author: Justice O’Connor,

text:
    No. 83-506.
    McKaskle, Acting Director, Texas Department of Corrections v. Vela.
   C. A. 5th Cir. Motion of respondent for leave to proceed informa pawperis granted. Cer-tiorari denied.

Justice O’Connor,

with whom The Chief Justice and Justice Rehnquist join,

dissenting.

This petition presents the important question whether the exhaustion rule in 28 U. S. C. §§ 2254(b), (c), prohibits federal courts from considering federal habeas corpus petitions that contain specific allegations of error that are integral to the constitutional challenge but were not raised in the state courts. Because the question has great significance for the relations between federal and state courts, I would grant the petition for certiorari.

I

Respondent, Conrado Vela, pleaded guilty to a Texas murder indictment. After a jury found he had killed with malice, respondent was sentenced to 99 years’ imprisonment. The conviction was upheld on direct appeal. See Vela v. State, 516 S. W. 2d 176 (Tex. Crim. App. 1974). Respondent then filed consecutive petitions for writs of habeas corpus in state and federal courts, alleging ineffective assistance of counsel. In both petitions, respondent raised the same three allegations of error as support for his ineffective-assistance-of-counsel claim. Both the state courts and the Federal District Court found that the three errors, when considered in the context of the entire record, were not cumulatively of such magnitude to render counsel’s conduct of the trial as a whole constitutionally infirm. The courts also held that respondent was not prejudiced from any inadequacy that could be found. See Ex parte Vela, Application No. 9209, pp. 20-22 (June 4, 1980) (state court); Supp. App. to Pet. for Cert. E-l — E-8 (Federal District Court).

Respondent appealed to the Court of Appeals for the Fifth Circuit, presenting the same three allegations of counsel error and, for the first time, raising other allegations of error as well. The Court of Appeals decided that the exhaustion requirement of 28 U. S. C. §§ 2254(b), (c), did not prevent it from considering the additional instances of alleged ineffective assistance. Though these additional instances of ineffectiveness had not specifically been brought to the attention of the state courts, the Court of Appeals noted that the alleged errors were contained in the trial record and that the state courts purportedly had reviewed the entire record in finding counsel’s performance adequate in the “totality of the circumstances.” Thus, the Court of Appeals concluded that “the alleged ‘new facts’ [were] not new at all,” and that respondent had exhausted all available state remedies. Vela v. Estelle, 708 F. 2d 954, 960 (19833- On the merits, it found that respondent had received ineffective assistance at trial because his counsel had committed the three “central errors” raised in the state-court petition and “several other serious errors as well.” Id., at 961-965. The court concluded that respondent had suffered prejudice of sufficient magnitude to warrant granting a writ of habeas corpus. Id., at 965-966.

II

Whatever the correctness of the Court of Appeals’ “ineffective assistance” determination, see Supp. App. to Pet. for Cert. E-2— E-8, this petition raises an issue of considerable importance to the administration of federal habeas corpus. The Fifth Circuit’s consideration of factual allegations not specifically raised in the state court undermines the policies behind the requirement that state remedies be exhausted before federal habeas corpus relief becomes available.

The exhaustion rule “reflects a policy of federal-state comity” that is fundamental to our federal system. Picard v. Connor, 404 U. S. 270, 275 (1971). It “serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights.” Duckworth v. Serrano, 454 U. S. 1, 3 (1981) (per curiam). For the State to have that opportunity, “the federal claim must be fairly presented to the state courts.” Picard v. Connor, supra, at 275. A federal habeas petitioner making a claim critically dependent on specific allegations of error never brought to the state court’s attention has not “fairly presented” that claim. See Rose v. Lundy, 455 U. S. 509, 526-527, 531-532 (1982) (Blackmun, J., concurring in judgment) (interrelated claims requiring exhaustion are those necessitating examination of the entire record). Upsetting a state-court criminal conviction on the basis of such allegations improperly usurps the state courts’ role in the enforcement of federal law.

Of course, the state courts have the entire record, and thus the essential facts, before them in every constitutional case. But that is obviously beside the point. The exhaustion rule requires that the habeas petitioner do more than make available to the state courts all facts necessary to support a claim. It requires the petitioner to identify for the state courts’ attention the constitutional claim alleged to be inherent in those facts. See Picard v. Connor, supra, at 277. Much as with our rules on direct review, the exhaustion rule requires that the habeas petitioner, and not the state-court judges, bear the burden of severing the bad from the good and of raising those errors supportive of an alleged constitutional claim. See Webb v. Webb, 451 U. S. 493, 499-501 (1981) (principle of comity behind “properly-raised-federal-question” doctrine similar to principle behind exhaustion doctrine). When the state courts are not informed of the specific errors on which a constitutional claim is based, it cannot be said that they were given a fair opportunity to consider the claim in the same posture as was the federal court.

That state courts evaluate the assistance of counsel in the context of the entire trial record cannot mean that the exhaustion requirement is satisfied. In Rose v. Lundy, supra, at 519, we said that an exhausted claim could not be considered by a federal habeas court if the claim depended in part on another claim not raised in the state courts, even if the state courts, in rejecting the exhausted claim, had reviewed the entire record. The exhaustion rule requires that the substance of a federal habeas corpus claim first be presented to the state courts, Picard v. Connor, supra, at 278, and the substance of an ineffective-assistance-of-counsel claim is identified by the fist of alleged errors committed by counsel. See Domaingue v. Butterworth, 641 F. 2d 8, 12-13 (CA1 1981). Unless the state courts have been pointed to a particular error of counsel, a claim based on that error is unexhausted.

A Federal Rule requires habeas petitioners “to set forth in summary form the facts supporting each of the grounds thus specified.” 28 U. S. C. §2254 Rule 2(c). For federal habeas law to demand less of the petitioner when in state court is inconsistent with the premise of that Rule — that courts are entitled to be notified of the specific basis of a claim, especially if the claim is one for extraordinary relief. See also Fed. Rule Evid. 103(a)(1). It is also inconsistent with the premise of the exhaustion doctrine— that state courts provide the primary forum for the adjudication of claims of even federal error in state criminal proceedings. See Rose v. Lundy, supra.

Ineffective-assistance-of-counsel claims are becoming as much a part of state and federal habeas corpus proceedings as the bailiffs’ call to order in those courts. Furthermore, other constitutional claims — for example, the right to confrontation, the right to a fair trial, and the right to an impartial tribunal — likewise rest on specific allegations of error and often require review of the entire record as part of the constitutional examination. The Court of Appeals' questionable approach to the exhaustion rule of 28 U. S. C. §§ 2254(b), (c), would apply to these claims as well. I would grant the petition for certiorari to consider the Court of Appeals’ holding in light of its potential for interference with the relations of state and federal courts.


source: Caselaw Access Project

license: Public Domain

text:
    No. 83-533.
    Nicholson v. Interstate Commerce Commission et al.
   C. A. D. C. Cir. Motions of American Farm Bureau Federation et al. and Louisiana Landmarks Society for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 83-589.
    No. 83-669.
    Hopi Indian Tribe v. Block, Secretary of Agriculture, et al.; and Navajo Medicinemen’s Assn. et al. v. Block, Secretary of Agriculture, et al.
   C. A. D. C. Cir. Motion of All Indian Pueblo Council et al. for leave to file a brief as amici curiae in No. 83-589 granted. Certiorari denied.

Justice O’Connor took no part in the consideration or decision of this motion and these petitions.

Reported below: 228 U. S. App. D. C. 166, 708 F. 2d 735.


text:
    No. 83-692.
    Local Union No. 47, International Brotherhood of Electrical Workers, AFL-CIO v. Public Utilities Commission of California et al.
   Sup. Ct. Cal. Motion of petitioner to dispense with printing the full opinion below granted. Certiorari denied.

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


text:
    No. 83-725.
    Frey, Superintendent, Missouri Eastern Correctional Facility v. Anderson.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 83-748.
    In re Delgado.
   Sup. Ct. S. C. Motion of National Association of Criminal Defense Lawyers, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 83-830.
    Limbach, Tax Commissioner of Ohio v. Boothe Financial Corp.
   Sup. Ct. Ohio. Certiorari denied. Justice Blackmun took no part in the consideration or decision of this petition.


author: Justice Marshall,

text:
    No. 83-5365.
    Young v. Georgia.
   Sup. Ct. Ga. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

I dissent from the Court’s denial of certiorari because it lets stand a ruling of the Georgia Supreme Court which violates the Double Jeopardy Clause of the Fifth Amendment as made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784, 794 (1969). Because of the Georgia Supreme Court’s blatant misreading of a decision by the United States Court of Appeals which granted habeas corpus relief to the petitioner, he will again be subjected to the State’s attempt to impose a death sentence upon him even though a Federal District Court has made an undisturbed ruling that a death sentence recommended by a jury was invalid due to insufficiency of the evidence.

In February 1976, the petitioner, Charlie Young, Jr., was convicted of murder, armed robbery, and robbery by intimidation. At the sentencing phase of the trial, the jury condemned the petitioner to death after finding that the murder was accompanied by two statutorily defined aggravating circumstances: the murder was committed while the petitioner was engaged in the commission of another capital felony, Ga. Code Ann. § 17-10-30(b)(2) (1982), and the petitioner committed the murder for the purpose of receiving money, § lT-lO-SOCbXd). The Supreme Court of Georgia affirmed the conviction and the sentence. Young v. State, 237 Ga. 852, 230 S. E. 2d 287 (1976). Subsequently, the Supreme Court of Georgia affirmed a lower state court’s denial of Young’s application for habeas corpus relief. Young v. Ricketts, 242 Ga. 559, 250 S. E. 2d 404 (1978), cert. denied sub nom. Young v. Zant, 442 U. S. 934 (1979).

Young then initiated habeas corpus proceedings in the United States District Court for the Middle District of Georgia. The District Court rejected Young’s challenge to the validity of his conviction but set aside his death sentence. Young v. Zant, 506 F. Supp. 274 (1980). The District Court’s order was based upon two holdings. First, the court held that Young had been denied effective assistance of counsel at the sentencing stage of his trial, in violation of the Sixth and Fourteenth Amendments to the Federal Constitution. Id., at 278. Second, the District Court held that the evidence presented at trial “was not legally sufficient to support the jury’s finding beyond a reasonable doubt that the murder was committed in the course of an armed robbery or for the purpose 0/obtaining money.” Id., at 280 (emphasis in original).

The United States Court of Appeals reversed the District Court’s rejection of Young’s challenge to his conviction. Young v. Zant, 677 F. 2d 792 (CA11 1982). The Court of Appeals held that Young had also been denied effective assistance of counsel at the guilt phase of his trial. Finding the conviction invalid, the appellate court directed the District Court to grant the petitioner habeas corpus relief. The Court of Appeals noted the District Court’s holding that Young had been denied effective assistance of counsel at the sentencing phase of the trial, id., at 795, and its holding that insufficiency of the evidence nullified the jury’s finding of aggravating circumstances. Id., at 799, and n. 12. However, the Court of Appeals did not discuss either of these holdings.

In the wake of the federal appellate decision, the State reindicted Young for the same offenses. Moreover, the State again sought the death penalty based upon the same two aggravating circumstances previously charged, along with an additional allegation that the murder was “outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Ga. Code Ann. § 17-10 — 30(b)(7) (1982).

Young resisted the State’s renewed attempt to impose the death penalty upon him, claiming that such an attempt would expose him to double jeopardy in violation of the Fifth and Fourteenth Amendments. The trial court, however, denied his plea of double jeopardy. Young then filed an interlocutory appeal to the Supreme Court of Georgia. That court, with one justice dissenting, affirmed the trial court. 251 Ga. 153, 303 S. E. 2d 431 (1983). The Supreme Court of Georgia ruled that the Double Jeopardy Clause is not implicated by this case because, in its view, the Federal Court of Appeals’ decision reversing the District Court vacated not only that part of the District Court’s holding which related to Young’s conviction, but also that part of the holding which related to the insufficiency of the evidence underlying the jury finding of aggravating circumstances. In the words of the Georgia Supreme Court:

“Rather than reversing in part and affirming in part, the court of appeals chose to substitute its opinion for that of the district court. . . . [T]he effect of this reversal was to nullify the entire opinion of the district court and to place the parties in the position quo ante, subject, of course, to the holdings of the court of appeals.” Id., at 155, 303 S. E. 2d, at 433.

In other words, according to the Supreme Court of Georgia, the Court of Appeals’ decision wiped away the District Court’s holding that the finding of aggravating circumstances was invalid and thus removed that holding as an impediment to a renewed attempt to impose the death penalty.

This Court should review the decision of the Supreme Court of Georgia because it clearly misread the ruling of the Court of Appeals and thereby improperly avoided the petitioner’s compelling double jeopardy claim. Purporting to interpret the Court of Appeals’ ruling, the Supreme Court of Georgia concluded that the effect of the reversal by the Court of Appeals of part of the District Court’s holding regarding federal habeas corpus relief was to nullify the entire opinion of the District Court. In reality, however, the Court of Appeals’ decision related only to the question whether petitioner received effective assistance of counsel at the guilt-or-innocence phase of his trial. Reversing the District Court, the Court of Appeals held that Young had been denied effective assistance at the guilt-or-innocence phase of the trial. The Court of Appeals said nothing, however, to disturb the District Court’s holding that the jury’s finding of aggravating circumstances was not reasonably supported by the evidence presented at trial. Indeed, the opinion notes the District Court’s conclusion with apparent approval because it cites counsel’s obliviousness to the clear insufficiency of the evidence as yet another example of counsel’s incompetence. 677 F. 2d, at 799, and n. 12.

The Georgia Supreme Court has committed a glaring error by ignoring the Court of Appeals’ express limitation of its ruling to the question whether petitioner had been denied effective assistance of counsel at the guilt-or-innocence phase of his trial. The opinion clearly states that “[t]he district court’s denial of the writ of habeas corpus with respect to the guilt phase of Charlie Young's trial is therefore REVERSED” (emphasis added). Id., at 800. In light of the Court of Appeals’ explicit statement that it reversed only with respect to the guilt phase of petitioner’s trial, it is inexplicable how the Supreme Court of Georgia could conclude that the effect of the Court of Appeals’ holding was “to nullify the entire opinion of the district court.” 251 Ga., at 155, 303 S. E. 2d, at 433.

Given appropriate recognition, the District Court’s undisturbed ruling that the jury’s finding of aggravating circumstances was not rationally supported by the evidence solidly supports the petitioner’s claim that the State should be prevented by the Double Jeopardy Clause from seeking to reimpose a death sentence upon him. This conclusion is dictated by this Court’s decisions in Bullington v. Missouri, 451 U. S. 430 (1981), and Burks v. United States, 437 U. S. 1 (1978).

In Bullington, this Court held that the Double Jeopardy Clause was applicable to the sentencing proceeding in a capital case in Missouri because, under the relevant state law, the sentencing proceeding “was itself a trial on the issue of punishment.” 451 U. S., at 438. Describing the trial-like features of the sentencing procedure, the Court observed:

“The jury [in the sentencing phase of the trial] was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts.” Ibid.

These features also characterize the sentencing proceeding under which the petitioner was initially sentenced to death. In Georgia, as in Missouri, an accused may be sentenced to death only after a separate sentencing hearing, governed by the beyond-a-reasonable-doubt standard. Indeed, the Georgia Supreme Court has itself noted that the Missouri death penalty statute “is essentially identical to the Georgia statute.” Godfrey v. State, 248 Ga. 616, 617, 284 S. E. 2d 422, 425 (1981), cert. denied, 456 U. S. 919 (1982). Young, then, like the accused in Bullington, supra, was sentenced in a proceeding that was itself a trial on the issue of punishment and thus a proceeding subject to the Double Jeopardy Clause.

In Burks, supra, the Court held that an accused may not be subjected to a second trial when conviction in the initial trial is reversed based on insufficiency of evidence. Because the sentencing hearing under Georgia’s capital punishment scheme is the equivalent of a .trial, at least for the purposes of determining the applicability of the Double Jeopardy Clause, the District Court’s holding that the jury’s finding of aggravating circumstances is not rationally supported by the evidence should preclude the State from again seeking the death penalty on the basis of those aggravating circumstances.

Moreover, the State should be precluded from seeking the death penalty in this case even though it has alleged a third aggravating circumstance in addition to the two it alleged in the first trial. Having been given one fair chance to prove beyond a reasonable doubt the existence of aggravating circumstances sufficient to justify the execution of Charles Young, Jr., the State should not be allowed a second chance to have him condemned to death. We stated in Burks, supra, that “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” 437 U. S., at 11. Tacking on an additional allegation of an aggravating circumstance is merely a transparent attempt by the State to create a second opportunity to supply evidence which it failed to muster in the first sentencing hearing. Furthermore, in Bullington, supra, the Court specifically noted that its decision to prevent a State from seeking the death penalty in a retrial where, in the previous trial, a jury had declined to impose a death sentence did “not at all depend upon the State’s announced intention to rely only upon the same aggravating circumstances it sought to prove at [the] first trial or upon its statement that it would introduce no new evidence in support of its contention that [the accused] deserves the death penalty.” 451 U. S., at 446.

This Court has indicated in a wide variety of contexts that in matters involving capital punishment, a heightened degree of judicial scrutiny is warranted, given the special nature of the interest at stake: the very life of the accused. Here, however, the Court is willing to allow the State of Georgia to seek anew to impose the death penalty upon Charlie Young, Jr., even though it is almost certainly the case that absent the Georgia Supreme Court’s egregious misreading of the United States Court of Appeals’ decision in Young v. Zant, supra, the State would be barred from again seeking the death penalty. I therefore dissent from the Court’s denial of a writ of certiorari.

       In addition to the death sentence, the jury also sentenced Young to life imprisonment for armed robbery and to 20 years’ imprisonment for robbery by intimidation.

       The District Court found that the petitioner’s attorney had no understanding whatsoever of the Georgia capital trial and sentencing procedures. In a capital case in Georgia, there is first a trial to determine the guilt or innocence of the defendant. A separate sentencing hearing follows a determination of guilt. In effect, capital sentencing is a trial on the issue of punishment, embodying the hallmarks of the trial on guilt or innocence. See infra, at 1061-1062.
      The petitioner’s attorney failed to present any evidence during the sentencing hearing in mitigation of punishment, and refused to allow the petitioner to take the stand in his own behalf, thereby depriving the petitioner of the only sentencing phase witness for the defense — the petitioner himself. Young v. Zant, 506 F. Supp., at 278-280.
      The District Court rejected the petitioner’s claim that he had been deprived of effective assistance of counsel at the guilt-or-innocence phase of the trial, finding that the petitioner’s attorney afforded him “reasonably effective assistance.” Id,., at 278. This finding, however, is inconsistent with the court’s observation that the petitioner’s attorney “had no apparent understanding whatsoever of the bifurcated nature of the Georgia capital trial and sentencing procedures,” id., at 278-279, and that the attorney had used the utterly ridiculous strategy of admitting guilt but pleading for a life sentence at the guilt phase of the trial. Id., at 279. Subsequently, the Court of Appeals reversed this finding, holding instead that the petitioner had also been denied effective assistance at the guilt phase of his trial. Young v. Zant, 677 F. 2d 792 (CA11 1982).

       According to the Court of Appeals, the attorney “did not accord Young even a modicum of professional assistance at any time” during the trial. Id., at 794-795.

       The District Court practically invited the State to renew its attempt to seek the death-penalty against Young by suggesting that “the circumstances of this murder may justify a finding of some other aggravating circumstance, such as aggravated battery.” 506 F. Supp., at 281. Subsequent to the District Court’s suggestion but prior to the State’s decision to seek the death penalty at Young’s retrial, this Court held in Bullington v. Missouri, 451 U. S. 430 (1981), that the Double Jeopardy Clause was applicable to capital sentencing hearings like the one to which the petitioner was subjected at his first trial. See infra, at 1081-1062.

       The Court of Appeals did not review the District Court’s finding of insufficiency of the evidence at the sentencing phase of the trial because, having ruled that Young’s conviction was illegal, there was no need to review the propriety of the sentence. The Court of Appeals thus left that aspect of the District Court’s ruling undisturbed.


text:
    No. 83-5659.
    Childress v. United States.
   C. A. 8th Cir. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


author: Justice Brennan and Justice Marshall,

text:
    No. 83-5670.
    No. 83-5695.
    No. 83-5701.
    No. 83-5705.
    Levasseur v. Virginia. Dobard v. Alabama. Adams v. Wainwright, Secretary, Florida Department of Corrections. Coe v. Tennessee.
   Sup. Ct. Va.;

Sup. Ct. Ala.;

C. A. 11th Cir.; and

Sup. Ct. Tenn. Certiorari denied. Reported below: No. 83-5670, 225 Va. 564, 304 S. E. 2d 644; No. 83-5695, 435 So. 2d 1351; No. 83-5701, 709 F. 2d 1443; No. 83-5705, 655 S. W. 2d 903.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 82-1868.
    No. 82-1971.
    No. 82-2057.
    No. 82-6744.
    No. 82-6768.
    No. 82-6922.
    No. 82-6997.
    No. 83-180.
    No. 83-279.
    No. 83-296.
    No. 83-314.
    No. 83-428.
    No. 83-5064.
    No. 83-5200.
    No. 83-5274.
    No. 83-5291.
    No. 83-5334.
    No. 83-5339.
    No. 83-5354.
    No. 83-5389.
    No. 83-5406.
    No. 83-5430.
    No. 83-5491.
    No. 83-5644.
    Arnold Transit Co., Inc., et al. v. City of Mackinac Island, Schaefer v. National Labor Relations Board, Lesiak v. Ferguson, Auditor of the State of Ohio, Prasad v. Wassaic Developmental Center et al., Finney v. Michigan Department of Social Services, De La Rosa v. Texas, Hines v. United States, Southern Pacific Transportation Co. v. Secretary of the Interior et al., Pius XII Academy, Inc. v. Commissioner of Internal Revenue, Lebovitz v. United States, Ostric v. Corporation of St. Mary’s College, Notre Dame, et al., Barwick v. South Carolina, Ewing et al. v. United States, Wham v. United States Postal Service, Fitzpatrick v. Smith, Superintendent, Attica Correctional Facility, Noe v. Texas, Attwell v. Heckler, Secretary of Health and Human Services, Dick v. Kemp, Superintendent, Georgia Diagnostic and Classification Center, Amadeo v. Kemp, Superintendent, Georgia Diagnostic and Classification Center, Mincey v. Georgia, Bunch v. Virginia, Lamore v. Inland Division of General Motors Corp. et al., Brown v. Douglas, Judge, Antone v. Strickland, Superintendent, Florida State Prison, et al.,
   ante, p. 804;

ante, p. 945;

ante, p. 826;

ante, p. 884;

ante, p. 928;

ante, p. 865;

ante, p. 972;

ante, p. 960;

ante, p. 982;

ante, p. 992;

ante, p. 936;

ante, p. 938;

ante, p. 997;

ante, p. 860;

ante, p. 963;

ante, p. 997;

ante, p. 941;

ante, p. 986;

ante, p. 956;

ante, p. 977;

ante, p. 977;

ante, p. 963;

ante, p. 985; and

ante, p. 1003. Petitions for rehearing denied.


text:
    January 11, 1984
    No. 83-6017 (A-533).
    Hutchins v. Garrison, Warden, et al.
   C. A. 4th Cir. Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    January 12, 1984
    No. A-457.
    Rajneesh et al. v. McGreer.
   D. C. Ore. Application for stay dismissed under this Court’s Rule 53.


text:
    January 16, 1984
    No. 82-1899.
    Trans World Airlines, Inc. v. New York State Human Rights Appeal Board et al.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.


text:
    No. A-470.
    No. A-471.
    Clark, Secretary of the Interior, et al. v. California et al.; and Western Oil & Gas Assn. et al. v. California et al.
   D. C. C. D. Cal. Motion to vacate the stay heretofore entered by Justice Rehnquist on December 20, 1983 [post, p. 1304], denied.


text:
    No. A-491.
    Consumer Value Stores v. Board of Pharmacy of New Jersey.
   Super. Ct. N. J., App. Div. Application for stay, addressed to Justice Blackmun and referred to the Court, denied.


text:
    No. A-498.
    Edmond et al. v. Nelson, Commissioner, United States Immigration and Naturalization Service, et al.
   Application for stay of deportation, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-519.
    Southeast Volusia Hospital District et al. v. Florida Patient’s Compensation Fund et al.
   Sup. Ct. Fla. Application for stay, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. D-367.
    In re Disbarment of Treuber.
   Disbarment entered. [For earlier order herein, see ante, p. 911.]


text:
    No. D-372.
    In re Disbarment of Chagra.
   Disbarment entered. [For earlier order herein, see ante, p. 912.]


text:
    No. D-375.
    In re Disbarment of Italiano.
   Disbarment entered. [For earlier order herein, see ante, p. 926.]


text:
    No. D-380.
    In re Disbarment of Desmond.
   Disbarment entered. [For earlier order herein, see ante, p. 927.]


text:
    No. D-391.
    In re Disbarment of Drobny.
   It is ordered that Irving M. Drobny, of Chicago, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-392.
    In re Disbarment of Sinema.
   It is ordered that Dan Alan Sinema, of Tucson, Ariz., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-393.
    In re Disbarment of Moushey.
   It is ordered that Charles L. Moushey, of Alliance, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-394.
    In re Disbarment of Schlesinger.
   It is ordered that Arnold Schlesinger, of Beverly Hills, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-395.
    In re Disbarment of Shapiro.
   It is ordered that Stanley Charles Shapiro, of Los Angeles, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 82-2056.
    Escondido Mutual Water Co. et al. v. La Jolla Band of Mission Indians et al.
   C. A. 9th Cir. [Cer-tiorari granted, ante, p. 913.] Motion of the Solicitor General to permit divided argument on behalf of petitioners and on behalf of respondents granted.


text:
    No. 83-185.
    Cooper et al. v. Federal Reserve Bank of Richmond.
   C. A. 4th Cir. [Certiorari granted, ante, p. 932.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 83-620.
    United States v. Rodgers.
   C. A. 8th Cir. [Certiorari granted, ante, p. 1007.] Motion for appointment of counsel granted, and it is ordered that Albert N. Moskowitz, Esquire, of Kansas City, Mo., be appointed to serve as counsel for respondent in this case.


text:
    No. 83-802.
    Burlington Northern Railroad Co. et al. v. Lennen, Secretary of Revenue of Kansas, et al.
   C. A. 10th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.

Justice O’Con-nor took no part in the consideration or decision of this order.


text:
    No. 83-851.
    South Street Seaport Museum, as Owner of the Bark Peking v. McCarthy et al.
   C. A. 2d Cir. Motion of National Maritime Historical Society et al. for leave to file a brief as amici curiae granted.


text:
    No. 83-5778.
    Ordway v. Region 13 Mental Health-Mental Retardation Commission, dba Gulf Coast Mental Health Center, et al.
   C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until February 6, 1984, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, Justice Blackmun, and Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., ante, p. 928, we would deny the petition for certiorari in this case without reaching the merits of the motion to proceed in forma pawperis.


text:
    No. 83-5796.
    Crowe v. Georgia.
   Sup. Ct. Ga. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until February 6, 1984, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, and Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., ante, p. 928, we would deny the petition for certiorari in this case without reaching the merits of the motion to proceed in forma pauperis.


text:
    No. 83-5755.
    In re Tarkowski.
   Petition for writ of mandamus denied.


text:
    No. 83-747.
    Washington Metropolitan Area Transit Authority v. Johnson et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 83-838.
    United States v. Lorenzetti.
   C. A. 3d Cir. Certiorari granted.


text:
    No. 83-850.
    United States v. Karo et al.
   C. A. 10th Cir. Certiorari granted.


text:
    No. 82-1938.
    California et al. v. Standard Oil Company of California et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-6765.
    Unterthiner v. Desert Hospital District of Palm Springs.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 83-414.
    Griggs v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-432.
    No. 83-616.
    Gullett v. United States; and Fox v. United States.
   C. A. 6th Cir. Certio-rari denied. Reported below: 713 F. 2d 1203.


text:
    No. 83-435.
    Wichita Board of Trade et al. v. United States et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-475.
    Stahl et al. v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 83-527.
    International Mooring & Marine, Inc., et al. v. Bertrand et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-575.
    Oliver et al. v. McClure, Prosecutor of Bergen County, New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 83-581.
    Haimowitz v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-605.
    Mills v. United States.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 83-644.
    Hatch et al. v. Reliance Insurance Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-697.
    Building & Construction Trades Department, AFL-CIO, et al. v. Donovan, Secretary of Labor, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 83-717.
    Morrow et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-755.
    Ledesma v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 83-798.
    Quintanilla v. Scientific-Atlanta, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-799.
    Lewis v. Brown & Root, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-801.
    Pickands Mather & Co., as Managing Agent for Erie Mining Co. v. Commissioner of Revenue of Minnesota et al.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 83-803.
    Schultz v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 83-805.
    Williams v. Texas Department of Human Resources et al.
   Ct. App. Tex., 2d Sup. Jud. Dist. Certio-rari denied.


text:
    No. 83-814.
    Berry & Gore, Ltd. v. Administrator, Illinois Attorney Registration and Disciplinary Commission.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 83-819.
    Metz v. Tootsie Roll Industries, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-821.
    White Hydraulics, Inc., et al. v. Sauer-Getriebe, KG.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-822.
    Williams v. Washington Metropolitan Area Transit Authority.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 83-823.
    Clackamas County Housing Authority et al. v. Telford.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-827.
    Kapocsi v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 83-839.
    Hawthorne v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-842.
    Russell v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 83-843.
    Rife v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 83-847.
    Kourakos v. Tully et al.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.


text:
    No. 83-852.
    Bell v. Sellevold et al.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 83-856.
    Doria Mining & Engineering Corp. v. Clark, Secretary of the Interior, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-920.
    Gambale v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-925.
    Carrico v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-939.
    Redmond v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-940.
    Behring International, Inc. v. National Labor Relations Board.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-5402.
    Gaertner v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-5484.
    Cavazos v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-5488.
    Armstrong v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 83-5505.
    Young-Buffalo v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5537.
    Haggins v. Warden, Fort Pillow State Farm.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5541.
    Mishmash et al. v. Florida.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 83-5575.
    Price v. United States.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 83-5581.
    Glover et al. v. Alexander, Secretary of the Army.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5621.
    Strong v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-5663.
    Webb v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 83-5749.
    Yu v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 83-5751.
    Pipinos v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 83-5770.
    Antonelli v. Field Enterprises, Inc.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 83-5771.
    Royse v. Corhart Refractories Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-5774.
    Alford v. Allsbrook et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-5782.
    Rose v. Maryland.
   Ct. Sp. App. Md. Cer-tiorari denied.


text:
    No. 83-5783.
    Simpson v. Isringhausen.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-5784.
    Mally v. Shimer.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 83-5787.
    Dixon v. Missouri.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 83-5788.
    Williams v. DeRobertis, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-5789.
    Shaffer-Corona v. Smith.
   Ct. App. D. C. Certiorari denied.


text:
    No. 83-5791.
    Partlow v. Indiana.
   Sup. Ct. Ind. Certio-rari denied.


text:
    No. 83-5793.
    Howell v. Appling.
   C. A. 4th Cir. Certio-rari denied.


text:
    No. 83-5797.
    Malumphy v. Arizona Board of Pardons and Parole et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-5804.
    Nerison v. Solem, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-5827.
    Brooks v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 88-5845.
    Kimble et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-5853.
    Miller v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 83-5876.
    Ochs v. United States.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 82-2128.
    American Telephone & Telegraph Co. et al. v. Litton Systems, Inc., et al.
   C. A. 2d Cir. Motion of National Association of Regulatory Utility Commissioners for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 83-332.
    County of Los Angeles v. Equal Employment Opportunity Commission.
   C. A. 9th Cir. Certiorari denied.

Justice O’Connor would grant certiorari.


text:
    No. 83-512.
    Sutton et al. v. Bloom.
   C. A. 6th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 83-808.
    Maryland v. Foster.
   Ct. App. Md. Motion of respondent for leave to proceed informa pauperis granted. Cer-tiorari denied.


text:
    No. 83-837.
    Arizona v. Routhier.
   Sup. Ct. Ariz. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 83-854.
    Nourse, Circuit Judge of the Nineteenth Judicial Circuit, in and for St. Lucie County, Florida v. Florida Department of Health and Rehabilitative Services et al.
   Sup. Ct. Fla. Motion of Office of the Public Defender for leave to file a brief as amicus curiae granted. Petition for writ of certiorari and/or prohibition denied.


text:
    No. 83-5387.
    No. 83-5737.
    No. 83-5776.
    Mitchell v. Texas. Cooper v. Florida. Coleman v. Oklahoma.
   Ct. Crim. App. Tex.; Sup. Ct. Fla.; and Ct. Crim. App. Okla. Certiorari denied. Reported below: No. 83-5387, 650 S. W. 2d 801; No. 83-5737, 437 So. 2d 1070; No. 83-5776, 668 P. 2d 1126.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 83-5768.
    Davis v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari denied.

Justice Brennan and Justice Marshall would grant certiorari.


text:
    No. 83-5891.
    Claxton v. Copeland, Warden.
   Sup. Ct. Ariz. Certiorari denied.

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


text:
    No. 83-3.
    No. 83-635.
    No. 83-5415.
    No. 83-5542.
    No. 83-5618.
    Baginsky v. United States, Veenkant v. Cook et al., Thomas v. United States, In re Gill, Forsyth v. United States,
   ante, p. 981;

ante, p. 1009;

ante, p. 998;

ante, p. 990; and

ante, p. 1001. Petitions for rehearing denied.


author: Justice White, Circuit Justice.

text:
    AUTRY v. ESTELLE, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS
    No. A-242.
    Decided October 5, 1983
   Justice White, Circuit Justice.

Applicant is under a sentence of death imposed by the courts of Texas. His execution is scheduled to be carried out after midnight of October 4, c. d. t. He has once unsuccessfully sought a writ of habeas corpus from the United States District Court; denial of the writ was affirmed by the Court of Appeals for the Fifth Circuit, 706 F. 2d 1394 (1983), and on October 3, 1983, we denied a stay pending the filing of a petition for certiorari. Ante, p. 1. Applicant then filed a second petition for habeas corpus, raising grounds not presented in his first petition and hence not before us when we so recently denied a stay of execution. After a hearing, the District Court denied both the writ and a certificate of probable cause, which, under 28 U. S. C. § 2253, is a prerequisite to an appeal. The Court of Appeals then held a hearing, denied the certificate of probable cause, and denied the stay. Applicant has now applied to me for a stay.

One of the three grounds on which applicant sought relief in his second habeas corpus petition is the failure of the Texas Court of Criminal Appeals to compare his case with other cases in order to determine whether his death sentence is disproportionate to the punishment imposed on others. That ground as I have said was not presented in his first petition. Although it appears that no such review was in fact carried out in this case, the Court of Appeals held that the Texas death-penalty system, as a whole, satisfies any constitutional requirement with respect to proportionality.

I am compelled to issue a certificate of probable cause to appeal, as I am authorized to do under §2253, and to enter a stay pending the final disposition of the appeal by the Court of Appeals. On March 21, we granted certiorari in No. 82-1095, Pulley v. Harris. 460 U. S. 1036. In that case, the Court of Appeals for the Ninth Circuit held that a death sentence cannot be carried out by the State of California until and unless the State Supreme Court conducts a comparative proportionality review, which, the court held, was constitutionally required. 692 F. 2d 1189 (1982). We shall hear argument in that case in November, and if we affirm the Court of Appeals for the Ninth Circuit, there will be a substantial question whether the views of the Court of Appeals for the Fifth Circuit with respect to the proportionality issue were correct. Of course I do not know how the Court will rule on this question, but in view of the judgment of the Court of Appeals for the Ninth Circuit and in view of our decision to give the case plenary consideration, I cannot say that the issue lacks substance. Accordingly, I hereby issue a certificate of probable cause and stay petitioner’s execution pending the final disposition of the appeal by the Court of Appeals, or until the Court’s or my further order.

In my view, it would be desirable to require by statute that all federal grounds for challenging a conviction or a sentence be presented in the first petition for habeas corpus. Except in unusual circumstances, successive writs would be summarily denied. But historically, res judicata has been inapplicable to habeas corpus proceedings, Sanders v. United States, 373 U. S. 1, 7-8 (1963), and 28 U. S. C. § 2244(a) and 28 U. S. C. § 2254 Rule 9 implicitly recognize the legitimacy of successive petitions raising grounds that have not previously been presented and adjudicated.


author: Justice Rehnquist, Circuit Justice.

text:
    CLARK, SECRETARY OF INTERIOR, et al. v. CALIFORNIA et al.
    No. A-470.
    Decided December 20, 1983

      Together with No. A-471, Western Oil & Gas Association et al. v. California et al., also on application for stay of the same preliminary injunction.

   Justice Rehnquist, Circuit Justice.

Applicants, who include the Secretary of the Interior and the Western Oil and Gas Association, request that I stay a preliminary injunction issued by the United States District Court for the Central District of California. The United States Court of Appeals for the Ninth Circuit denied the request for a stay without opinion. The preliminary injunction prohibits the Secretary from conducting Lease Sale 73, the sale of 137 designated tracts on the Pacific Outer Continental Shelf for oil and gas leasing. As issued it is effective pending final determination of respondent California’s claims, the principal of which is its claim that the Secretary did not prepare an adequate “consistency determination” pursuant to § 307(c)(1) of the Coastal Zone Management Act of 1972, 86 Stat. 1285, 16 U. S. C. § 1456(c)(1), as interpreted by the Court of Appeals for the Ninth Circuit in California v. Watt, 683 F. 2d 1253 (1982), cert. granted, 461 U. S. 925 (1983) (argued November 1, 1983).

Section 307(c)(1) provides:

“Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs.” 16 U. S. C. § 1456(c)(1) (emphasis added).

In California v. Watt, supra (now sub nom. Clark v. California), the Court will decide whether the Secretary’s sale of oil and gas leases is an activity “directly affecting” the coastal zone within the meaning of § 307(c)(1). Unless the Court answers that question in the affirmative, there is no statutory requirement at this stage of the project that the Secretary prepare the “consistency determination” which the District Court deemed inadequate and which formed the basis of its decision to issue the injunction in this case.

Having examined the submissions of the parties, I have decided to stay the preliminary injunction pending this Court’s resolution of the question presented in Clark v. California, concluding as I do that in the interim the traditional considerations affecting the award of equitable relief favor the applicants.

It is so ordered.


author: Justice Blackmun, Circuit Justice.

text:
    MCDONALD v. MISSOURI
    No. A-525.
    Decided January 3, 1984

      Together with No. A-526, Laws v. Missouri; No. A-527, Battle v. Missouri; and No. A-531, Gilmore v. Missouri, also on applications for stays of executions.

   Justice Blackmun, Circuit Justice.

I have before me applications to stay the executions of Samuel Lee McDonald, Leonard Marvin Laws, Thomas Henry Battle, and George Clifton Gilmore, each convicted in a Missouri state court of capital murder and each sentenced to die on January 6, 1984. Their respective convictions and sentences have been affirmed by the Supreme Court of Missouri on direct appeal, State v. McDonald, 661 S. W. 2d 497 (1983); State v. Laws 661 S. W. 2d 526 (1983); State v. Battle, 661 S. W. 2d 487 (1983); State v. Gilmore, 650 S. W. 2d 627 (1983), but review here on such federal grounds as the respective applicants may possess has not yet been had. The execution date in each case has been fixed by the Missouri Supreme Court. See Mo. Rule Crim. Proc. 29.08(d).

In Williams v. Missouri, 463 U. S. 1301 (1983), I granted a stay of execution pending timely filing and disposition of a petition for certiorari on direct review. That case procedurally was similar to these, and the Supreme Court of Missouri there, also, had denied a stay of its mandate. In a short accompanying opinion, I pointed out that, if a federal question is involved, the process of direct review ‘“includes the right to petition this Court for a writ of certiorari/” ibid., quoting Barefoot v. Estelle, 463 U. S. 880, 887 (1983). I specifically stated:

“[I]f a State schedules an execution to take place before filing and disposition of a petition for certiorari, I must stay that execution pending completion of direct review, as a matter of course.” 463 U. S., at 1302.

Every defendant in a state court of this Nation who has a right of direct review from a sentence of death, no matter how heinous his offense may appear to be, is entitled to have that review before paying the ultimate penalty. The right of review otherwise is rendered utterly meaningless. It makes no sense to have the execution set on a date within the time specified for that review, see 28 U. S. C. §§ 1257 and 2101; this Court’s Rule 20.1, and before the review is completed. I thought I had advised the Supreme Court of Missouri once before, in Williams, that, as Circuit Justice of the Circuit in which the State of Missouri is located, I, upon proper application, shall stay the execution of any Missouri applicant whose direct review of his conviction and death sentence is being sought and has not been completed. I repeat the admonition to the Supreme Court of Missouri, and to any official within the State’s chain of responsibility, that I shall continue that practice. The stay, of course, ought to be granted by the state tribunal in the first instance, but, if it fails to fulfill its responsibility, I shall fulfill mine.

Accordingly, in each of the four cases, I grant the application to stay the execution now scheduled for January 6, 1984. Orders are being entered accordingly.