concerning the factors actually considered by the trial court.”

       Contrary to the Court of Appeals’ assumption in this case, 733 F. 2d, at 792, the instructions given to Songer’s sentencing jury were significantly different from those upheld in Ford v. Strickland, 696 F. 2d 804 (CA11), cert. denied, 464 U. S. 865 (1983). In Ford, the jury was told to consider “only the following” aggravating factors, and to consider “the following” mitigating factors. The Eleventh Circuit found that the latter omission of the word “only” saved the instructions. 696 F. 2d, at 812. In Songer’s case, however, the jury was told to base its decision on consideration of mitigating circumstances “as hereafter enumerated’’; the judge then read the statutory list. See supra, at 1138-1139. Thus the significant message of limitation omitted in Ford was clearly communicated here.

        Interestingly, Florida has omitted this significantly different portion of Songer’s jury instructions from its opposition to Songer’s petition for certio-rari, and apparently failed to include the statement in its response to Songer’s petition for habeas corpus in the District Court. See R. II, at 274-284.
      The Court of Appeals also ruled that Songer had not demonstrated “cause and prejudice” for his attorney’s failure to object to the sentencing jury instructions. But when the District Court found that the trial attorney’s decision regarding the admissibility of nonstatutory mitigating evidence was a “reasonable” one under Florida law in 1974, it necessarily found that he had “cause” for failing to object. See Reed v. Ross, 468 U. S. 1, 14-15 (1984). As for prejudice, Lockett and Eddings require that a state-created preclusion of mitigating evidence must be held to fulfill this requirement. In any case, the Florida courts have ruled on Songer’s claim without noting any failure to object. The merits are therefore properly before us. County Court of Ulster County v. Allen, 442 U. S. 140 (1979).

       The District Court also relied on the decision of the Court of Appeals for the Fifth Circuit in Spinkellink v. Wainwright, 578 F. 2d 582 (1978), cert. denied, 440 U. S. 976 (1979), to dismiss Songer’s claim. 571 F. Supp., at 1398. But Spinkellink clearly indicates that Songer’s sentence should be vacated. Like Songer, Spinkellink was sentenced to death in Florida soon after § 921.141 was enacted. In addressing Spinkellink’s general Lockett challenge to his sentencing, the Fifth Circuit recognized that the post-1976 understanding of Florida’s capital sentencing statute did not provide an answer to the claim. Instead, the panel conducted an independent review of the record, and found that Spinkellink “was afforded, and exercised, without limitation, every opportunity to set forth any and all mitigating factors in his favor,” including a number outside the statutory list. 578 F. 2d, at 621. The record in this case is significantly different. Unlike Spinkellink, Songer was not afforded “every opportunity” to offer nonstatutory mitigating evidence. Instead, Songer’s attorney reasonably relied on the language of the statute and the Florida Supreme Court’s statements in Dixon effectively to deny Songer his opportunity to introduce mitigating character evidence that Songer expressly wanted the jury to consider. The effect on the outcome was the same as that in Eddings: “it was as if the trial judge had instructed a jury to disregard the mitigating evidence.” 455 U. S., at 114.

       Like this case, Eddings involved an application of Lockett to a sentencing that occurred before Lockett was decided. See Eddings v. State, 616 P. 2d 1159, 1164 (Okla. 1980).

       This Court has never accepted reasonableness as a defense to constitutional error in the Lockett analysis of capital sentencing. Thus the Court struck down Ohio’s capital sentencing statute in Lockett despite the recognition that the statute might have been a reasonable response to the “confusion” generated by the Court’s earlier decision in Furman v. Georgia, 408 U. S. 238 (1972). See 438 U. S., at 599, and n. 7. Similarly in Eddings, the Court did not inquire whether the sentencing judge’s erroneous legal conclusion was “reasonable” — once the constitutional Lockett error was found, the Court simply vacated the sentence and remanded. No less is required in this case. If Florida law in 1974 operated — by way of court ruling, reasonable legal interpretation, or any other mechanism — to deny Songer his constitutionally required opportunity to offer nonstatutory mitigating evidence, then his sentence cannot stand.


text:
    No. 83-1710.
    No. 83-1908.
    No. 83-2039.
    No. 83-6633.
    No. 83-6777.
    No. 83-6840.
    No. 83-6996.
    No. 84-175.
    No. 84-343.
    No. 84-408.
    No. 84-5045.
    No. 84-5170.
    No. 84-5175.
    No. 84-5292.
    Coussens et al. v. Carpenters District Council of Detroit, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, et al., Shelby County Sheriff’s Department v. Ruiz, Kavanagh v. McShea, Green v. Oklahoma, Ronson v. Commissioner of Correction of the State of New York, Shannon v. DeRobertis, Warden, et al., Smith v. Union Mutual Life Insurance Co., Schreiber v. Gencorp, Inc., et al., Gabriel v. Interstate Commerce Commission et al., Clear-View Cable T. V., Inc. v. Town of Narrows, Collins v. Francis, Warden, Owens v. Illinois, Owens v. Illinois, Hatch v. Mason et al.,
   ante, p. 818;

ante, p. 1016;

ante, p. 831;

ante, p. 980;

ante, p. 841;

ante, p. 931;

ante, p. 981;

ante, p. 858;

ante, p. 932;

ante, p. 925;

ante, p. 963;

ante, p. 963;

ante, p. 963; and

ante, p. 886. Petitions for rehearing denied.


text:
    No. 83-2017.
    Chin Nien Tsang v. Board of Governors of Wayne State University,
   ante, p. 830. Petition for writ of mandamus and petition for rehearing denied.


text:
    No. 83-6886.
    Velilla v. UTC/Hamilton Standard Division et al.,
   ante, p. 805. Motion for leave to file petition for rehearing denied.


text:
    No. 84-5609 (A-503).
    Green v. Zant, Superintendent, Georgia Diagnostic and Classification Center,
   ante, p. 1098. Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, denied. Petition for rehearing denied.

Justice Blackmun and Justice Stevens dissent and would grant the application for stay of execution pending the ultimate resolution of the cases now pending in the United. States Court of Appeals for the Eleventh Circuit and cited in Justice Brennan’s dissent, immediately post. Justice Powell took no part in the consideration or decision of this application and petition.

Justice Brennan,

with whom Justice Marshall joins,

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) (Brennan, J., dissenting), I would grant the application for a stay of execution. But even if I believed otherwise, I would at the very least stay this impending execution pending the outcome of related cases now before the Court of Appeals for the Eleventh Circuit.

In his petitions for state and federal habeas relief, the applicant Roosevelt Green, Jr., has unsuccessfully requested evidentiary hearings to substantiate his allegation that he received the death penalty pursuant to a pattern and practice of racial discrimination in the administration of Georgia’s capital sentencing system. The Eleventh Circuit en banc is currently considering three cases that present the identical issue and turn on the identical statistical evidence. See, e. g., Ross v. Hopper, 716 F. 2d 1528 (1983), rehearing en banc granted, 729 F. 2d 1293 (1984); Spencer v. Zant, 715 F. 2d 1562 (1983), reconsideration en banc stayed, 729 F. 2d 1293 (1984); McCleskey v. Zant, 580 F. Supp. 338 (ND Ga.), hearing en banc granted, 729 F. 2d 1293 (1984). As I argued in November in my dissent in Stephens v. Kemp, ante, at 1058—a case that also hinged on the claims and evidence instantly at issue — “there is at the very least a substantial question whether [the petitioner’s] fate should be governed by the outcome of the consolidated cases that are now pending before the Eleventh Circuit en banc . . . .” Because “a person should not be executed while the constitutionality of his sentence is in doubt,” Stephens v. Kemp, ante, at 1099 (Brennan, J., dissenting), I would accordingly stay Green’s execution pending the ultimate resolution of Ross, Spencer, and McCleskey.


text:
    January 11, 1985
    No. 84-573.
    City of Connersville, Indiana, et al. v. Parrett.
   C. A. 7th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    January 14, 1985

    No. 84-581.
    Lasky v. Van Lindt et al.

      Justice Powell took no part in the consideration or decision of the orders announced on this date.

   Appeal from App. Div., Sup. Ct. N. Y., 1st Jud. Dept., dismissed for want of substantial federal question.


text:
    No. 84-632.
    Wilk et al. v. California.
   Appeal from App. Dept., Super. Ct. Cal., County of Los Angeles, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-753.
    Ogrod v. Tomlinson Court Apartments.
   Appeal from Ct. Common Pleas, Philadelphia County, Pa., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-5696.
    Neal v. Alabama.
   Appeal from Sup. Ct. Ala. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-5762.
    Rawlinson v. Merit Oil Co. et al.
   Appeal from C. A. 1st Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-739.
    No. 84-746.
    Pasillas v. Agricultural Labor Relations Board of California; and Navarro v. Agricultural Labor Relations Board of California et al.
   Appeals from Ct. App. Cal., 1st App. Dist., dismissed for want of jurisdiction. Reported below: 156 Cal. App. 3d 312, 202 Cal. Rptr. 739.


text:
    No. 84-768.
    Allstate Insurance Co. et al. v. Baksalary et al.
   Appeal from D. C. E. D. Pa. Motion of appellees for leave to proceed in forma pauperis granted. Appeal dismissed for want of jurisdiction.

Justice Brennan and Justice Stevens would affirm the judgment.


text:
    No. 84-5060.
    Wright v. New Jersey.
   Appeal from Sup. Ct. N. J. dismissed for want of substantial federal question.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

The appellant Charles Wright was convicted of possessing an “exacto” knife. Under New Jersey law, possession of this sort of object is entirely legal in most circumstances; possession becomes unlawful only “under circumstances not manifestly appropriate for such lawful uses as it may have.” N. J. Stat. Ann. § 2C:39-5d (West 1982) (emphasis added). As construed by the state courts, although this statute requires proof that the defendant “knowingly” possessed the object in question, there is no requirement that he have done so with any unlawful purpose.

The Supreme Court of New Jersey affirmed the constitutionality of § 2C:39-5d in this and a companion case, see State v. Wright, 96 N. J. 170, 475 A. 2d 38 (1984); State v. Lee, 96 N. J. 156, 475 A. 2d 31 (1984), with one justice arguing in dissent that the operative standard “not manifestly appropriate” is “so lacking in any precise meaning as to defy definition,” State v. Lee, supra, at 168, 475 A. 2d, at 37 (Clifford, J., dissenting). I believe this appeal presents the substantial question whether § 2C:39-5d is impermis-sibly vague in violation of the Due Process Clause of the Fourteenth Amendment. Accordingly, I respectfully dissent from the Court’s dismissal of the appeal for want of a substantial federal question.

I

Wright, the subject of several outstanding arrest warrants, was apprehended while conversing with a friend on a street corner in Teaneek, New Jersey. The arresting officers searched Wright at police headquarters, where they found the exacto knife in question concealed inside one of his socks. The instant prosecution for violation of § 2C:39-5d followed.

At trial, Wright contended that he had not intended to use the knife against person or property and that the statute is unconstitutionally vague. The trial court rejected these arguments. With respect to the question of Wright’s intent, the court instructed the jury that it was “not necessary that the State prove that [the] defendant possessed the weapon with a purpose to use it unlawfully against the person or property of another.” Juris. Statement 4. As for the definition of the “not manifestly appropriate” standard, which Wright contended was meaningless, the court instructed: “If you . . . find that the circumstances under which the weapon was possessed could not be easily understood or recognized as being appropriate to a lawful use of the instrument in question here then possession of the weapon ... is prohibited.” State v. Wright, supra, at 172, 475 A. 2d, at 39 (emphasis added). Wright was convicted as charged and sentenced to 200 days in the Bergen County jail.

The Superior Court of New Jersey, Appellate Division, reversed Wright’s conviction, reasoning that the legislature could not have intended to impose criminal sanctions on one whose conduct merely “was not ‘easily understood or recognized’ from the circumstances.” 187 N. J. Super. 160, 164, 453 A. 2d 1352, 1354 (1982). The Supreme Court of New Jersey reversed the Appellate Division, however, and concluded that the trial court’s interpretation properly reflected the legislature’s intent in enacting § 2C:39-5d. 96 N. J., at 173, 475 A. 2d, at 40. The court rejected Wright’s vagueness challenge for the reasons set forth in its companion decision in State v. Lee, where it had concluded that the “not manifestly appropriate” standard carries “sufficient warning so that an ordinary person ‘is apprised with a reasonable degree of certainty of that which is proscribed’ ” and so that law enforcement officials have sufficient notice of what conduct is prohibited to guard against arbitrary or discriminatory enforcement. 96 N. J., at 166, 475 A. 2d, at 36 (citation omitted). This appeal pursuant to 28 U. S. C. § 1257(2) followed.

II

The standards for evaluating whether a statute is unconstitutionally vague are well settled:

“Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972) (footnotes omitted).

As construed by the New Jersey courts, § 2C:39-5d authorizes arrest and conviction whenever an individual possesses any object capable of inflicting serious injury in circumstances “not. . . easily understood or recognized as being appropriate” by the authorities and a jury, even though the individual may have had no intent whatsoever to possess or use the object for unlawful purposes. State v. Wright, 96 N. J., at 172, 475 A. 2d, at 39. I believe there is a substantial question whether such an amorphous crime is unconstitutionally vague.

First. I agree with the dissent below that there is a serious question whether the “not manifestly appropriate” standard gives fair notice of the conduct that is prohibited or. is instead “so lacking in any precise meaning as to defy definition.” State v. Lee, supra, at 168, 475 A. 2d, at 37 (Clifford, J., dissenting). “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Construction Co., 269 U. S. 385, 391 (1926). See also Smith v. Goguen, 415 U. S. 566, 574 (1974); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). To impose criminal sanctions for the possession of objects simply because the authorities and a jury subsequently decide that the circumstances were not “easily understood or recognized as being appropriate,” State v. Wright, supra, at 172, 475 A. 2d, at 39, “leaves open . . . the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against,” United States v. L. Cohen Grocery Co., 255 U. S. 81, 89 (1921). The enforcement of such a standardless proscription would appear to be “the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury.” Ibid.

Second. Even more disturbing questions arise with respect to “the more important aspect of the vagueness doctrine . . . —‘the requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” Kolender v. Lawson, 461 U. S. 352, 358 (1983) (citation omitted) (striking down criminal sanctions against persons who fail to provide “credible and reliable” identification). Where a statute and the judicial decisions which interpret it provide inadequate standards to govern its application, the statute “confers on police a virtually unrestrained power to arrest and charge persons with a violation.” Lewis v. City of New Orleans, 415 U. S. 130, 135 (1974) (Powell, J., concurring in result). The result obviously is to create a scheme that “furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.’” Papachristou v. City of Jacksonville, 405 U. S. 156, 170 (1972) (citation omitted).

As interpreted by the New Jersey courts, § 2C:39-5d does not require the State to prove beyond a reasonable doubt that the defendant’s possession could not have been pursuant to a legitimate purpose, but merely that the circumstances were “not . . . easily understood or recognized as being appropriate.” State v. Wright, supra, at 172, 475 A. 2d, at 39. Can there be any question that this sweeping standard places “unfettered discretion” in the hands of police, judges, and juries to carry out “arbitrary and erratic arrests and convictions”? Papachristou v. City of Jacksonville, supra, at 162, 168. Surely this law is unlikely to touch upon the “pillars of the community,” 405 U. S., at 163, who are spotted with any of the multitude of potentially dangerous objects in circumstances that are not “easily understood” or “recognized” as “appropriate.” See n. 3, supra. Rather, there appears to be a grave danger that enforcement of the law will focus on the groups that historically have been the targets of vague legislation such as this — the poor, the minorities, the politically unpopular, and others who happen to be viewed with suspicion by the community’s majority.

The absence from § 2C:39-5d of any requirement that the defendant intend to use the object in an unlawful manner accentuates the dangers discussed above. We have “long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.” Colautti v. Franklin, 439 U. S. 379, 395 (1979). See generally United States v. United States Gypsum Co., 438 U. S. 422, 434-446 (1978). The Supreme Court of New Jersey believed, however, that the “not manifestly appropriate” standard functions as a legitimate proxy for anticipatory intent: the challenged statute “address[es] the situation in which someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used.” State v. Lee, 96 N. J., at 161, 475 A. 2d, at 33 (emphasis added). See generally n. 2, supra. We have emphasized the constitutional invalidity of such presumptions. Punishing someone whose conduct “could not be easily understood,” State v. Wright, 96 N. J., at 172, 475 A. 2d, at 39, on the ground that he was “likely” to form a criminal intent in the future

“is too precarious for a rule of law. The implicit presumption in these generalized . . . standards — that crime is being nipped in the bud — is too extravagant to deserve extended treatment. [Under such a presumption,] the scales of justice are so tipped that even-handed administration of the law is not possible.” Papachristou v. City of Jacksonville, supra, at 171.

The Supreme Court of New Jersey in State v. Lee advanced two arguments that might be invoked to suggest that Wright’s challenge in the instant case is improper. 96 N. J., at 167, 475 A. 2d, at 36. First, it has frequently been stated that a criminal statute will not be struck down unless it is “impermissibly vague in all its applications.” Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U. S. 489, 495 (1982). A related doctrine stresses that a statute that might be impermissibly vague with respect to some conduct may not be challenged by one whose conduct quite clearly is prohibited by its terms. Id., at 495, n. 7; Parker v. Levy, 417 U. S. 733, 756 (1974).

For two reasons, these doctrines do not bar Wright’s challenge. First, we have emphasized that where a statute imposes criminal penalties the required standard of certainty is high, and a statute that does not satisfy this requirement may be invalidated on its face “even where it could conceivably have . . . some valid application.” Kolender v. Lawson, 461 U. S., at 358-359, n. 8. See also Colautti v. Franklin, supra, at 394-401; Lanzetta v. New Jersey, 306 U. S. 451 (1939). Second, the challenged statute must prescribe some coherent, ascertainable standard in the first instance. Where the provision is vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all,” it is unconstitutional. Coates v. City of Cincinnati, 402 U. S. 611, 614 (1971) (striking down statute proscribing public conduct “annoying to persons passing by”). As interpreted by the state courts, § 2C:39-5d would seem surely to suffer from this fatal defect: it “simply has no core. This absence of any ascertainable standard for inclusion and exclusion is precisely what offends the Due Process Clause.” Smith v. Goguen, 415 U. S., at 578 (emphasis in original).

Ill

“[T]his is not a case where further precision in the statutory language is either impossible or impractical.” Kolender v. Lawson, supra, at 361. First, the legislature may proscribe altogether the possession of certain items or the possession of such items in specified circumstances. This it has done in other contexts. See, e. g., N. J. Stat. Ann. § 2C:39-3 (West 1982). Second, it may prohibit the possession of any item capable of use as a weapon where the possession is actually for the purpose of unlawful use. This, too, it has done. See, e. g., § 2C:39-4d (“Any person who has in his possession any weapon . . . with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the third degree”). And it may of course prescribe the full “range of nonpenal alternatives to . . . criminal sanctions.” United States v. United States Gypsum Co., 438 U. S., at 442.

There is no question that the New Jersey Legislature and the courts below have been motivated in the enactment and construction of § 2C:39-5d by the necessity vigorously to combat crime. See n. 2, supra. As important as this goal is, however, “it cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity.” Kolender v. Lawson, supra, at 361. Because I believe there is a serious question whether the imposition of criminal liability for conduct that “could not be easily understood or recognized as being appropriate” intolerably crosses the constitutional line, I respectfully dissent from the Court’s dismissal of this appeal.

       This section provides in its entirety: "Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.”
      New Jersey Stat. Ann. § 2C:39-1r (West 1982) in turn defines “weapon” as “anything readily capable of lethal use or of inflicting serious bodily injury. The term includes, but is not limited to, all (1) firearms, even though not loaded or lacking a clip or other component to render them immediately operable; (2) components which can be readily assembled into a weapon; and (3) gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cestus or similar leather bands studded with metal filings or razor blades imbedded in wood; and any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispensed in the air.”

       In its companion decision in State v. Lee, the court summarized the legislature’s purpose as follows:
      “[The statute addresses] the situation in which someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used. The obvious intent of the Legislature was to address a serious societal problem, the threat of harm to others from the possession of objects that can be used as weapons under circumstances not manifestly appropriate for such lawful uses as those objects may have. Some objects that may be used as weapons also have more innocent purposes. For example, a machete can be a lethal weapon or a useful device for deep sea fishing. ... A steak knife is appropriate at the dinner table, but sinister when concealed in a car with a BB gun. . . .
      “The underlying problem is protecting citizens from the threat of harm while permitting the use of objects such as knives in a manner consistent with a free and civilized society. The statute addresses the problem by outlawing the possession of various weapons in circumstances where they pose a likely threat of harm to others. In striking a balance, the Legislature recognized that an otherwise innocent object can become such a threat.” 96 N. J., at 161-162, 475 A. 2d, at 33-34.

       As Judge Antell, dissenting from the judgment of the Appellate Division in State v. Lee, argued:
      “If read literally, the statutory language would encompass countless situations which the Legislature could not have intended as the subject of prosecution. The workman carrying home a linoleum knife earlier used in his work; the paring knife inadvertently left on an automobile floor after being used for a lawful purpose; a stevedore’s hook or a fisherman’s gaff thrown into a vehicle and forgotten. A ‘weapon’ could include a brick, a baseball bat, a hammer, a broken bottle, a fishing knife, barbed wire, a knitting needle, a sharpened pencil, a riding crop, a jagged can, rope, a screwdriver, an ice pick, a tire iron, garden shears, a pitch fork, a shovel, a length of chain, a penknife, a fork, metal pipe, a stick, etc. The foregoing only illustrate the variety of lawful objects which are often innocently possessed without wrongful intent, but under circumstances which are clearly not ‘manifestly appropriate’ for their lawful use.
      “Possession of a fork is manifestly appropriate only at the dinner table, of a bat on the athletic field, of a shovel in the garden.” 188 N. J. Super. 432, 437, 457 A. 2d 1184, 1187 (1982).

       The Court has long emphasized the importance of providing minimal guidance. See, e. g., United States v. Reese, 92 U. S. 214, 221 (1876) (“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government”). See also Gregory v. Chicago, 394 U. S. 111, 120 (1969) (Black, J., concurring) (“[Ujnder our democratic system of government, lawmaking is not entrusted to the moment-to-moment judgment of the policeman on his beat”).

       A statute that requires scienter “mitigatefs]” the vagueness of its other terms by helping to ensure that the defendant had adequate notice and by guarding against capricious enforcement through the requirement that he actually have intended the conduct which the statute seeks to guard against. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982); see also Grayned v. City of Rockford, 408 U. S. 104, 111, 114 (1972). The absence of such a requirement, on the other hand, enhances the risks of unfair notice and arbitrary enforcement. See, e. g., Screws v. United States, 325 U. S. 91, 101-102 (1945) (plurality opinion).

       This requirement of heightened certainty has particular force in the arbitrary enforcement context. See, e. g., Kolender v. Lawson, 461 U. S., at 358-359, n. 8.

       See also Smith v. Goguen, 415 U. S. 566 (1974) (same with respect to statute punishing anyone who “treats contemptuously” the flag); Lanzetta v. New Jersey, 306 U. S. 451 (1939) (same with respect to statute punishing anyone for being, inter alia, “a member of any gang consisting of two or more persons”); United States v. L. Cohen Grocery Co., 255 U. S. 81 (1921) (same with respect to statute proscribing the charging of “unjust or unreasonable” prices for staple goods).

       As Judge Antell observed in his dissent in State v. Lee, the manner and circumstances of a defendant’s possession of certain objects frequently will suffice “to support a finding of intent to use them as a weapon.” 188 N. J. Super., at 439, 457 A. 2d, at 1188. Perhaps the circumstances of Wright’s possession would alone be sufficient to prove culpable intent. However, “the jury was not instructed that such a finding must be made as a condition to arriving at a guilty verdict,” ibid., and it is not for this Court to make that factual judgment in the first instance.


text:
    No. 83-1963.
    Toan, Director, Missouri Department of Social Services, et al. v. Cunningham.
   C. A. 8th Cir. Motion of respondent Lucinda Cunningham for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of the Deficit Reduction Act of 1984, Pub. L. 98-369.


text:
    No. 84-681.
    Prudential Federal Savings & Loan Assn. v. Equal Employment Opportunity Commission.
   C. A. 10th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Trans World Airlines, Inc. v. Thurston, ante, p. 111.


text:
    No. - - -.
    In re Shapiro.
   Application of Stanley Charles Shapiro for readmission to the Bar of this Court denied.


text:
    No. A-440 (84-1074).
    Stroom v. Carter, Former President of the United States, et al.
   C. A. 3d Cir. Application for injunction, addressed to The Chief Justice and referred to the Court, denied. Motion of petitioner to expedite consideration of the petition for writ of certiorari denied.


text:
    No. D-449.
    In re Disbarment of Hochstein.
   Disbarment entered. [For earlier order herein, see ante, p. 808.]


text:
    No. D-451.
    In re Disbarment of Jones.
    [For earlier order herein, see 468 U. S. 1248.]
   Disbarment entered.


text:
    No. D-471.
    In re Disbarment of Brault.
   It is ordered that Cletus H. Brault, Jr., of Crown Point, 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. 83-1368.
    Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co.
   C. A. 9th Cir. [Certiorari granted, ante, p. 814.] Motion of Indian Head Inc. for leave to file a brief as amicus curiae granted.


text:
    No. 83-1569.
    No. 83-1733.
    Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.; and Soler Chrysler-Plymouth, Inc. v. Mitsubishi Motors Corp.
   C. A. 1st Cir. [Certiorari granted, ante, p. 916.] Motion of American Arbitration Association for leave to participate in oral argument as amicus curiae, for divided argument, and for additional time for oral argument denied. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 84-231.
    Hooper et al. v. Bernalillo County Assessor.
   Ct. App. N. M. [Probable jurisdiction noted, ante, p. 878.] Motion of American Legion et al. for leave to file a brief as amici curiae granted.


text:
    No. 84-325.
    No. 84-356.
    Metropolitan Life Insurance Co. v. Massachusetts; and Travelers Insurance Co. v. Massachusetts.
   Sup. Jud. Ct. Mass. [Probable jurisdiction noted, ante, p. 929.] Motion of American Chiropractic Association for leave to participate in oral argument as amicus curiae in No. 84-325, for divided argument, and for additional time for oral argument denied. Motion of appellants for divided argument granted.


text:
    No. 84-468.
    City of Cleburne, Texas, et al. v. Cleburne Living Center, Inc., et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 1016.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for additional time for oral argument denied. Motion of Federation of Greater Baton Rouge Civic Associations Inc. for leave to participate in oral argument as amicus curiae, for divided argument, and for additional time for oral argument denied.


text:
    No. 84-761.
    Data General Corp. v. Digidyne Corp. et al.
   C. A. 9th Cir. Motions of Control Data Corp., Mercedes-Benz of North America, and Computer Automation, Inc., et al. for leave to file briefs as amici curiae granted. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 84-780.
    Heckler, Secretary of Health and Human Services, et al. v. Roy et al.
   Appeal from D. C. M. D. Pa. Motion of appellees for leave to proceed in forma pauperis granted.


text:
    No. 84-782.
    South Carolina et al. v. Catawba Indian Tribe, Inc.
   C. A. 4th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 84-5873.
    Davis et al. v. United States et al.
   C. A. 5th Cir. Motion of petitioners for leave to proceed in forma pauperis denied. Petitioners are allowed until February 4, 1985, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 83-1925.
    Hillsborough County, Florida, et al. v. Automated Medical Laboratories, Inc.
   Appeal from C. A. 11th Cir. Probable jurisdiction noted.


text:
    No. 84-778.
    Maryland v. Macon.
   Ct. Sp. App. Md. Certiorari granted.


text:
    No. 84-849.
    Kentucky, dba Bureau of State Police v. Graham et al.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 84-310.
    In re Snyder.
   C. A. 8th Cir. Motion of Ohio State Bar Association for leave to file a brief as amicus curiae granted. Certiorari granted.


text:
    No. 84-518.
    No. 84-710.
    Johnson et al. v. Mayor and City Council of Baltimore et al.; and Equal Employment Opportunity Commission v. Mayor and City Council of Baltimore et al.
   C. A. 4th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 731 F. 2d 209.


text:
    No. 84-589.
    Dowling v. United States.
   C. A. 9th Cir. Certiorari granted limited to Question I presented by the petition.


text:
    No. 84-648.
    Sedima, S. P. R. L. v. Imrex Co., Inc., et al.
   C. A. 2d Cir. Certiorari granted and case set for oral argument in tandem with No. 84-822, American National Bank v. Haroco, Inc., immediately infra.


text:
    No. 84-822.
    American National Bank & Trust Company of Chicago et al. v. Haroco, Inc., et al.
   C. A. 7th Cir. Certiorari granted and case set for oral argument in tandem with No. 84-648, Sedima, S. P. R. L. v. Imrex Co., immediately supra.


text:
    No. 84-835.
    No. 84-776.
    New Jersey Department of Corrections v. Nash; and Carchman, Mercer County Prosecutor v. Nash.
   C. A. 3d Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari in No. 84-835 is granted. Certiorari in No. 84-776 is granted limited to Question 1 presented by the petition. Cases are consolidated and a total of one hour is allotted for oral argument. Reported below: 739 F. 2d 878.


text:
    No. 83-1999.
    Eisenberg v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-2011.
    Nishibayashi v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-6884.
    Vistoso v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-15.
    Sigler v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-17.
    Lahodny et al. v. Nunez et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-197.
    Sutton v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-269.
    Bloom v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-371.
    Risko v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 84-380.
    Osticco v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-397.
    Weisser et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-402.
    Barshov et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-432.
    Mirabile v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-449.
    Swift v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-490.
    Texas Oil & Gas Corp. v. Arkla Exploration Co. et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-496.
    Expedient Services, Inc., et al. v. Beggs, Administrator, National Aeronautics and Space Administration, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-500.
    162.20 Acres of Land, More or Less, Situated in Clay County, Mississippi, et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-519.
    Clark Oil & Refining Corp. v. Lehman Brothers Kuhn Loeb, Inc., et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-526.
    Pennell v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-549.
    Drobny v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-564.
    Germantown Hospital & Medical Center et al. v. Heckler, Secretary of Health and Human Services.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-575.
    Oak Beach Inn Corp. et al. v. Babylon Beacon, Inc., dba Babylon Beacon Newspaper, et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 84-598.
    Burlington Northern Railroad Co., Successor in Interest by Merger to St. Louis-San Francisco Railway Co. v. Fravel.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 84-616.
    Mulroy, dba Mulroy Dairy Farms v. Block, Secretary of Agriculture.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-652.
    Chas. S. Tanner Co. et al. v. Air Products & Chemicals, Inc.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-715.
    Alabama et al. v. Pruitt.
   C. A. 11th Cir. Certiorari before judgment denied.


text:
    No. 84-719.
    Wayne et ux. v. Tennessee Valley Authority et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-747.
    Lloyd et ux. v. Professional Realty Services, Inc., et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-749.
    Moore v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-760.
    Rose Hall Ltd. v. Chase Manhattan Overseas Banking Corp.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-772.
    Gannett Co., Inc., et al. v. DeRoburt.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-777.
    Arlington County et al. v. Biscoe et ux.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-779.
    Lorette v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-788.
    Landers v. State Farm Mutual Automobile Insurance Co. et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-789.
    Smith v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 84-791.
    Gallaher et al. v. Roman Catholic Archbishop of San Francisco et al.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 84-793.
    Adjusters Replace-A-Car, Inc., et al. v. Agency Rent-A-Car, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-794.
    Mid-America National Bank of Chicago, Trustee, et al. v. First Savings & Loan Association of South Holland et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-795.
    Howard v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 84-796.
    Trace X Chemical, Inc., et al. v. Canadian Industries, Ltd., et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-799.
    M. Frenville Co., Inc., et al. v. Avellino & Bienes.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-800.
    American Fundamentalist Church v. County of Hennepin.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 84-802.
    Spencer v. Missouri Pacific Railroad Co.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-804.
    Royal Drug Co., Inc., et al. v. Group Life & Health Insurance Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-859.
    Johnson v. Consolidated Rail Corporation.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-860.
    Patton v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-864.
    Miller Brewing Co. v. Brewery Workers Local Union No. 9, AFL-CIO.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-891.
    Yarrington v. United States Department of Justice et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-947.
    Williams v. Department of the Army.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5019.
    Couser v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5025.
    Teague v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5174.
    Aguirre v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 84-5197.
    Crutchfield v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5201.
    Hart v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5220.
    Soures v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5237.
    Zigmont v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5274.
    No. 84-5463.
    Meadows v. United States; and Meadows v. United States.
   C. A. 6th Cir. Certiorari denied. Reported below: 738 F. 2d 439.


text:
    No. 84-5276.
    Edler v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5291.
    Carter v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5348.
    Antonelli v. Samuels et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 84-5364.
    Butler v. Wainwright, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5371.
    Arroyo-Zavala v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5398.
    Earnhart v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5401.
    Murietta v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5444.
    Wright v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 84-5454.
    Staples v. Towne et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5535.
    Morgan v. Israel, Superintendent, Waupun Correctional Institution.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5572.
    Bates v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5616.
    Ouellette v. Heckler, Secretary of Health and Human Services.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-5622.
    Joost v. MacMahon
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5640.
    Bray v. Howard University et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-5644.
    Vandross v. Palmetto Savings & Loan Assn.
   Ct. Common Pleas, Marion County, S. C. Certiorari denied.


text:
    No. 84-5650.
    Pihlblad v. Starke County Welfare Department.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 84-5675.
    Hankerson v. Reasbeck et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5707.
    O’Brien v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5721.
    Draper v. Medical Department, James River Correctional Center, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5722.
    Mills v. Dorsey.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5723.
    Edwards v. CETA Services.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5724.
    Edwards v. Home Improvers.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5725.
    Edwards v. Reserve Life Insurance Co.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5726.
    Fordham et al. v. National Bank of Boyertown.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5730.
    Fordham v. Miller et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5732.
    Woods v. Ohio.
   Ct. App. Ohio, Butler County. Certiorari denied.


text:
    No. 84-5738.
    Vaughn v. Britton, Commissioner, Alabama Department of Corrections, et al.
   C. A. 11th Cir. Certio-rari denied.


text:
    No. 84-5741.
    Hooks v. Braniff, Judge, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5744.
    Helm v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5746.
    Cohorst v. United States Steel & Carnegie Pension Fund.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5747.
    Foster v. Litz, Judge, Circuit Court for St. Louis County, Missouri.
   Sup. Ct. Mo. Certiorari denied.


text:
    No. 84-5749.
    Bridges et al. v. Phillips Petroleum Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5751.
    Franks v. Holland, Warden.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 84-5752.
    Davis v. White, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5754.
    Haynes v. Gaines et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5758.
    McMillan v. Contigulia.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5759.
    Melton v. Rison, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5760.
    Miller v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 84-5761.
    Smith v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5765.
    Robertson v. Robertson.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 84-5766.
    Norman v. Benning, Superintendent, Oregon State Hospital.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 84-5768.
    Spreacker v. Holland, Warden.
   Cir. Ct. W. Va., Putman County. Certiorari denied.


text:
    No. 84-5769.
    Rogers v. Duckworth, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5777.
    Cobb v. New York.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.


text:
    No. 84-5779.
    Harig v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5785.
    David v. United States Parole Commission.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5790.
    Ortega v. Burn et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5793.
    Condo v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5800.
    Hurtado-Micolta v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-5803.
    Antonelli v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5805.
    Duncan v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 84-5812.
    Collins v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5818.
    Debardeleban v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5826.
    Russell v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5836.
    Means v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5840.
    Patton v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5842.
    Phillips, aka Funn v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5846.
    Norris v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5849.
    Rodriguez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5853.
    Plunkett v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5855.
    Merrill v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5859.
    Bertin v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5861.
    Ames v. United States.
   C. A. 1st Cir. Cer-tiorari denied.


text:
    No. 84-5867.
    Presley v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5876.
    Benedetto v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5882.
    Jones v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5885.
    Alonso v. United States.
   C. A. 11th Cir. Certiorari denied.