text:
    No. 82-5378.
    Ford v. Arkansas.
   Sup. Ct. Ark. Cer-tiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would grant certio-rari and vacate the death sentence on this basis alone. However, even if I accepted the prevailing view that the death penalty can constitutionally be imposed under certain circumstances, I would grant certiorari and vacate petitioner’s death sentence on the ground that prior criminal convictions irrelevant to any statutory aggravating circumstance were improperly introduced at the sentencing proceeding.

Petitioner was charged with the murder of a policeman and tried in the Circuit Court of Mississippi County, Arkansas. He was found guilty of capital murder, and a sentencing hearing was held before the same jury. To support its request for a death sentence, the State introduced three prior criminal convictions that were not relevant to any aggravating circumstance set forth in the Arkansas death penalty statute. See Ark. Stat. Ann. §41-1303 (1977). The jury sentenced petitioner to death by electrocution. On appeal, the Supreme Court of Arkansas affirmed petitioner’s conviction and sentence. 276 Ark. 98, 633 S. W. 2d 3 (1982). Although the court acknowledged that the prior convictions had no bearing on any aggravating circumstance and should not have been admitted, it concluded that the error was not “prejudicial.” Id., at 110, 633 S. W. 2d, at 10.

Under the decisions of this Court, the death sentence imposed in this case must be set aside. The State’s use of petitioner’s criminal record injected an extraneous factor into the capital sentencing proceeding. In Furman v. Georgia, 408 U. S. 238 (1972), this Court concluded that discretionary capital sentencing, unchannelled by legislatively defined criteria, violates the Eighth Amendment because it is “pregnant with discrimination,” id., at 257 (Douglas, J., concurring), because it allows the death penalty to be “wantonly” and “freakishly” imposed, id., at 310 (Stewart, J., concurring), and because it affords “no meaningful basis for distinguishing the few cases in which [the death sentence] is imposed from the many cases in which it is not,” id., at 313 (White, J., concurring). The Court has held that the death penalty can be imposed only under statutory schemes that limit the sentencer’s discretion “by requiring examination of specific factors that argue in favor of or against imposition of the death penalty.” Proffitt v. Florida, 428 U. S. 242, 258 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). See also, e. g., Gregg v. Georgia, 428 U. S. 153, 189-193 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

To be effective, restrictions on sentencing discretion must not only appear in a statute, they must also be enforced. Criteria set forth in a statute serve no purpose if prosecutors are free to ignore them. In this case, the Supreme Court of Arkansas, without discussing any of this Court’s decisions, affirmed petitioner’s death sentence on the ground that it did not find the prosecutor’s blatant disregard of the statutory sentencing criteria “to have been prejudicial.” 276 Ark., at 110, 633 S. W. 2d, at 10.

I would grant certiorari and reject this cavalier use of the harmless-error doctrine. The prejudice inherent in the proof of past crimes is the very reason such proof is forbidden in the first place. See, e. g., Michelson v. United States, 335 U. S. 469, 475-476 (1948); Boyd v. United States, 142 U. S. 450, 458 (1892). There is certainly no basis for concluding beyond a reasonable doubt that the jury would have sentenced petitioner to death had it not been informed of his prior convictions. See Chapman v. California, 386 U. S. 18, 24 (1967).

I therefore dissent.


source: Caselaw Access Project

license: Public Domain

text:
    No. 81-2040.
    No. 81-2364.
    No. 81-2410.
    No. 81-2411.
    No. 81-5634.
    No. 81-6660.
    No. 81-6796.
    No. 81-6822.
    No. 81-6855.
    No. 81-6884.
    No. 81-6917.
    No. 82-5033.
    No. 82-5184.
    No. 82-5230.
    No. 82-5235.
    No. 82-5255.
    No. 82-5258.
    No. 82-5337.
    Moore v. Moore, Gee v. Gee et al., Gee v. Gee, Gee v. Dawson et al., Tison v. Arizona (two cases), Newlon v. Missouri, Wilson v. Brown, Warden, et al., Lorentzen v. Trustees of Boston College et al., Martinez v. Harris, Superintendent, Green Haven Correctional Facility, et al., Martin v. Sample et al., Hanson v. United States, Philson v. United States, In re Velilla, Toson v. Andale Co. et al., Stoneman v. Aurelius, Bullock v. National Railroad Adjustment Board et al., Thibodeaux v. Commissioner of Internal Revenue, Mitchell v. Maryland,
   ante, p. 878;

ante, p. 838;

ante, p. 840;

ante, p. 840;

ante, p. 882;

ante, p. 884;

ante, p. 846;

ante, p. 847;

ante, p. 849;

ante, p. 850;

ante, p. 805;

ante, p. 911;

ante, p. 819;

ante, p. 913;

ante, p. 913;

ante, p. 913;

ante, p. 876; and

ante, p. 915. Petitions for rehearing denied.


text:
    No. 80-812.
    Mescalero Apache Tribe v. O’Cheskey, Commissioner of Revenue of New Mexico, et al.,
   450 U. S. 959 and 455 U. S. 929. Second motion for leave to file petition for rehearing denied.


text:
    November 23, 1982
    No. 81-876.
    St. Luke’s Federation of Nurses & Health Professionals v. Presbyterian/St. Luke’s Medical Center; Beth Israel Federation of Nurses & Health Professionals v. Beth Israel Hospital and Geriatric Center; and St. Anthony Federation of Nurses & Health Professionals v. St. Anthony Hospital Systems.
   C. A. 10th Cir. Stipulation to dismiss the petition for writ of certiorari to review the judgments entered July 8, 1981, July 20, 1981, and August 4, 1981, was filed, and the cases were dismissed pursuant to this Court’s Rule 53. Reported below: 653 F. 2d 450 (first case); 677 F. 2d 1343 (second case); 655 F. 2d 1028 (third case).


text:
    November 29, 1982
    No. 81-872.
    Turner, Former Director of Central Intelligence v. Jordan.
   C. A. D. C. Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    No. 82-574.
    Stevenson et al. v. South Carolina State Conference of Branches of the National Association for the Advancement of Colored People, Inc., et al.
   Affirmed on appeal from D. C. S. C.


text:
    No. 82-567.
    Williams et al. v. Cheetwood & Davies.
   Appeal from Ct. App. Ohio, Wood County, dismissed for want of substantial federal question.


text:
    No. 82-573.
    South Carolina State Conference of Branches of the National Association for the Advancement of Colored People, Inc., et al. v. Riley, Governor of South Carolina, et al.
   Appeal from D. C. S. C. dismissed for want of jurisdiction.


author: Justice White,

text:
    No. 82-576.
    Pierce et ux. v. Bierer et al.
   Appeal from Sup. Ct. Del. dismissed for want of substantial federal question.

Justice White,

dissenting.

I would note probable jurisdiction. The reasons for doing so which I stated in dissent from dismissal in Hill v. Garner, 434 U. S. 989 (1977), are more telling now than they were then.


text:
    No. 82-327.
    No. 82-526.
    Chicago Board Options Exchange, Inc. v. Board of Trade of the City of Chicago; Options Clearing Corp. v. Board of Trade of the City of Chicago; and Securities and Exchange Commission v. Board of Trade of the City of Chicago et al. (two cases).
   C. A. 7th Cir. Motion of Securities Industry Association for leave to file a brief as amicus curiae in No. 82-327 granted. Upon consideration of the suggestions of mootness filed by the petitioners, the petitions for writs of certiorari are granted, the judgments are vacated, and the cases are remanded with directions to dismiss the petitions for review as moot. United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

Justice White took no part in the consideration or decision of this motion and these cases.

Reported below: Nos. 82-327 (first case) and 82-526 (first case), 677 F. 2d 1137; Nos. 82-327 (second case) and 82-526 (second case), 679 F. 2d 894.


text:
    No. 81-1998.
    Price Waterhouse v. Panzirer et al.
   C. A. 2d Cir. [Certiorari granted, 458 U. S. 1105.] In light of the respondents’ suggestion of mootness and the petitioner’s response, the judgment is vacated and the case is remanded to the Court of Appeals with directions that it instruct the United States District Court for the Southern District of New York to dismiss the complaint with prejudice.


text:
    No.-.
    Wampanoag Indian Nation et al. v. Massachusetts.
   Motion of plaintiffs for leave to proceed informa pauperis denied.


text:
    No. A-419 (82-769).
    Tucker v. United States.
   C. A. 5th Cir. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. 80-1832.
    No. 80-2170.
    No. 80-2171.
    Immigration and Naturalization Service v. Chadha et al. United States House of Representatives v. Immigration and Naturalization Service et al. United States Senate v. Immigration and Naturalization Service et al.
   C. A. 9th Cir. [Probable jurisdiction postponed, 454 U. S. 812];

C. A. 9th Cir. [Certiorari granted, 454 U. S. 812]; and

C. A. 9th Cir. [Certiorari granted, 454 U. S. 812.] Motion of petitioner in No. 80-2170 for leave to file a supplemental brief on reargument granted. Motion of petitioner in No. 80-2171 for leave to file a supplemental brief on reargument granted.


text:
    No. D-292.
    In re Disbarment of Fendler.
   Robert Harold Fendler, of Phoenix, Ariz., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on September 9, 1982 [458 U. S. 1128], is hereby discharged.


author: Justice Stevens,

text:
    No. 81-430.
    Illinois v. Gates et ux.
   Sup. Ct. Ill. [Certiorari granted, 454 U. S. 1140.] Case restored to calendar for reargument. In addition to the question presented in the petition for certiorari and previously argued here, the parties are requested to address the question whether the rule requiring the exclusion at a criminal trial of evidence obtained in violation of the Fourth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961); Weeks v. United States, 232 U. S. 383 (1914), should to any extent be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment.

Justice Stevens,

with whom Justice Brennan and Justice Marshall join,

dissenting.

Earlier this year the Court decided not to allow the Illinois Attorney General to argue the question it now asks the parties to address. That decision was consistent with the Court’s settled practice of not permitting a party to advance a ground for reversal that was not presented below. The reversal today of the Court’s earlier decision is not only a flagrant departure from its settled practice, but also raises serious questions concerning the Court’s management of its certiorari jurisdiction. I am therefore unable to join the Court’s decision to order reargument of this case.

HH

As a matter of ordinary procedure, the burdens of litigation are minimized and the decisional process is expedited if a court is consistent in its rulings as a case progresses. We set a poor example for other judges when we suddenly reverse our prior rulings in the same case.

On February 8, 1982, the State of Illinois filed a motion seeking leave to amend or enlarge the question presented for review in this case. The motion asked the Court to incorporate the following question:

“Assuming, arguendo, that the information used to obtain the search warrant did not satisfy Aguilar v. Texas, 378 U. S. 108 (1964), should the evidence obtained under the warrant nevertheless be admitted at trial because the police acted in a reasonable good faith belief in the validity of the warrant?”

On March 1, 1982, the Court unanimously denied that motion. 455 U. S. 986. On October 13, 1982, the parties presented an hour of argument; they respected our decision and did not attempt to argue the question of good faith. Today, the Court asks the parties to reargue the case in order to address the very question it would not allow the parties to argue last month. This type of inconsistent decisionmaking always imposes unnecessary costs on litigants and is wasteful of the judiciary’s most scarce resource — time.

hH I — I

As a matter of appellate practice, it is generally undesirable to permit a party to seek reversal of a lower court’s judgment on a ground that the lower court had no opportunity to consider. It is especially poor practice to do so when the basis for reversal involves a factual issue on which neither party adduced any evidence. Those considerations apply with added force when the judgment of the highest court of a sovereign State is being reviewed.

Each of these considerations applies to the additional question on which the Court has ordered reargument. Neither party gave the Circuit Court of Du Page County, the Appellate Court of Illinois, Second District, or the Supreme Court of Illinois an opportunity to consider the question. Neither party offered any evidence concerning the state of mind of the Magistrate when he issued the warrant, the state of mind of the officers who obtained the warrant, or the state of mind of the officers who executed the warrant. In short, the new issue was not “fairly presented” to the state courts. Cf. Picard v. Connor, 404 U. S. 270 (1971).

Ill

As a matter of power, the Court’s action is subject to question. That question is serious whether one assumes that the Illinois courts decided the Fourth Amendment question correctly or incorrectly.

On the one hand, if it is assumed that the Supreme Court of Illinois correctly decided the only federal question that was presented to it, this Court has a duty to affirm its judgment. See New York ex rel. Cohn v. Graves, 300 U. S. 308, 317 (1937). If the only federal question presented by a certiorari petition is unworthy of review, or does not identify a legitimate basis for reversal, this Court has no power to grant cer-tiorari simply because it would like to address some other federal question. For neither Article III of the Constitution nor the jurisdictional statutes enacted by Congress vest this Court with any roving authority to decide federal questions that have not been properly raised in adversary litigation.

On the other hand, if it is assumed that the Supreme Court of Illinois has incorrectly decided the federal question that was presented to it, this Court has a duty to reverse its judgment. That duty could be performed by simply answering the question decided below, without reaching the additional question on which the Court orders reargument today. It is, of course, a settled canon of our constitutional jurisprudence that we do not decide constitutional questions unless it is necessary to do so to resolve an actual case or controversy. See, e. g., Minnick v. California Dept. of Corrections, 452 U. S. 105, 122-127 (1981).

Thus, however the Court resolves the merits of the federal question that has already been argued, the action it takes today sheds a distressing light on the Court’s conception of the scope of its powers. Accordingly, I respectfully dissent.

       Of course, there is no impediment to presenting a new argument as an alternative basis for affirming the decision below. E. g., Hankerson v. North Carolina, 432 U. S. 233, 240, n. 6 (1977).

       Writing for the Court in Cardinale v. Louisiana, 394 U. S. 437 (1969), Justice White made it clear that this view represents the Court’s traditional stance.
      “The Court has consistently refused to decide federal constitutional issues raised here for the first time on review of state court decisions both before
        [Crowell v. Randell, 10 Pet. 368 (1836)], Miller v. Nicholls, 4 Wheat. 311, 315 (1819), and since, e. g., Safeway Stores, Inc. v. Oklahoma Retail Grocers Assn., Inc., 360 U. S. 334, 342, n. 7 (1959); State Farm Mutual Automobile Ins. Co. v. Duel, 324 U. S. 154, 160-163 (1945); McGoldrick v. Compagnie General Transatlantique, 309 U. S. 430, 434-435 (1940); Whitney v. California, 274 U. S. 357, 362-363 (1927); Dewey v. Des Moines, 173 U. S. 193, 197-201 (1899); Murdock v. City of Memphis, 20 Wall. 590 (1875).
      “. . . Questions not raised below are those on which the record is very likely to be inadequate, since it certainly was not compiled with those questions in mind.” Id., at 438-439.
      See also New York ex rel. Cohn v. Graves, 300 U. S. 308, 317 (1937); Wilson v. Cook, 327 U. S. 474, 483-484 (1946); Lear, Inc. v. Adkins, 395 U. S. 653, 677-682 (1969) (White, J., concurring in part). See generally R. Stern & E. Gressman, Supreme Court Practice 456-465 (5th ed. 1978).

       The Supreme Court of Illinois held that the Fourth Amendment prohibits a magistrate from issuing a search warrant on the basis of an affidavit such as that filed by the police officer in this case.


text:
    No. 81-1114.
    Illinois v. Abbott & Associates, Inc., et al.
   C. A. 7th Cir. [Certiorari granted, 455 U. S. 1015.] Motion of the Solicitor General to permit Richard G. Wilkins, Esquire, to present oral argument pro hac vice granted.


text:
    No. 81-1476.
    United States v. Rodgers et al.; and United States v. Ingram et al.
   C. A. 5th Cir. [Certio-rari granted, 456 U. S. 904.] Motion of the Solicitor General to permit George W. Jones, Jr., Esquire, to present oral argument pro hac vice granted.


text:
    No. 81-1335.
    District of Columbia Court of Appeals et al. v. Feldman et al.
   C. A. D. C. Cir. [Cer-tiorari granted, 458 U. S. 1105.] Motion of respondents for divided argument granted.


text:
    No. 81-1282.
    No. 81-1312.
    National Organization for Women, Inc., et al. v. Idaho et al., Carmen, Administrator of General Services v. Idaho et al.,
   ante, p. 809; and

ante, p. 809. Motion of appel-lees to retax costs denied.


text:
    No. 81-1284.
    Eicke v. Eicke.
   Ct. App. La., 3d Cir. [Certiorari granted, 456 U. S. 970.] The parties are directed to file within 30 days supplemental memoranda addressing the Parental Kidnaping Prevention Act, 28 U. S. C. § 1738A (1976 ed., Supp. IV), and its effect on the case pending before this Court. Oral argument in this case, presently scheduled for December 6, 1982, is postponed and the case of United States v. Knotts, No. 81-1802 [certiorari granted, 457 U. S. 1131], is set for oral argument in its stead.


text:
    No. 81-1463.
    United States v. Hasting et al.
   C. A. 7th Cir. [Certiorari granted, 456 U. S. 971.] Motion for appointment of counsel granted, and it is ordered that Paul Victor Esposito, Esquire, of Chicago, Ill., be appointed to serve as counsel for respondent Gable D. Gibson in this case.


text:
    No. 81-1889.
    No. 81-1958.
    No. 81-2042.
    No. 82-19.
    Public Service Commission of the State of New York v. Mid-Louisiana Gas Co. et al.; Arizona Electric Power Cooperative, Inc. v. Mid-Louisiana Gas Co. et al.; Michigan v. Mid-Louisiana Gas Co. et al.; and Federal Energy Regulatory Commission v. Mid-Louisiana Gas Co. et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 820.] Motion of the parties to dispense with printing the joint appendix granted. Motion of Public Utilities Commission of California et al. for leave to file a brief as amici curiae granted.


text:
    No. 81-1891.
    Morrison-Knudsen Construction Co. et al. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, et al.
   C. A. D. C. Cir. [Certiorari granted, ante, p. 820.] Motions of Shipbuilders Council of America, Alliance of American Insurers et al., National Association of Stevedores, National Council of Self-Insurers, and American Insurance Association for leave to file briefs as amici curiae granted.


text:
    No. 82-131.
    Jones & Laughlin Steel Corp. v. Pfeifer.
   C. A. 3d Cir. [Certiorari granted, ante, p. 821.] Motion of Southeastern Pennsylvania Transportation Authority for leave to file a brief as amicus curiae granted.


text:
    No. 82-195.
    Mueller et al. v. Allen et al.
   C. A. 8th Cir. [Certiorari granted, ante, p. 820.] Motion of Minnesota Association of School Administrators et al. for leave to file a brief as amici curiae granted.


text:
    No. 82-629.
    Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., et al.
   Sup. Ct. N. D. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 82-794.
    Peters et al. v. Wayne State University et al.
   C. A. 6th Cir. Motion of petitioners to expedite consideration of the petition for writ of certiorari denied.


text:
    No. 82-5464.
    In re Johnson.
   Petition for writ of mandamus denied.


text:
    No. 82-5522.
    In re Didio.
   Petition for writ of prohibition denied.


text:
    No. 82-610.
    In re Hopfmann et al.
   Application for injunction, presented to Justice Brennan, and by him referred to the Court, denied. Petition for writ of prohibition and/or mandamus and/or injunction denied.


text:
    No. 82-215.
    United States v. Whiting Pools, Inc.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 82-486.
    United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO, et al. v. Scott et al.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 81-2386.
    No. 81-2408.
    DelCostello v. International Brotherhood of Teamsters et al. United Steelworkers of America, AFL-CIO-CLC, et al. v. Flowers et al.
   C. A. 4th Cir.; and

C. A. 2d Cir. Certiorari granted, eases consolidated, and a total of one hour allotted for oral argument. Reported below: No. 81-2386, 679 F. 2d 879; No. 81-2408, 671 F. 2d 87.


text:
    No. 82-524.
    No. 82-545.
    No. 82-551.
    Baltimore Gas & Electric Co. et al. v. Natural Resources Defense Council, Inc.; United States Nuclear Regulatory Commission et al. v. Natural Resources Defense Council, Inc., et al.; and Commonwealth Edison Co. et al. v. Natural Resources Defense Council, Inc., et al.
   C. A. D. C. Cir. Motion of Scientists & Engineers for Secure Energy, Inc., for leave to file a brief as amicus curiae granted. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Justice Powell took no part in the consideration or decision of this motion and these petitions. Reported below: 222 U. S. App. D. C. 9, 685 F. 2d 459.


text:
    No. 82-5119.
    Bell v. United States.
   C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 81-2381.
    Todd Shipyards Corp. et al. v. Allan et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-2390.
    Rutstein v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 81-2409.
    Security Gas & Oil Inc. et al. v. Kramas.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6821.
    Hamilton v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 81-6938.
    Raeen et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 81-6953.
    Boyer v. Riley et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-98.
    Scalzitti v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-164.
    Felice v. United States.
   Ct. Cl. Cer-tiorari denied.


text:
    No. 82-218.
    Nixon v. Carmen, Administrator of General Services, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-247.
    Manchester Environmental Coalition et al. v. Environmental Protection Agency et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-265.
    Raineri v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-313.
    Pavone et al. v. Giuffrida, Director, Federal Emergency Management Agency.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-341.
    Nueces County Navigation District No. 1 v. Interstate Commerce Commission et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-344.
    United Oil Manufacturing Co., Inc. v. National Labor Relations Board.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 82-378.
    Mandalay Shores Cooperative Housing Assn., Inc. v. Pierce, Secretary of Housing and Urban Development, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-404.
    Hilton Hotels Corp., Successor to Flamingo Resort, Inc. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-414.
    Demjanjuk v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-423.
    Koo et al. v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 82-425.
    McWilliams v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 82-428.
    Cowden, Trustee v. Ciaffoni et al.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 82-447.
    No. 82-528.
    Sentry Insurance et al. v. Todd Shipyards Corp. et al.; and Travelers Insurance Co. v. Todd Shipyards Corp. et al.
   C. A. 5th Cir. Certiorari denied. Reported below: 674 F. 2d 401.


text:
    No. 82-467.
    Split Rock Nursing Home v. Office of Health Systems Management of the Department of Health of New York et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 82-468.
    No. 82-505.
    American Trucking Assns., Inc., et al. v. Larson, Secretary of Transportation of Pennsylvania, et al.; and Steamship Operators Intermodal Committee v. Larson, Secretary of Transportation of Pennsylvania, et al.
   C. A. 3d Cir. Certiorari denied. Reported below: 683 F. 2d 787.


text:
    No. 82-469.
    Fike, Executrix, et al. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-475.
    Northern Electric Co., a Division of Sunbeam Corp. v. Harrell.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-499.
    Cole v. Westinghouse Broadcasting Co., Inc., et al.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 82-517.
    Volvo Penta of America v. Kennedy et al.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 82-520.
    Beery v. Turner.
   C. A. 10th Cir. Cer-tiorari denied.


text:
    No. 82-525.
    M. W. Zack Metal Co. v. International Navigation Corporation of Monrovia et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-533.
    Avco Corp. v. Precision Air Parts, Inc.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-536.
    Berger v. Berger.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 82-537.
    Jolly v. Listerman, Regional Representative, Bureau of Retirement and Survivors, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-542.
    Ohio ex rel. Earnhart v. Ohio Power Siting Board et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 82-550.
    Shop & Save Food Markets, Inc. v. Pneumo Corp. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-554.
    McKenzie et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-555.
    Watson et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-561.
    Johnson v. Marsh, Secretary of the Army, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-564.
    DiIulio et al. v. Board of Fire and Police Commissioners of the City of Northlake, Illinois, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-568.
    Cousino v. Commissioner of Internal Revenue.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-571.
    No. 82-589.
    Payne et al. v. Travenol Laboratories, Inc., et al.; and Travenol Laboratories, Inc., et al. v. Payne et al.
   C. A. 5th Cir. Certiorari denied. Reported below: 673 F. 2d 798.


text:
    No. 82-572.
    Great Lakes Press Corp. et al. v. Howes.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-578.
    Brady v. Allstate Insurance Co.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-580.
    DeMasi et al. v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 82-582.
    Ashmore et al. v. Tarrant County et al.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 82-597.
    Trepany et al. v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 82-600.
    Hinson v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 82-604.
    Bloch v. Compton et al.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 82-607.
    Dunn v. National Railroad Passenger Corp., aka Amtrak.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-617.
    Pfeiffer v. Essex Wire Corp.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-621.
    Town Concrete Pipe of Washington, Inc. v. Laborers International Union Local 252.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-636.
    J. L. Lester & Son, Inc. v. Smith, Administratrix, Estate of Smith.
   Ct. App. Ga. Certiorari denied.


text:
    No. 82-641.
    Pompano v. Michael Schiavone & Sons, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-652.
    Casey v. United States.
   Ct. Cl. Certio-rari denied.


text:
    No. 82-653.
    Wade v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-661.
    Walker v. Sun Ship, Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-668.
    Gonzalez v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.


text:
    No. 82-683.
    Mellies v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-684.
    Hayes v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-705.
    Astorga-Torres v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-731.
    McNeely v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-746.
    Habib et al. v. Raytheon Co. et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-5038.
    Burks v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5071.
    Phillips v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5210.
    Robinson v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 82-5211.
    Archibong v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-5215.
    Carlson v. North Dakota.
   Sup. Ct. N. D. Certiorari denied.


text:
    No. 82-5222.
    Hinkle v. Scurr, Warden, Iowa State Penitentiary, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5304.
    Roberts v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5346.
    Beecroft v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5347.
    Bruington, by his Mother and Next Friend, Ezelle, et al. v. Conn, Secretary, Kentucky Department for Human Resources, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5409.
    Setzer v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-5432.
    Johnson v. Harris, Superintendent, Green Haven Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5460.
    Kirk v. United States et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5465.
    Greaves v. Warren.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 82-5469.
    Holland et al. v. Hunter College Campus Schools et al.; and Holland v. RCA Corp. et al.
   C. A. 2d Cir. Certiorari denied. Reported below: 697 F. 2d 291 (first case).


text:
    No. 82-5470.
    Read v. Kubinski et al.
   Sup. Ct. Del. Certiorari denied.


text:
    No. 82-5472.
    Kyle v. Donovan, Secretary of Labor.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5475.
    No. 82-5476.
    Cotton v. Federal Land Bank of Columbia et al.; and Cotton v. Federal Land Bank of Columbia et al.
   C. A. 11th Cir. Certiorari denied. Reported below: 676 F. 2d 1368.


text:
    No. 82-5478.
    Moore v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 82-5482.
    Henry v. Georgia.
   Sup. Ct. Ga. Certio-rari denied.


text:
    No. 82-5484.
    Simon v. Reid, Superintendent, Fishkill Correctional Facility.
   C. A. 2d Cir. Certio-rari denied.


text:
    No. 82-5489.
    Weaver v. Hayes et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5490.
    Tippett v. Duckworth, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5492.
    Rodriguez v. New York.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 82-5493.
    Thomas v. Warden, Maryland State Penitentiary.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5494.
    Williams v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 82-5498.
    Bunting v. Tard, Superintendent, Trenton State Prison, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5504.
    Connolly v. New Jersey et al.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 82-5505.
    Connolly v. New Jersey et al.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 82-5507.
    Boyer v. Guarini, Warden, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5509.
    Country v. Parratt, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5511.
    Hargett v. Anthony Plaza, Ltd., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5512.
    Chin v. Nadel et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5514.
    Foret v. Maggio, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5518.
    Slocum v. Georgia State Board of Pardons and Parles et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-5523.
    Anderson v. Bonin.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 82-5525.
    Taylor v. Housewright, Director, Nevada State Prisons, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5530.
    Hunter v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5544.
    Chamorro, aka Hernandez v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 82-5565.
    Brady v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5569.
    Foley v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5600.
    Black v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5611.
    Roberts v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5614.
    Soehnlen v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5615.
    Perrine v. Mossinghoff, Commissioner of Patents and Trademarks.
   C. A. D. C. Cir. Certio-rari denied.


text:
    No. 82-5625.
    Purkeypyle v. United States et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 82-5627.
    Fleishman v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5634.
    Duarte v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5639.
    Rosario v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5642.
    Jackson v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 82-5643.
    Harper v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-5645.
    Dudley v. Layman et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5650.
    Surridge v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5661.
    Emery v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5665.
    Allen, Administratrix of the Estate of Brown v. McCutcheon et al.
   C. A. 4th Cir. Certio-rari denied.


author: Justice Brennan,

text:
    No. 81-6665.
    James v. United States.
   C. A. 9th Cir. Certiorari denied.

Opinion of

Justice Brennan,

with whom Justice Blackmun joins,

respecting the denial of the petition for writ of certiorari.

Opinions supporting denial of petitions for certiorari are understandably seldom filed, but this in my view is one of the rare cases where the filing of such an opinion is justified. Cf. Estate of Wilson v. Aiken Industries, Inc., 439 U. S. 877 (1978) (Blackmun, J., concurring in denial of writ of cer-tiorari); Maryland v. Baltimore Radio Show, Inc., 338 U. S. 912 (1950) (Frankfurter, J., opinion respecting denial of writ of certiorari).

Petitioner, after conviction on federal criminal charges, filed a timely motion for reduction of sentence under Federal Rule of Criminal Procedure 35. The motion was denied on July 7,1981. For some reason, however, notice of the denial from the Clerk of the District Court was not received by either petitioner or the United States Attorney. Petitioner — who was incarcerated the entire time — first learned of it by happenstance in September 1981. He promptly requested leave from the District Court to appeal out of time, and that court, after due investigation of the circumstances, granted his request.

The Government explicitly refused to contest the propriety of the appeal before the Court of Appeals for the Ninth Circuit. Nevertheless, the Court of Appeals sua sponte dismissed the appeal, holding that district courts may not grant leave to appeal after the maximum extension period has passed. See Fed. Rule App. Proc. 4(b). The court implied that the rigidity of Rule 4(b) could not be set aside even though this petitioner was ignorant, through no fault of his own, of the denial of his Rule 35 motion throughout the period of an allowable extension. Cf. Fed. Rule Crim. Proc. 49(c). Petitioner sought certiorari here, and the Solicitor General informed us that he “do[es] not oppose vacation of the judgment of dismissal and remand to the [Cjourt of [Appeals.” Memorandum for United States 1.

1 do not question the correctness of the Court of Appeals’ construction of Federal Rule of Appellate Procedure 4(b), nor that its sua sponte action is consistent with the plain language of Federal Rule of Criminal Procedure 49(c). Nevertheless, if Rules 4(b) and 49(c) were truly the last word in defining petitioner’s opportunity to appeal under our federal system of procedure, I would have serious doubts about the constitutionality of that system of procedure. Simply put, the application of these Rules to penalize an uncounseled and incarcerated criminal defendant for a clerical error that was none of his doing and of which he had no knowledge would seem to me not only unduly harsh but resoundingly unjust. See Logan v. Zimmerman Brush Co., 455 U. S. 422, 433-437 (1982); Boddie v. Connecticut, 401 U. S. 371, 377-379 (1971); Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313-315 (1950). But I do not think that the Court of Appeals was precluded by those Rules from affording petitioner redress. For, at least with respect to the pair of Civil Rules that directly parallel the provisions at issue here, Courts of Appeals have held that in certain “unique” or “extraordinary” circumstances it would not be inconsistent with the Rules or the intent of Congress for the district court to vacate and reenter the original order to create a fresh judgment from which timely appeals could be perfected. Authority to do this has been found in Federal Rule of Civil Procedure 60(b), which was designed, in large part, to replace the common-law writ of coram nobis in civil cases. In criminal cases, the writ of coram nobis itself remains available whenever resort to a more usual remedy would be inappropriate. See United States v. Morgan, 346 U. S. 502 (1954). Rather than sua sponte dismissing petitioner’s appeal, the Court of Appeals might thus have considered whether the circumstances of this case warranted both treating petitioner’s request to the District Court for leave to file an out-of-time notice of appeal as a motion for a writ of coram nobis to vacate and reenter its July 7 order, and treating the District Court’s order allowing the notice of appeal to be filed as having granted such a motion. Cf. Browder v. Director, Illinois Dept. of Corrections, 434 U. S. 257, 272 (1978) (Blackmun, J., concurring). Moreover, I would not regard the Court of Appeals’ failure to take that course as foreclosing petitioner’s right, within a reasonable time after our denial of certiorari today, to apply anew to the District Court for a writ of coram nobis. If petitioner successfully files such a motion, the Court of Appeals on appeal may, admittedly, be as inhospitaable to that motion as it was to his request to file an out-of-time notice of appeal. But consideration of any constitutional implications of such a holding may appropriately await the event. In light of these possible avenues of relief, I agree that review by this Court at this time is not warranted, and therefore vote to deny the petition for certiorari.

       In response to a letter from petitioner which the Court of Appeals construed as a motion for reconsideration, the court reaffirmed its dismissal, but expressed the view that petitioner could file a new motion under Rule 35, and then perfect an appeal from denial of such a motion. See n. 2, infra.

       1 suppose also that a holding is possible that, although comm nobis is an appropriate vehicle for mitigating the harshness of Rule 4(b), petitioner’s circumstances are not sufficiently “extraordinary” for him to merit such relief. In that event, what constitutional issues arise in the case will at least be significantly more focused.

       If the Court of Appeals were right that petitioner could file a new motion under Federal Rule of Criminal Procedure 35, see n. 1, supra, the problems posed by its decision might be significantly mitigated. But Rule 35 sets a 120-day time limit on motions to reduce a legal sentence, and I do not understand how petitioner could bring a new Rule 35 motion at this time without facing jurisdictional obstacles even more serious than those ¡apparent in the appeal dismissed by the Court of Appeals.

       See Fed. Rule App. Proc. 4(a); Fed. Rule Civ. Proc. 77(d).

       See, e. g., Buckeye Cellulose Corp. v. Braggs Electric Construction Co., 569 F. 2d 1036, 1038-1039 (CA8 1978); Fidelity & Deposit Co. of Maryland v. USAFORM Hail Pool, Inc., 523 F. 2d 744, 747-751 (CA5 1975), cert. denied, 425 U. S. 950 (1976); Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 163 U. S. App. D. C. 140, 500 F. 2d 808 (1974). The Ninth Circuit itself has recognized that district courts could employ this procedure under the proper circumstances, although it has not, as best as I can tell, ever actually found such circumstances to have been shown. See Rodgers v. Watt, 680 F. 2d 1295, 1298 (1982); Kramer v. American Postal Workers Union, AFL-CIO, 556 F. 2d 929 (1977).

       Title 28 U. S. C. §2255, which has taken over most of the function of the writ of coram nobis in federal criminal procedure, only applies to collateral attacks on underlying sentences, and could not be employed to vacate and reenter an order denying a motion under Rule 35.

       In the alternative, the Court of Appeals might have exercised its own residual appellate jurisdiction and remanded the matter to the District Court to allow it to vacate and reenter the order from which petitioner sought appeal. Cf. Moody v. Flowers, 387 U. S. 97, 104 (1967); Gully v. Interstate Natural Gas Co., 292 U. S. 16, 18-19 (1934). Neither of these approaches could possibly have prejudiced the Government, since it has consistently declined to contest the jurisdictional basis of petitioner’s appeal.


text:
    No. 82-235.
    Morris et al. v. United States et al.
   C. A. 9th Cir. Motion of petitioners to defer consideration of the petition for writ of certiorari denied. Certiorari denied.


text:
    No. 82-267.
    McCarthy v. Hinman.
   C. A. 9th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 82-294.
    Louisiana v. Marshell.
   Sup. Ct. La. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 82-480.
    McCombs, Chairman, Illinois Prisoner Review Board v. Scott.
   C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 82-521.
    Jones, Superintendent, Great Meadow Correctional Facility, et al. v. Arroyo.
   C. A. 2d Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 82-346.
    Skehan v. Board of Trustees of Bloomsburg State College et al.
   C. A. 3d Cir. Motion of petitioner to amend petition for writ of certiorari granted. Certiorari denied.


author: Justice Blackmun Justice White,

text:
    No. 82-386.
    Kerr-McGee Chemical Corp. v. Illinois.
   C. A. 7th Cir. Certiorari denied.

Opinion of

Justice Blackmun

respecting the denial of the petition for writ of certiorari.

I realize that it is a tradition here that one seldom writes in support of the Court’s decision to deny a petition for a writ of certiorari. See, however, Castorr v. Brundage, ante, p. 928 (Stevens, J.); James v. United States, ante, p. 1044 (Brennan, J.); Maryland v. Baltimore Radio Show, Inc., 338 U. S. 912 (1950) (Frankfurter, J.).

The reason I write in this case is that I fear that the content of the final paragraphs of the dissent will tend to create confusion in an area of law that seems to me to be fairly clear. It has been well established for many years that federal-question jurisdiction is present “only when the plaintiff’s statement of his own cause of action shows that it is based upon [federal] laws or [the Federal] Constitution.” Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908). It is insufficient “that the defendant would set up in defense certain laws of the United States.” Id., at 153.

The dissent asserts, post, at 1051, that the Second Circuit in North American Phillips Corp. v. Emery Air Freight Corp., 579 F. 2d 229 (1978), held that “the lack of reference to federal law in the complaint does not control the determination whether a federal question is presented.” It would be more accurate to say that the Second Circuit held that lack of reference to federal law does not control the determination whether a federal claim is presented by the complaint. In the present case, as the dissent explains, post, at 1052, the issue is whether “a defendant’s federal pre-emption claim presents a federal question.” In other words, the issue is whether a federal question is presented by a federal defense to a state-law claim. If a federal claim is presented by the complaint, there is federal-question jurisdiction even if the complaint is phrased in state-law terms; if, however, the complaint presents only a state-law claim, a federal defense does not create federal-question jurisdiction.

I thus perceive no conflict between the present case and North American Phillips, and no conflict between the present case and other cases cited by petitioner. In each of those cases, the courts followed Mottley and focused on the federal basis for the plaintiff’s claim. Here, in contrast, the plaintiff’s claim has no federal basis. The plaintiff could not have stated a federal cause of action no matter how it pleaded its case. Because there is no conflict, the Court, it seems to me, is on sound ground in denying the petition for a writ of certiorari.

Justice White,

with whom Justice Marshall joins,

dissenting.

Petitioner Kerr-McGee Chemical Corp. (Kerr-McGee) owns a facility within the city limits of West Chicago, Ill., that has been used since World War II to produce compounds derived from radioactive natural ores. Since 1956, the facility has been licensed by the Nuclear Regulatory Commission or its predecessor. Although the facility has not been in active operation since 1973, some nuclear materials continue to be stored at the site.

In 1980, respondent State of Illinois filed a complaint against petitioner in an Illinois state court alleging that the operation and maintenance of the facility violate the Illinois Environmental Protection Act, Ill. Rev. Stat., ch. 11172, ¶ 1001 et seq. (1979), and other state statutes pertaining to the disposal of hazardous wastes. Kerr-McGee petitioned to have the State’s case removed to federal court, arguing that the state regulations have been pre-empted by the Atomic Energy Act of 1954, 68 Stat. 921, as amended, 42 U. S. C. §2011 et seq. (1976 ed., Supp. IV), which places the regulation of radioactive materials within the exclusive province of the Nuclear Regulatory Commission. The United States District Court for the Northern District of Illinois denied the State’s motion to remand the case to the state court. The District Court found that the complaint necessarily involved the interpretation of federal law and thus was a claim “arising under . . . the laws of the United States” within the meaning of the removal statute, 28 U. S. C. § 1441(b). The complaint was dismissed by the District Court on pre-emption grounds.

On appeal, the United States Court of Appeals for the Seventh Circuit held that removal was improper. The Court of Appeals found that the State’s complaint did not rely on or even allude to federal statutes or case law and that there was no basis for concluding that the State had drafted the complaint in order to defeat removal. 677 F. 2d 571, 577 (1982). The issue of federal pre-emption, the court held, is “merely a defense to state law claims”; a defense based on federal law cannot be a ground for removal. Id., at 578. The District Court’s decision was reversed and the case was remanded with instructions to remand it to the state court. Petitioner now seeks review of the Seventh Circuit’s decision.

The holding in the present case is in direct conflict with a decision in the Second Circuit, North American Phillips Corp. v. Emery Air Freight Corp., 579 F. 2d 229 (1978). In North American Phillips, the Second Circuit found that the lack of reference to federal law in the complaint does not control the determination whether a federal question is presented. The court held that the substance of the allegations must be reviewed in order to determine “whether a federal law is a pivotal issue in the case, one that is basic in the determination of the conflict between the parties.” Id., at 233.

The issue whether, or under what circumstances, a defendant’s federal pre-emption claim presents a federal question sufficient to support removal of a state plaintiff’s complaint which on its face raises only state claims, is a substantial one going to the heart of the power of federal courts to determine claims raised in state-court proceedings. The Court should grant this petition to resolve the conflict. Accordingly, I dissent from the denial of certiorari.

      Section 1441(b) provides:
      “Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”


author: Justice Rehnquist,

text:
    No. 82-446.
    Dallas County Hospital District v. Dallas Association of Community Organizations for Reform Now et al.
   C. A. 5th Cir. Certiorari denied.

Justice Blackmun would grant certiorari and give this case plenary consideration.

Justice Rehnquist,

dissenting.

The Court of Appeals for the Fifth Circuit held in this case that under the First and Fourteenth Amendments a hospital, like city streets and parks, is a “public forum” which must be made available to protestors and demonstrators subject only to reasonable “time, place, and manner” restrictions. 670 F. 2d 629 (1982). I think the Court of Appeals misunderstood the distinction in our cases between public property, such as city streets and parks, which has been historically treated as a “public forum,” see Hague v. CIO, 307 U. S. 496 (1939), and public property, such as jails, military bases, and postal delivery boxes, which has been held not to be a public forum. See Adderley v. Florida, 385 U. S. 39 (1966); Greer v. Spock, 424 U. S. 828 (1976); United States Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114 (1981). The decision of the Court of Appeals, mistakenly I believe, thus requires a hospital to promulgate a set of “regulations” which would provide for access to at least a part of its premises by such protest groups as respondents. To say that the decision severely limits the ability of public hospitals to devote their premises to the purpose of furnishing medical care to the sick would be an understatement.

The Court of Appeals relied primarily on our decisions in Shuttlesworth v. Birmingham, 394 U. S. 147 (1969), and Consolidated Edison Co. v. Public Service Comm’n, 447 U. S. 530 (1980). Neither one of these cases speaks to the issue here. Shuttlesworth involved the public streets of Birmingham, Ala. Consolidated Edison represented no effort on the part of private individuals to obtain access to public property; as the Court in that case pointed out:

“Consolidated Edison has not asked to use the offices of the Commission as a forum from which to promulgate its views. Rather, it seeks merely to utilize its own billing envelopes to promulgate its views on controversial issues of public policy.” 447 U. S., at 539-540.

We have recently summarized the teachings of this Court’s cases as to the kind of government property involved here in United States Postal Service v. Council of Greenburgh Civic Assns., supra:

“Indeed, it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer v. Spock, 424 U. S. 828 (1976), the jail or prison in Adderley v. Florida, 385 U. S. 39 (1966), and Jones v. North Carolina Prisoners’ Union, 433 U. S. 119 (1977), or the advertising space made available in city rapid transit cars in Lehman v. City of Shaker Heights, 418 U. S. 298 (1974). In all these cases, this Court recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” 453 U. S., at 129.

The Court of Appeals also expressed dissatisfaction with the “regulation” upon which the hospital had relied to exclude demonstrators, a regulation which simply prohibited demonstrations without prior written approval of the hospital administrator. While such regulations have been held constitutionally defective because of their potential for discriminatory application when public streets and parks are involved, see Shuttlesworth v. Birmingham, supra, we have never applied this sort of analysis to “regulations” governing access to government property which was not a public forum. Indeed, it is difficult to know why local government authorities charged with the administration of jails, prisons, and hospitals should be under any obligation to promulgate a detailed code of “regulations” governing access to the premises by outsiders. When confronted with an analogous attack on a congressional statute regulating access to postal boxes in United States Postal Service, supra, we said:

“It is thus unnecessary for us to examine § 1725 in the context of a ‘time, place, and manner’ restriction on the use of the traditional ‘public forums’ referred to above. .. . But since a letterbox is not traditionally such a ‘public forum,’ the elaborate analysis engaged in by the District Court was, we think, unnecessary. To be sure, if a governmental regulation is based on the content of the speech or the message, that action must be scrutinized more carefully to ensure that communication has not been prohibited “‘merely because public officials disapprove the speaker’s view.”’ Consolidated Edison Co. v. Public Service Comm’n, supra, at 536, quoting Niemotko v. Maryland, 340 U. S. 268, 282 (1951) (Frankfurter, J., concurring in result). But in this case there simply is no question that § 1725 does not regulate speech on the basis of content.” 453 U. S., at 132.

Here, as in United States Postal Service, there is no tenable claim that the hospital regulation was applied other than in a content-neutral manner. The demonstration which respondents actually conducted in Parkland Hospital was clearly sub-jeet to the regulation of the hospital, and equally clearly could have been prohibited by the hospital. In the fall of 1978, approximately 45 members of respondents’ organization invaded the hospital premises without permission, and proceeded to hold a press conference in the front lobby of Parkland. This “media event” was covered by, among other representatives of the media, two television stations, each with camera equipment in tow. As would be expected, the demonstration also attracted a crowd of the interested and the curious. The congestion engendered by the “event” blocked the flow of patients and their family members and medical personnel in the lobby itself and from the lobby into various climes.

The Court of Appeals apparently conceded that this particular demonstration could have been constitutionally prohibited by the hospital, but only under a “valid” set of regulations. Unless we are to accede to the idea that hospitals must henceforth retain house counsel whose job shall be to draft, interpret, and aid in the application of detailed regulations such as those contemplated by the Court of Appeals, I think the writ of certiorari should be granted.


author: Justice Brennan and Justice Marshall,

text:
    No. 82-530.
    No. 82-5319.
    No. 82-5519.
    No. 82-5534.
    Knapp et al. v. Cardwell et al. Simon v. Tennessee. Morgan v. Florida. White v. Florida.
   C. A. 9th Cir.;

Sup. Ct. Tenn.;

Sup. Ct. Fla.; and

Sup. Ct. Fla. Certio-rari denied. Reported below: No. 82-530, 667 F. 2d 1253; No. 82-5319, 635 S. W. 2d 498; No. 82-5519, 415 So. 2d 6; No. 82-5534, 415 So. 2d 719.

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. 82-620.
    No. 82-622.
    Price et al. v. Pittsburgh Terminal Corp. et al.; and Baltimore & Ohio Railroad Co. et al. v. Pittsburgh Terminal Corp. et al.
   C. A. 3d Cir. Cer-tiorari denied.

Justice Powell took no part in the consideration or decision of these petitions.

Reported below: 680 F. 2d 933.


author: Justice Stevens Justice Brennan and Justice Marshall

text:
    No. 82-5335.
    No. 82-5352.
    No. 82-5353.
    Smith v. North Carolina; Williams v. North Carolina; and Pinch v. North Carolina.
   Sup. Ct. N. C. Certiorari denied. Reported below: No. 82-5335, 305 N. C. 691, 292 S. E. 2d 264; No. 82-5352, 305 N. C. 656, 292 S. E. 2d 243; No. 82-5353, 306 N. C. 1, 292 S. E. 2d 203.

Opinion of

Justice Stevens

respecting the denial of the petitions for writ of certiorari.

In each of these three capital cases the trial judge instructed the jury that it had a duty to impose the death penalty if it found: (1) that one or more aggravating circumstances existed; (2) that the aggravating circumstances were sufficiently substantial to call for the death penalty; and (3) that the aggravating circumstances outweighed the mitigating circumstances. There is an ambiguity in these instructions that may raise a serious question of compliance with this Court’s holding in Lockett v. Ohio, 438 U. S. 586 (1978).

On the one hand, the instructions may be read as merely requiring that the death penalty be imposed whenever the aggravating circumstances, discounted by whatever mitigating factors exist, are sufficiently serious to warrant the extreme penalty. Literally read, however, those instructions may lead the jury to believe that it is required to make two entirely separate inquiries: First, do the aggravating circumstances, considered apart from the mitigating circumstances, warrant the imposition of the death penalty? And second, do the aggravating circumstances outweigh the mitigating factors? It seems to me entirely possible that a jury might answer both of those questions affirmatively and yet feel that a comparison of the totality of the aggravating factors with the totality of mitigating factors leaves it in doubt as to the proper penalty. But the death penalty can be constitutionally imposed only if the procedure assures reliability in the determination that “ ‘death is the appropriate punishment in a specific case.’” Lockett, supra, at 601 (plurality opinion), quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

A quotation from a recent opinion by the Utah Supreme Court, which takes a less rigid approach to this issue, will illustrate my point. In State v. Wood, 648 P. 2d 71, 83 (1982), that court wrote:

“It is our conclusion that the appropriate standard to be followed by the sentencing authority — judge or jury — in a capital case is the following:
“After considering the totality of the aggravating and mitigating circumstances, you must be persuaded beyond a reasonable doubt that total aggravation outweighs total mitigation, and you must further be persuaded, beyond a reasonable doubt, that the imposition of the death penalty is justified and appropriate in the circumstances.’
“These standards require that the sentencing body compare the totality of the mitigating against the totality of the aggravating factors, not in terms of the relative numbers of the aggravating and the mitigating factors, but in terms of their respective substantiality and persuasiveness. Basically, what the sentencing authority must decide is how compelling or persuasive the totality of the mitigating factors are when compared against the totality of the aggravating factors. The sentencing body, in making the judgment that aggravating factors ‘outweigh,’ or are more compelling than, the mitigating factors, must have no reasonable doubt as to that conclusion, and as to the additional conclusion that the death penalty is justified and appropriate after considering all the circumstances.” (Emphasis added.)

The petitions for certiorari in these three cases request the Court to review the decision of the Supreme Court of North Carolina affirming the death penalty in each case. I do not criticize the Court’s action in denying certiorari because the question whether the instructions to the juries are consistent with Lockett remains open for consideration in collateral proceedings. Moreover, even if relief may not be warranted in these cases, the North Carolina judiciary may find it appropriate to make slight changes in the form of its instructions to avoid the ambiguity I have identified.

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.

      “There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” 438 U. S., at 605 (plurality opinion) (emphasis added).


text:
    No. 81-2015.
    No. 81-2030.
    No. 81-2094.
    Churchill Area School District v. Hoots et al., Edgewood School District et al. v. Hoots et al., Clancy et al. v. Jartech, Inc., et al.,
   ante, p. 877;

ante, p. 824; and

ante, p. 826. Petitions for rehearing denied.


text:
    No. 81-2095.
    No. 81-2096.
    No. 81-2114.
    No. 81-2143.
    No. 81-2163.
    No. 81-2210.
    No. 81-2306.
    No. 81-2310.
    No. 81-2346.
    No. 81-2389.
    No. 81-2407.
    No. 81-6480.
    No. 81-6710.
    No. 81-6777.
    No. 81-6779.
    No. 81-6818.
    No. 81-6837.
    No. 81-6918.
    No. 81-6930.
    Clancy et al. v. Jartech, Inc., et al., Clancy et al. v. Jartech, Inc., et al., Gunter et ux. v. Hutcheson et al., Thompson v. Covington Housing Development Corp. et al., Chestnutt et al. v. Fogel et al., Greyhound Lines, Inc. v. Price, Local 66, Boston Teachers Union, AFT, AFL-CIO v. Boston School Committee et al., Ellerbe v. Otis Elevator Co., Rexroat v. Thorell, Stepak v. Rutgers Medical School et al., Miskovsky v. Oklahoma Publishing Co., Fields v. Texas, Michaelis v. Nebraska State Bar Assn., Cape v. Zant, Superintendent, Georgia Diagnostic Classification Center, Williams v. Indiana, Christensen v. Utah, John v. Government of the Virgin Islands, Knott v. Mabry, Director, Arkansas Department of Correction, Din v. Long Island Lighting Co.,
   ante, p. 879;

ante, p. 826;

ante, p. 826;

ante, p. 828;

ante, p. 828;

ante, p. 831;

ante, p. 881;

ante, p. 802;

ante, p. 837;

ante, p. 804;

ante, p. 923;

ante, p. 841;

ante, p. 804;

ante, p. 882;

ante, p. 808;

ante, p. 802;

ante, p. 848;

ante, p. 851; and

ante, p. 852. Petitions for rehearing denied.


text:
    No. 81-6969.
    No. 81-6998.
    No. 82-5.
    No. 82-66.
    No. 82-199.
    No. 82-240.
    No. 82-279.
    No. 82-5001.
    No. 82-5027.
    No. 82-5088.
    No. 82-5090.
    No. 82-5188.
    No. 82-5190.
    No. 82-5204.
    No. 82-5209.
    No. 82-5225.
    No. 82-5227.
    No. 82-5234.
    No. 82-5264.
    No. 82-5288.
    No. 82-5362.
    Lace et al. v. United States, Ogrod et al. v. School District of Philadelphia, Superior Oil Co. v. City of Port Arthur, Texas, et al., Mazaleski v. May, Valerino v. Valerino, Theoharous v. Deer Run Shores Property Owners Assn., Inc., Martin v. United States, Smith v. Georgia, Hudak v. Curators of the University of Missouri et al., Johnson v. Tennessee, Brooks v. Zant, Warden, Georgia Diagnostic and Classification Center, Breedlove v. Florida, Wendt v. MacDougall, Wayland v. Registry of Deeds, Salem, et al., Buchanan v. Jefferson County et al., Penick v. Virginia, Dickerson v. Johnson, Administrator, Veterans Administration, et al., Johl v. Town of Groton et al., In re Sims, Sellars v. City of Los Angeles, California, et al., Dixon v. MacDougall,
   ante, p. 854;

ante, p. 805;

ante, p. 802;

ante, p. 859;

ante, p. 864;

ante, p. 899;

ante, p. 865;

ante, p. 882;

ante, p. 867;

ante, p. 882;

ante, p. 882;

ante, p. 882;

ante, p. 912;

ante, p. 899;

ante, p. 912;

ante, p. 913;

ante, p. 875;

ante, p. 913;

ante, p. 903;

ante, p. 946; and

ante, p. 915. Petitions for rehearing denied.


text:
    December 6, 1982
    No. 82-638.
    Louisiana v. Hryhorchuk et al.
   Appeal from Ct. App. La., 3d Cir., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 82-5678.
    Wayland v. United States.
   Appeal from C. A. 1st Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. A-453.
    Stull et al. v. United States.
   Application for bail, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-504.
    Brooks v. Estelle, Director, Texas Department of Corrections.
   This matter was presented to Justice White on December 2, 1982, on an application for a stay of execution, and by him referred to the Court.

When the matter came before the Court the opinion of the United States Court of Appeals for the Fifth Circuit dated December 6, 1982, was before us. That opinion after a review of the facts and procedural history concluded as follows:

“Despite the eleventh-hour presentation of new issues, we have reviewed each of the new issues carefully and again reviewed each of the issues previously presented to us. Each member of this panel is acutely aware that Brooks’ life may depend on our action. Each of us is determined to fulfill our sworn obligation to uphold and defend the Constitution and Laws of the United States, doing justice to the rich and to the poor alike, favoring neither the rich because he is rich, nor the poor because he is poor. We have the same duty to act impartially between the condemned and the state, favoring neither the state nor the condemned. That duty compels us to declare that we find no substantial question presented.
“The merits of Brooks' claims have been presented by a total of twelve lawyers, in nine separate hearings, and have by this time been reviewed by 23 judges, state and federal. Despite this, we would not hesitate to grant the stay were we aware of any argument of substance, any contention that would benefit by further briefing and oral argument. The application for stay has received the sober, reasoned, and deliberate consideration of Brooks’ claim that the irrevocable nature of the penalty demands. Our granting of yet another stay at this late hour for further review of claims so often considered and of such little merit would be abdication of our duty to face and decide the issue before us in accordance with the Constitution and Laws of the United States.
“For these reasons, the application for stay is denied.”

(1) Addressing first the application for a stay of execution, reconsideration of which was denied by the United States Court of Appeals for the Fifth Circuit, the application for a stay of execution is hereby denied.

(2) This Court denied applicant’s petition for a writ of cer-tiorari on June 29, 1981, Brooks v. Texas, 453 U. S. 913, and denied rehearing on September 23, 1981, 453 U. S. 950; treating the papers filed since then as a second petition for rehearing of the denial of certiorari, the same is hereby denied.

(3)Treating the papers filed since December 2, 1982, as a petition for certiorari, or alternatively as a petition for certio-rari before judgment, the same is hereby denied.

Justices Brennan, Marshall, and Stevens,

dissenting.

We would grant petitioner’s application for a stay of execution. Our cases make it absolutely clear that where a certificate of probable cause to appeal from the denial of habeas relief has been issued, a court of appeals must consider and decide the merits of that appeal. A court of appeals cannot fulfill that obligation if a State is permitted to execute a prisoner prior to the consideration and decision of his appeal.

HH

On September 10, 1977, Brooks was indicted in Tarrant County, Tex., for the capital murder of David Gregory. At trial the State presented evidence that Brooks went to a used-car lot and asked to test-drive a car. He was permitted to drive the car accompanied by Gregory, an employee. Brooks picked up a friend, Woody Loudres, and drove to the motel where Loudres lived. Brooks and Loudres took Gregory into a motel room. A single shot was fired, killing Gregory.

The jury returned a verdict of guilty. In the penalty phase of the trial, the judge instructed the jury, pursuant to Tex. Code Crim. Proc. Ann., Arts. 37.071(b)(1) and (2) (Vernon 1981), to give “yes” or “no” answers to the following questions:

(1) “Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?”
(2) “Do you find from the evidence beyond a reasonable doubt that there is a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society?”

The judge told the jurors that affirmative answers to both questions would result in a death sentence. Over Brooks’ objection, the judge also instructed the jurors that they could not consider or discuss the effect of their answers. The jury answered “yes” to both questions, and the court accordingly imposed the mandatory sentence of death.

Following the affirmance of his conviction and sentence on direct appeal, Brooks v. State, 599 S. W. 2d 312 (Tex. Crim. App. 1979), cert. denied, 453 U. S. 913 (1981), Brooks filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Texas. On October 28, 1982, the District Court denied the petition. The District Court’s order was accompanied by a 26-page opinion discussing Brooks’ claims.

On November 9, 1982, the District Court issued a certificate of probable cause to appeal but denied Brooks’ application for a stay of execution pending appeal. Brooks immediately filed a notice of appeal to the United States Court of Appeals for the Fifth Circuit, and on November 12 he applied to that court for a stay of execution. In his application he described the constitutional claims that he planned to present on appeal if afforded the opportunity to do so. On November 17 the State filed a brief statement opposing the application. Oral argument on the application was held before the Court of Appeals on November 26. Later that same day, the Court of Appeals denied the application in a five-sentence order that did not dispose of the still pending appeal. Although the Court of Appeals has filed an additional opinion today, it still has not acted on the merits of the appeal.

II

Petitioner is entitled to a stay of execution in order to protect his right to appeal the District Court’s denial of habeas corpus relief. This conclusion follows inexorably from the District Judge’s issuance of a certificate of probable cause to appeal, for “if an appellant persuades an appropriate tribunal that probable cause for an appeal exists, he must then be afforded an opportunity to address the underlying merits.” Garrison v. Patterson, 391 U. S. 464, 466 (1968) (per curiam) (emphasis added).

A district judge’s order denying an application for habeas corpus “shall be subject to review, on appeal,” so long as a judge or Circuit Justice issues a certificate of probable cause. 28 U. S. C. § 2253. In order for the district court to issue a certificate of probable cause, a petitioner must make a “ ‘substantial showing of the denial of [a] federal right.’ ” Stewart v. Beto, 454 F. 2d 268, 270, n. 2 (CA5 1971), cert. denied, 406 U. S. 925 (1972); Harris v. Ellis, 204 F. 2d 685, 686 (CA5 1953). Once the certificate has been issued, the habeas petitioner is entitled to a review and decision on the merits of his appeal, according to the decisions of this Court.

In Nowakowski v. Maroney, 386 U. S. 542 (1967) (per curiam), we reviewed a Court of Appeals’ summary denial of a habeas petition after the District Judge had issued a certificate of probable cause under 28 U. S. C. §2253. We unanimously concluded that the Court of Appeals had erred in denying the right to appeal and held that “when a district judge grants such a certificate, the court of appeals must. . . proceed to a disposition of the appeal in accord with its ordinary procedure.” Id., at 543 (emphasis added). See Carafas v. LaVallee, 391 U. S. 234, 242 (1968) (Nowakowski requires that appeal be duly considered on its merits where a certificate of probable cause has been issued).

Our decision in Garrison v. Patterson, supra, is particularly relevant. There, a habeas petitioner was under sentence of death for murder. The District Court had denied a certificate of probable cause but had granted a stay of execution to allow time to appeal from that denial. The petitioner then requested that the Court of Appeals issue the certificate and also requested from that court a further stay of execution. After a hearing, the Court of Appeals issued an order granting the certificate of probable cause. At the same time, however, the court simply affirmed the District Court’s denial of habeas corpus without receiving further submissions on the merits. Justice White, sitting as Circuit Justice, granted a stay of execution pending review by this Court. Relying on Nowakowski, the full Court reversed the judgment of the Court of Appeals and remanded for further consideration of Garrison’s appeal on the merits. Moreover, the Court continued the stay of execution pending the disposition of the appeal. 391 U. S., at 464.

The Courts of Appeals have consistently followed the mandate of Nowakowski that a court of appeals must review the merits of an appeal when a certificate of probable cause has been issued. See, e. g., Dobbert v. Strickland, 670 F. 2d 938, 939 (CA11 1982) (upon issuance of the certificate “[a] review on the merits is required”); Gross v. Bishop, 377 F. 2d 492, 492 (CA8 1967) (when the certificate is issued, the court of appeals “must review”). As then-judge Blackmun stated, Nowakowski requires that “when the district court issue[s] the certificate the appellate court must indulge in a full review.” Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus Cases, 43 F. R. D. 343, 351 (1967) (emphasis added).

As previously noted, in this case the District Court granted a certificate of probable cause to appeal on November 9,1982. On November 12 petitioner applied to the Fifth Circuit for a stay of execution pending his appeal to that court. On November 17 the State opposed the stay of execution. The State also requested that the court require an expedited briefing schedule and determine the merits of the appeal as soon as possible, but the Court of Appeals did not grant the request. Instead, after hearing oral argument on the application for stay on November 26, the court that same day simply denied the stay in a one-paragraph order. On this record it is manifest that the Court of Appeals did not “proceed to a disposition of the appeal,” Nowakowski, supra, at 543, and that it clearly failed to afford petitioner an opportunity “to make his argument on the underlying issues in full.” Garrison, supra, at 467, n. 2. Indeed, the lower court did not even order briefing on the merits under an expedited schedule as permitted by its own rules. In the absence of the appellate review that must follow from the grant of a certificate of probable cause, a stay of execution is required. Any other conclusion would eviscerate the prior holdings of this Court as to the significance of the issuance of a certificate of probable cause. “[I]f there is probable cause for the appeal it would be a mockery of federal justice to execute [petitioner] pending its consideration.” Fouquette v. Bernard, 198 F. 2d 96, 97 (CA9 1952) (Denman, C. J.).

h — I ( — f

For the foregoing reasons, we would grant the application for a stay of execution.


text:
    No. 88,
    Orig.
    California v. Texas et al.
   Motion of plaintiff for issuance of a preliminary injunction granted. Comments by counsel for the defendants concerning the form of the proposed order submitted by the plaintiff are to be filed with the Court and served upon opposing counsel and the Special Master on or before December 8,1982. [For earlier order herein, see, e. g., ante, p. 963.]


text:
    No. 81-1889.
    No. 81-1958.
    No. 81-2042.
    No. 82-19.
    Public Service Commission of the State of New York v. Mid-Louisiana Gas Co. et al.; Arizona Electric Power Cooperative, Inc. v. Mid-Louisiana Gas Co. et al.; Michigan v. Mid-Louisiana Gas Co. et al.; and Federal Energy Regulatory Commission v. Mid-Louisiana Gas Co. et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 820.] Motion of Edmund G. Brown, Jr., Governor of California, for leave to file a brief as amicus curiae granted.


text:
    No. 81-2337.
    Block, Secretary of Agriculture, et al. v. North Dakota ex rel. Board of University and School Lands.
   C. A. 8th Cir. [Certiorari granted, ante, p. 820.] Motion of North Dakota and amicus curiae California for divided argument to permit California to present oral argument as amicus curiae and for additional time for argument denied.


text:
    No. 82-56.
    Simmons et al. v. Sea-Land Services, Inc., et al.,
   ante, p. 931. Respondents are requested to file a response to the petition for rehearing within 30 days.


text:
    No. 82-131.
    Jones & Laughlin Steel Corp. v. Pfeifer.
   C. A. 3d Cir. [Certiorari granted, ante, p. 821.] Motion of Alcoa Steamship Co., Inc., et al. for leave to file a brief as amici curiae granted.


text:
    No. 82-167.
    Chappell et al. v. Wallace et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 966.] Motion for appointment of counsel granted, and it is ordered that John Murcko, Esquire, of Oakland, Cal., be appointed to serve as counsel for respondents in this case.


text:
    No. 82-268.
    First Pennsylvania Bank, N.A. v. Lancaster County Tax Claim Bureau et al.
   Sup. Ct. Pa. Motion of appellee Della Becker to expedite consideration of the statement as to jurisdiction denied.


text:
    No. 82-5580.
    In re Davis.
   Petition for writ of mandamus denied.


text:
    No. 82-5576.
    Pickett et al. v. Brown et al.
   Appeal from Sup. Ct. Tenn. Motion of appellant for leave to proceed in forma pawperis granted. Probable jurisdiction noted.


text:
    No. 82-411.
    Newport News Shipbuilding & Dry Dock Co. v. Equal Employment Opportunity Commission.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 82-342.
    Philko Aviation, Inc. v. Shacket et ux.
   C. A. 7th Cir. Certiorari granted limited to Question A presented by the petition.


text:
    No. 81-2219.
    Tran Qui Than v. Regan, Secretary of the Treasury.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-137.
    Lammers v. Boyden et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-188.
    Oklahoma v. Harris.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 82-260.
    Ellis et al. v. Judge of the Putnam Circuit Court et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-303.
    Callico v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-326.
    Mahanna v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 82-368.
    Hudson Farms, Inc. v. National Labor Relations Board.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-422.
    Bierwirth et al. v. Donovan, Secretary of Labor.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-437.
    No. 82-635.
    County of Mahnomen, Minnesota, et al. v. White Earth Band of Chippewa Indians et al.; and Alexander et al. v. White Earth Band of Chippewa Indians et al.
   C. A. 8th Cir. Certiorari denied. Reported below: 683 F. 2d 1129.


text:
    No. 82-489.
    Temora Trading Co., Ltd. v. Perry, Trustee.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 82-498.
    Alvestad, Representative of the Estate of Alvestad, et al. v. Monsanto Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-595.
    Dean v. St. Bernard Parish School Board.
   Ct. App. La., 4th Cir. Certiorari denied.


text:
    No. 82-642.
    Franks v. National Railroad Passenger Corp., aka Amtrak.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-645.
    Republic National Life Insurance Co. et al. v. Sparks et al.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 82-656.
    Pomeroy v. Southern Bell Telephone & Telegraph Co. et al.
   Dist. Ct. App. Fla., 3d Dist. Cer-tiorari denied.


text:
    No. 82-663.
    Karam et al. v. Allstate Insurance Co. et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 82-664.
    Karapinka v. Union Carbide Corp.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-669.
    Soffer v. City of Costa Mesa et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-670.
    Howard v. Central of Georgia Railroad Co.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 82-673.
    Gianni v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 82-697.
    O’Connor v. Nevada et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-700.
    Burrus v. United Telephone Company of Kansas, Inc.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 82-723.
    McClatchy Newspapers, dba The Sacramento Bee v. Central Valley Typographical Union No. 46, International Typographical Union.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-726.
    Cel-A-Pak v. California Agricultural Labor Relations Board et al.
   C. A. 9th Cir. Certio-rari denied.


text:
    No. 82-730.
    Eagle v. United States District Court for the Northern District of California (American Telephone & Telegraph Co., Real Party in Interest).
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-757.
    Cothran et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-763.
    No. 82-765.
    Provenzano v. United States; and Cotler v. United States.
   C. A. 3d Cir. Certiorari denied. Reported below: 688 F. 2d 194.


text:
    No. 82-769.
    Tucker v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-780.
    Reagan v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5146.
    King v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 82-5160.
    Connor v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5192.
    Drew v. U. S. Department of the Navy et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 82-5247.
    Green v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5313.
    Griffin v. Rose, Warden, Tennessee State Penitentiary, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5314.
    Bramble v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5339.
    Bowman v. United States Department of Justice, Federal Prison System.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5440.
    Sisk et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5443.
    Evans v. Fenton, Superintendent, New Jersey State Prison, et al.
   C. A. 3d Cir. Certio-rari denied.


text:
    No. 82-5529.
    Cruz v. Scully, Superintendent, Green Haven Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 82-5538.
    Page v. Georgia.
   Sup. Ct. Ga. Certio-rari denied.


text:
    No. 82-5540.
    Miller v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5543.
    Legg v. Fayette County et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5546.
    Knight v. Virginia.
   Sup. Ct. Va. Cer-tiorari denied.


text:
    No. 82-5547.
    Christian v. Estelle, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5548.
    White v. Ellison et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5551.
    Herman v. Duckworth, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5553.
    In re Fiacco.
   C. C. P. A. Certiorari denied.


text:
    No. 82-5554.
    Cronic v. Chambers Lumber Co.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 82-5557.
    Salah v. Redman, Superintendent, Delaware Correctional Center, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5561.
    Miller v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 82-5563.
    Robinson v. Jeffes, Superintendent, State Correctional Institution, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5568.
    Read v. Delaware State Bar Assn. et al.
   Sup. Ct. Del. Certiorari denied.


text:
    No. 82-5572.
    Bryant v. Cherry et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5636.
    Daniels v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 82-5653.
    Antonelli v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 82-5656.
    Sloan v. Kentucky.
   Ct. App. Ky. Cer-tiorari denied.


text:
    No. 82-5658.
    Mulville v. Schweiker, Secretary of Health and Human Services.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 82-5659.
    Lay v. Bethlehem Steel et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 82-5662.
    Hegwood v. Martin, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 82-5667.
    Seiders v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 82-5669.
    Mauricio v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 82-5671.
    Duarte v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5674.
    Valdovinos-Cortez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 82-5677.
    Hill v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 82-5691.
    Hansen v. United States.
   C. A. 9th Cir. Certiorari denied.