author: Justice Brennan and Justice Marshall,

text:
    No. 83-6195.
    No. 83-6326.
    No. 83-6405.
    No. 83-6611.
    No. 83-6653.
    Dobbert v. Strickland et al. Sivak v. Idaho. Routly v. Florida. Gibson v. Idaho. Paradis v. Idaho.
   C. A. 11th Cir.;

Sup. Ct. Idaho;

Sup. Ct. Fla.;

Sup. Ct. Idaho; and

Sup. Ct. Idaho. Certiorari denied. Reported below: No. 83-6195, 718 F. 2d 1518; No. 83-6326, 105 Idaho 900, 674 P. 2d 396; No. 83-6405, 440 So. 2d 1257; No. 83-6611, 106 Idaho 54, 675 P. 2d 33; No. 83-6653, 106 Idaho 117, 676 P. 2d 31.

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.


source: Caselaw Access Project

license: Public Domain

text:
    No. 83-7041 (A-1068).
    Woolls v. Texas.
   Ct. Crim. App. Tex. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.

Justice Brennan and Justice Marshall would grant the application and the petition. Justice Rehnquist took no part in the consideration or decision of this application and petition.


text:
    July 10, 1984
    No. 83-1923.
    Louisiana Department of Transportation and Development v. Luling Industrial Park, Inc., et al.
   Ct. App. La., 5th Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Marshall,

text:
    July 11, 1984
    No. A-22.
    Stanley v. Kemp, Warden.
   Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, denied.

Justice Stevens would grant the application.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Petitioner challenges his conviction and death sentence on six colorable grounds. His stay application presenting those assignments of error did not arrive in this Court until 10:25 p. m. on July 11, 1984, less than two hours before his scheduled execution. At a minimum, I would grant a stay of sufficient duration to make possible a meaningful evaluation of petitioner’s claims. In my view, the importance and irrevocability of our decision require at least that we take the time necessary to ensure that the proceedings below were as error free as humanly possible.

I dissent.


text:
    July 12, 1984
    No. A-24.
    Wainwright, Secretary, Florida Department of Corrections v. Smith.
   Application to vacate the order of the United States Court of Appeals for the Eleventh Circuit entered July 12, 1984, granting a stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, denied.


text:
    No. A-27.
    Washington v. Wainwright, Secretary, Florida Department of Corrections.
   Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 158, 227 (1976) (Brennan, J., dissenting); id., at 231 (Marshall, J., dissenting), we would grant petitioner’s application for a stay of his execution.


text:
    July 18, 1984
    No. 83-1897.
    In re Fernandez-Toledo et al.
   Petition for writ of mandamus dismissed under this Court’s Rule 53.


text:
    July 30, 1984
    No. 83-1248.
    Mobil Oil Corp. et al. v. Batchelder et al.
   Sup. Ct. Kan. Certiorari dismissed as to petitioner Atlantic Richfield Co. under this Court’s Rule 53.


text:
    July 31, 1984
    No. 83-1835.
    Walker v. Lockhart, Superintendent, Arkansas Department of Corrections.
   C. A. 8th Cir. Certio-rari dismissed under this Court’s Rule 53.


text:
    August 2, 1984
    No. 83-1928.
    Stark et al. v. Atwood Group et al.
   C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No.-.
    Central Jersey Industries, Inc., et al. v. United States Railway Assn. et al.
   Statement of appellants as to dismissal of the appeal was received July 26, 1984, and presented to the Court for its consideration. The appeal from the Special Court, Regional Rail Reorganization Act of 1973, to review the final judgment entered July 23, 1984, shall not be dismissed at this time under § 303(d) of the Regional Rail Reorganization Act of 1973. The time to docket the appeal is extended to and including September 21, 1984. The application for leave to file a statement as to jurisdiction in excess of the page limitations is granted provided the statement as to jurisdiction does not exceed 40 pages.

Justice Brennan took no part in the consideration or decision of this order.


text:
    No. A-1025 (84-19).
    McDonald et al. v. Burrows, Sheriff of Wichita County, Texas, et al.
   C. A. 5th Cir. Application for recall and stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-420.
    In re Disbarment of Brownlow.
    [For earlier order herein, see 466 U. S. 948.]
   Disbarment entered.


text:
    No. D-429.
    In re Disbarment of Cooper.
    [For earlier order herein, see 466 U. S. 969.]
   Disbarment entered.


text:
    No. D-440.
    In re Disbarment of Work.
   It is ordered that Daniel Michael Work, Jr., of Oklahoma City, Okla., 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-441.
    In re Disbarment of Mushkin.
   It is ordered that Morrow D. Mushkin, of Brooklyn, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-442.
    In re Disbarment of Sweeney.
   It is ordered that John J. Sweeney, Jr., of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-443.
    In re Disbarment of Dizak.
   It is ordered that Robert Earl Dizak, of Brooklyn, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-444.
    In re Disbarment of Sherr.
   It is ordered that William C. Sherr, of New York, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-445.
    In re Disbarment of Nicholas.
   It is ordered that John G. Nicholas, of Flushing, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-447.
    In re Disbarment of Thornell.
   It is ordered that Michael Thornell, of Houston, Tex., 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. 80,
    No. 82-432.
    No. 82-1643.
    No. 83-904.
    No. 83-1067.
    No. 83-1261.
    No. 83-1578.
    No. 83-1588.
    No. 83-1614.
    No. 83-1731.
    No. 83-1769.
    No. 83-1806.
    No. 83-1810.
    No. 83-5088.
    No. 83-5092.
    No. 83-5148.
    No. 83-6090.
    No. 83-6614.
    No. 83-6626.
    No. 83-6627.
    Orig.
    Colorado v. New Mexico et al., Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Packers, et al. v. Crowley et al., Interstate Commerce Commission et al. v. American Trucking Assns., Inc., et al., Ohio v. Johnson, Maddox v. United States, Lyddan v. United States, Merritt v. Georgia, Cramer v. State Bar of Michigan et al., Gottfried et al. v. United States et al., Cohran v. State Bar of Georgia, Burche v. Walters et al., McAnlis v. United States et al., Miller v. Port of Ilwaco et al., Gilbert v. South Carolina, Gleaton v. Aiken, Warden, et al., High v. Kemp, Superintendent, Georgia Diagnostic and Classification Center, Berryhill v. Francis, Warden, Tillis v. Cooke et al., Collins v. Western Electric Co., Inc., Alers v. Puerto Rico et al.,
   467 U. S. 310;

467 U. S. 526;

467 U. S. 354;

467 U. S. 493;

467 U. S. 1214;

467 U. S. 1214;

467 U. S. 1241;

466 U. S. 974;

467 U. S. 1252;

467 U. S. 1223;

467 U. S. 1242;

467 U. S. 1227;

467 U. S. 1243;

467 U. S. 1220;

467 U. S. 1220;

467 U. S. 1220;

467 U. S. 1220;

467 U. S. 1244;

467 U. S. 1254; and

467 U. S. 1230. Petitions for rehearing denied.


text:
    No. 83-5716.
    Corn v. Zant, Warden,
   467 U. S. 1220. Petition for rehearing denied. Justice Powell would defer action on the petition pending decision by the Court in No. 83-1590, Francis v. Franklin [certiorari granted, 467 U. S. 1225].


text:
    August 9, 1984
    No. 82-2157.
    Central States, Southeast & Southwest Areas Pension Fund et al. v. Central Transport, Inc., et al.
   C. A. 6th Cir. [Certiorari granted, 467 U. S. 1250.] Motion of petitioners to dispense with printing the joint appendix denied.


text:
    No. 83-297.
    Armco Inc. v. Hardesty, Tax Commissioner of West Virginia,
   467 U. S. 638. Appellant is requested to file a response to the petition for rehearing within 30 days.


text:
    No. 83-997.
    No. 83-1325.
    Trans World Airlines, Inc. v. Thurston et al. Air Line Pilots Assn., International v. Thurston et al.
   C. A. 2d Cir. [Certiorari granted, 465 U. S. 1065]; and

C. A. 2d Cir. [Certiorari granted, 466 U. S. 926.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a brief as amicus curiae granted.


text:
    No. 83-1013.
    No. 83-1373.
    Chemical Manufacturers Assn. et al. v. Natural Resources Defense Council, Inc., et al.; and United States Environmental Protection Agency v. Natural Resources Defense Council, Inc., et al.
   C. A. 3d Cir. [Certiorari granted, 466 U. S. 957.] Motion of Chamber of Commerce of the United States for leave to file a brief as amicus curiae granted.


text:
    No. 83-1045.
    No. 83-5878.
    United States Department of Justice et al. v. Provenzano. Shapiro et al. v. Drug Enforcement Administration.
   C. A. 3d Cir. [Certiorari granted, 466 U. S. 926]; and

C. A. 7th Cir. [Certiorari granted, 466 U. S. 926.] Motion of respondent in No. 83-1045 and petitioners in No. 83-5878 for divided argument granted.


text:
    No. 83-1065.
    No. 83-1240.
    County of Oneida, New York, et al. v. Oneida Indian Nation of New York State et al.; and New York v. Oneida Indian Nation of New York State et al.
   C. A. 2d Cir. [Certiorari granted, 465 U. S. 1099.] Motion of petitioners for divided argument and for additional time for oral argument granted, and 15 additional minutes allotted for that purpose. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for additional time for oral argument granted, and 15 additional minutes allotted for that purpose.


text:
    No. 83-1084.
    Vista Resources, Inc., et al. v. Seagrave Corp.
   C. A. 2d Cir. [Certiorari granted, 466 U. S. 970.] Motions of Advance Ross Corp. and Ivan K. Landreth et al. for leave to file briefs as amici curiae granted.


text:
    No. 83-1084.
    Vista Resources, Inc., et al. v. Seagrave Corp.
   C. A. 2d Cir. [Certiorari granted, 466 U. S. 970.] Writ of certiorari dismissed under this Court’s Rule 53.


text:
    August 16, 1984
    No. 94,
    Orig.
    South Carolina v. Regan, Secretary of the Treasury.
    [For earlier order herein, see, e. g., 466 U. S. 948.]
   Motion of National Governors’ Association for leave to intervene as a party petitioner referred to the Special Master.


text:
    No. A-37 (84-138).
    South Carolina v. United States et al.
   D. C. D. C. Application for stay, addressed to Justice Powell and referred to the Court, denied.


text:
    No. 82-1350.
    No. 83-490.
    No. 83-747.
    No. 83-916.
    No. 83-6260.
    No. 83-6277.
    No. 83-6410.
    No. 83-6567.
    No. 83-6575.
    No. 83-6591.
    United States v. United Scottish Insurance Co. et al., Davis et al. v. Scherer, Washington Metropolitan Area Transit Authority v. Johnson et al., United States v. Morton, Travaglia v. Pennsylvania, Handy v. Peck, Patterson v. Heffron et al., Arnold v. South Carolina, Plath v. South Carolina, Pershe v. Irizarry et al.,
   467 U. S. 797;

ante, p. 183;

467 U. S. 925;

467 U. S. 822;

467 U. S. 1256;

467 U. S. 1253;

467 U. S. 1259;

467 U. S. 1265;

467 U. S. 1265; and

467 U. S. 1237. Petitions for rehearing denied.


text:
    No. 83-6610.
    No. 83-6649.
    Barfield v. Harris, Superintendent, North Carolina Correctional Center for Women, et al., Slater v. United States,
   467 U. S. 1210; and

467 U. S. 1254. Petitions for rehearing denied.


text:
    No. 82-1005.
    No. 82-1247.
    No. 82-1591.
    Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., et al.; American Iron & Steel Institute et al. v. Natural Resources Defense Council, Inc., et al.; and Ruckelshaus, Administrator, Environmental Protection Agency v. Natural Resources Defense Council, Inc., et al.,
   467 U. S. 837. Petition for rehearing denied.

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


text:
    No. 83-6395.
    No. 83-6396.
    Ward v. General Motors Corp., Ward v. Equal Employment Opportunity Commission,
   466 U. S. 961; and

466 U. S. 953. Motions for leave to file petitions for rehearing denied.


text:
    August 23, 1984
    No. A-1038 (83-6864).
    Tafoya et al. v. United States.
   C. A. 5th Cir. Application for stay, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. 35,
    Orig.
    United States v. Maine et al.
    [For earlier order herein, see, e. g., ante, p. 1213.]
   Motion of New York and Rhode Island for divided argument granted.


text:
    No. 82-1913.
    No. 82-1951.
    Garcia v. San Antonio Metropolitan Transit Authority et al.; and Donovan, Secretary of Labor v. San Antonio Metropolitan Transit Authority et al.
   D. C. W. D. Tex. [Probable jurisdiction noted, 464 U. S. 812.] Motion of the Solicitor General for divided argument granted.


text:
    No. 82-1922.
    Southern Motor Carriers Rate Conference, Inc., et al. v. United States.
   C. A. 11th Cir. [Cer-tiorari granted, 467 U. S. 1240.] Motions of American Movers Conference et al. and Edison Electric Institute for leave to file briefs as amici curiae granted.


text:
    No. 83-812.
    No. 83-929.
    Wallace, Governor of Alabama, et al. v. Jaffree et al.; and Smith et al. v. Jaffree et al.
   C. A. 11th Cir. [Probable jurisdiction noted, 466 U. S. 924.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 83-990.
    School District of the City of Grand Rapids et al. v. Ball et al.
   C. A. 6th Cir. [Certiorari granted, 465 U. S. 1064.] Motion of respondents to permit Nancy L. Dilley to present oral argument pro hac vice denied.


text:
    No. 83-1437.
    Marek et al. v. Chesny, Individually, and as Administrator of the Estate of Chesny.
   C. A. 7th Cir. [Certiorari granted, 466 U. S. 949.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 83-1476.
    United States v. Dann et al.
   C. A. 9th Cir. [Certiorari granted, 467 U. S. 1214.] Motion of American Land Title Association for leave to file a brief as amicus curiae granted.


text:
    No. 83-1625.
    United States v. Johns et al.
   C. A. 9th Cir. [Certiorari granted, 467 U. S. 1250.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    August 27, 1984
    No. 84-37.
    Cessna Aircraft Co. v. Blevins.
   C. A. 10th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    August 29, 1984
    No. 84-8.
    Hazeltine Corp. v. RCA Corp.
   C. A. Fed. Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    August 30, 1984
    No. 83-2103.
    In re United States.
   Petition for writ of mandamus dismissed under this Court’s Rule 53.


author: Justice Brennan,

text:
    September 4, 1984
    No. A-139.
    Knighton v. Maggio, Warden.
   C. A. 5th Cir. Application for certificate of probable cause and stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Blackmun and Justice Stevens would grant the application.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

In this application — presented to us three days after the Fifth Circuit denied an appeal from a first federal habeas petition— Knighton has applied for a stay of his execution scheduled for September 5, 1984. The stay will enable Knighton to file a full-fledged petition for certiorari. Even given the time pressures under which it was prepared, the application raises two substantial constitutional questions.

Knighton argues that his jury — which was death-qualified in accordance with Witherspoon v. Illinois, 391 U. S. 510 (1968) — was improperly constituted because a Witherspoon-qpsdifLeá jury is as a matter of empirical fact more inclined to convict at the guilt phase of the trial than is a jury composed of a fair cross section of the community. If Knighton is correct, he will have been convicted of a capital offense by a jury that would fail to meet our standards for neutrality in a much less serious offense.

At least one District Court has accepted a claim like that made by Knighton. Grigsby v. Mabry, 569 F. Supp. 1273 (ED Ark. 1983), appeal pending, No. 83-2113 (CA8). One other District Court accepted a similar claim, see Keeten v. Garrison, 578 F. Supp. 1164 (WDNC 1984), but was recently reversed by the Fourth Circuit, see Keeten v. Garrison, 742 F. 2d 129 (1984). Yet the District Court here did not even grant Knighton an evi-dentiary hearing on this point. And the Court of Appeals inexplicably affirmed the denial of Knighton’s habeas petition without rejecting his argument and without deciding it. The panel held that the argument “must be directed to other fora, legislative and judicial.” Knighton v. Maggio, 740 F. 2d 1344, 1351 (1984). I do not know why the panel felt unqualified to consider the issue, but Knighton — like any litigant — deserves the opportunity to be put to his proof before some competent forum. By its decision today, the Court has in effect sent him to his death without such an opportunity.

Knighton’s claim of ineffective assistance of counsel also seems to me compelling. The murder with which Knighton was charged was a murder of a white proprietor by a black man in the course of a robbery. He was arrested in April and by June he was sentenced to death. Regardless whether this 2-month period could have provided sufficient preparation time even for dedicated attorneys who could singlemindedly devote themselves to the complexities of a capital case, Knighton’s appointed attorney seems to have failed to take advantage of even the small amount of time that was available. He spent a shockingly small period of time— six hours in all — interviewing his client. And he seems to have spent no time at all investigating Knighton’s background and character in order to put on a defense at the sentencing phase.

If the attorney had been preparing for a trial of a minor felony or some small-scale racket, this kind of preparation may have been enough, at least to meet constitutional requirements. But with his client’s life at stake, this minimal effort is insufficient to meet the Constitution’s demands that a capital defendant have reasonably effective representation. The failure of representation is particularly glaring in a case like this, where the defendant’s previous criminal record was already before the jury, no evidence of mitigating factors seems to have been introduced, and the aggravating circumstances were exceptionally weak. Given this lack of aggravating circumstances — the only clearly valid one being that Knighton committed the murder in the course of a robbery, see State v. Knighton, 436 So. 2d 1141, 1159 (La. 1983)— Knighton could certainly make out a fair case of prejudice as well.

I continue to adhere 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), and would therefore grant the application in this case. But even if I believed otherwise, I would stay the execution in this case — where the entire federal habeas proceedings have taken a little over three months, only slightly more time than a noncapital defendant is accorded just to prepare a petition for certiorari — so that Knighton has the opportunity to prepare a petition for certiorari and this Court has an orderly opportunity to give it fair consideration.


author: Justice Brennan, Justice Marshall,

text:
    September 7, 1984
    No. 84-5378 (A-157).
    Dobbert v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, denied. Certiorari denied.

Justice Stevens would grant the application for stay of execution.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

The State of Florida intends to electrocute the applicant Ernest John Dobbert, Jr. in several hours. Dobbert seeks a stay of his execution pending the orderly disposition of a petition for a writ of certiorari. He raises substantial issues concerning the constitutionality of his death sentence and the proper measure of federal deference to state-court factfinding under 28 U. S. C. § 2254(d). I would grant Dobbert’s application and stay his execution.

I

Dobbert was convicted in 1974 of the first-degree murder of his 9-year-old daughter Kelly. Although the jury recommended a life sentence by a vote of 10-2, the presiding judge, R. Hudson Olliff, overrode the recommendation and imposed the death sentence.

Dobbert’s 13-year-old son, John III, testified at trial that he saw Dobbert kick Kelly in the stomach several times on the night before her death and that, on the subsequent evening, he saw Dobbert choke the girl until she stopped breathing. John III was “the State’s key witness” at trial. Dobbert v. State, 414 So. 2d 518, 519 (Fla. 1982). There was abundant evidence that Dobbert had committed unspeakably brutal acts toward his children, but John Ill’s testimony was the sole evidence that Dobbert had actually and deliberately strangled Kelly to death. “While the evidence presented without his testimony was adequate to convict of second-degree murder, young Dobbert’s testimony supplied the sole basis for finding premeditation. There is no doubt that Dobbert inflicted injuries that caused the death of his daughter, but only through the trial testimony of young Dobbert is there evidence of his intent to cause that death.” Dobbert v. State, 456 So. 2d 424, 431 (1984) (McDonald, J., dissenting in part).

In 1982, eight years after his father had been convicted and sentenced to death, John III recanted his trial testimony. His affidavit, set forth in full as an appendix to this opinion, is direct and to the point: “I did not testify truthfully about the cause of my sister Kelly’s death at the trial. . . . My father did not kill Kelly.” John III stated that, in fact, the “kicking incident” had occurred two weeks before Kelly’s death. With respect to the fatal night, John III now states that he remembers Kelly “sitting in bed eating some soup. She started vomiting, and then choking on her own vomit and food. My father tried to give her mouth to mouth resuscitation, but it didn’t work. Kelly was not killed by my father; she died accidentally, choking on food or vomit.”

Why had John III earlier testified that Dobbert choked Kelly to death? First, at the time of the trial “I was still deathly afraid of my father after all I’d been through and seen, and wanted to be sure he’d be locked up where I’d be safe from him.” Second, in the time leading up to and following the trial, John III was living at a children’s home in Wisconsin where he was undergoing hypnosis and kept “heavily medicated” on Thorazine. Finally, “[although no one ever said it directly,” John III “knew” that the staff at the children’s home “wanted me to testify that my father killed my sister. I looked up to these people and wanted desperately to please them — they were good to me and concerned about me in a way I hadn’t known for years.”

Dobbert has twice argued in state court that his capital conviction and sentence are unconstitutional in light of John Ill’s perjured testimony. The first time, in connection with his request to file a petition for a writ of error comm nobis, the Supreme Court of Florida held that John Ill’s recantation is not “new evidence” and therefore does not deserve judicial attention. Dobbert v. State, 414 So. 2d, at 520. The court argued that, because John III had given a statement to the police after Kelly’s death which contradicted the testimony he later gave at trial, defense counsel could have cross-examined the boy at trial on the inconsistencies between the earlier statement and his testimony. Ibid.

The second time, in connection with a motion to vacate the conviction, Circuit Judge R. Hudson Olliff held that, even in the face of the recantation, there is no “evidence or proof” to support Dobbert’s claim of perjured testimony. State v. Dobbert, No. 73-5068, p. 81 (Fla. 4th Cir. Ct., May 1, 1984), aff’d, 456 So. 2d 424 (1984). Judge Olliff, who had presided over the original trial, reviewed John Ill’s statements to the police, deposition testimony, trial testimony, and subsequent deposition testimony in a civil proceeding. Although John Ill’s initial statements to the police contradicted his subsequent trial testimony, Judge Olliff found that the inconsistencies were easily explained away in light of the boy’s terror of the father. Judge Olliff then reviewed John Ill’s other prerecantation statements and held that they “are all consistent and each corroborates the other.” Thus, he concluded, even in the face of the recantation “it is obvious that the murder conviction was not based solely — or in part — upon perjured testimony. Nor is there any evidence or proof to support [Dobbert’s] allegation of perjury.” State v. Dobbert, No. 73-5068, at 81. Judge Olliff made this conclusion without any discussion or analysis of John Ill’s recantation. The Supreme Court of Florida affirmed, holding that Dobbert’s claim of perjury is “without merit” because “there is no evidence or proof to support present counsel’s allegation of perjury.” 456 So. 2d, at 429.

Dobbert then filed a successive petition for federal habeas relief in the United States District Court for the Middle District of Florida. Although there is no question that Dobbert was not abusing the writ on this issue — John Ill’s recantation had come after Dobbert’s first federal petition had been denied — the District Court denied the petition because Judge Olliff had found that “even in light of the 1982 recantation John’s trial testimony was not perjured. Judge Olliff found, instead, that there was 'no evidence or proof to support [petitioner’s] allegation of perjury.’” 593 F. Supp. 1418, 1427 (1984). This finding, the District Court concluded, commands deference under 28 U. S. C. § 2254(d). See Sumner v. Mata, 449 U. S. 539 (1981). The Eleventh Circuit has now affirmed 2-1. 742 F. 2d 1274 (1984) (Clark, J., dissenting).

II

Recantation testimony is properly viewed with great suspicion. It upsets society’s interest in the finality of convictions, is very often unreliable and given for suspect motives, and most often serves merely to impeach cumulative evidence rather than to undermine confidence in the accuracy of the conviction. For these reasons, a witness’ recantation of trial testimony typically will justify a new trial only where the reviewing judge after analyzing the recantation is satisfied that it is true and that it will “render probable a different verdict.” See, e. g., Brown v. State, 381 So. 2d 690, 692-693 (Fla. 1980).

Dobbert argues that, notwithstanding the strong presumption against recanting testimony, the circumstances of John Ill’s recantation in this capital case raise important constitutional issues that demand sober and measured reflection. First, although federal courts traditionally have held that a conviction supported by perjured testimony is not unconstitutional unless the prosecutor or judge knew or had reason to know that the testimony was perjured, Dobbert argues that this approach is no longer valid after Jackson v. Virginia, 443 U. S. 307 (1979). Dobbert correctly notes a split among the Circuits concerning the authority of federal courts to grant habeas relief when “newly available evidence conclusively shows that a vital mistake ha[s] been made.” Grace v. Butterworth, 586 F. 2d 878, 880 (CA1 1978). Compare Grace (such claims are cognizable); United States ex rel. Sostre v. Festa, 513 F. 2d 1313 (CA2) (same), cert. denied, 423 U. S. 841 (1975), with Drake v. Francis, 727 F. 2d 990 (CA11 1984) (such claims are not cognizable because habeas is not concerned with questions of guilt or innocence), rehearing en banc granted, id., at 1003.

Second, Dobbert argues that the federal courts should give attention to formulating proper standards for evaluating the materiality and credibility of recantations. He notes that the need for such consideration is especially great where, as here, the recanted testimony was the sole evidence supporting a conviction of first-degree murder.

Dobbert argues finally that, whatever the usual procedural rules regarding the consideration of a recantation, those rules must bend in the face of the Eighth Amendment. He notes that this Court has repeatedly invalidated procedural rules that ‘“diminish the reliability of the guilt determination’ ” in capital cases, Application for Stay of Execution 16, quoting Beck v. Alabama, 447 U. S. 625, 638 (1980), and argues that Eighth Amendment scrutiny should be applied to rules barring postconviction reconsideration of guilt as well as to procedural rules employed at trial.

However we ultimately might resolve these issues after research, argument, and reflection, they certainly are not frivolous. Yet the federal courts are about to let Dobbert go to the electric chair out of misplaced deference to an unexplained, and palpably inexplicable, state-court “factual” finding that there is, in fact, no “evidence or proof” to support his claim of perjury.

A

If Judge Olliff’s “finding” that there is no “evidence” of perjury found fair support in the record, the law would mandate that the federal habeas court defer to that finding. 28 U. S. C. § 2254(d); see Sumner v. Mata, supra. But no fair-minded person could conclude on the basis of the record before us that the “finding” is plausible. It is absurd on its face. Dobbert has offered stark “evidence” of perjury — the recantation affidavit of John III. Rather than analyzing that evidence for its strengths and weaknesses, Judge Olliff reviewed John Ill’s previous statements— statements which John III now recants — and on finding that those statements “are all consistent and each corroborates the other,” proceeded to conclude that notwithstanding the recantation “it is obvious that the murder conviction was not based solely — or in part — upon perjured testimony. Nor is there any evidence or proof to support [the] allegation of perjury.”

This “factual determination” should not stand because it most certainly is not “fairly supported by the record.” 28 U. S. C. § 2254(d)(8). Some may choose to argue that Judge Olliff’s “finding” represents an implicit rejection of the materiality and credibility of John Ill’s recantation. Perhaps it does. Cf. LaVallee v. Delle Rose, 410 U. S. 690, 697 (1973) (in the “ordinary case,” federal courts may assume that a state court which did not articulate its reasoning fairly considered the merits of the factual dispute). But Judge Olliff’s asserted reasoning — that earlier statements were consistent with each other, thereby demonstrating the absolute lack of any “proof or evidence” of perjury — is not entitled to deference where the recantation asserts that those statements were untrue. There may well be numerous reasons why John Ill’s recantation should not be entitled to controlling weight, but there is nothing here to suggest that Judge Olliff considered those possible reasons, let alone relied upon them in reaching his conclusion. In the face of a specific recantation of critical testimony, a court must evaluate the recantation itself and explain what it is about that recantation that warrants a conclusion that it is not credible evidence.

That Judge Olliff’s rejection of the recantation was not based on any evaluation of the recantation itself is demonstrated, I believe, by the District Court’s opinion. The court made an urgent effort to demonstrate that Judge Olliff’s finding was related to a consideration and analysis of the recantation itself, noting, for example, that “Judge Olliff reviewed the facts depicted in John’s [earlier testimony] and determined that they were much more detailed than . . . the 1982 recantation. (Olliff’s Order at 63, 67).” 593 F. Supp., at 1427. Nothing in the cited pages supports the District Court’s characterization of Judge Olliff’s analysis; the recantation is not even mentioned in these pages. In fact, nowhere in the order does Judge Olliff compare the earlier testimony with the recantation.

The proper analysis under § 2254(d), I submit, is illustrated by a case cited with approval in Sumner v. Mata itself, see 449 U. S., at 547-548. In Taylor v. Lombard, 606 F. 2d 371 (CA2 1979), cert. denied, 445 U. S. 946 (1980), defense counsel came forward after the state conviction -with an affidavit charging that key testimony had been perjured and that the prosecution nevertheless had knowingly used it. In a post-trial proceeding the state court concluded that there was “no showing” of perjured testimony. 606 F. 2d, at 374. The Second Circuit reviewed the record and concluded that the state court’s finding that “there was no factual basis for the claim of perjury is not fairly supported by the record, and therefore is not entitled to deference.” Id., at 375. The Second Circuit’s requirement of fair support in the record was not, of course, an exercise of judicial fiat — it was required by Congress in 28 U. S. C. § 2254(d)(8). I cannot comprehend how the federal courts in this capital case can in good conscience avoid that statutory command.

I emphasize again that John Ill’s recantation ultimately may not deserve controlling weight. But such a conclusion cannot rest upon a finding that there is no “evidence or proof” of perjury at all, especially when that clearly erroneous finding is coupled with a complete failure to analyze the recanting evidence itself.

B

The strong presumption against recantation testimony reflects an uneasy balance between, on the one hand, society’s interest in resolving factual disputes in one proceeding and in according finality to those resolutions, and, on the other, the interests of a convicted individual and society at large in ensuring that only the guilty are punished. However the balance is ultimately struck in the ordinary criminal case, the Eighth Amendment requires that courts — state and federal — strike a special balance in the capital context. “Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U. S. 280, 305 (1976). See also Beck v. Alabama, 447 U. S., at 638 (normal procedural rules must give way in the capital case where they “diminish the reliability of the sentencing determination”). For this reason, the Court historically has taken special care to minimize the risk that death sentences are “imposed out of whim, passion, prejudice, or mistake.” Eddings v. Oklahoma, 455 U. S. 104, 118 (1982) (O’Connor, J., concurring).

In the face of a sworn recantation from the only witness who provided testimony supporting Dobbert’s conviction of first-degree murder, are we confident that there has been a reliable factual determination of his guilt, sufficient to warrant public confidence in the outcome as he proceeds to the electric chair? I believe there are compelling reasons to stay Dobbert’s execution while we give this question further thought. First, no federal court addressing Dobbert’s claim has yet even attempted to analyze the appropriate ground rules for considering the materiality and credibility of John Ill’s recantation. As Dobbert has demonstrated, these are open issues that sooner or later will require our attention. Second, the sole reason for this failure has been the federal courts’ mistaken invocation of 28 U. S. C. § 2254(d) in relying on Judge Olliff’s “finding” that in the face of the recantation admitting perjury there is no “evidence or proof” of perjury. In the “ordinary case” it may well be appropriate to engage in all manner of tidy assumptions about what Judge Olliff “really” meant to say. Cf. LaVallee v. Delle Rose, 410 U. S. 690 (1973). But this is no ordinary case. I must conclude at this juncture that there is no fair support in the record for the “finding” that there is no “evidence or proof” of perjury where (a) the “finding” is absurd on its face, and (b) the “finding” has been made without any discussion of the merits of the recantation itself. I would submit that what really is going on in this case can be gleaned from Judge Olliff’s introduction to his opinion: “This case has been pending for a longer period of time than this nation was involved in World War II and the Korean War combined.” State v. Dobbert, No. 73-5068, at 2. In the face of such impatience, I believe that any confession by John III to perjured testimony, however strong, would in the end have made not one bit of difference.

III

I continue to adhere to my view that the death penalty is m 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), and would therefore grant the application in this case. But even if I believed otherwise, I would stay the execution to permit for a fair and rational consideration of Dobbert’s claims.

Only two men know whether Kelly Dobbert was strangled or whether she accidentally choked to death. One of them will die in several hours. The other will live with the consequences of his damning testimony for the rest of his life. Both now swear that the testimony was false. I would have thought that the federal courts would take the time to ensure that John Ill’s recantation truly deserves no weight, or at the very least that it has received principled consideration in the state courts. This is not another mere example of “ordinary” deference to state-court factfinding. It is an outright abdication of our responsibility to minimize the risk that innocent people are put to death.

I dissent.

APPENDIX TO OPINION OF BRENNAN, J., DISSENTING

COUNTY OF EAU CLAIRE

STATE OF WISCONSIN

AFFIDAVIT

Ernest John Dobbert, III, being first duly sworn, deposes and says:

1. I am the son of Ernest John Dobbert, Jr., who was convicted and sentenced to death in Jacksonville, Florida in April, 1974, for the murder of my sister, Kelly Ann Dobbert. I testified as a witness against my father at his trial. I did not testify truthfully about the cause of my sister Kelly’s death at the trial.

2. On Sunday, January 31, 1982, I read in the newspaper that my father was to be executed within two days. After learning of my father’s execution date, I called my close personal friend and lawyer, Paul Kelly, and asked him to help me correct my untrue testimony that was responsible for my father being convicted of murdering Kelly.

3. Some of the questions asked of me at trial by Mr. Shorstein, the Assistant State Attorney, are listed below. The answers in the left column are some of the answers given at trial that were false. The true answers are listed on the right under the column designated “Correct Answer.”

Question: “Let me go back to the night before New Year’s Eve. Did he [your father] do anything to Kelly the night before she died?” [T.T. 2113]
Answer at trial: Correct Answer:
“Yes.” “No.”
Question: “What did he do to her?” [T.T. 2113]
Answer at trial: Correct Answer:
“Kicked her.” “Nothing.”

The answers indicating that my father kicked Kelly the night before she died were untrue. My father did kick Kelly in much the way I described, but weeks before she died.

Question: “Did he [your father] do anything to her [Kelly] the night she died?” [T.T. 2113]
Answer at trial: Correct Answer:
“Choked her.” “No.”

All the answers indicating my father choked Kelly the night she died are untrue. He did not choke her that night, nor did he kill her. Her death was accidental.

4. I am making this affidavit because there are statements I made at trial that were untrue, and need correcting. I do not make this affidavit out of any great love for my father. I still have not forgiven him for the abuse that I (and my brother and sisters) suffered at his hands for the four years before Kelly died and I ran away. I have no desire to see him free. He should be in prison for the abuse to his children.

5. I read my testimony at trial again recently. Although it is accurate in parts, there are statements that are clearly false, and parts of the story came out in a way that is very misleading about what happened before Kelly’s death. The story as it came out is just untrue. The trial testimony creates this story: The night before Kelly died, my father kicked her several times in the stomach. The next night, after she ate some soup, he choked her and she stopped moving. I listened to her heart, but couldn’t hear a beat. My father then tried mouth to mouth resuscitation, but it didn’t work.

What happened in reality was that the kicking incident occurred long before the night Kelly died, more like two weeks before she died. The night she died, she was sitting in bed eating some soup. She started vomiting, and then choking on her own vomit and food. My father tried to give her mouth to mouth resuscitation, but it didn’t work. Kelly was not killed by my father; she died accidentally, choking on food or vomit.

6. I’d like to explain a little more about why I think I testified as I did at the trial, and why I’m taking action to correct it now.

At the time of the trial I was thirteen years old. I was still deathly afraid of my father after all I’d been through and seen, and wanted to be sure he’d be locked up where I’d be safe from him. I was undergoing hypnosis in a psychologist’s office in Wisconsin for about a year before the trial. (The therapy ended one month after the trial.) I was hypnotized approximately two times a week for a period of time, and then about once every week thereafter. At each session, I’d be hypnotized and then asked questions about my father and how he abused us. I was later kept heavily medicated on what I was told was Thorazine, from 1972 to 1976, and then on other medication until 1978.

Although no one ever said it directly, I knew that my social worker, Mrs. Lenz, and other people on the staff at the children’s home wanted me to testify that my father killed my sister. I looked up to these people and wanted desperately to please them — they were good to me and concerned about me in a way I hadn’t known for years. Mrs. Lenz, in particular, influenced me. I saw her almost every day for the period before the trial. She developed some emotional difficulties herself, and began to obsess about my father.

When I finally left the institutions in 1978 and came off the medication, I thought about what I had done in testifying that Kelly was murdered when she died accidentally. Although I knew I had done something wrong, I wasn’t sure what, if anything, I wanted to do about it. After awhile, I spoke to Paul Kelly, and asked him to locate and notify my father’s attorneys to see what might be done. I now want to make it known that I did not testify truthfully at my father’s trial, as this affidavit shows. My father did not kill Kelly.

ERNEST JOHN DOBBERT, III

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

I

The “right” of the State to a speedy execution has now clearly eclipsed the right of an individual to considered treatment of a substantial claim that he has been sentenced to death for an offense that he did not commit. Ernest John Dobbert, Jr., raised such a claim in a federal habeas corpus petition filed on August 30, 1984, and here is the entire history of the deliberate speed with which the claim was considered: On September 3, the Federal District Court for the Middle District of Florida denied relief, 593 F. Supp. 1418 (1984), but issued a certificate of probable cause to appeal, thereby indicating that Dobbert’s petition had significant merit; three days after that, on September 6, the Court of Appeals for the Eleventh Circuit in a 2-1 vote affirmed the District Court’s judgment, 742 F. 2d 1274 (1984), with the dissenting judge pleading that “there has not been enough time in which justiciary [sic] to decide this case;” and that very same day, at 4:40 p. m., Dobbert filed a stay application with this Court. That application asked the Court to stay his execution just long enough so that Dobbert’s counsel could pause to brief properly the substantial constitutional issue raised by this case. But at 10 a. m. the next day — a scant 19 hours after Dobbert asked this Court to consider his claim and a mere 8 days after the claim was first brought before any court — Dobbert is to be executed. This is swift, but is it justice?

There is substantial reason in this case to think it is not. Dobbert was convicted under Florida law of child abuse, child torture, second-degree murder, and the first-degree murder of his 9-year-old daughter; only the last of these carries with it the possibility of a death sentence. It is impossible to know, however, whether Dobbert actually committed the offense of first-degree murder as defined by Florida law, for the jury’s verdict on this count was infected by the trial judge’s repeated and invalid instruction on the scope of first-degree murder. The instruction at issue told the jury that it could convict for first-degree murder if it found that the daughter was killed by premeditated design or that she was killed without premeditation but while Dobbert was committing an “abominable and detestable crime against nature.” As a matter of state constitutional law, the Florida Supreme Court, in a holding that preceded the crimes for which Dobbert was convicted, had held that the statutory term “crime against nature” is too vague to sustain a conviction. Franklin v. State, 257 So. 2d 21, 22 (1971). Dobbert was therefore found guilty after a felony-murder instruction that permitted the jury to convict him of a crime that did not exist under state law at the time of his conviction.

The jury was thus granted impermissible leeway in violation of Dobbert’s federal due process rights. This fundamental defect occurred when the trial judge — no fewer than six times during the instruction phase — instructed the jury with one variant or another of the following words:

“If a person has a premeditated design to kill one person . . . he is . . . guilty of murder in the first degree. The killing of a human being in committing, or in attempting to commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping is murder in the first degree even though there is no premeditated design or intent to kill.” Tr., as printed in Record, Exhibit 5, p. 162 (emphasis supplied).

It is vital to understand what is put at stake by this definition of first-degree murder. First, the record offers no suggestion that the death of Dobbert’s daughter occurred during an arson, rape, robbery, burglary, or kidnaping — the only underlying felonies upon which Florida has predicated the crime of felony murder and the capital penalty that attaches to it. Second, the trial judge gave no narrowing definition of the “crime against nature,” and even if he had, there appears again to be absolutely no evidence that Dobbert’s daughter died while Dobbert was sodomizing her— presumably the core offense to which the vague statutory term applies. See Franklin, supra. Third, there was ample evidence that Dobbert beat his daughter, and there was testimony that he kicked her in the stomach the night that she died.

From these facts it is quite plausible that the jury relied on the very vagueness for which the Florida Supreme Court had already struck down the statute to conclude that, even if Dobbert had not premeditated the killing of his daughter, he nonetheless should be convicted of first-degree murder for child abuse leading to death. I do not now question whether a State could create such a crime, but the indisputable fact is that Florida has not chosen to do so. Nor, as a corollary, has Florida chosen to make such an offense a capital one. Yet the jury in this case was not only permitted but invited six times to define a new capital crime to fit Dobbert’s offense. This leeway, resulting from statutory vagueness, was the very defect inherent in the statutory term for which the Florida Supreme Court invalidated it.

There is simply no way to tell upon which theory — premeditation or felony murder based on a nonexistent predicate offense— the jury relied. Indeed, when the jury specifically requested to be reinstructed on the definitions of first- and second-degree murder, the trial judge compounded the error by repeating the invalid instruction: “Now, murder in the first degree is the unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping.” Tr., as printed in the Record, Exhibit 5, p. 184.

This is clearly error of federal constitutional magnitude. In Stromberg v. California, 283 U. S. 359 (1931), the Court announced a rule from which we have not since departed: “a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground.” Zant v. Stephens, 462 U. S. 862, 881 (1983). It is also clear that Stromberg applies to state criminal proceedings, for Stromberg itself involved a state conviction. See also Williams v. North Carolina, 317 U. S. 287, 292 (1942); cf. Zant, supra, at 891-893 (White, J., concurring in part and concurring in judgment) (Stromberg applies when jury was invited to convict on two or more grounds, one of which was not sufficient to sustain the conviction). Moreover, the State essentially concedes that Stromberg error was committed, for the State does not argue that there was sufficient evidence of any form of felony murder recognized by Florida law.

The real question at this stage is whether this error — which goes to the question whether Dobbert was actually found guilty of first-degree murder — casts a serious enough doubt on the integrity of the jury’s verdict that the error is still reviewable at this stage of the proceedings. The instruction was not objected to at trial, nor was the erroneous instruction raised in Dobbert’s first federal habeas petition. Citing these procedural derelictions of Dobbert’s counsel, the courts below — both state and federal — have refused to consider the merits of the alleged Stromberg violation.

There are sound arguments that the alleged violation in this case is so fundamental that neither Wainwright v. Sykes, 433 U. S. 72 (1977), nor the abuse-of-the-writ doctrine ought to be applied to allow Dobbert’s execution to take place before this Court is at least provided with focused briefing. The Court has recognized that the cause-and-prejudice standard must be applied in such a way that fundamental “miscarriage[s] of justice” will meet it, see id., at 91; as Justice Stevens noted in his concurrence in Wainwright, “if the constitutional issue is sufficiently grave, even an express waiver by the defendant himself may sometimes be excused.” Id., at 95. Similarly, Sanders v. United States, 373 U. S. 1, 15 (1963), makes clear that a federal court may consider even claims raised and decided in a previous habeas petition “if the ends of justice” would thereby be served; surely the same standard or a lesser one should apply to a successive petition that raises a new claim, at least when that claim casts significant doubt on a defendant’s guilt. See Sanders, supra, at 18-19 (A “federal judge clearly has the power — and, if the ends of justice demand, the duty — to reach the merits” of certain claims raised for the first time on a successive habeas petition). Lower federal courts in settings similar to the one here have applied these principles to review fundamental trial errors to which timely objections have not been made. See, e. g., Adams v. Murphy, 653 F. 2d 224, 225 (CA5 1981) (reversing conviction based on nonexistent state crime despite absence of trial objection to instruction). When, as in this case, the question is the fundamental one of guilt or innocence on the indicted charge, and the case is a capital case, the argument is strong that the “ends of justice” and fundamental “miscarriage of justice” standards have been met. I would allow Dobbert to make that argument in a certiorari petition.

As the United States District Court for the Middle District of Florida acknowledged, this is a “difficult case” with regard to the question of whether the abuse-of-the-writ doctrine should apply. 593 F. Supp., at 1440. We need not resolve that “difficult” issue today, however, to decide the only issue before the Court on this stay application: whether that claim is “difficult enough” and potentially worthy enough of the Court’s attention that a stay of the execution ought to be granted until certiorari papers can be filed and the Court can make a considered evaluation of the argument. Put another way, the question is whether there is a significant claim that the State cannot execute Dobbert on the basis of a conviction that may be constitutionally invalid—with respect to an issue affecting guilt or innnocence—merely because Dobbert’s attorneys have not made timely objections on the point.

In sum, there is no question that Dobbert abused and tortured his children, but there is a serious question as to whether the defect in the instruction allowed the jury to bypass the question of premeditation by concluding that the girl’s death resulted from Dobbert’s callous and reckless beating of her. That may well make Dobbert guilty of second-degree murder in Florida, but it cannot make him guilty of first-degree murder there. Nor can it subject him to the death penalty in that State. Dobbert is certainly no innocent man, but he may well be a guilty one to whom Florida’s legislators have not chosen to apply the death penalty.

II

Because I continue to adhere 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, 231 (1976), I would in any event grant the stay application and vacate the death sentence. But I am deeply troubled by the undue dispatch with which a majority of this Court is willing to send this stay applicant, as well as a host of others, see n., supra, to their death. In the case of an applicant like Dobbert, who raised a substantial claim going to the question of whether he committed a capital offense, the majority’s haste is particularly disquieting.

      It might be argued that the State Supreme Court’s earlier determination that John Ill’s recantation is not “new evidence,” Dobbert v. State, 414 So. 2d 518, 520 (Fla. 1982), now serves as a procedural bar to federal review. That finding should not preclude the federal courts from considering the merits of Dobbert’s claim. First, the state courts themselves have failed to abide by the finding. Judge Olliff professed to consider the recantation itself and concluded that there was no “evidence or proof” of perjury, and the Supreme Court of Florida affirmed on those grounds.
      Second, as Judge Olliff himself found, there were compelling reasons why Dobbert could not effectively have used John Ill’s initially inconsistent statements to the police at trial: The inconsistencies, such as they were, could easily have been explained away; John III might well have broken down under such questioning, thereby further inflaming the jury; and such questioning would almost certainly have led to a “parade of horribles” concerning Dobbert’s abuse of his children.
      Finally, I believe it manifest that John Ill’s 1982 recantation is “new” evidence. It seems obvious that it is much more powerful for John III now to state that his father did not kill his sister than it was when the boy first suggested this in 1972. At that time, John III clearly was terrified of his father and was living in a nightmare world, both of which (as Judge Olliff found) probably would have led a jury to discount the inconsistencies as part of the boy’s effort to protect himself. Now that John III is a grown man and is willing to recant his trial testimony — when he has no reason to fear his father and has, we can only hope, recovered from the trauma to which he was subjected — his statements carry much more powerful force. Thus the recantation is not merely duplicative of the earlier statement.

      The frenzied rash to execution that characterizes this case has become a common, if Kafkaesque, feature of the Court’s capital cases. See, e. g., Wainwright v. Adams, 466 U. S. 964, 965 (1984) (Marshall, J., dissenting) (noting the Court’s “indecent desire to rush to judgment in capital cases”); Woodard v. Hutchins, 464 U. S. 377, 383 (1984) (Brennan, J., dissenting) (criticizing “rash to judgment” in Court’s decision to vacate stay of execution); Autry v. Estelle, 464 U. S. 1, 5 (1983) (Stevens, J., dissenting) (criticizing decision to deny stay of execution); see also Autry v. McKaskle, 465 U. S. 1085 (1984) (Marshall, J., dissenting); Woodard v. Hutchins, 464 U. S., at 383 (White and Stevens, JJ., dissenting); id. at 383-384 (Marshall, J., dissenting); Barefoot v. Estelle, 463 U. S. 880, 906 (1983) (Marshall, J., dissenting).


text:
    September 9, 1984
    No. 84-5383 (A-162).
    Baldwin v. Blackburn, Warden.
   C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, 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:
    September 17, 1984
    No. 83-2026.
    Summa Corp., dba Frontier Hotel v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    September 18, 1984
    No. A-1071.
    Dukes v. Maryland.
   C. A. 4th Cir. Application for stay, addressed to Justice Rehnquist and referred to the Court, denied.


text:
    No. D-397.
    In re Disbarment of Bergman.
    [For earlier order herein, see 465 U. S. 1002.]
   Disbarment entered.


text:
    No. D-415.
    In re Disbarment of Luoma.
    [For earlier order herein, see 466 U. S. 902.]
   Disbarment entered.


text:
    No. D-421.
    In re Disbarment of Taylor.
    [For earlier order herein, see 466 U. S. 956.]
   Disbarment entered.


text:
    No. D-425.
    In re Disbarment of Denend.
    [For earlier order herein, see 466 U. S. 956.]
   Disbarment entered.


text:
    No. D-426.
    In re Disbarment of Peckron.
    [For earlier order herein, see 466 U. S. 956.]
   Disbarment entered.


text:
    No. D-431.
    In re Disbarment of Watson.
    [For earlier order herein, see 466 U. S. 969.]
   Disbarment entered.


text:
    No. D-433.
    In re Disbarment of Gramza.
    [For earlier order herein, see 467 U. S. 1203.]
   Disbarment entered.


text:
    No. D-434.
    In re Disbarment of Schettino.
    [For earlier order herein, see 467 U. S. 1224.]
   Disbarment entered.


text:
    No. D-436.
    In re Disbarment of Howard.
    [For earlier order herein, see 467 U. S. 1237.]
   Disbarment entered.


text:
    No. D-439.
    In re Disbarment of Gerzof.
    [For earlier order herein, see 467 U. S. 1238.]
   Disbarment entered.


text:
    No. D-446.
    In re Disbarment of Winner.
   It is ordered that David Lee Winner, of Wooster, 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-448.
    In re Disbarment of Holloway.
   It is ordered that Willis Walter Holloway, Jr., of Lexington, Ky., 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-451.
    In re Disbarment of Jones.
   It is ordered that Rafford Eugene Jones, of Raleigh, N. C., 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. 82-1913.
    No. 82-1951.
    Garcia v. San Antonio Metropolitan Transit Authority et al.; and Donovan, Secretary of Labor v. San Antonio Metropolitan Transit Authority et al.
   D. C. W. D. Tex. [Probable jurisdiction noted, 464 U. S. 812.] Motion of National League of Cities et al. for leave to participate in oral argument as amici curiae and for additional time for oral argument denied.


text:
    No. 82-1922.
    Southern Motor Carriers Rate Conference, Inc., et al. v. United States.
   C. A. 11th Cir. [Cer-tiorari granted, 467 U. S. 1240.] Motion of petitioners for divided argument and for additional time for oral argument denied.


text:
    No. 82-2157.
    Central States, Southeast & Southwest Areas Pension Fund et al. v. Central Transport, Inc., et al.
   C. A. 6th Cir. [Certiorari granted, 467 U. S. 1250.] Motions of Bricklayers Fringe Benefit Funds-Metropolitan Area et al., Arthur Young & Co., and National Coordinating Committee for Multiemployer Plans for leave to file briefs as amici curiae granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 83-18.
    Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
   Sup. Ct. Vt. [Certiorari granted, 464 U. S. 959.] Motion of American Federation of Labor and Congress of Industrial Organizations for leave to file a brief as amicus curiae granted.


text:
    No. 83-469.
    United States v. Young.
   C. A. 10th Cir. [Certiorari granted, 465 U. S. 1021.] Motion of the Solicitor General to permit Michael W. McConnell, Esquire, to present oral argument pro hac vice granted.


text:
    No. 83-712.
    New Jersey v. T. L. O.
   Sup. Ct. N. J. [Cer-tiorari granted, 464 U. S. 991.] Motions of New Jersey School Boards Association, National Association of Secondary School Principals, and National School Boards Association for leave to file briefs as amici curiae granted. Motion of National School Boards Association for leave to participate in oral argument as amicus curiae denied.


text:
    No. 83-1015.
    National Association for the Advancement of Colored People et al. v. Hampton County Election Commission et al.
   D. C. S. C. [Probable jurisdiction noted, 467 U. S. 1250.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.

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


text:
    No. 83-1035.
    No. 83-1070.
    Tennessee v. Garner et al. Memphis Police Department et al. v. Garner et al.
   C. A. 6th Cir. [Probable jurisdiction noted, 465 U. S. 1098]; and

C. A. 6th Cir. [Certiorari granted, 465 U. S. 1098.] Motion of The Police Foundation et al. for leave to file a brief as amici curiae granted.


text:
    No. 83-1362.
    No. 83-1363.
    No. 83-6392.
    Cleveland Board of Education v. Loudermill et al.; Parma Board of Education v. Donnelly et al.; and Loudermill v. Cleveland Board of Education et al.
   C. A. 6th Cir. [Certiorari granted, 467 U. S. 1204.] Motions of petitioners in Nos. 83-1362 and 83-1363 for divided argument denied.


text:
    No. 83-1476.
    United States v. Dann et al.
   C. A. 9th Cir. [Certiorari granted, 467 U. S. 1214.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 83-1660.
    No. 83-6381.
    Atkins, Commissioner of the Massachusetts Department of Public Welfare v. Parker et al.; and Parker et al. v. Block, Secretary of Agriculture, et al.
   C. A. 1st Cir. [Certiorari granted, 467 U. S. 1250.] Motion of the Solicitor General for divided argument granted.


text:
    No. 83-1708.
    Dean Witter Reynolds Inc. v. Byrd.
   C. A. 9th Cir. [Certiorari granted, 467 U. S. 1240.] Motion of Securities Industry Association, Inc., et al. for leave to file a brief as amici curiae granted.


text:
    No. 82-6935.
    No. 83-850.
    No. 83-979.
    No. 81-757.
    No. 81-970.
    Payne v. Virginia, United States v. Karo et al., Cronn v. United States, Allen v. Wright et al.; and Regan, Secretary of the Treasury, et al. v. Wright et al.,
   ante, p. 1062;

ante, p. 705; and

ante, p. 1217. Petitions for rehearing denied.

ante, p. 737. Petition for rehearing denied.

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


text:
    No. 82-1771.
    United States v. Leon et al.,
   ante, p. 897. Petition of Sanchez and Stewart for rehearing denied.


text:
    No. 83-851.
    South Street Seaport Museum, as Owner of the Bark Peking v. McCarthy et al.,
   465 U. S. 1078 and 466 U. S. 994. Motion for leave to file second petition for rehearing denied.

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


text:
    No. 83-1321.
    No. 83-1432.
    No. 83-1433.
    No. 83-1442.
    No. 83-1443.
    No. 83-1618.
    California et al. v. Tenneco Oil Co. et al.; Public Utility Commissioner of Oregon et al. v. Phillips Petroleum Co. et al.; Northwest Pipeline Corp. et al. v. Phillips Petroleum Co. et al.; El Paso Natural Gas Co. v. Tenneco Oil Co. et al.; Pacific Gas & Electric Co. et al. v. Tenneco Oil Co. et al.; and Federal Energy Regulatory Commission v. Tenneco Oil Co. et al.,
   ante, p. 1219. Petition for rehearing denied.

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


text:
    September 19, 1984
    No. A-205.
    Henry v. Wainwright, Secretary, Florida Department of Corrections, et al.
   Application for stay of execution of sentence of death, presented to Justice Powell, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 281 (1976), we would grant the application for stay, a petition for writ of certiorari, and vacate the death sentence in this case.


text:
    No. A-206.
    Wainwright, Secretary, Florida Department of Corrections, et al. v. Adams.
   Application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit on September 18, 1984, presented to Justice Powell, and by him referred to the Court, denied.

Justice Rehnquist would grant the application.


author: Chief Justice Burger, Circuit Justice.

text:
    GARRISON, WARDEN, et al. v. HUDSON
    No. A-1061 (83-2144).
    Decided July 6, 1984
   Chief Justice Burger, Circuit Justice.

On June 29, 1984, applicants, the Warden and Attorney General of the State of North Carolina, filed a petition for writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit. In respondent’s second federal appeal concerning his murder conviction and life sentence, the Court of Appeals reversed the decision of the United States District Court for the Western District of North Carolina and directed that a writ of habeas corpus issue to release respondent from confinement if applicants fail to retry him within a reasonable time. Judgment order reported at 732 F. 2d 150 (1984). The District Court then ordered retrial prior to August 18, 1984. Applicants challenge the Court of Appeals’ decision in their certiorari petition, No. 83-2144, and seek to stay the scheduled retrial until this Court acts on the petition for certiorari. Hudson filed a response to the application earlier today asserting that the decision of the Court of Appeals is correct.

The petition for certiorari would not in the normal course be acted on by this Court before the start of the October 1984 Term — some six weeks after the scheduled retrial. See this Court’s Rule 22.4. Retrial of respondent by August 18, 1984, prior to the “first Monday in October” would effectively deprive this Court of jurisdiction to consider the petition for writ of certiorari. Applicants assert that their right to a review of the holding of the Court of Appeals will be extinguished if they are compelled to retry respondent on or about August 18. When, as in this case, “the normal course of appellate review might otherwise cause the case to become moot,” In re Bart, 82 S. Ct. 675, 676, 7 L. Ed. 2d 767, 768 (1962) (Warren, C. J., in chambers), issuance of a stay is warranted. The balance of harm favors applicants; foreclosure of certiorari review by this Court would impose irreparable harm upon applicants. In contrast, a 6-week delay of the scheduled retrial would not impose an unreasonable delay on respondent who has remained in confinement under a life sentence since 1977.

I therefore grant the application for a stay of the order of the United States District Court for the Western District of North Carolina, pending disposition of the petition for writ of certiorari in No. 83-2144.

It is so ordered.


author: Justice Rehnquist, Circuit Justice.

text:
    CALIFORNIA v. HARRIS
    No. A-19.
    Decided July 23, 1984
   Justice Rehnquist, Circuit Justice.

The State of California requests that I stay, pending action by this Court on its petition for certiorari, a judgment of the Supreme Court of California that reversed the capital murder conviction of respondent. The State wishes this Court to review the holding of the California court that the jury that tried respondent was not “drawn from a fair cross section of the community” as that phrase is used in Duren v. Missouri, 439 U. S. 357 (1979), and other cases.

Respondent was tried in Los Angeles County, which at the time the jury in his case was empaneled summoned jurors by use of a voter registration list. The majority of the Supreme Court of California decided that respondent had produced credible evidence of substantial disparity between the representation of blacks and Hispanics on the voter lists, on the one hand, and their representation in the population at large, on the other. 36 Cal. 3d 36, 679 P. 2d 433 (1984). That court also concluded that the State had failed to rebut this evidence.

The State contends that the Supreme Court of California has misapplied this Court’s Duren decision so as to find a violation of the jury cross-section requirement where there is merely underrepresentation of a cognizable class because of the failure of class members to register to vote. If I thought this issue were squarely presented by the State’s application, I would grant a stay, because I think four Members of our Court would probably vote to grant certiorari to review the issue and, with California’s rule requiring retrial in 60 days, the case would become moot without a stay. Whether this sort of jury selection procedure can be described as “systematically” excluding classes that do not register to vote in proportion to their numbers, and whether the need for efficient jury selection may not justify resort to such neutral lists as voter registration rolls even though they do not perfectly reflect population, see 439 U. S., at 368-370, are by no means open and shut questions under Duren.

The plurality opinion of the Supreme Court of California, however, says in substance that the State failed to preserve the second of these two questions in defending against respondent’s appeal. The concurring opinion in that court, on the other hand, indicates disagreement with this view. While I cannot at this stage of the proceedings determine even to my own satisfaction which is the correct view of California law, I think this procedural snarl is likely to deter some Members of this Court who would wish to review the substantive issues involved in this case from voting to grant certiorari. While there appears to be no such procedural objection to the first of these two questions, I am doubtful that the “systematic” underrepresentation issue alone would attract enough votes to grant certiorari.

The State’s application is accordingly denied.


text:
    HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES v. TURNER et al.
    No. A-59 (83-1097).
    Decided August 10, 1984
   Justice Rehnquist, Circuit Justice.

The Solicitor General, on behalf of the Secretary of Health and Human Services, requests that I stay, pending review by this Court, prospective enforcement of the permanent injunction entered by the United States District Court for the Northern District of California on July 29, 1982, Turner v. Woods, 559 F. Supp. 603, and affirmed by the United States Court of Appeals for the Ninth Circuit, Turner v. Prod, 707 F. 2d 1109 (1983). The issue before the District Court was whether the $75 standard work expense disregard in § 402(a)(8)(A)(ii) of the Aid to Families with Dependent Children (AFDC) statute, 42 U. S. C. § 602(a)(8)(A)(ii) (1976 ed., Supp. V), is deducted from net income or gross income in determining AFDC eligibility and benefits. That court concluded that the disregard was intended by Congress to be deducted from net income, and it entered a permanent injunction prohibiting state and federal officials

“from including mandatory payroll deductions such as federal, state and local income taxes, Social Security taxes (F. I. C. A.) and state disability insurance within the definition of ‘income’ in interpreting and applying that term as used in Section 602(a)(7)(A) of Title 42 of the United States Code [§ 402(a)(7)(A) of the AFDC statute].” 559 F. Supp., at 616.

The Ninth Circuit’s affirmance of the District Court’s interpretation is in conflict with decisions of the Third and Fourth Circuits, causing a significant disparity in the treatment of AFDC beneficiaries based solely on residence. This Court granted the Secretary’s petition for a writ of certiorari to resolve the conflict. 465 U. S. 1064 (1984).

Subsequently, on July 18, 1984, the President signed into law the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 494. Section 2625(a) of that Act, entitled “Clarification of Earned Income Provision,” amends § 402(a)(8) of the AFDC statute to provide that “in implementing [§ 402(a)(8)] the term ‘earned income’ shall mean gross earned income, prior to any deductions for taxes or for any other purposes.” This amendment became effective on the date of enactment.

The Secretary argues in her application for a stay that Congress has resolved, at least from the date of enactment of this amendment forward, the precise issue on which we granted certiorari. In their memorandum in opposition to the Secretary’s application for a stay, which I requested, the AFDC respondents argue that the Deficit Reduction Act, while resolving the meaning of “earned income” in § 402(a)(8), does not resolve the meaning of “income” in § 402(a)(7)(A) and thus does not overrule, prospectively, the interpretation of the Ninth Circuit on the ultimate issue of whether the $75 standard work expense disregard is deducted from-net income or gross income. In my judgment, respondents’ position is wrong. The Conference Report to the Deficit Reduction Act refers specifically to the conflict between the Ninth Circuit on the one hand and the Third and Fourth Circuits on the other, including the fact that this Court has agreed to hear the Ninth Circuit case, and states that the Act

“[ajmends the AFDC statute to make clear that the term ‘earned income’ means the gross amount of earnings, prior to the taking of payroll or other deductions.” H. R. Conf. Rep. No. 98-861, pp. 1394-1395 (1984).

From the Report’s discussion, it seems clear to me that Congress intended the amendment of § 402(a)(8) to resolve the conflict, at least for the future, on the issue on which we granted certiorari. I do not see how this discussion is either confusing or ambiguous, as claimed by respondents.

The Secretary has made out a compelling case for a prospective stay. Effective July 18, 1984, she is unambiguously directed by statute to deduct the work expense disregard from gross income, prior to any deductions for taxes or for any other purposes; yet she is still subject to an injunction prohibiting her from doing the same. When this Court decides the merits of the Ninth Circuit decision affirming the injunction, which was based on the statute as it stood prior to the Deficit Reduction Act, the Court will probably also decide the validity of the injunction after the effective date of the Act. As is evident from the discussion above, I think there is a high probability that the Court will determine, as urged by the Secretary in this application, that the injunction is prospectively improper and should be dissolved as to AFDC eligibility and benefit determinations subject to the July 18, 1984, amendment. I express no opinion on the merits prior to the effective date of the Deficit Reduction Act.

I also conclude that without a stay the Secretary will suffer irreparable injury. If she succeeds on the merits, which I am confident she will as to the future interpretation of the work expense disregard, the continued application of the injunction will result in approximately $2.6 million in improper AFDC payments each month, divided equally between the Federal Government and the State of California, a figure which respondents apparently concede. Should the Secretary ultimately lose on this issue, respondents and others so entitled will be able to collect back AFDC payments that would have been made but for the requested stay. On the other hand, it is extremely unlikely that the Secretary would be able to recover funds improperly paid out. See Edelman v. Jordan, 414 U. S. 1301, 1302-1303 (1973) (Rehnquist, J., in chambers). A stay is, therefore, appropriate.

Finally, the individual respondents cite this Court’s Rule 44.4, which provides that an application for a stay to a Justice “shall not be entertained, except in the most extraordinary circumstances,” unless the relief requested has first been sought below, and argue that there are no extraordinary circumstances present in this case. They further cite my opinions in Conforte v. Commissioner, 459 U. S. 1309 (1983) (in chambers), and Dolman v. United States, 439 U. S. 1395 (1978) (in chambers), where stays were denied in part for failure to apply first for a stay in the lower courts. In Conforte there was no reasonable probability that certiorari would have been granted, and the applicant had not shown any legitimate reason, let alone extraordinary circumstances, for not seeking a stay in the Court of Appeals. In Dolman the information presented to me in the application for a stay was sketchy as to whether the applicants had requested a stay below, and there was no apparent reason for not requesting such a stay below.

The situation in the instant case is quite different. The reason for requesting a stay arose only after this Court granted certiorari and was not available when the case was before the lower courts. The Secretary contends that because certiorari had been granted, it was doubtful that either the District Court or the Court of Appeals had the authority to modify the injunction. I agree with the Secretary that such doubt exists; and whether or not an application to one of the lower courts would have been proper under the circumstances, I believe an application directly to this Court is not improper.

I think there are compelling reasons to grant immediate relief. With respect to the future propriety of the injunction, the Secretary is almost certain to prevail on the merits, because of the intervening congressional action. Every day the injunction remains in force the clearly expressed intent of Congress is being frustrated, and public funds are being improperly expended without realistic possibility of recovery at the rate of $2.6 million per month. It would be an empty and costly formality to force the Secretary to refile her application in the lower courts. In my judgment, the “most extraordinary circumstances” requirement of Rule 44.4 is met in the unusual circumstances of this case.

The application for a stay of the District Court injunction is granted prospectively from July 18, 1984.


author: Justice Rehnquist, Circuit Justice

text:
    UHLER et al. v. AMERICAN FEDERATION OF LABOR-CONGRESS OF INDUSTRIAL ORGANIZATIONS et al.
    No. A-137.
    Decided September 7, 1984
   Justice Rehnquist, Circuit Justice

Applicants ask that I stay a mandate of the Supreme Court of California prohibiting the placement on California’s November 1984 ballot of a proposed “balanced federal budget statutory initiative.” The initiative would have required the California Legislature to request Congress to call a Constitutional Convention for the purpose of amending the United States Constitution to require a balanced federal budget. If the legislature failed to act, the initiative would have directed the California Secretary of State, the nominal respondent in this ease, to apply directly to Congress in behalf of the State’s voters. At present, 32 of the necessary 34 States have formally applied to Congress to convene such a Constitutional Convention.

The Supreme Court of California ruled at the behest of respondents, the American Federation of Labor-Congress of Industrial Organizations et al., who filed an original action in that court challenging the legality of the initiative under both state law and the United States Constitution. The constitutional provision at issue is that part of Article V which states that “[t]he Congress ... on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . . .”

The California court undertook to decide two clearly federal questions relating to the meaning of the word “Legislatures” in the above clause: (1) whether that word encompasses the voters of a State who have power to enact laws by initiative, and (2) whether it includes a legislature not acting as an independent body, but forced to act by exercise of the initiative power. The court answered each of these questions in the negative, concluding that the word “Legislatures” means the State’s lawmaking body of elected representatives, acting independently of restrictions imposed by state law. These federal questions are important and by no means settled; however, because the California court went on to hold the proposed initiative invalid on independent state-law grounds, I am satisfied that a majority of this Court would conclude that there is an adequate and independent state ground for the California court’s decision.

After a detailed analysis of California law and a discussion of the treatment of similar questions by other state courts, the Supreme Court of California decided that important portions of the proposed initiative were not “statutes,” as that term is used in the California Constitution, but were “resolutions,” and were therefore not a proper subject of the initiative process under the California Constitution. AFL-CIO v. Eu, 36 Cal. 3d 687, 686 P. 2d 609 (1984). We have long held that we will not review state-court decisions such as this, largely for the reason that decisions on the federal questions in such cases would amount to no more than advisory opinions. See Michigan v. Long, 463 U. S. 1032, 1037-1039 (1983); Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945).

Applicants urge that the foregoing construction of the California initiative provision, although denominated a state-law question by the California Court, is actually a “political question” as a matter of federal law and therefore not subject to decision on the merits by a state court. Applicants base their “political question” claim on the decision of this Court in Coleman v. Miller, 307 U. S. 433 (1939). In that case four Justices of this Court adopted the position that the Court lacked jurisdiction to rule on questions arising in connection with the ratification of a constitutional amendment because all such questions were “political” in nature. But that position did not command a majority in Coleman, supra, and however this Court would presently resolve the issues raised in the Coleman case, I do not think a majority would subscribe to applicants’ expansive reading of the “political question” doctrine in connection with the amending process. Acceptance of applicants’ arguments would, in effect, mean that courts in the State of California or elsewhere would be powerless to prevent the placing on the ballot of initiative measures designed to play a part in the process of amending the United States Constitution even though such initiative proposals clearly did not comply with state requirements as to the necessary number of signatures, time of filing, and the like. In the light of later discussions of the “political question” doctrine in cases such as Powell v. McCormack, 395 U. S. 486 (1969), and Baker v. Carr, 369 U. S. 186 (1962), I simply do not think this Court would believe that applicants’ claim in this regard raises a substantial federal question. See also Dyer v. Blair, 390 F. Supp. 1291 (ED Ill. 1975) (three-judge court).

The application for a stay is accordingly denied.


author: Justice Marshall, Circuit Justice.

text:
    MONTGOMERY et al. v. JEFFERSON et al.
    No. A-166.
    Decided September 10, 1984
   Justice Marshall, Circuit Justice.

Applicants request that I stay enforcement of two orders of the United States District Court for the Eastern District of New York concerning tomorrow’s Democratic primary election in Kings County, N. Y. In those orders, the District Court directed the Board of Elections in the City of New York to accept the designating petitions of respondents Jefferson and Clark and to place their names on the Democratic primary ballot.

The underlying litigation arose out of challenges to the designating petitions of Jefferson and Clark filed with the Board of Elections. On August 28, 1984, the New York Court of Appeals held that the petitions were invalid under state law because their cover sheets overstated the number of signatures in the petitions. Jefferson and Clark then challenged the constitutionality of the New York election law’s requirement that a designating petition’s cover sheet state the number of signatures in the petition. On September 6, the District Court held the requirement unconstitutional as applied. Thus, it ordered that Jefferson’s and Clark’s names be placed on the ballot. On September 7, it denied applicants’ motion for a stay.

Applicants then moved for a stay and for expedited appeal in the United States Court of Appeals for the Second Circuit. Today, the Second Circuit denied the motion for a stay but granted the motion for expedited appeal. It scheduled oral argument for the week of September 24.

This application was filed at approximately 3:30 p. m. today. Given the little time left for evaluating, before tomorrow’s primary, the questions raised by the application, I am not persuaded to interfere with the actions of the Second Circuit.

The application for a stay is accordingly denied.

It is so ordered.