author: Per Curiam. Justice Stevens, Justice Brennan, Justice Blackmun,

text:
    MAGGIO, WARDEN v. WILLIAMS
    No. A-301.
    Decided November 7, 1983
   Per Curiam.

On October 23, 1983, less than two days before Williams’ scheduled execution, the Court of Appeals for the Fifth Circuit stayed the execution “pending final action of the Supreme Court.” Because we agree with applicant that the stay was improvidently imposed, we grant his motion to vacate the stay and to allow the State to reschedule Williams’ execution.

H-I

Williams was sentenced to death for killing a security guard while robbing a grocery store in Baton Rouge, La. His conviction and sentence were affirmed by the Louisiana Supreme Court. State v. Williams, 383 So. 2d 369 (1980). After we denied Williams’ petition for certiorari, 449 U. S. 1103 (1981), and his request for rehearing, 450 U. S. 971 (1981), he unsuccessfully sought a writ of habeas corpus in the Louisiana state courts. He then filed his first petition for habeas corpus in the District Court for the Middle District of Louisiana, presenting the same 13 issues that had proved unavailing in the state courts. The District Court held no hearing, but issued a written opinion denying Williams’ petition. See Williams v. Blackburn, 649 F. 2d 1019, 1021-1026 (CA5 1981) (incorporating District Court’s decision). The District Court’s judgment was affirmed by a panel of the Court of Appeals for the Fifth Circuit, ibid., but an order was entered directing that the appeal be reheard en banc. On rehearing, the en banc Court of Appeals rejected each of Williams’ many objections to his conviction and sentence and affirmed the judgment of the District Court. Williams v. Maggio, 679 F. 2d 381 (1982) (en banc). On June 27, 1983, we again denied Williams’ petition for certiorari, 463 U. S. 1214, and we denied his request for rehearing on September 8, 1983, 463 U. S. 1249.

After unsuccessfully renewing his attempt to win relief in the state courts, Williams filed a second petition for habeas corpus in the District Court, raising two claims that had previously been rejected and two additional claims. The District Court issued a detailed opinion in which it refused to grant the writ or to stay Williams’ execution. Williams v. King, 573 F. Supp. 525 (1983). Because it believed Williams’ contentions to be “frivolous and without merit,” the District Court also denied his request for a certificate of probable cause, which, under 28 U. S. C. §2253, is a prerequisite to an appeal. The Fifth Circuit granted a certificate of probable cause and affirmed the judgment of the District Court, but nevertheless issued a stay. The court reviewed Williams’ claims and “expressly [found] that each is without merit.” Williams v. King, 719 F. 2d 730, 733 (1983). In light of recent actions by this Court, however, the Court of Appeals concluded with respect to Williams’ “proportionality” claim that “a complete review of the law on this matter may be anticipated. With a person’s life at stake, we must await that review or further directions from the Supreme Court.” Ibid.

II

Just last Term, we made clear that we would not automatically grant stays of execution in cases where the Court of Appeals had denied a writ of habeas corpus. Barefoot v. Estelle, 463 U. S. 880, 895 (1983). A stay application addressed to a Circuit Justice or to the Court will be granted only if there exists “ ‘a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction.’” White v. Florida, 458 U. S. 1301, 1302 (1982) (Powell, J., in chambers) (quoting Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers)). We perceive no reason to apply a different standard in determining whether a stay granted by a Court of Appeals pending disposition of a petition for certiorari to this Court should continue in effect.

The grounds on which Williams would request certiorari are amply evident from his opposition to the motion to vacate the stay, his voluminous filings in the lower courts, and the opinions and proceedings in the District Court and Court of Appeals. None of these claims warrant certiorari and plenary consideration in this case. Accordingly, we conclude that the stay, which the Court of Appeals apparently granted in view of the possibility that we would disagree with its analysis of the constitutional issues raised by Williams, should be vacated.

Williams’ claims may be summarized briefly. He argues, first, that the Louisiana Supreme Court reviewed the proportionality of his death sentence on a districtwide rather than a statewide basis, and that such review does not adequately ensure that his death sentence has been imposed in a rational and nonarbitrary manner. Second, the prosecutor’s closing argument allegedly prejudiced the jury against Williams and elicited a decision based on passion rather than reason. Third, the trial court’s instruction on lesser offenses, given despite the absence of evidence warranting such an instruction, is claimed to have violated the rule established in Hopper v. Evans, 456 U. S. 605 (1982), and to have denied Williams due process. Fourth, the exclusion for cause of three veniremen who opposed the death penalty at the guilt-innocence phase of Williams’ trial, although proper under Witherspoon v. Illinois, 391 U. S. 510 (1968), allegedly deprived Williams of a jury representative of a fair cross-section of the community.

Williams’ second, third, and fourth contentions warrant little discussion. As Williams made clear in his second petition for state habeas corpus, he challenged the prosecutor’s closing argument, either directly or indirectly, in his first state habeas proceeding. The Louisiana Supreme Court ultimately rejected his challenge, although two justices indicated that the prosecutor’s statements raised a substantial question and one concluded that the statements constituted reversible error. State ex rel. Williams v. Blackburn, 396 So. 2d 1249 (1981). Williams’ failure to raise this claim in his first federal habeas proceeding is inexcusable, but the District Court nevertheless gave it full consideration in the second federal habeas proceeding. Applying the standard established in Donnelly v. DeChristoforo, 416 U. S. 637 (1974), the District Court examined the prosecutor’s closing argument at length and concluded that it did not render Williams’ trial fundamentally unfair.

The trial court’s instruction on lesser offenses was clearly proper under state law, and the District Court’s review of the record led it to conclude that the evidence fully justified the trial court’s charge.

Williams’ challenge to the exclusion for cause of certain veniremen was previously rejected by the Fifth Circuit and was presented to this Court in his petitions for certiorari and his motion for rehearing following the denial of his second petition. He has now recast his argument as an attack on the representativeness of the jury that convicted him. In Witherspoon, we found the extant evidence insufficient to demonstrate that “the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.” 391 U. S., at 518. Williams claims that he is entitled to a hearing on the question whether the jury selection procedures followed here had these effects. But he has not alleged that veniremen were excluded for cause on any broader basis than authorized in Witherspoon. The District Court characterized the evidence proffered by Williams on the question whether the jury was less than neutral with respect to guilt as tentative and fragmentary, and we cannot conclude that it abused its discretion in refusing to hold an evidentiary hearing on this issue. Further review is not warranted.

Williams’ challenge to the Louisiana Supreme Court’s proportionality review also does not warrant the issuance of a writ of certiorari. The en banc Fifth Circuit has carefully examined the Louisiana Supreme Court’s procedure and found that it “provides adequate safeguards against freakish imposition of capital punishment.” Williams v. Maggio, 679 F. 2d, at 395. This conclusion was challenged in this Court in Williams’ petition for certiorari following the Court of Appeals’ decision and in his motion for reconsideration of our denial of that petition. We were, of course, fully aware at that time that we had agreed to decide whether some form of comparative proportionality review is constitutionally required. See Pulley v. Harris, 460 U. S. 1036 (1983).

Since agreeing to decide this issue in Pulley, the Court has consistently denied challenges to the Louisiana Supreme Court’s proportionality review scheme that were identical to that raised by Williams. See Lindsey v. Louisiana, post, p. 908; James v. Louisiana, post, p. 908; Sonnier v. Louisiana, 463 U. S. 1229, rehearing denied, 463 U. S. 1249 (1983). See also Narcisse v. Louisiana, post, p. 865. Williams asserts that his execution should be stayed because we have issued a stay in another Louisiana death case, Baldwin v. Maggio, 463 U. S. 1251 (1983). But our decision there turned not on the substantiality of applicant’s Pulley argument, but on the fact that applicant raised a substantial challenge to the effectiveness of his trial counsel, similar to those we shall resolve in two cases set for argument this Term. Strickland v. Washington, 462 U. S. 1105 (1983); United States v. Cronic, 459 U. S. 1199 (1983).

As Williams notes, Justice White recently granted a stay in a case raising a proportionality challenge to a death sentence imposed in Texas. Autry v. Estelle, post, p. 1301. Also, on October 31, the Court declined to vacate that stay. Post, p. 925. In that case, however, the Texas Court of Criminal Appeals, like the California Supreme Court in Pulley, had wholly failed to compare applicant’s case with other cases to determine whether his death sentence was disproportionate to the punishment imposed on others. Under those circumstances, it was reasonable to conclude that Autry’s execution should be stayed pending the decision in Pulley, or until further order of the Court.

That is not the case here. Our prior actions are ample evidence that we do not believe that the challenge to districtwide, rather than statewide, proportionality review is an issue warranting a grant of certiorari. Our view remains the same. Nor did Williams convince the lower courts that he might have been prejudiced by the Louisiana Supreme Court’s decision to review only cases from the judicial district in which he was convicted. Indeed, the District Court examined every published opinion of the Louisiana Supreme Court affirming a death sentence and concluded that Williams’ sentence was not disproportionate regardless of whether the review was conducted on a districtwide or statewide basis. We see no reason to disturb that judgment. Finally, Williams has not shown, nor could he, that the penalty imposed was disproportionate to the crimes he was convicted of committing.

Ill

The District Court’s careful opinion was fully reviewed by the Court of Appeals, which found no basis for upsetting the District Court’s conclusion that Williams’ contentions were meritless. The arguments that Williams raised for the first time in these proceedings are insubstantial, and the arguments that he has attempted to relitigate are no more persuasive now than they were when we first rejected them. We conclude, therefore, that the stay entered by the Court of Appeals should be vacated.

It is so ordered.

Justice Stevens,

concurring in the judgment.

In my opinion the application to vacate the stay raises a serious question about the propriety of the prosecutor’s argument to the jury at the sentencing phase of respondent’s trial. In that argument the prosecutor sought to minimize the jury's responsibility for imposing a death sentence by implying that the verdict was merely a threshold determination that would be corrected by the appellate courts if it were not the proper sentence for this offender. I quote some of that argument:

“I want to read you some laws because something they [the defense] said, don’t sentence this man to death, don’t kill this man. You see, you have the last word on the verdict, and it but, by far you don’t have the last word on it if you return it. The Louisiana Supreme Court has enacted a series of statutes that I want to read to you. What happens if you return a death penalty in this case. Because the law that’s set up is very exacting, detailed and complicated procedure for a review of this court, the Louisiana Supreme Court, and other courts before any death penalty can be imposed. The law states, 905.9, Review on Appeal, The Supreme Court of Louisiana shall review of every sentence of death to determine if it is excessive. The Court, by rule, shall establish such procedures as necessary to satisfy constitutional criteria for review. And, then the statute, they enact it. See, not necessarily, it’s mandatory that the Supreme Court review it. There’s seven judges on the Supreme Court. The highest judges in this state. For it to be upheld, four of them will have to approve it. Well, what do they review? They state that every sentence of death shall be reviewed by this court to determine if it is excessive, and in determining whether the sentence is excessive, the court shall determine. A. Whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors. If they decide it was, they can reverse it and order a life sentence to be imposed. Whether the evidence supports the jury’s findings of a statutory aggravating circumstance. If they find it didn’t, they can reverse it and order a life sentence. Where the sentence is disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. If they don’t think the crime was heinous enough, they can reverse it and order a life sentence. If they don’t think this defendant — if they think the crime was heinous enough and the statutory circumstances were proved but they don’t think it ought to be applied to this defendant, they can reverse it and order a life sentence. Whenever the death penalty is imposed, a verbation [sic] transcript of the sentence hearing along with the record required on appeal shall be transferred to the Court. They review everything that went on in this trial.. . . And there is a total and complete investigation done on the defendant to determine whether or not they will let your decision to impose the death penalty stand. And only then does it make it through the Louisiana State Supreme Court, and the defendant has a right, if he wishes — I’m not saying that it’s granted in every case. It could be denied. It could be appealed all the way through the United States Supreme Court.
“But more important, what is this verdict going to mean? You see, you represent a certain segment of our society, law abiding people, raising families, working for a living, not robbing stores. You’re the people that set the standards in this community. The Justices of the Supreme Court will review, and determine their decision whether or not if you decide to give him the death penalty, whether or not you were correct or not, but you see, — it use [sic] to be one.” Tr. 290-292, 296 (emphasis supplied).

In my view, this argument encouraged the jury to err on the side of imposing the death sentence in order to “send a message” since such an error would be corrected on appeal (while a life sentence could not). I do not believe that argument accurately described the function of appellate review in Louisiana. The Louisiana Supreme Court does not review “everything” that occurred during the trial. If it finds that one aggravating factor supported the jury’s verdict, it will not consider the defendant’s claim that the jury improperly relied upon other aggravating factors in reaching its verdict. See State v. James, 431 So. 2d 399, 405-406 (La.), cert. denied, post, p. 908. That rule was applied by the Louisiana Supreme Court in this very case. See State v. Williams, 383 So. 2d 369, 374 (La. 1980), cert. denied, 449 U. S. 1103 (1981). While that limitation on appellate review is constitutionally permissible in the context of Louisiana's death penalty statute, see Zant v. Stephens, 462 U. S. 862 (1983), given the state-law premises of Louisiana’s capital punishment scheme, see James, supra, at 406, it certainly is a more limited form of appellate review than that described by the prosecutor.

In my opinion, the argument was prejudicial to the accused, both because it appears to have misstated the law and because it may have led the jury to discount its grave responsibility in determining the defendant’s fate. A prosecutor should never invite a jury to err because the error may be corrected on appeal. That is especially true when the death penalty is at stake.

Nevertheless, because the essence of this issue was raised in prior proceedings questioning the competency of trial counsel — who failed to object to the argument when it was made — the Court is justified in applying a strict standard of review to this second federal habeas corpus application. See Sanders v. United States, 373 U. S. 1, 15-17 (1963). I do not find an adequate justification for respondent’s failure to raise this argument in his earlier federal habeas action. Since respondent did raise the related argument of ineffectiveness of counsel, he was no doubt aware of this argument and may have deliberately chosen not to raise it in the first habeas corpus petition. See Barefoot v. Estelle, 463 U. S. 880, 895 (1983); Rose v. Lundy, 455 U. S. 509, 520-521 (1982) (plurality opinion); Fay v. Noia, 372 U. S. 391, 438-440 (1963); Townsend v. Sain, 372 U. S. 293, 317 (1963). Moreover, since competent counsel failed to object to the argument at the trial itself, thereby failing to avail himself of the usual procedure for challenging this type of constitutional error, I question whether it can be said that this trial was fundamentally unfair. See Rose v. Lundy, supra, at 543, and n. 8 (Stevens, J., dissenting). Accordingly, though not without misgivings, I concur in the Court's decision to vacate the stay.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Before the Court is an application, filed by Ross Maggio, Warden of the Louisiana State Penitentiary, to vacate a stay of execution granted by the United States Court of Appeals for the Fifth Circuit. Because the condemned, Robert Wayne Williams, has raised a substantial constitutional claim relating to the proportionality review undertaken by the Supreme Court of Louisiana when it affirmed his death sentence, I would deny the application. Moreover, because the Court’s approach to this case displays an unseemly and unjustified eagerness to allow the State to proceed with Williams’ execution, I dissent.

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) (Brennan, J., dissenting), I would deny the Warden’s application to vacate the stay of execution granted by the Court of Appeals.

HH

Even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I would deny the application in this case because Williams has raised a substantial constitutional claim concerning the disproportionate nature of his sentence.

This afternoon, the Court will hear oral argument in Pulley v. Harris, No. 82-1095, to consider whether the Constitution requires, prior to the execution of any death sentence, that a court of statewide jurisdiction determine whether a death sentence is proportional to the crime committed in light of the sentences received by similarly charged and convicted defendants in the State. Specifically, the questions presented to the Court for review are (1) whether the Constitution requires any proportionality review by a court of statewide jurisdiction prior to the execution of a state death sentence and (2) if so, whether the Constitution requires that such review assume any particular focus, scope, or procedural structure. Williams maintains that the order of the Court of Appeals staying his execution should be allowed to stand pending this Court’s plenary consideration and disposition of the issues raised in Pulley. There is simply no defensible basis for disagreeing with him.

His common-sense position rests on several related arguments. Initially, it is beyond dispute that the constitutional status of proportionality review is currently unclear. That is undoubtedly why the Court granted the petition for a writ of certiorari in Pulley. See 460 U. S. 1036 (1983). It is also why Justice White, just last month, stayed the execution of James David Autry pending our decision in Pulley. See Autry v. Estelle, post, p. 1301 (in chambers). See also infra, at 62. Given this uncertainty, it seems grossly inappropriate to allow an execution to take place at this time if the condemned prisoner raises a nonfrivolous argument relating to the proportionality of his sentence. And in this case, Williams has raised at least two nonfrivolous, and indeed substantial, claims concerning the proportionality of his death sentence.

First, Williams contends that the Supreme Court of Louisiana has denied him due process of law by undertaking only a districtwide or parishwide proportionality review in his case. See State v. Williams, 383 So. 2d 369, 374-375 (1980), cert. denied, 449 U. S. 1103 (1981). He properly notes that prior opinions of this Court have suggested that statewide proportionality review is required before any constitutional death sentence may be carried out. See, e. g., Gregg v. Georgia, 428 U. S., at 198, 204-206 (opinion of Stewart, Powell, and Stevens, JJ.) (approving death penalty in Georgia where appellate court examines whether the same sentence has been imposed “ ‘in similar cases throughout the state’ ”); id., at 223 (opinion of White, J.) (noting with approval that the State Supreme Court vacates the death sentence “whenever juries across the State impose it only rarely for the type of crime in question”). Given that the necessary scope of any required proportionality review is among the questions presented in Pulley, any uncertainty concerning the continuing validity of these prior statements will presumably be answered by our decision in that case. The execution of a condemned prisoner raising a nonfrivolous claim on this particular issue prior to the release of that decision belies our boast to be a civilized society.

Second, even if a proportionality review limited to a single judicial district might eventually be held to pass constitutional muster, Williams notes that recent decisions of the Supreme Court of Louisiana have randomly applied proportionality reviews that are statewide in scope. See, e. g., State v. Moore, 432 So. 2d 209, 225-228 (1983) (limited comparison of first-degree murder cases statewide); State v. Narcisse, 426 So. 2d 118, 138-139 (1983) (similar comparison between several districts rather than the customary one). The state court’s failure to adopt any consistent approach in its review of capital cases, combined with its failure to offer any reasons for these different approaches, suggests that his death sentence has been imposed in a capricious and arbitrary manner. Again, at least until this Court clarifies the need for, and potential scope of, proportionality review in Pulley, I find it startling that the Court should allow this execution to take place.

A simple examination of the proportionality review that was undertaken in this case demonstrates its inadequacy. The review was undertaken in April 1980, when Williams’ case was on direct appeal before the Supreme Court of Louisiana. The court compared the circumstances of Williams’ crime with the crimes of other capital defendants in the Nineteenth Judicial District for the Parish of East Baton Rouge, La., the district or parish in which Williams was tried and convicted. At that time, only 28 murder prosecutions had taken place in the district since January 1, 1976, the relevant date under state rules on which to begin the comparison. Of those 28 prosecutions, only 11 resulted in convictions for first-degree murder. And of those 11, only 3 defendants were sentenced to death. Like Williams, all three were the actual killers in a murder taking place during the perpetration of an armed robbery. And the court conclusorily noted that the crimes committed by the eight defendants receiving life imprisonment had no aggravating circumstances or some mitigating circumstances and therefore were distinguishable from Williams’ case. But, as the state court also admitted, Williams had no significant prior criminal record and may have been affected by a drug-induced mental disturbance. Therefore, the proportionality review undertaken in this case, limited as it was to a few cases arising in a single judicial district, could not ensure that similarly situated defendants throughout the State of Louisiana also had received a death sentence.

Louisiana has a total of 40 judicial districts in which a death sentence may be imposed. They apparently range from districts that cover primarily rural areas to a district that covers the urban center of New Orleans. Yet by allowing the Supreme Court of Louisiana to limit its proportionality review to a particular district, the Court today sanctions a practice that undoubtedly results in different sentences for similarly situated defendants, dependent solely upon the judicial dis*-trict in which the defendant was tried. This is the essence of arbitrary and capricious imposition of the death penalty that the Court has consistently denounced. “A constant theme of our cases . . . has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner.” Barclay v. Florida, 463 U. S. 939, 960 (1983) (Stevens, J., concurring in judgment). Central to these protections is a system that includes meaningful appellate review for every death sentence. See, e. g., Zant v. Stephens, 462 U. S., at 875 and 876; Gregg v. Georgia, 428 U. S., at 195, 204-206. Given the existence of only one statewide death penalty statute approved by the Louisiana State Legislature, requiring that all courts and juries across the State apply uniform legal standards before imposing a death sentence, there can be no doubt of the substantiality of the constitutional question whether the State Supreme Court may apply different standards of appellate review depending on the judicial district involved.

In sum, Williams has raised a substantial claim challenging the constitutionality of his death sentence which is encompassed within the questions presented to the Court in Pulley v. Harris. Given the severity and irrevocability of the death sentence, it is shocking that the Court does not follow its normal procedures in this case. Under these procedures, the stay of execution should be left in force pending the timely filing of a petition for certiorari, and the final disposition in Pulley.

Ill

The Court offers no defensible rationale for departing from this sensible practice. Its action in this case is especially troubling because (1) it is based on the minimal filings associated with a stay application, (2) it effectively pre-empts one of the questions presented for review in Pulley, and (3) it apparently is an irrevocable decision that will result in Williams’ execution.

Less than five weeks ago, on October 5, 1983, Justice White stayed the execution of a condemned prisoner who, mere hours before his execution, claimed that he had been denied due process because the Texas Court of Criminal Appeals had failed to subject his death sentence to any proportionality review. See Autry v. Estelle, post, p. 1301 (in chambers). Justice White concluded that Autry’s execution should be stayed pending disposition of Pulley because the Court’s decision in Pulley will likely have a bearing on the validity of that prisoner’s last-minute claim. Since then, the full Court has refused to vacate that stay. Post, p. 925. Incredibly, the sensible practice followed in Autry has been rejected in this case because the Supreme Court of Louisiana utilized a limited proportionality review whereas in Autry the state court did not apply any such review. For present purposes, however, this is a distinction which should make no difference.' Given the questions presented in Pulley, see supra, at 57, it is impossible to be certain that the proportionality review accorded Williams satisfies the constitutional requirements that the Pulley decision is intended to clarify.

It is no answer that the Court has consistently denied challenges to Louisiana’s districtwide proportionality review, including Williams’ own challenge to that review in his petition for certiorari on his first federal habeas. Williams v. Maggio, 463 U. S. 1214 (1983). For each of these denials, as is true of all denials of certiorari, is not a decision on the merits of the issues raised in the respective petitions. More important, in none of those cases did the Court’s denial of cer-tiorari involve an imminent date of execution. In this case, by contrast, the Court’s action will allow the execution of Williams to proceed to its fatal conclusion even though uncertainty overhangs the constitutional legitimacy of the process by which his death sentence was affirmed.

Nor may the Court take comfort in the fact that, in the course of denying Williams’ request for habeas relief, the Federal District Court conducted an abbreviated statewide proportionality review based on the published opinions of the Supreme Court of Louisiana. Although the District Court concluded that Williams’ sentence was not disproportionate, that finding is largely irrelevant to the issue raised by Williams. The District Court’s judgment regarding the proportionality of the death sentence is insufficient because it cannot substitute for the State Supreme Court, which is presumably more familiar than the federal court with the important nuances of the State’s death penalty jurisprudence. Moreover, because Williams’ requested remedy on habeas was a remand to the state court for a statewide proportionality review, the District Court did not have the benefit of any arguments from counsel for Williams on how that statewide review should be conducted. That the District Court conducted a hasty proportionality review based solely on published opinions from the State Supreme Court should not be deemed constitutionally sufficient.

Finally, the Court gives insufficient weight to the potential prejudicial effect of the limited, districtwide review conducted in Williams’ case. In fact, Williams’ habeas petition has identified at least two specific ways in which he has been prejudiced by a districtwide, rather than a statewide, proportionality review. First, he claims that there has never been a statewide pattern of death sentences for persons committing murder during armed robbery, especially when there was a close question whether the murder was committed with specific intent or was simply accidental. Second, Williams claims that his case presented mitigating circumstances comparable to various cases in other parts of the State which resulted in sentences of life imprisonment. These are exactly the types of disparities which a proportionality review of proper scope would discover.

The Court, therefore, plainly offers no reason for treating this case differently from any other stay application raising questions which are encompassed within a substantially similar case then pending on the Court’s plenary docket. Rather, “an appeal that raises a substantial constitutional question is to be singled out for summary treatment solely because the State has announced its intention to execute . . . before the ordinary appellate procedure has run its course.” Barefoot v. Estelle, 463 U. S. 880, 913 (1983) (Marshall, J., dissenting) (emphasis in original).

f — I

By vacating the stay granted by the Court of Appeals and allowing the execution of Williams to proceed, the Court is implicitly choosing to adopt one of two wholly unacceptable alternatives. Either the Court, prior to its full consideration of Pulley, is pre-empting any conclusion that the Constitution mandates statewide proportionality review, or the Court is announcing that someone may be executed using appellate procedures that might imminently be declared unconstitutional. Only after full consideration and disposition of Pulley will the Court be in a position to determine with reasonable assurance the validity of the claims raised by Williams. I am appalled that the Court should be unwilling to let stand a stay of execution pending the clarification of this issue.

I dissent.

Justice Blackmun,

dissenting.

I would not vacate the stay granted by the United States Court of Appeals for the Fifth Circuit until this Court decides Pulley v. Harris, No. 82-1095, argued today. I share Justice Brennan’s view that the resolution of the proportionality issue presented in Pulley inevitably will have some bearing on the proportionality issue raised by Robert Wayne Williams. To be sure, the decision forthcoming in Pulley v. Harris may or may not be favorable to Williams. However that may be, by vacating the stay, the Court today summarily decides the issue against Williams and, to that extent, pre-empts Pulley.

It seems to me that standards of orderly procedure require that the stay of execution granted by the Fifth Circuit remain in effect until Pulley is decided. I therefore dissent from what appears to be an untoward rush to judgment in a capital ease.

       See Williams v. King, 719 F. 2d 730 (CA5 1983). Prior to the action of the Court of Appeals, the execution of Williams had been set for between 12 p. m. and 3 a. m. on Tuesday, October 25, 1983.

       See also Proffitt v. Florida, 428 U. S. 242, 258-260 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (approving death penalty in Florida where appellate review is done “by a court which, because of its statewide jurisdiction, can assure consistency, fairness, and rationality” in the imposition of the penalty); Jurek v. Texas, 428 U. S. 262, 276 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Zant v. Stephens, 462 U. S. 862, 879-880, 890, and n. 19 (1983).

       The Court does not conclude that Williams’ challenge to the district-wide proportionality review undertaken by the State Supreme Court is a frivolous or even a nonsubstantial claim. Indeed, at least one justice of the Supreme Court of Louisiana has argued that the limited scope of such review does not satisfy federal constitutional standards. See State v. Prejean, 379 So. 2d 240, 249-252 (La. 1979) (Dennis, J., dissenting from denial of rehearing).
      Rather, the Court concludes that the challenge does not present “an issue warranting a grant of certiorari.” See ante, at 52. But as noted above, the Court has already granted a petition for certiorari in Pulley that poses a question concerning the constitutionally required scope of any proportionality review. Therefore, the Court’s conclusion that the claim raised by Williams is not worthy of review is directly contradicted by the Court’s previous actions in Pulley. See also Baldwin v. Maggio, 704 F. 2d 1325, 1326, n. 1 (CA5 1983), in which the Court of Appeals for the Fifth Circuit recognized the similarity between the claims raised in Pulley and the claim raised by Williams and other condemned prisoners in Louisiana.

       Article 905.9 of the Louisiana Code of Criminal Procedure requires that the Supreme Court of Louisiana “review every sentence of death to determine if it is excessive” and directs the court to “establish such procedures as are necessary to satisfy constitutional criteria for review.” La. Code Crim. Proc. Ann., Art. 905.9 (West Supp. 1983). Acting pursuant to that direction, the court has adopted its own Rule 28, which provides in relevant part that “[i]n determining whether the sentence is excessive the court shall determine . . . whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Louisiana Supreme Court Rule 28, § 1(c).
      Moreover, the system for appellate review in Louisiana was intentionally patterned after the procedure for review authorized by the Georgia death penalty statute and approved by this Court in Gregg v. Georgia, 428 U. S. 153 (1976). See State v. Sonnier, 379 So. 2d 1336, 1358 (La. 1979). The Georgia procedure, of course, includes a proportionality review that compares a death sentence to other sentences imposed throughout the State. Gregg v. Georgia, supra, at 204-206; see supra, at 58.

       On several occasions, I and other Members of the Court have expressed disapproval for the “ ‘growing and inexplicable readiness ... to “dispose of” cases summarily.’ ” Hutto v. Davis, 454 U. S. 370, 387 (1982) (Bren-NAN, J., dissenting) (quoting Harris v. Rivera, 454 U. S. 339, 349 (1981) (Marshall, J., dissenting)). For the various reasons expressed in the text, this practice proves especially disturbing in this case.

       Under Louisiana law, “if any federal court. . . grants a stay of execution, the trial court shall fix the execution date at not less than thirty days nor more than forty-five days from the dissolution of the stay order.” La. Rev. Stat. Ann. § 15:567 (West Supp. 1983). This means that Williams’ execution can be rescheduled mere weeks after this Court hears oral argument in Pulley, at a time when it is extremely unlikely that the Court will have already rendered its decision in that case.

         At least two other claims raised by Williams also suggest that the State should not be allowed to proceed with this execution. First, as Justice Stevens notes, ante, p. 52, Williams has raised a serious question concerning the prosecutor's argument to the jury. That argument unduly prejudiced Williams because, by overstating the role of appellate review, it both misstated Louisiana law and allowed the jury to discount its grave responsibilities when imposing the death sentence. Unlike JUSTICE Stevens, however, I believe Sanders v. United States, 373 U. S. 1 (1963), mandates that the case be remanded for a full hearing on this matter.
      Second, Williams has alleged that exclusion for cause of jurors unequivocally opposed to the death penalty resulted in a biased jury during the guilt phase of the trial proceedings against him. The Court has previously noted that, “[i]n light of . . . presently available information,” it cannot be said that such juror exclusion results in an unrepresentative jury on the issue of guilt. See, e. g., Witherspoon v. Illinois, 391 U. S. 510, 516-518 (1968). See also Bumper v. North Carolina, 391U. S. 543, 545, and nn. 5, 6 (1968). That conclusion, however, was reached 15 years ago, and recent cases and scholarship suggest that it may need to be reexamined. See, e. g., Grigsby v. Mabry, 569 F. Supp. 1273 (ED Ark. 1983); Winick, Pros-ecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich. L. Rev. 1 (1982). An evi-dentiary hearing on this issue is clearly necessary.


source: Caselaw Access Project

author: Per Curiam. Justice Brennan, Justice Stevens,

license: Public Domain

text:
    IRON ARROW HONOR SOCIETY et al. v. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, et al.
    No. 83-118.
    Decided November 14, 1983
   Per Curiam.

Petitioner Iron Arrow Honor Society is an all-male honorary organization founded by the first president of the University of Miami to honor outstanding University men. Traditionally, the Society has conducted its initiation ceremony on a “tapping” mound outside the student union building on University property. In 1972 Congress enacted § 901(a) of Title IX of the Education Amendments, 86 Stat. 373, 20 U. S. C. § 1681(a), and in 1974 the Department of Health, Education, and Welfare promulgated regulations implementing the statute. Regulation 86.31(b)(7) provides that “a recipient [of federal funds] shall not, on the basis of sex; ... (7) [a]id or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees.” 45 CFR § 86.31(b)(7) (1975) (emphasis added) (recodified at 34 CFR § 106.31(b)(7) (1982)).

In 1976 the Secretary notified the University’s president of its determination that the University was rendering “significant assistance” within the meaning of the regulation to Iron Arrow. The University advised the Secretary that it wished to comply with Title IX, but asked for time to negotiate with Iron Arrow about changing its membership policy; the Secretary agreed, but only upon the condition that the University ban the “tapping” ceremony on campus until the question was resolved.

The University thereafter prohibited the “tapping” ceremony, and Iron Arrow responded by suing the Secretary in the United States District Court for the Southern District of Florida. It sought declaratory and injunctive relief to prevent the Secretary from interpreting Regulation 86.31(b)(7) so as to require the University to ban Iron Arrow’s activities from campus. The District Court held that Iron Arrow had no standing to challenge the Secretary’s action and the regulations, but this determination was reversed by the Court of Appeals for the Fifth Circuit. Iron Arrow Honor Society v. Calif ano, 597 F. 2d 590, 591 (1979). The District Court then granted summary judgment for the Secretary, Iron Arrow Honor Society v. Hustedler, 499 F. Supp. 496 (1980), and the Court of Appeals for the Fifth Circuit affirmed. Iron Arrow Honor Society v. Schweiker, 652 F. 2d 445 (1981). We granted Iron Arrow’s petition for certiorari, vacated the decision of the Court of Appeals for the Fifth Circuit, and remanded for further consideration in light of North Haven Board of Education v. Bell, 456 U. S. 512 (1982). Iron Arrow Honor Society v. Schweiker, 458 U. S. 1102 (1982). On remand the Court of Appeals for the Fifth Circuit again affirmed with one judge dissenting. 702 F. 2d 549 (1983).

After our remand but before the decision of the Court of Appeals for the Fifth Circuit, the president of the University wrote a letter to the chief of Iron Arrow. It stated the University’s unequivocal position that Iron Arrow cannot return to campus as a University organization nor conduct its activities on campus until it discontinues its discriminatory membership policy. Letter from Edward T. Foote II to C. Rhea Warren (Sept. 23, 1982), reprinted in App. to Brief for Federal Respondents, la-4a. The Trustee Executive Committee had adopted that position on July 15, 1980, determining that Iron Arrow may return to campus only if it satisfies the code for all student organizations, a code which includes a policy of nondiscrimination. The president’s letter moreover informed Iron Arrow that the University would maintain that position, regardless of the outcome of Iron Arrow’s lawsuit. Specifically the letter stated:

“The question is not only what the law requires. The most important question is what our University should do, in fairness to all students, whether the law requires it or not.
“To avoid any ambiguity that might be present because of the passage of time or change of University administrations, I have instructed counsel for the University to inform the Courts of the University’s policy.” Id., at 2a-4a (emphasis in original).

The president further informed Iron Arrow that he was making the letter public and that he was sending a copy to all of Iron Arrow’s undergraduate members. Id., at 4a.

Both before the Court of Appeals for the Fifth Circuit and now before this Court in the Secretary’s response to Iron Arrow’s latest petition for certiorari, the Secretary has argued that that letter renders the case moot. For the reasons which follow, we agree that the case has become moot during the pendency of this litigation.

Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies. DeFunis v. Odegaard, 416 U. S. 312, 316 (1974). To satisfy the Art. Ill case-or-controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 38 (1976). We think that no resolution of the present dispute between these parties can redress Iron Arrow’s asserted grievance. Whatever the correctness of the Secretary’s interpretation of the regulation in question, the University has stated unequivocally that it will not allow Iron Arrow to conduct its initiation activities on University property as long as it refuses to admit women. Thus the dispute as to how the regulation should be interpreted, or the extent to which it faithfully implements the statute, is classically “moot.” It is the action of the University, not that of the Secretary, which excludes Iron Arrow.

The Court of Appeals concluded by a divided vote that the case was not moot because it could still grant some relief to Iron Arrow. 702 F. 2d, at 552. It stated that the Secretary could still require the University to take other steps to comply with Title IX in addition to banning Iron Arrow from campus. For example, it could require the University to abolish all historical ties with Iron Arrow, refuse to allow Iron Arrow to use the University’s name, etc. Ibid. The court concluded that if it decided in Iron Arrow’s favor,. it could issue an injunction which “would serve to insulate the plaintiffs from all of these appropriate additional enforcement actions.” Ibid.

Whether or not these would be “appropriate additional enforcement actions,” neither we nor the Court of Appeals need decide, since the Secretary is not requesting the University to take such additional steps, see Brief for Federal Respondents 13, and Iron Arrow has not sought in this lawsuit to prevent the University from doing so. Future positions taken by the parties might bring such issues into controversy, but that possibility is simply too remote from the present controversy to keep this case alive. See Golden v. Zwickler, 394 U. S. 103, 109 (1969).

In rejecting the Secretary’s argument that the case is moot, the Court of Appeals also relied on a line of cases from this Court supporting the proposition that the “ ‘[voluntary discontinuance of an alleged illegal activity does not operate to remove a case from the ambit of judicial power.’ ” 702 F. 2d, at 553 (quoting Walling v. Helmerich & Payne, 323 U. S. 37, 43 (1944)). As the dissent noted, however, most of those cases discuss whether voluntary discontinuance of challenged activities by a defendant moots a lawsuit. 702 F. 2d, at 565, 567 (Roney, J., dissenting). But see St. Paul Fire & Marine Insurance Co. v. Barry, 438 U. S. 531, 537-538 (1978) (involving subsequent acts of a third party). Defendants face a heavy burden to establish mootness in such cases because otherwise they would simply be free to “return to [their] old ways” after the threat of a lawsuit had passed. United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953). Thus they must establish that “there is no reasonable likelihood that the wrong will be repeated.” Id., at 633 (citation omitted).

This case, however, concerns the effect of the voluntary acts of a third-party nondefendant. It is not the typical case where it could be argued that the University has taken its position only in order to escape the threat of an injunction. Indeed, Iron Arrow does not challenge the University’s conduct in this lawsuit. Assuming that the “voluntary discontinuance” line of cases nonetheless applies to this different situation, the letter from the president expresses the University’s voluntary and unequivocal intention to exclude Iron Arrow’s activities from campus. Because the University has announced its decision to Iron Arrow, the public, and the courts, we conclude that there is “no reasonable likelihood” that the University will later change its mind and decide to invite Iron Arrow to return.

Because of the position that the University has taken irrespective of the outcome of this lawsuit, we conclude that the case is moot and that the Court of Appeals had no jurisdiction to decide it. Accordingly, we grant the petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand to that court for entry of an appropriate order directing the District Court to dismiss the action as moot. See County of Los Angeles v. Davis, 440 U. S. 625, 634 (1979); United States v. Munsingwear, Inc., 340 U. S. 36, 39-40 (1950).

It is so ordered.

Justice Marshall and Justice Blackmun would deny certiorari.

Justice Brennan,

dissenting.

In my view, the issue of mootness is sufficiently dependent on uncertain factual issues concerning the University’s present intention and future conduct that I would grant the petition for certiorari, vacate the decision of the Court of Appeals, and remand for resolution of this issue.

Justice Stevens,

dissenting.

“Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U. S. 486, 496 (1969). Both the parties and the Court agree that the issues presented in this case remain “live”; the parties continue to disagree as to what the obligations are that federal law imposes upon the University of Miami. Nevertheless, the Court holds that this case is moot and directs the District Court to dismiss the case because it concludes that the parties no longer have a stake in the outcome of this litigation. I disagree.

When petitioners originally brought this suit in 1976, they claimed that the Secretary of Health, Education, and Welfare lacked the authority to cut off federal funds to the University because of the University’s relationship with Iron Arrow. In 1982, six years after the Secretary had notified the University of Miami that it was violating § 901(a) of Title IX of the Education Amendments of 1972, 86 Stat. 373, 20 U. S. C. § 1681(a), two years after a United States District Court had held that the University was violating the law, and one year after the Court of Appeals affirmed the District Court, the president of the University wrote a letter announcing that the University had “voluntarily” decided to make a change in the policy with respect to Iron Arrow that it had followed throughout the entire history of the University. That letter, and that letter alone, is the basis on which the Court holds that this case is moot. The Court’s position is that the University’s “voluntary” decision to sever its ties to Iron Arrow irrespective of the outcome of this case deprives Iron Arrow of a stake in the outcome, and hence moots the case.

It is well settled that the voluntary cessation of allegedly unlawful conduct does not moot a case in which the legality of that conduct has been placed in issue. The rationale for this rule is straightforward: “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘[t]he defendant. . . free to return to his old ways.’” United States v. Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (quoting United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953)). Whenever there is a risk that the defendant will “return to his old ways,” the plaintiff continues to have a stake in the outcome — its interest in not continuing to be subjected to that risk.

I am willing to assume, as does the Court, that if this case is dismissed, there is no risk that the University will resume its relationship with Iron Arrow. But it is exactly that fact which means this case is not moot.

Petitioners claim that the reason the University has ended its relationship with Iron Arrow is the Secretary’s assertedly unlawful threat to terminate federal financial assistance to the University unless it severed its ties to Iron Arrow. That threat continues to hang over the University’s head, and could not help but influence the University’s reaction should an attempt be made to persuade it to reexamine its decision to end its relationship with Iron Arrow. Petitioners assert that this continuing threat injures them because it prevents the University from reexamining its decision free from the coercive threat it now faces. That injury persists; hence, this case has not been mooted.

It is true that the letter from the president states that the University will not resume its relationship with Iron Arrow irrespective of the outcome of this suit. The Court says of the University’s decision: “It is not the typical case where it could be argued that the University has taken its position only to escape the threat of an injunction.” Ante, at 72. However, it can be argued, and petitioners do argue, that the University has taken its position only to escape the threat of termination of funds. We have only the University’s assurance that it has made its decision voluntarily, without reference to this threat. But no such voluntary decision was made during the years preceding the Secretary’s threat, and our cases make clear that a mere assurance that the cessation of activity has been “voluntary” is insufficient when the cessation occurs in response to a coercive sanction. When a defendant ceases challenged conduct because it has been sued, its mere assurance that it will not return to its old ways is insufficient to moot the case. Quern v. Mandley, 436 U. S. 725, 733, n. 7 (1978); United States v. W. T. Grant Co., supra, at 632-633. Even if the defendant can demonstrate that it would be uneconomical for it to resume the challenged activity, the case is not mooted'. See United States v. Phosphate Export Assn., Inc., supra, at 202-204. Similarly, a defendant’s assurance that it discontinued the challenged activity for reasons entirely unrelated to the pendency of the suit is insufficient to moot the case. See United States v. Trans-Missouri Freight Assn., 166 U. S. 290, 307-309 (1897). These principles apply to the University’s assurance regarding its relationship with Iron Arrow. The University made its decision to end its support for Iron Arrow under threat of a coercive sanction. That decision should no more suffice to moot a case than a decision made under the cloud of a lawsuit, which, after all, is nothing more than the threat of another form of coercive sanction.

We cannot know what the future might hold for the relationship between the Iron Arrow Society and the University. If Iron Arrow were permitted to litigate this case to a conclusion, and if this Court were to hold that the Secretary may not threaten to terminate federal assistance to the University because of its relationship with Iron Arrow — if this threat could no longer have any influence on the University’s evaluation of the problem — the alumni membership of Iron Arrow might well be able to persuade the University to reexamine its decision. Surely our cases indicate that the University must make its decision free from any coercive influence before the case can be mooted — particularly when the successful prosecution of the litigation would end the coercion.

While I express no opinion on whether or not the University’s support of Iron Arrow did violate federal law, it is clear to me that Iron Arrow is entitled to have the question decided, and that if Iron Arrow prevails, it would then be entitled to request that the University make a fresh examination of the policy question unhampered by the threat of the termination of federal funding. If it took six years for that threat to produce the 1982 decision, it is not fanciful to suggest that the University values its relationship with Iron Arrow sufficiently that it would consider reversing its decision if the threat were removed. In short, Iron Arrow continues to have a legally cognizable stake in the outcome of this case.

I respectfully dissent.

       Iron Arrow also appears to have sought a declaration of its rights under Regulation 86.31(b)(7) pursuant to 28 U. S. C. § 2201. Iron Arrow Honor Society v. Hustedler, 499 F. Supp. 496, 499 (SD Fla. 1980). It, however, has no standing under that section to seek a generalized declaration of its rights against future actions of the Secretary. See Public Service Comm’n v. WycoffCo., 344 U. S. 237, 241-249 (1952).

       The University is not a named defendant in this action. The District Court did, however, join the University as an indispensable party under Federal Rule of Civil Procedure 19 in order to assure that the court could award adequate relief to Iron Arrow if it prevailed. 499 F. Supp., at 499.

       The Court continues to follow this test for mootness. See, e. g., Murphy v. Hunt, 455 U. S. 478, 481 (1982) (per curiam); United States Parole Comm’n v. Geraghty, 445 U. S. 388, 396 (1980).

       In taking this action, the Court does something that none of the parties ask it to do. The Government does not contend that the question of mootness is so clear that dismissal at this juncture would be appropriate; all it requests is that the Court remand the case to the District Court for a hearing on the question of mootness. See Brief for Federal Respondents 15-16, 18.

       While I need not, and do not question the sincerity of the University’s change of heart, it appears that petitioners do question it. The existence of a factual dispute on this point is presumably why the Government does not request that the Court simply order the case dismissed as moot, but rather that it remand the case for an evidentiary hearing. Nevertheless, the Court, without explanation, declines to follow this suggestion.

       See City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283, 289 (1982); Allee v. Medrano, 416 U. S. 802, 810-811 (1974); DeFunis v. Odegaard, 416 U. S. 312, 318 (1974) (per curiam); United States v. Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968); Gray v. Sanders, 372 U. S. 368, 375-376 (1963); United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953); Walling v. Helmerich & Payne, 323 U. S. 37, 42-43 (1944); United States v. Trans-Missouri Freight Assn., 166 U. S. 290, 309-310 (1897). See also Los Angeles v. Lyons, 461 U. S. 95, 100-101 (1983).

       No finding of fact has been made that this is not the case, and the Court does not purport to make such a finding.

       See also Reeves, Inc. v. Stake, 447 U. S. 429, 434, n. 7 (1980).

       The Court attempts to distinguish these cases by arguing that they only apply to defendants to lawsuits and not to nondefendants. Putting aside the fact that the University is not only a defendant, but also an indispensable party, in this lawsuit, the Court itself seems to recognize that the principles regarding voluntary cessation apply where the cessation of activity is by a third party and not a defendant. Ante, at 72 (citing St. Paul Fire & Marine Insurance Co. v. Barry, 438 U. S. 531, 537-538 (1978)). See also Phosphate Export Assn., supra, at 202-204. Moreover, the reason that the doctrine is normally applied to defendants in lawsuits is that when a defendant ceases its activity it does so under the threat of a coercive sanction. In this case, the University did just that.


author: Per Curiam. Justice Brennan,

text:
    WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS v. GOODE
    No. 83-131.
    Decided November 28, 1983
   Per Curiam.

Petitioner, the Secretary of the Florida Department of Corrections, requests review of a decision of the United States Court of Appeals for the Eleventh Circuit ordering the District Court for the Middle District of Florida to issue a writ of habeas corpus conditional upon the resentencing of respondent. For the reasons set out below, we reverse.

r-H

On March 5, 1976, respondent, Arthur Goode, took a 10-year-old boy (“Jason”) from a school bus stop in Florida, sexually assaulted him, and strangled him with a belt. Respondent then went to Maryland where he had previously escaped from a mental hospital. While in Maryland, he kid-naped two young boys, one of whom he killed in Virginia. The State of Virginia tried and convicted respondent of the Virginia murder and sentenced him to life imprisonment.

Goode was returned to Florida to stand trial for the murder he committed there. Although he entered a plea of “not guilty,” there was never a question whether Goode committed the crime, since at trial he testified in graphic detail as to the circumstances of the killing. He was found guilty by a jury of first-degree murder.

At the sentencing phase of the trial, Goode again took the witness stand. He stated that he was “extremely proud” of having murdered Jason “for the fun of it,” that he had “absolutely no remorse” over the murder, and that he would do it again if given the chance. The jury recommended the death penalty. Prior to the issuance of the trial court's judgment, Smith, an attorney who had assisted in Goode’s defense, made a statement on Goode’s behalf to the effect that society would gain more if Goode were given a life sentence and subjected to scientific study to determine the causes of sexual abuse of children.

After Smith’s statement, the trial judge issued his findings on factors in aggravation and mitigation. He found that three statutory aggravating circumstances had been proved beyond a reasonable doubt. He also found two mitigating circumstances but determined that they did not outweigh the aggravating circumstances. He concluded that Goode should be sentenced to death.

After imposing the death sentence, the trial judge made the following statement:

“Tn closing I want to address myself to Counsel Smith’s remarks for just a moment. The question of why should this man be executed for what he has done is a question that the Court has wrestled with for several days and has carefully considered the circumstances, but I have to be able to answer to myself why should I invoke the awesome punishment of death. Could not something be learned from Arthur? Am I not doing as I have seen and heard many do and merely so outraged by the activities that he has done that possibly my reason and judgment are blurred? I believe not.
“ ‘If organized society is to exist with the compassion and love that we all espouse, there comes a point when we must terminate that, and there are certain cases and certain times when we can no longer help, we can no longer rehabilitate and there are certain people, and Arthur Goode is one of them, [whose] actions demand that society respond and all we can do is exterminate.
“‘Philosophically I believe that in certain limited instances we should do that. In this particular case that is my opinion, and that is my order, and the only answer I know that will once and for all guarantee society, at least as far as it relates to this man, is that he will never again kill, maim, torture or harm another human being, and as you said in trial, Arthur, maybe I don’t know who we blame. God forgive you of those desires or something in your environment that has made you have them, and whoever is to blame is beyond the power of this Court.
“ ‘You have violated the laws, you have had your trial and I am convinced that the punishment is just and proper, and truthfully, may God have mercy on your soul.’” 704 F. 2d 593, 604 (CA11 1983).

The conviction and sentence were affirmed on direct appeal to the Florida Supreme Court. Goode v. State, 365 So. 2d 381 (1978). This Court denied Goode’s petition for certiorari. Goode v. Florida, 441 U. S. 967 (1979). Thereafter, he filed a motion in state court to vacate the judgment and sentence, contending, inter alia, that the sentencing judge considered an aggravating circumstance — future dangerousness — that is impermissible under Florida law. The motion was denied, and the denial was affirmed by the Florida Supreme Court on the ground that the matter should have been raised on direct appeal. Goode v. State, 403 So. 2d 931 (1981). The Governor issued a warrant ordering that Goode be executed on March 2, 1982.

Goode then filed a petition for a writ of habeas corpus in the Florida Supreme Court, claiming that his appellate counsel had been ineffective because he had failed to challenge the trial judge’s reliance on the nonstatutory aggravating circumstance. Goode v. Wainwright, 410 So. 2d 506 (1982). That court reviewed the record of the sentencing hearing and determined that the trial judge had not relied upon the impermissible factor. The court was of the view that the trial judge was merely replying to the statements of Smith and explaining why the result of his weighing process was correct. It stated that “the record fails to show that the trial judge improperly considered non-statutory aggravating circumstances.” Id., at 509. Consequently, it denied Goode’s petition.

Goode then sought a writ of habeas corpus in Federal District Court. That court found the claim that the trial judge improperly considered a nonstatutory aggravating circumstance in imposing sentence “simply not supported by the record.” App. to Pet. for Cert. A-140. It stated that Goode was “[tjaking these remarks completely out of context,” id., at A-143, and that they were “made in response to counsel and in philosophical justification of capital punishment both generally and as applied in [Goode’s] case,” id., at A-144. It concluded that it “would be a gross distortion to conclude on that basis that the statute was not obeyed,” ibid., and dismissed the petition. It then granted a certificate of probable cause for appeal, but denied a motion for a stay of execution pending appeal.

The Court of Appeals for the Eleventh Circuit granted Goode’s motion for a stay of execution. Goode v. Wainwright, 670 F. 2d 941 (1982). On review of the merits, a panel of that court assumed, arguendo, that the Florida Supreme Court’s finding that the sentencing judge had not relied upon Goode’s future dangerousness was entitled to a presumption of correctness under 28 U. S. C. § 2254(d)(8). 704 F. 2d, at 605. However, it concluded from its evaluation of the record of the sentencing proceeding that the state-court finding was “not fairly supported by the record as a whole.” Ibid. The court then reasoned that execution of Goode would be a “unique, freakish instance,” because he “would have been executed in reliance upon the recurrence factor, when all others in Florida have not been, and, pursuant to the law established in Miller, cannot be in the future.” Id., at 608. The court concluded that such an “arbitrary and capricious manner” of execution cannot be countenanced under the Eighth Amendment. Ibid. We reverse.

► — !

I-H

Whether the asserted reliance by the sentencing court on a nonstatutory aggravating circumstance is considered to be an issue of law or one of fact, we are quite sure that the Court of Appeals gave insufficient deference to the Florida Supreme Court’s resolution of that issue. We first assume that the issue is one of law.

It is axiomatic that federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension. Engle v. Isaac, 456 U. S. 107 (1982); Smith v. Phillips, 455 U. S. 209 (1982). Section 2254 is explicit that a federal court is to entertain an application for a writ of habeas corpus “only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” The Eleventh Circuit’s ultimate conclusion was that the sentencing proceeding violated the Eighth Amendment, but it is critical to understand the reasoning it employed in reaching that result. It acknowledged that the Federal Constitution does not prohibit consideration of a defendant’s future dangerousness. In fact, the court described the factor as “highly relevant to the purposes underlying capital sentencing.” 704 F. 2d, at 608, n. 18. Nevertheless, future dangerousness was a nonstatu-tory aggravating circumstance that could not be relied upon to impose the death sentence without violating Florida law. Because the Court of Appeals was of the view that the sentencing judge had relied on future dangerousness, the death sentence violated state law and was deemed to be an arbitrary punishment under the Eighth Amendment.

The difficulty with all of this is that the Florida Supreme Court had concluded that the trial judge had not improperly relied on future dangerousness in imposing the death penalty. If the interpretation of the trial court’s remarks is deemed a legal issue, it is surely an issue of state law that the Court of Appeals should have accepted, since the views of the State’s highest court with respect to state law are binding on the federal courts. See, e. g., Brown v. Ohio, 432 U. S. 161, 167 (1977); Garner v. Louisiana, 368 U. S. 157, 169 (1961). If the Florida Supreme Court’s conclusion that the death sentence was consistent with state law is accepted, the constitutional violation found by the Court of Appeals dissolves.

I — I HH I — l

If, on the other hand, the issue of whether the sentencing judge relied upon future dangerousness in imposing the death sentence is characterized as an issue of historical fact to be decided on the transcript of the judge’s remarks at the sentencing proceeding, we are convinced that the Court of Appeals failed to give proper weight to the state court’s resolution of this factual issue.

Under 28 U. S. C. § 2254(d)(8), a federal court, in ruling on a petition for a writ of habeas corpus, is not to overturn a factual conclusion of a state court unless the conclusion is not “fairly supported by the record.” That rule applies equally to findings of trial courts and appellate courts, Sumner v. Mata, 449 U. S. 539, 545-547 (1981), and requires reversal here.

The seven justices of the Supreme Court of Florida concluded from their review of the sentencing proceeding that the trial judge had not relied upon the impermissible factor. On federal habeas review, the District Court likewise concluded that the sentencing judge did not rely on future dangerousness, emphasizing that its review of the record led it to the “same, independent conclusion” as that reached by the Florida court. Consequently, eight judges have concluded from their review of the record that the trial court did not rely on predictions of future dangerousness. A three-member panel of the Court of Appeals for the Eleventh Circuit, on the other hand, concluded that the state court’s finding was not fairly supported by the record.

At best, the record is ambiguous. The trial judge might have been describing his consideration of Goode’s future dangerousness in the weighing process, or he might have been merely explaining, after having imposed the death sentence in accordance with state standards and without regard to future dangerousness, why he thought that application of the state standards to Goode yielded an intuitively correct result. Because both of these conclusions find fair support in the record, we believe the Court of Appeals erred in substituting its view of the facts for that of the Florida Supreme Court.

P> 1 — 1

Even if the Court of Appeals had been correct in concluding that the sentencing judge had relied on a factor unavailable to him under state law, it erred in reversing the District Court's dismissal of Goode’s habeas petition.

Although recognizing that a State is free to enact a system of capital sentencing in which a defendant’s future dangerousness is considered, the Court of Appeals believed that the Florida court’s failure to follow Florida law constituted a violation of the Eighth and Fourteenth Amendments because it would result in an “arbitrary” and “freakish” execution. 704 F. 2d, at 610.

In Barclay v. Florida, 463 U. S. 939 (1983), the Court upheld a death sentence despite the reliance by the trial court on an aggravating circumstance that was improper under state law. The plurality stated that “mere errors of state law are not the concern of this Court, Gryger v. Burke, 334 U. S. 728, 731 (1948), unless they rise for some other reason to the level of a denial of rights protected by the United States Constitution.” Id., at 957-958. The critical question “is whether the trial judge's consideration of this improper aggravating circumstance so infects the balancing process created by the Florida statute that it is constitutionally impermissible for the Florida Supreme Court to let the sentence stand.” Id., at 956.

We have great difficulty concluding that the balancing process was so infected. A properly instructed jury recommended a death sentence. On direct appeal to the Florida Supreme Court, the court stated that “[cjomparing the aggravating and mitigating circumstances with those shown in other capital cases and weighing the evidence in the case sub judice, our judgment is that death is the proper sentence.” Goode v. State, 365 So. 2d, at 384-385. Whatever may have been true of the sentencing judge, there is no claim that in conducting its independent reweighing of the aggravating and mitigating circumstances the Florida Supreme Court considered Goode’s future dangerousness. Consequently, there is no sound basis for concluding that the procedures followed by the State produced an arbitrary or freakish sentence forbidden by the Eighth Amendment.

The motion of respondent for leave to proceed in forma pauperis is granted.

The petition for certiorari is granted, the judgment of the Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

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. 158, 227 (1976) (Brennan, J., dissenting), I would deny the petition for certiorari.

Even if I were to accept the prevailing view that the death penalty is constitutionally permissible under certain circumstances, I would nonetheless object to the Court’s summary reversal of the decision of the Court of Appeals. By taking this step, the Court adds to a growing and disturbing trend toward summary disposition of cases involving capital punishment.

When an intervening decision of this Court may affect a lower court’s decision, our practice has generally been to grant the petition for certiorari, vacate the lower court judgment, and remand for further consideration in light of the intervening decision. See, e. g., Wainwright v. Henry, 463 U. S. 1228 (1983). In the present case, as the Court acknowledges, our recent decision in Barclay v. Florida, 463 U. S. 939 (1983), plainly bears upon the constitutional questions considered by the Court of Appeals. That the Court today chooses to reverse summarily instead of remanding in light of Barclay, not only contradicts our general practice, but also demonstrates once again the Court's disquieting readiness to dispose of cases involving the death penalty on the merits without benefit of full briefing or oral argument. See Maggio v. Williams, ante, p. 56 (Brennan, J., dissenting).

I dissent.

       Under Florida law, the jury does not determine the sentence. Instead, its recommendation is merely advisory. Fla. Stat. §921.141(2) (Supp. 1983). For a more complete description of the Florida capital-sentencing system, see Barclay v. Florida, 463 U. S. 939 (1983).

       In Florida, three separate determinations must be made prior to the imposition of a death sentence: (1) that the presence of at least one statutory aggravating circumstance has been proved beyond a reasonable doubt; (2) that there are insufficient mitigating circumstances to outweigh the aggravating circumstances; and (3) that death is the appropriate penalty in light of the aggravating and mitigating circumstances. Fla. Stat. §921.141 (Supp. 1983).

       The Florida statute expressly limits consideration of aggravating circumstances to those enumerated in the statute. Fla. Stat. §921.141(5) (Supp. 1983). In Miller v. State, 378 So. 2d 882 (1979), the Florida Supreme Court held that it was error for a trial court to consider as an aggravating circumstance the probability that the defendant might commit acts of violence in the future.