text:
    No. 84-515.
    Spaulding et al. v. University of Washington.
   C. A. 9th Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 84-516.
    Delmonaco v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 84-521.
    Kriegesmann v. Barry-Wehmiller Co.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-522.
    Dante et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-523.
    Jizmejian v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-524.
    United States Fire Insurance Co. v. Cavanaugh et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-529.
    Jones, Chairman, Subcommittee on Services of the United States House of Representatives’ Committee on House Administration, et al. v. Walker.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-530.
    Welyczko v. U. S. Air, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-531.
    Mahoney v. Trabucco, Commissioner of Massachusetts Department of Public Safety, et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-534.
    Quigley v. First Federal Savings & Loan Association of Winter Haven.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied.


text:
    No. 84-536.
    Landsberg v. Scrabble Crossword Game Players, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-538.
    Snyder, Executrix of the Estate of Liljedahl v. Smith.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-539.
    MOL, Inc. v. Peoples Republic of Bangladesh.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-541.
    Smith v. Kentucky Bar Assn.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 84-543.
    Smith v. Contra Costa County Superior Court et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-546.
    McGill Inc. v. John Zink Co.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-547.
    Ward v. Sentry Title Co., Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-551.
    United Presbyterian Church in the United States of America et al. v. First Presbyterian Church of Schenectady et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 84-552.
    Stanziani et al. v. Coleman et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-554.
    M/V “Albert F” v. Industria Nacional del Papel, C. A.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-557.
    Agromayor v. Colberg.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-558.
    Clem Perrin Marine Towing, Inc. v. Panama Canal Co.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-560.
    Podrog et al. v. Waring, Cox, James, Sklar & Allen.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 84-561.
    G. M. Shupe, Inc. v. Dravo Corp.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-562.
    Nicolet Instrument Corp. v. Bio-Rad Laboratories, Inc.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-565.
    Massachusetts v. Donovan.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 84-574.
    Vario v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-576.
    King v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari denied.


text:
    No. 84-580.
    Bradley v. Weinberger, Secretary of Defense.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-584.
    Land & Lake Tours, Inc. v. Dole, Secretary of Transportation, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-596.
    DiSalvo v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-597.
    Chapman v. National Aeronautics and Space Administration et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-609.
    Britt v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-611.
    Dooley et al. v. Reiss et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-614.
    Hummel et al. v. Mont Pelerin Corp., N. V.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 84-615.
    Strawser v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-619.
    McLaughlin v. Office of Personnel Management.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-642.
    Knezevich v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-655.
    Hanna v. Railroad Retirement Board.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-660.
    Calero et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5008.
    Leahey v. Hanrahan et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-5018.
    No. 84-5214.
    Solina v. United States; and Bruscino v. United States.
   C. A. 7th Cir. Certiorari denied. Reported below: 733 F. 2d 1208.


text:
    No. 84-5036.
    Boone v. Valenti, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5051.
    Howell v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 84-5054.
    Rodriguez v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5074.
    Lentz v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5132.
    No. 84-5133.
    Mitchell v. United States; and Mitchell v. United States.
   C. A. 4th Cir. Certiorari denied. Reported below: 733 F. 2d 327.


text:
    No. 84-5164.
    Brender v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5227.
    Hoffman v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5297.
    Davis v. Fulcomer et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5329.
    Mincey v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 84-5375.
    Hicks v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 84-5417.
    Thomas v. Brown, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5432.
    Udell v. District of Columbia Court of Appeals Committee on Admissions.
   Ct. App. D. C. Certio-rari denied.


text:
    No. 84-5439.
    Malloy v. Martin, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5440.
    Williams v. Fulton County Jail et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5446.
    Seagle v. Allsbrook, Superintendent, Odom Correctional Facility.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5452.
    Boivin v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 84-5456.
    Staples v. Towne et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5457.
    Fulsom v. White, Superintendent, Moberly Training Center for Men.
   C. A. 8th Cir. Certio-rari denied.


text:
    No. 84-5462.
    Chow v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 84-5464.
    Tomarchio v. Eighth Judicial District Court of Nevada et al.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 84-5467.
    Bradley v. DeRobertis, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5468.
    Lee v. New York City Police Laboratory.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5469.
    Stanbeary v. Illinois Prison Review Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5480.
    Shabazz v. Oklahoma et al.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 84-5487.
    Graves v. Tinney, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5488.
    Gomez v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5489.
    Cleveland v. Dugger, Superintendent, Florida State Prison, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5490.
    El-Tayeb v. United Progress, Inc.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5496.
    Kennedy v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5499.
    Larsen v. Oklahoma et al.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 84-5501.
    Johnson v. Yellow Freight System, Inc.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5503.
    Worthy v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 84-5517.
    Dace v. Solem, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5519.
    Fowler v. Alabama.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 84-5528.
    Piatkowska v. Industrial Indemnity Co.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 84-5532.
    Phillips v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 84-5533.
    Stephens v. Sneath et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5534.
    Smith v. Welker et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5537.
    Street v. Collins, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5539.
    Coleman v. Corbin, Attorney General of Arizona, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5541.
    Dunlap v. Tennessee.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5557.
    Romano v. Black, Director, Missouri Department of Corrections and Human Resources.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5558.
    Smith v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5559.
    Salazar Lobo v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-5562.
    McFadden v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5570.
    Franks v. Starcher, Judge.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 84-5571.
    Honore v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 84-5573.
    Espenshade v. Pennsylvania State University et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5574.
    Ellsworth v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5575.
    Boone v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5577.
    Henderson v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 84-5580.
    Zeigler v. Griswald, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5587.
    Brumbach v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5588.
    In re Baker.
   Ct. App. Md. Certiorari denied.


text:
    No. 84-5641.
    Davenport v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 84-5651.
    Finke v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 84-5657.
    Harris v. Tompkins et al.
   C. A. 11th Cir. Certiorari denied.


author: Justice Brennan, Justice Stevens,

text:
    No. 83-1845.
    Stephens v. Kemp, Superintendent, Georgia Diagnostic and Classification Center.
   C. A. 11th Cir. The order entered December 13, 1983 [464 U. S. 1027], staying execution of sentence of death is vacated. Certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

The petitioner Alpha Otis O’Daniel Stephens has been condemned to death by electrocution. In this second petition for federal habeas relief, Stephens contends, inter alia, that he received the death penalty pursuant to a pattern and practice of racial discrimination in the administration of Georgia’s capital sentencing system, in violation of the Eighth and Fourteenth Amendments. Specifically, he points to recently available statistical studies allegedly demonstrating a persistent and pronounced disparity in capital sentencing in Georgia based on the race of the defendant and the race of the victim. Stephens unsuccessfully has sought an evidentiary hearing to prove the accuracy and materiality of these data.

The courts below acknowledged that the Court of Appeals for the Eleventh Circuit has recently held in several cases that the identical evidence proffered by Stephens is sufficient to require an evidentiary hearing under 28 U. S. C. §2254. The Eleventh Circuit in fact is currently considering en banc the very issues ■presented in Stephens’ petition — whether the newly developed studies are reliable, and whether they are material to the constitutionality of Georgia’s capital sentencing scheme. Stephens’ petition has not been held pending the outcome of this en banc consideration, however, because the courts below have concluded that Stephens has engaged in abuse of the writ. Specifically, they have determined that (1) although the new studies constitute “newly discovered evidence” for purposes of permitting relief on a first petition for habeas review, the identical studies do not constitute “newly discovered evidence” for purposes of securing relief on a second petition; and (2) Stephens in fact received an “evidentiary hearing” at which he failed to make an adequate “proffer” of the new studies.

Just last December, this Court stayed Stephens’ execution pending the Eleventh Circuit’s en banc resolution of the discrimination issue “or until further order of this Court.” 464 U. S. 1027, 1028 (1983). In today’s “further order,” the Court inexplicably reverses course and decides that the execution may proceed notwithstanding the continued pendency of the discrimination issue before the Eleventh Circuit. To the extent this reversal purports to rest on deference to the lower courts’ abuse-of-the-writ findings, I would respectfully submit that those findings fly in the face of the Fifth Amendment, 28 U. S. C. § 2254 and its attendant Rules, and well-settled precedent. Specifically, the record before us makes clear that (1) the proffered statistical studies are “newly discovered evidence” within the meaning of § 2254; and (2) Stephens did not receive the full and fair opportunity to introduce these studies to which he was entitled by law. At the very least, this case presents substantial questions concerning the abuse-of-the-writ doctrine that will recur with ever-increasing frequency. I therefore dissent from the Court’s denial of certiorari and its vacation of the stay of execution.

I

Stephens filed his second petition for habeas relief on November 14, 1983, two days before his scheduled execution. Anticipating that the State of Georgia would plead abuse of the writ pursuant to 28 U. S. C. §2254 Rule 9(b), Stephens explained that his discrimination claim was “based on factual evidence which Petitioner, as an indigent, did not have the independent means to develop and present.” 1 Record 17. Stephens continued:

“In mid-1982, however, statistical evidence became available that demonstrates that racial factors play a real and persistent role in the imposition of capital punishment in the State of Georgia, even when statutory and nonstatutory aggravating and mitigating circumstances are held constant and where only those cases indicted and convicted of murder are considered. A two-week evidentiary hearing to consider this extensive new social scientific evidence began on August 8, 1983 in McCleskey v. Zant, [580 F. Supp. 338 (ND Ga.), hearing eri banc granted, 729 F. 2d 1293 (CA11 1984)], before Honorable J. Owen Forester. Under these circumstances, Petitioner’s assertion of this claim upon this newly available factual basis cannot be deemed an abuse of the writ.” Ibid.

Stephens requested “a hearing at which proof may be offered concerning the allegations of this petition,” id., at 49, indicated that the McCleskey record would form the basis of his proffer at such a hearing, and stated that he wished to call as expert witnesses the three statisticians who recently had testified in McCleskey, id., at 59-60.

Later on the afternoon of November 14, Stephens’ counsel were notified by telephone that the District Court had scheduled an emergency oral argument for the next afternoon. According to an affidavit subsequently filed by one of the attorneys:

“[We] called Judge Wilbur Owens’ law clerk to specifically ask what we needed to prepare for the argument. We indicated that on only one days notice it was almost impossible to produce witnesses at that time.
“. . . Judge Owen’s [sic] law clerk responded that the Judge was interested in hearing argument on whether Mr. Stephens petition was an abuse of the writ. The law clerk further informed us that the Judge did not expect counsel to bring witnesses to Savannah.” Affidavit of George B. Daniels, attached to Petition for Rehearing .and Suggestion for Rehearing En Banc, Appeal No. 83-8844 (CA11).

The State of Georgia filed its response to Stephens’ petition the next morning; as expected, the State alleged that Stephens was abusing the writ. Oral argument commenced at 3:30 that afternoon. The court announced that it had convened the session to hear argument whether “a successor petition should be entertained by this Court” and whether the execution should be stayed to permit further proceedings. 2 Record 3, 76.

Stephens’ counsel described the nature and findings of the statistical studies that recently had been found sufficient to trigger an evidentiary hearing in McCleskey, and indicated that those studies would form the proffer if a hearing were granted in the instant case. The court responded that “I am familiar with the circumstances” of the studies and that “[t]his has been discussed in other cases with me.” Id., at 33. When the court expressed skepticism that the studies could be characterized as “new” evidence, Stephens’ counsel emphasized that the studies had become available only after Stephens’ first habeas petition had been dismissed, that as an indigent Stephens could not have afforded the prohibitive cost of underwriting independent studies, and that because the studies could not reasonably have been produced in previous proceedings, they were properly characterized as “new” evidence within the meaning of Habeas Corpus Rule 9(b). Id., at 31-32. When the court asked for more specific details concerning the studies, counsel responded that the methodology was “fairly complicated” and suggested that, if the court wished to review the data, counsel not later than the next morning could deliver the several file drawers of evidence adduced at the McCleskey hearing. Id., at 42.

Much of the remaining argument was devoted to a discussion whether the court should hold an evidentiary hearing to probe the issues in further detail. In response to the court’s question, “What kind of evidentiary hearing am I going to hold?”, id., at 68-69, Stephens’ counsel reviewed the evidence they proposed to introduce and emphasized that “we are prepared to proceed immediately, just as soon as the Court will give us a hearing, with the trial to put on our evidence and to hold an evidentiary hearing.” Id., at 75.

In postargument motions filed shortly after the argument, Stephens again reviewed the evidence he proposed to introduce at an evidentiary hearing, moved for a reference of the discrimination issue to a magistrate, and called to the court’s attention two recent cases in which the Eleventh Circuit had remanded habeas petitions for evidentiary hearings on the identical statistical evidence.

On November 21, the District Court summarily dismissed Stephens’ petition as an abuse of the writ and denied his applications for a stay of execution, for discovery, and for funds to retain experts. 578 F. Supp. 103, 108 (MD Ga. 1983). The court also specifically denied Stephens’ requests for an evidentiary hearing. Ibid. With respect to the merits of the discrimination claims, the court stated:

“[I]t is the opinion of this trial judge that petitioner’s excuse is insufficient to justify a consideration of them in this successive petition. The statistical evidence which petitioner desires to present to support his claims is not ‘newly discovered.’ Nothing prevented the compilation of this information prior to this late date. Accordingly, petitioner having no valid excuse for failing to raise these claims in his prior habeas petition, these claims constitute an abuse of the writ and must be DISMISSED.” Id., at 107.

The court endeavored in a footnote to distinguish Stephens’ case from other Eleventh Circuit cases holding that the identical statistical surveys are newly discovered evidence and sufficient to trigger a right to an evidentiary hearing:

“Had petitioner raised these challenges to Georgia’s capital sentencing statute in his prior habeas petition, this court would not have hesitated to hold an evidentiary hearing to ascertain the relevant facts upon which he relies in support of his claims.
“The court notes however that even if it were proper to consider the merits of petitioner’s claims in this successive petition, at the November 16 [sic], 1983 hearing he was unable to present any facts in support of his claim. He chose instead to rely upon bare conclusions.” Id., at 107, n. 2 (emphasis in original).

Stephens filed emergency applications for a certificate of probable cause and for a stay of execution with the Eleventh Circuit. A panel of that court heard oral argument on December 7 and, on December 9, denied both of Stephens’ applications. 721 F. 2d 1300 (1983). The panel did not address the District Court’s conclusion that the statistical evidence was not newly discovered within the meaning of §2254. Rather, it seized upon note 2 of the District Court’s opinion to conclude that Stephens in fact had received the required evidentiary hearing and had failed to make a proper “proffer” of the statistical evidence.

Stephens filed a petition for rehearing and a suggestion for rehearing en banc on December 10, which was denied on December 13 in a 6-6 vote. 722 F. 2d 627 (1983). Five of the dissenting judges argued that (1) the statistical data were “newly discovered” within the meaning of § 2254; (2) Stephens had made an adequate proffer for purposes of the November 15 oral argument; and (3) the November 15 oral argument had not been an “evidentiary hearing.” Id., at 628-629. Judge Kravitch, who had joined in the earlier panel decision, now filed a separate dissenting opinion emphasizing that there was “a serious question concerning petitioner’s opportunity to proffer evidence at the district court hearing, a factor crucial to the panel’s holding.” Id., at 629.

Stephens filed an emergency application for a stay of execution with Justice Powell, which was referred by him to the entire Court and granted late in the evening of December 13. The Court issued an order staying Stephens’ execution “pending the decision of the United States Court of Appeals for the Eleventh Circuit in Spencer v. Zant, [715 F. 2d 1562 (1983), reconsideration en banc stayed, 729 F. 2d 1293 (1984)], or until further order of this Court.” 464 U. S. 1027, 1028 (1983). The Court subsequently denied the State’s motion to vacate the stay of execution. 465 U. S. 1016 (1984). Today the Court reverses itself and decides, without explanation, that Stephens can be put to death notwithstanding the continued pendency of Spencer and the other cases consolidated for resolution by the Eleventh Circuit.

II

We need not decide whether Stephens’ proffered statistical evidence is sound or whether, if sound, it sufficiently demonstrates an invidious application of Georgia’s capital sentencing scheme. At the time Stephens filed his second petition the law in the Eleventh Circuit was that the identical evidence was sufficient to trigger an evidentiary hearing, and the Eleventh Circuit en banc has now consolidated three cases to resolve issues concerning the accuracy and materiality of this evidence. The principled approach would be to stay Stephens’ execution pending the outcome of these consolidated cases; that is what the Court initially ordered last December. 464 U. S. 1027 (1983). Today the Court has abandoned this course, apparently on the strength of two inexplicable findings by the courts below: (a) that Stephens’ proffered evidence is not “newly discovered”; and (b) that Stephens in fact has already received the “evidentiary hearing” that he has requested.

A

The only ground raised by Georgia in its abuse-of-the-writ allegation concerning Stephens’ discrimination claim is that Stephens unreasonably failed to assert this claim in his prior habeas petition, in violation of Habeas Corpus Rule 9(b). Congress has instructed the courts that a “petitioner’s failure to assert a ground in a prior petition is excusable,” and thus not an abuse of the writ, if the ground rests on “newly discovered evidence.” Advisory Committee’s Note to Habeas Corpus Rule 9, 28 U. S. C., p. 358. “Newly discovered evidence” has a well-settled meaning: it is “evidence which could not reasonably have been presented” by the petitioner in the earlier proceeding. Townsend v. Sain, 372 U. S. 293, 317 (1963).

To reject Stephens’ statistical evidence on the ground that “[njothing prevented the compilation of this information prior to this late date,” 578 F. Supp., at 107, would eviscerate Congress’ instruction that newly discovered evidence be given fair consideration. For “newly discovered evidence” by definition always existed at an earlier time; the inquiry, rather, is whether the petitioner reasonably either did not know about it or could not have presented it at an earlier proceeding (as would be the case, for example, with the discovery of a hidden gun or a fugitive eyewitness). Townsend v. Sain, supra.

There is no question in the instant case that the pertinent statistical studies did not become available until long after .Stephens filed his first habeas petition in February 1979. Indeed, work on these studies had barely commenced at that time. See also Spencer v. Zant, 715 F. 2d, at 1582 (noting that as late as May 1982 these studies were available only through oral testimony). As the Eleventh Circuit en banc dissenters noted, at the time of Stephens’ first habeas petition the then extant social science evidence had been held inadequate as a matter of law to raise a colorable claim of discrimination in Georgia’s capital sentencing system. 722 F. 2d, at 628, citing Spinkellink v. Wainwright, 578 F. 2d 582 (CA5 1978), cert. denied, 440 U. S. 976 (1979); and Smith v. Balkcom, 660 F. 2d 573 (CA5 1981), modified, 671 F. 2d 858, mandate recalled, 677 F. 2d 20, cert. denied, 459 U. S. 882 (1982). And no fair-minded person could suggest that indigent, uneducated, incarcerated petitioners like Stephens should be charged with inexcusable neglect for having failed themselves to perform or to underwrite sophisticated statistical sampling surveys and complex regression analyses of racial bias.

Moreover, courts within the Eleventh Circuit have repeatedly held that the identical studies offered by Stephens are newly discovered evidence within the context of a first habeas petition and, therefore, that “cause” existed for failing to introduce them at trial. See n. 9, supra. The test for “newly discovered evidence” is the same whether the evidence is presented in a first habeas petition or in a successor petition. See n. 10, supra. Even if some Members of this Court for some reason disagreed with the Eleventh Circuit’s determination that these studies represent “new” evidence, the proper course would be to resolve the issue on review of the Eleventh Circuit consolidated cases. It would be enough for present purposes to conclude that evidence characterized by the Eleventh Circuit as “new” for purposes of a first habeas petition must also be characterized as “new” for purposes of a second.

B

It is settled law that, once the State pleads abuse of the writ, the petitioner is entitled to an opportunity to rebut the allegation. Sanders v. United States, 373 U. S. 1, 20-21 (1963); Price v. Johnston, 334 U. S. 266, 292 (1948). “If the answer is inadequate, the court may dismiss the petition without further proceedings.” Ibid. But unless it is “‘conclusively show[n]’” that the response is without merit, the petitioner must receive an eviden-tiary hearing on the abuse-of-the-writ issue. Sanders v. United States, supra, at 20, citing Machibroda v. United States, 368 U. S. 487, 495-496 (1962) (where petitioner makes “specific and detailed factual assertions,” evidentiary hearing must be scheduled); see also Price v. Johnston, supra; 28 U. S. C. § 2254 Rule 8.

To be sure, courts may employ means short of a full-blown evi-dentiary hearing to determine whether such a hearing is required. For example, a court may call upon the petitioner to explain in writing why his successor petition is excusable. Congress has approved just such a form notice, appended to Habeas Corpus Rule 9, which admonishes the petitioner to include all the factual allegations necessary to support the response. Similarly, the Rules encourage courts to hold oral arguments and “prehearing conferences” when there is doubt concerning the necessity of an evidentiary hearing. Such arguments “‘may limit the questions to be resolved, identify areas of agreement and dispute, and explore evidentiary problems that may be expected to arise. . . . [S]uch conferences may also disclose that a hearing is unnecessary.’” Advisory Committee’s Note to Habeas Corpus Rule 8, 28 U. S. C., p. 356 (citation omitted). This practice is common and uncontroversial. But whether the petitioner’s response is elicited in writing or through oral argument, the governing standard is clear: if the response pleads facts that, if true, would entitle the petitioner to relief, an evidentiary hearing must be held to determine those facts. Sanders v. United States, supra, at 21-22.

In the instant case, the District Court held an oral argument the day after Stephens filed his habeas petition and the afternoon after the State had pleaded abuse of the writ. As discussed in Part I, supra, the purpose of this argument was to clarify whether (1) Stephens’ execution should be stayed, and (2) whether and to what extent an evidentiary hearing was necessary to resolve the underlying merits of Stephens’ petition and the State’s allegation of abuse. For purposes of the oral argument, the discussion by Stephens’ counsel of the discrimination claim was more than adequate to contest the State’s allegation of abuse and to require an evidentiary hearing on the matter. Counsel explained the studies’ findings and how they related to the constitutionality of the impending execution; noted that other courts had held that the studies required an evidentiary hearing; emphasized that the studies had not been available when Stephens filed his first habeas petition, and therefore constituted “newly discovered evidence”; and stressed that Stephens was prepared to proceed with an evi-dentiary hearing on the issue at the court’s earliest convenience. The court responded that it was fully “familiar with the circumstances” of the studies. 2 Record 33.

Incredibly, the District Court and the Eleventh Circuit both appear to have concluded that this oral argument, unbeknownst to Stephens or his counsel, in fact constituted the “evidentiary hearing” Stephens and his counsel were seeking to obtain, and that counsel’s failure physically to present the several file drawers of statistical data or the testimony of Stephens’ three designated witnesses at that time waived any right to further consideration of the issue. With all respect, I submit this is a shockingly unprincipled basis on which to send Stephens to the electric chair. Counsel have sworn that they were instructed by Judge Owens’ law clerk not to bring witnesses to the oral argument, and there is nothing in this record to suggest to the contrary. Indeed, the entire tenor of the November 15 session demonstrates that it was the sort of nonevidentiary oral argument held hundreds of times every day in federal courthouses across the country. Five of the Eleventh Circuit en banc dissenters had no difficulty in concluding that “[t]he hearing held by the district court on November 15, 1983, was not an evidentiary hearing,” 722 F. 2d, at 628, n. 3, and repeatedly so emphasized, see also id., at 628, n. 1. Judge Kravitch, who initially had joined the panel judgment, stressed in a separate dissent that, at the very least, there was “a serious question concerning petitioner’s opportunity to proffer evidence at the district court hearing.” Id., at 629.

If counsel were expected physically to proffer the evidence they had described in the petition and to appear in court with Stephens’ designated expert witnesses, they should have been so informed. They were not. Stephens’ petition for certiorari therefore raises substantial questions implicating what I had thought until today were settled and fundamental principles under the Fifth Amendment, the habeas statutes, and the Habeas Corpus Rules.

First. Until today there was “no doubt” that the Due Process Clause requires at a minimum that adjudications affecting an individual’s life, liberty, or property be preceded by (1) notice “reasonably calculated, under all the circumstances,” to inform the aggrieved party of the pendency and nature of the proceedings against him; and (2) a meaningful hearing “‘appropriate to the nature of the case.’” Armstrong v. Manzo, 380 U. S. 545, 550 (1965), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). “Due process of law . . . does not allow a hearing to be held . . . without giving [petitioners] timely notice, in advance of the hearing, of the specific issues that they must meet.” In re Gault, 387 U. S. 1, 33-34 (1967). Particularly where a human life hangs in the balance, I had thought this principle axiomatically required fair notice of the nature of the hearing and whether evidence must be tendered at that time.

Second. The habeas statutes themselves require federal courts to follow minimum procedural safeguards in resolving petitioners’ claims. To be sure, courts may “summarily hear and determine the facts,” 28 U. S. C. § 2243, and habeas petitioners should therefore expect expedited processing of their claims. But Congress has instructed us to ensure that such expedited resolution be accomplished “as law and justice require.” Ibid. Accordingly, the procedures surrounding an evidentiary hearing must “allow development, for purposes of the hearing, of the facts relevant to disposition of a habeas corpus petition,” and habeas petitioners must receive a “full opportunity for presentation of the relevant facts.” Harris v. Nelson, 394 U. S. 286, 298 (1969) (emphasis added). At Congress’ direction, “it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” Id., at 300. The ultimate question must always be whether the hearing accorded a defendant was in fact a “fair and meaningful evidentiary hearing.” Ibid, (emphasis added).

This Court is not unfamiliar with the inherent tensions between expedited resolution of habeas petitions in capital cases and the need for fundamentally fair procedures. Just two Terms ago, for example, the Court decided in Barefoot v. Estelle, 463 U. S. 880, 894 (1983), that a court of appeals may expedite briefing and hearing on the merits of a capital case where the petitioner has requested a stay of execution for consideration of his claims. The Court emphasized, however, that such expedited scheduling is permissible only “provided that counsel has adequate opportunity to address the merits and knows that he is expected to do so.” Ibid, (emphasis added). In the absence of such “appropriate notice,” a court may not proceed to deny the stay. Ibid.

I would have thought that a similar conclusion must surely follow here. Where a habeas petitioner has designated with precision the documentary evidence and witnesses he would produce at an evidentiary hearing, the court may be entitled to schedule an expedited evidentiary hearing. But counsel must be given notice that he is expected to produce the exhibits and the witnesses at the hearing. Where counsel reasonably believes that the scheduled session will consist merely of oral argument on the facial merits of the petition — the sort of preliminary argument that frequently is held in this sort of situation, see supra, at 1052-1053 — and has received no notice suggesting to the contrary, the oral argument cannot later be characterized as an “evidentiary hearing” at which the petitioner unknowingly had and lost his only chance to avoid execution. I would have thought this principle applied with even greater force where, as here, there is uncon-tradicted record evidence that counsel in fact were affirmatively advised not to bring their witnesses to the argument.

Third. The Court’s action also flies in the face of the Habeas Corpus Rules approved by Congress. Rule 8(c), for example, provides that an evidentiary hearing “shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation.” The Advisory Committee’s Note to Rule 8 stresses that courts are to follow those procedures necessary to ensure that counsel can “prepare adequately for an evidentiary hearing.” 28 U. S. C., p. 356 (emphasis added). I would have thought it elementary that a necessary component of such procedures is adequate notice that counsel will be expected to produce the documentary evidence and witness testimony on which the petition rests.

Similarly, Habeas Corpus Rule 11 commands the federal courts to apply the Federal Rules of Civil Procedure “to the extent that they are not inconsistent with these rules.” The notion of fair and adequate notice permeates the Civil Rules. Rule 12(c), for example, provides that if a court considers matters outside the pleadings in determining whether to enter judgment, the motion shall be considered as one for summary judgment “and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.” Similarly, Rule 56 has consistently been interpreted to require both (1) “fair notice” to the nonmovant that he is expected to present controverting evidence, so as to avoid “unfair surprise” in the summary resolution of the dispute; and (2) a “reasonable opportunity” to present such evidence. Macklin v. Butler, 553 F. 2d 525, 528-529 (CA7 1977); see also Plante v. Shivar, 540 F. 2d 1233, 1234-1235 (CA4 1976) (per curiam); Dale v. Hahn, 440 F. 2d 633, 638 (CA2 1971). Notwithstanding the expedited scheduling of habeas petitions in capital cases, these requirements are not “inconsistent” with the Habeas Rules. Indeed, they are a basic prerequisite to ensuring that the habeas remedy is administered “as law and justice require.” 28 U. S. C. §2243.

Ill

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 certiorari and vacate the death sentence in this case. But even if I believed otherwise, I would at the very least continue the stay of execution pending the Eleventh Circuit’s en banc resolution of the underlying discrimination issue.

Stephens’ petition presents questions that cut to the very heart of the Court’s professed desire to ensure the fair administration of §2254, particularly where the petitioner has been condemned to death. One need not reach the underlying merits of Stephens’ discrimination claim to conclude that, on the basis of the record before us, there is at the very least a substantial question whether his fate should be governed by the outcome of the consolidated cases that are now pending before the Eleventh Circuit en banc— cases that present the identical issues and turn on the identical evidence. Instead, Stephens will go to the electric chair on the strength of a finding that the evidentiary hearing he so fervently has sought has, in fact, already been held. This resolution does not comport with the administration of the Great Writ “as law and justice require.” 28 U. S. C. §2243. Rather, it is at best an example of result-orientation carried to its most cynical extreme.

I dissent from the Court’s denial of certiorari and its vacation of the stay of execution.

Justice Stevens,

dissenting.

In my opinion the Court should not act on the petition for writ of certiorari, and should not vacate its stay, until after the Court of Appeals for the Eleventh Circuit has decided the consolidated cases of Ross v. Hopper, 716 F. 2d 1528 (1983), rehearing en banc granted, 729 F. 2d 1293 (1984), Spencer v. Zant, 715 F. 2d 1562 (1983), reconsideration en banc stayed, 729 F. 2d 1293 (1984), and McCleskey v. Zant, 580 F. Supp. 338 (ND Ga.), hearing en banc granted, 729 F. 2d 1293 (1984).

       The tortuous history of Stephens’ first federal habeas action is summarized in the District Court’s opinion below. 578 F. Supp. 103, 104-105 (MD Ga. 1983). That action was not finally terminated until September 19, 1983, when the Court of Appeals for the Eleventh Circuit on remand from this Court considered and rejected the remaining claims in Stephens’ first habeas petition. Over the next six weeks, Stephens’ counsel investigated possible claims to raise in a second habeas petition and drafted the appropriate papers. On November 1, 1983, the Superior Court of Bleckley County, Ga., set Stephens’ execution date for November 16, 1983. Stephens filed his second state habeas petition on November 7 in the Superior Court of Butts County. One week later, on November 14, those state proceedings were concluded when the Supreme Court of Georgia denied Stephens’ application for a certificate of probable cause to appeal the lower state court’s denial of his petition. Stephens filed his federal petition later that same afternoon. The Supreme Court of Georgia stayed the execution to permit Stephens to pursue his federal action, and the Superior Court of Bleckley County thereafter reset Stephens’ execution for December 14, 1983. This Court issued an indefinite stay only hours before the scheduled execution. See infra, at 1049.

       Counsel stated, for example, that “[t]he evidence is that there is a greater willingness by prosecutors to permit white defendants to plead to voluntary manslaughter in black victim cases; that there is a greater likelihood of a black receiving a conviction for murder in white victim cases; and, a sharply higher death sentencing rate for white victim cases among eases advancing to the penalty phase.” 2 Record 41.

       See, e. g., id., at 31-32: “Are you telling me that nobody could have dug up that same evidence before? . . . [W]hat prevented them from doing it, is my question? Nothing, isn’t that the truth?”

       Stephens stated that the McCleskey record on this issue “is in excess of 2,000 pages and contains over 150 exhibits, none of which is self-explanatory,” and indicated that if the court had any remaining doubts Stephens was “prepared to proffer this record to show the evidence that would be introduced in this case showing discriminatory application of the death penalty.” 1 Record 102.

       The motion was made pursuant to 28 U. S. C. § 636 and 28 U. S. C. § 2254 Rule 8(b). Stephens urged that such a reference would permit a thorough evidentiary hearing on the accuracy and materiality of the “voluminous and complex scientific evidence” being proffered “without overburdening this Court.” 1 Record 110.

         Id., at 102, citing Ross v. Hopper, 716 F. 2d 1528 (CA11 1983), rehearing en banc granted, 729 F. 2d 1293 (1984); and Spencer v. Zant, 715 F. 2d 1562 (CA11 1983), reconsideration en banc stayed, 729 F. 2d 1293 (1984).

       The panel noted that Stephens’ discrimination claim
      “relies on this court’s recent decision in Spencer v. Zant .... In claiming that Georgia’s death penalty statute is administered in an arbitrary and discriminatory manner in violation of his eighth and fourteenth amendment rights, petitioner must prove ‘ “some specific act or acts evidencing intentional or purposeful. . . discrimination against [the petitioner]” on the basis of race, sex or wealth.’. . . Petitioner alleges that a 1980 study by a Dr. David Baldus supports his claim. This is a similar contention to that made in Spencer. Here, however, the similarity ends. In Spencer, which involved a first petition for habeas corpus, the so-called Baldus study was proffered as evidence at the district court hearing. A panel of this court held that the evidence as proffered was material and should have been received. In the present case the issue arose at a hearing concerning abuse of the writ but no such proffer was made by petitioner. Indeed, no evidence of any kind was proffered that would either establish petitioner’s claim or demonstrate that the claim was supported by intervening facts.” 721 F. 2d, at 1303.

       The Fourteenth Amendment condemns the racially discriminatory application of legislation that is neutral on its face. See, e. g., Yick Wo v. Hopkins, 118 U. S. 356 (1886). Circumstantial or statistical evidence may sometimes demonstrate such “stark” racially disproportionate impact as to leave no room for any conclusion but that the legislation is being administered in an intentionally discriminatory manner. See, e. g., Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Members of this Court recurrently have noted that statistical evidence of disproportionate capital sentencing might demonstrate the constitutional infirmity of an otherwise neutral sentencing scheme. See, e. g., Furman v. Georgia, 408 U. S. 238, 389-390, n. 12 (1972) (Burger, C. J., dissenting) (“While no statistical survey could be expected to bring forth absolute and irrefutable proof of a discriminatory pattern of imposition, a strong showing would have to be made, taking all relevant factors into account”); id., at 449 (Powell, J., dissenting) (“If a Negro defendant, for instance, could demonstrate that members of his race were being singled out for more severe punishment than others charged with the same offense, a constitutional violation might be established”).

       See, e. g., Ross v. Hopper, 716 F. 2d 1528 (CA11 1983), rehearing en banc granted, 729 F. 2d 1293 (1984); Spencer v. Zant, 715 F. 2d 1562 (CA11 1983), reconsideration en banc stayed, 729 F. 2d 1293 (1984); McCleskey v. Zant, 580 F. Supp. 338 (ND Ga.), hearing en banc granted, 729 F. 2d 1293 (CA11 1984). Spencer was argued en banc on January 17, 1984; Ross and McCleskey were argued en banc on June 12, 1984; and all three cases are pending decision by the Eleventh Circuit.

       The “newly discovered evidence” standard was articulated in Townsend v. Sain, a case addressing first federal habeas petitions. The test is the same for successor petitions. See, e. g., Sanders v. United States, 373 U. S. 1, 18 (1963) (standards concerning foreclosure from federal collateral review “govern equally” in the context of a successor writ).

       A court may of course also require the petitioner to submit the evidence he relies upon, so that the court may review that evidence to ensure that it fairly supports the petitioner’s factual allegations and is sufficient to require an evidentiary hearing. This too is a common practice. Of course, the court must actually inform the petitioner that he must tender his evidence and must give him a reasonable opportunity to do so. If the petitioner after such reasonable opportunity has neither submitted his evidence nor offered a reasonable explanation for failing to do so, the court may dismiss the petition. See, e. g., Smith v. Balkcom, 660 F. 2d 573, 575, n. 2, 585, n. 33 (CA5 1981), modified, 671 F. 2d 858, mandate recalled, 677 F. 2d 20, cert. denied, 459 U. S. 882 (1982).

       The Eleventh Circuit en banc dissenters emphasized that this was a sufficient proffer for purposes of the oral argument:
      “Counsel for Stephens proffered evidence based on newly available studies, (referring by name to the Baldus Study relied on in Spencer), summarized briefly the conclusions of the studies indicating a racially disproportionate imposition of the death penalty in Georgia, and when pressed for specifics stated that there would be presented the same evidence presented in the August, 1983 ease of McCleskey v. Zant, . . . and that the evidence would be presented tomorrow if the court pleased.” 722 F. 2d, at 628, n. 1.

       The Eleventh Circuit clearly construed the November 15 argument as having been an evidentiary hearing, see supra, at 1048, and n. 7, as does the State, see Brief in Opposition ii, 8, 9, n. 2, 12, 14-16, 18. If the District Court meant in the cryptic second footnote of its opinion to suggest instead that Stephens had failed to allege sufficient facts to require any further inquiry at all, that conclusion was clearly erroneous for the reasons discussed in the immediately preceding paragraph in text.

       To comply with Habeas Corpus Rule 8, however, such expediting is permissible only if the petitioner’s counsel has had “adequate time for investigation and preparation.” In scheduling the evidentiary hearing, the court must “take account of the complexity of the case, the availability of important materials, the workload of the attorney general, and the time required by appointed counsel to prepare.” Advisory Committee’s Note to Habeas Corpus Rule 8, 28 U. S. C., p. 356. See also Barefoot v. Estelle, 463 U. S. 880, 915 (1983) (Marshall, J., dissenting) (“In view of the irreversible nature of the death penalty and the extraordinary number of death sentences that have been found to suffer from some constitutional infirmity, it would be grossly improper for a court ... to establish special summary procedures for capital cases”).


author: Justice White,

text:
    No. 83-6866.
    No. 84-605.
    Means v. United States. Roth v. United States.
   C. A. 6th Cir.; and

C. A. 8th Cir. Certiorari denied. Reported below: No. 83-6866, 729 F. 2d 1462; No. 84-605, 736 F. 2d 1222.

Justice White,

with whom Justice Brennan joins,

dissenting.

These cases raise three recurring issues regarding the administration of the co-conspirator exception to the hearsay rule. Federal Rule of Evidence 801(d)(2)(E) provides that “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy,” when offered against that party, is not hearsay. The Rule has given rise to confusion among the lower courts with regard to when, by what standard of proof, and in light of what evidence the trial court should determine whether the necessary conspiracy existed.

In No. 83-6866, a critical prosecution witness testified to incriminating statements made to him by petitioner’s co-conspirator. The Sixth Circuit held that these statements were properly introduced pursuant to Rule 801(d)(2)(E). 729 F. 2d 1462 (1984). It concluded that the independent evidence, “when viewed in conjunction with the [hearsay] statements made by Blotske concerning [petitioner’s] participation,” established the existence of a conspiracy by a preponderance of the evidence. Pet. for Cert. 9. Thus, the Court of Appeals relied on the challenged statements to support the existence of the conspiracy pursuant to which those statements were introduced.

This approach was first adopted by the Sixth Circuit in United States v. Vinson, 606 F. 2d 149, 153 (1979), cert. denied, 444 U. S. 1074 and sub nom. Thompson v. United States, 445 U. S. 904 (1980), and has been approved en banc, United States v. Piccolo, 723 F. 2d 1234, 1240, and n. 1 (1983) (en banc), cert. denied, 466 U. S. 970 (1984). Though not entirely without support, it is inconsistent with the stated position of every other Federal Court of Appeals. See United States v. Jackson, 201 U. S. App. D. C. 212, 228-229, 627 F. 2d 1198, 1214-1215 (1980); United States v. Nardi, 633 F. 2d 972, 974 (CA1 1980); United States v. Alvarez-Porras, 643 F. 2d 54, 56-57 (CA2), cert. denied sub nom. Garcia-Perez v. United States, 454 U. S. 839 (1981); Government of the Virgin Islands v. Dowling, 633 F. 2d 660, 665 (CA3), cert. denied, 449 U. S. 960 (1980); United States v. Gresko, 632 F. 2d 1128, 1131-1132 (CA4 1980); United States v. James, 590 F. 2d 575, 580-581 (CA5) (en banc), cert. denied, 442 U. S. 917 (1979); United States v. Regilio, 669 F. 2d 1169, 1174 (CA7 1981), cert. denied, 457 U. S. 1133 (1982); United States v. Bell, 573 F. 2d 1040, 1043-1044 (CA8 1978); United States v. Miranda-Uriarte, 649 F. 2d 1345, 1349 (CA9 1981); United States v. Andrews, 585 F. 2d 961, 964-967 (CA10 1978); United States v. Monaco, 702 F. 2d 860, 876-880 (CA11 1983). I have noted this conflict before, see Arnott v. United States, 464 U. S. 948 (1983) (White, J., dissenting from denial of certiorari), and remain convinced that this Court should resolve it.

Whether the Eighth Circuit belongs in the above list is in some doubt in light of the second of these petitions. The petitioner in No. 84-605 was convicted of extortion. The critical evidence was testimony by the victim about threatening phone calls he received from petitioner’s co-conspirator. The District Court first admitted the statements conditionally, then, after the close of evidence, ruled that they were admissible. The Court of Appeals found that the statements were properly admitted. 736 F. 2d 1222 (1984). The court stated that the existence of a conspiracy must be established by independent evidence. Yet it relied on one of the threatening phone calls, this one from an uncertain source, to establish the date that the conspiracy had begun. Id., at 1229. Petitioner argues, with some force, that this use of the hearsay statement is inconsistent with the prevailing requirement of independent evidence.

The petitioner also raises two other issues as to which there is some division among the lower courts. First, he objects to the timing of the ruling on admissibility, arguing that admissibility should be established at a pretrial hearing rather than at the close of evidence. Second, he notes the existence of a conflict as to the standard of proof by which the conspiracy must be established. The majority position requires a preponderance of the evidence. See United States v. Ammar, 714 F. 2d 238, 249-251 (CA3), cert. denied sub nom. Stillman v. United States, 464 U. S. 936 (1983); United States v. Petersen, 611 F. 2d 1313, 1327 (CA10 1979), cert. denied, 447 U. S. 905 (1980); United States v. Jefferson, 714 F. 2d 689, 696 (CA7 1983); United States v. Bell, supra, at 1044; United States v. Arnott, 704 F. 2d 322, 325 (CA6 1982), cert. denied, 464 U. S. 948 (1983). Other courts require only substantial evidence, United States v. Jackson, supra, at 233-234, 627 F. 2d, at 1219-1220; United States v. James, supra, at 580-581; United States v. Monaco, supra, at 876-880; or a prima facie case, United States v. Dixon, 562 F. 2d 1138, 1141 (CA9 1977), cert. denied, 435 U. S. 927 (1978); United States v. Metz, 608 F. 2d 147, 153-154 (CA5 1979), cert. denied, 449 U. S. 821 (1980).

The timing issue does not merit our review. The question of the standard of proof does, but neither of these cases would be an appropriate vehicle as in each the Court of Appeals applied the most stringent alternative. These cases are nonetheless reminders of the continuing confusion about the administration of the co-conspirator exception — a confusion that, I think, we will eventually have to settle.

The critical question is whether a court may rely on challenged hearsay statements to determine whether the factual predicate for their admission exists. This Court has consistently denied certio-rari in cases from the Sixth Circuit raising this issue. Vinson v. United States, 444 U. S. 1074 (1980); Arnott v. United States, supra; Shoun v. United States, 465 U. S. 1012 (1984); Piccolo v. United States, 466 U. S. 970 (1984). The conflict shows no sign of disappearing, and I remain convinced that this Court should resolve it.

I dissent from the Court’s denial of certiorari in these two cases.

       The petitions do not raise a fourth issue that has split the Courts of Appeals, viz., whether a co-conspirator’s statement that is admissible under the Federal Rules automatically satisfies the requirements of the Confrontation Clause of the Constitution. See Sanson v. United States, 467 U. S. 1264, 1265 (1984) (White, J., dissenting from denial of certiorari); see generally United States v. Ammar, 714 F. 2d 238, 254-257 (CA3), cert. denied sub nom. Stillman v. United States, 464 U. S. 936 (1983).

       See United States v. Martorano, 561 F. 2d 406, 408 (CA1 1977), cert. denied, 435 U. S. 922 (1978); United States v. Cryan, 490 F. Supp. 1234, 1241 (NJ), aff’d, 636 F. 2d 1211 (CA3 1980); 1 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 104[05], p. 104-44 (1982).

       Though some courts have indicated a preference for pretrial hearings, see, e. g., United States v. James, 590 F. 2d 575, 581-582 (CA5) (en banc), cert. denied, 442 U. S. 917 (1979), none has required them. There is general agreement that the district court has the discretion to admit co-conspirator’s statements conditionally prior to proof of the existence of a conspiracy. See Annot., 44 A. L. R. Fed. 627, §7 (1979).

       But see Weinstein & Berger, supra, at 104-44 (suggesting standard of proof beyond a reasonable doubt, or by dear and convincing evidence, on the basis of both hearsay and nonhearsay).


text:
    No. 84-328.
    No. 84-5163.
    No. 84-5219.
    No. 84-5319.
    Cooper et al. v. United States; McCulloch v. United States; McKinney v. United States; and Lockamy v. United States.
   C. A. 11th Cir. Certiorari denied.

Justice White would grant certiorari.

Reported below: 733 F. 2d 1503.


text:
    No. 84-470.
    Weyerhaeuser Co. v. Western Seas Shipping Co. et al.
   C. A. 9th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 84-390.
    Wolk v. Supreme Court of New Jersey.
   Sup. Ct. N. J. Motion of petitioner to defer consideration of the petition for writ of certiorari denied. Motion of petitioner for reinstatement to the Bar of this Court denied. Certiorari denied.


text:
    No. 84-427.
    Moore v. Shultz, Secretary of State, et al.
   C. A. D. C. Cir. Motion of petitioner to defer consideration of the petition for writ of certiorari denied. Certiorari denied.


text:
    No. 84-453.
    California v. McCovey et al.
   Sup. Ct. Cal. Motion of respondent Walter J. McCovey, Jr., for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 84-466.
    Ohio v. Burkholder.
   Sup. Ct. Ohio. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 84-491.
    Chevron Chemical Co. v. Ferebee et al.
   C. A. D. C. Cir. Certiorari denied.

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


text:
    No. 84-503.
    Adams et al. v. Union Carbide Corp.
   C. A. 6th Cir. Certiorari denied.

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


text:
    No. 84-5134.
    Seritt v. Alabama.
   C. A. 11th Cir. Certiorari denied.

Justice Marshall would grant certiorari.


author: Justice Marshall,

text:
    No. 84-5389.
    Jacobs v. Wainwright, Secretary, Florida Department of Corrections.
   Sup. Ct. Fla. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

This Court has unequivocally stated that a sentencer in a capital case must be permitted to consider, as evidence of mitigation, any aspect of a defendant’s character or record, and any circumstances of the offense, that the defendant offers as a basis for a sentence less than death. Lockett v. Ohio, 438 U. S. 586, 604 (1978). The issue squarely presented is whether, when a trial judge has prevented the jury from hearing indisputably relevant mitigating evidence, that error creates such an unacceptable risk that the death penalty was inappropriately imposed as to require a reviewing court to remand for resentencing, even if the error was not properly preserved in the trial court. To hold that the fundamental error may be ignored is to penalize a defendant, possibly with his life, for the shortcomings of his attorney. I do not believe such a result comports with the most elemental principles underlying the Eighth and Fourteenth Amendments. I therefore dissent.

I

The relevant facts of this case are quite straightforward. The defendant took the stand at the sentencing phase of his trial and testified about certain statutory mitigating factors. Trial counsel then asked: “Do you know anything else that you wish to tell this jury in mitigation of this offense of which you have been convicted?” The prosecutor objected to this question, arguing that it was too broad because “it must follow the statute.” Trial counsel tried to phrase the question differently, and again the objection was sustained. The trial court accepted the prosecution argument that the Florida death penalty statute permitted only evidence of statutory mitigating factors. Since, under this view, all evidence of nonstatutory mitigating factors was inadmissible, the trial judge did not permit the defendant to describe to the jury the mitigating circumstances of his background, and of the offense.

There is no dispute that the trial judge violated the mandate of Lockett v. Ohio when he ruled that evidence of nonstatutory mitigating factors was not admissible. However, defendant’s trial counsel, who continued as appellate counsel, did not raise this issue either on direct appeal in the state courts, or in the first petition for certiorari filed with this Court.

Thereafter the defendant obtained new counsel, who filed a petition for habeas corpus in the Florida Supreme Court, which has original jurisdiction to address claims of ineffective assistance of counsel before that court. In a terse paragraph, the court dismissed the argument that appellate counsel was ineffective. The court ruled that appellate counsel could not be considered incompetent for failure to raise the claim on appeal because he was procedurally precluded from raising it. Under Florida law, the court explained, counsel was required to make a proffer of the attempted testimony after the trial judge excluded it. Thus, the court effectively ruled, there could have been no prejudice from the failure to raise the issue on appeal, since the court would not have addressed it anyway. Two justices dissented on the grounds that the nature of the excluded evidence was apparent, that the court should have addressed the claim, and that appellate counsel was ineffective in his failure to raise the issue. The defendant then filed this petition for certiorari, challenging the State Supreme Court’s ruling that the reviewing court would have had no obligation to address the Lockett claim on the merits.

II

Because of the basic difference between the death penalty and all other punishments, this Court often has recognized that there is a corresponding difference in the need for reliability in determining whether the death sentence is appropriately imposed in a particular case. Thus, we have recognized that “[w]hat is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine,” Jurek v. Texas, 428 U. S. 262, 276 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), and we have steadfastly insisted that the sentencer in capital cases must be permitted to consider any relevant mitigating factor. Eddings v. Oklahoma, 455 U. S. 104, 112 (1982).

The premise of this unfolding doctrine is that a sentence imposed without evidence of facts and circumstances offered in mitigation creates a risk that the death penalty will be imposed in spite of factors that call for a different penalty. As The Chief Justice has written: “When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” Lockett v. Ohio, supra, at 605. Yet, when a court closes its eyes to clear Lockett error, as the state court did in this case, and instead rests on technical procedural rules, it accepts the risk to which The Chief Justice refers and comes down on the side of death.

Nor does The Chief Justice stand alone in his recognition that a sentencing body’s failure to consider all mitigating evidence seriously and unacceptably raises the possibility that a person will die in error. Infusing many opinions from this Court is the sense that Lockett is so fundamental, and the result of an improper exclusion of mitigating evidence potentially of such great magnitude, that such errors simply must be corrected. Thus, writing in Eddings v. Oklahoma, Justice O’Connor observed: “Because the trial court’s failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.” 455 U. S., at 117, n. (concurring opinion). Indeed, in Eddings five Members of this Court reversed a death sentence as a consequence of a Lockett violation, even though certiorari had been granted on a separate issue, and even though the claim was presented neither to the state court nor to this Court. Similarly, writing in Strickland v. Washington, 466 U. S. 668 (1984), JUSTICE Brennan echoed this sentiment when he observed that “a sentencing judge’s failure to consider relevant aspects of a defendant’s character and background creates such an unacceptable risk that the death penalty was unconstitutionally imposed that, even in cases where the matter was not raised below, the ‘interests of justice’ may impose on reviewing courts ‘a duty to remand [the] case for resentencing.’” Id., at 705 (concurring in part and dissenting in part). To my mind, the concerns expressed in these opinions all point toward one irrefutable conclusion: that regardless of procedural obstacles, where the trial court’s commission of clear Lockett error leads to the exclusion of relevant mitigating evidence, the reviewing court must address the issue and remand for resentencing.

The court reviewing the defendant’s sentence would have had precisely such a duty to remand this ease for resentencing, had counsel either raised the Lockett issue before that court, or had the court noted it of its own account. Indeed, the need to consider the claim, and remand, is particularly compelling when the trial court has blocked the defendant’s submission of all nonstatu-tory mitigating factors. The State Supreme Court’s willingness to blink at such potentially profound and consequential error, as evidenced by its cursory dismissal of the ineffective-assistance claim on the ground that the error would not have been addressed anyway, jeopardizes what I believe to be the foundation on which this Court’s current death penalty jurisprudence rests. And, as I have noted, this concern is especially palpable under the facts of this case. The defendant has indicated that if he had been permitted to testify, he would have told the jury that his co-participants were not sentenced to death; that the victim drew a gun on him; and that he came from a background of extreme poverty, had worked steadily since childhood, and had a long history of concern for family and friends. Such testimony is paradigmatic of the evidence whose admission is fostered and protected by Lockett and Eddings, and yet it was excluded here.

This case therefore offers a compelling opportunity to consider whether a reviewing court, confronted with the erroneous exclusion of undeniably relevant mitigating evidence, must consider the claim regardless of procedural rules permitting the court to avoid the merits. It offers an opportunity to consider whether the shortcomings of an attorney, appointed to handle a case both at trial and on appeal, will be permitted to take their toll on the life of a defendant. I cannot imagine that the Constitution countenances such an inhumane result. Accordingly, I dissent.

Ill

I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting); Furman v. Georgia, 408 U. S. 238, 314 (1972) (Marshall, J., concurring). Even if I did not believe that the death penalty is in all cases unconstitutional, however, I would grant certiorari in this case for the reasons set out above.


author: Justice Brennan and Justice Marshall,

text:
    No. 84-5425.
    No. 84-5491.
    No. 84-5530.
    Fisher v. Arizona. Melson v. Tennessee. Groseclose v. Tennessee.
   Sup. Ct. Ariz.;

Ct. Crim. App. Tenn.; and

Ct. Crim. App. Tenn. Certiorari denied. Reported below: No. 84-5425, 141 Ariz. 227, 686 P. 2d 750.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 83-1715.
    No. 83-1755.
    No. 83-1832.
    No. 83-1950.
    Gajewski v. Commissioner of Internal Revenue, Brotherhood of Teamsters, Local No. 70 v. California Consolidators, Inc., Alexander v. Los Angeles County et al., McAllister et al. v. Gulf Federal Savings & Loan Assn.,
   ante, p. 818;

ante, p. 887;

ante, p. 822; and

ante, p. 827. Petitions for rehearing denied.


text:
    No. 83-2003.
    No. 83-2008.
    No. 83-2019.
    No. 83-2028.
    No. 83-2040.
    No. 83-2109.
    No. 83-2164.
    No. 83-6580.
    No. 83-6670.
    No. 83-6778.
    No. 83-6811.
    No. 83-6827.
    No. 83-6833.
    No. 83-6873.
    No. 83-6882.
    No. 83-6910.
    No. 83-6939.
    No. 83-6947.
    No. 83-7002.
    No. 83-7008.
    No. 83-7027.
    No. 84-11.
    No. 84-85.
    No. 84-208.
    No. 84-247.
    No. 84-5046.
    No. 84-5049.
    No. 84-5062.
    Hemingway, Administratrix of the Estate of Hemingway v. Ochsner Clinic et al., Phinney v. First American National Bank, Zolla v. United States, Butler v. Federal National Mortgage Association, Washburn v. Washburn, Dominey v. Atchison, Topeka & Santa Fe Railway Co., Angleton et al. v. Pierce, Secretary of Housing and Urban Development, et al., Skillern v. Procunier, Director, Texas Department of Corrections, Roy et al. v. City of Middletown, Thomas v. Gerber Productions et al., Silagy v. Illinois, Wesson v. Coughlin, Jones v. Francis, Warden, Baig v. United States, Roberts v. Georgia, Faison v. Florida et al., Brown v. Flure et al., Novel v. Picariello et al., Polin et ux. v. Jews for Jesus et al., Perry v. District of Columbia, Smith v. Chattanooga-Hamilton County Hospital et al., Stroom v. Carter, Former President of the United States, et al., Felker v. Georgia, Caito v. Indiana, Chetister v. Chetister, Ingram v. Industrial Commission of Illinois et al., Shaw v. Martin, Warden, Gumz et al. v. Pioneer Nursing Home et al.,
   ante, p. 829;

ante, p. 829;

ante, p. 830;

ante, p. 830;

ante, p. 831;

ante, p. 834;

ante, p. 880;

ante, p. 873;

ante, p. 804;

ante, p. 841;

ante, p. 873;

ante, p. 843;

ante, p. 873;

ante, p. 844;

ante, p. 873;

ante, p. 845;

ante, p. 846;

ante, p. 847;

ante, p. 850;

ante, p. 805;

ante, p. 805;

ante, p. 852;

ante, p. 873;

ante, p. 805;

ante, p. 805;

ante, p. 861;

ante, p. 873; and

ante, p. 862. Petitions for rehearing denied.


text:
    No. 84-5080.
    No. 84-5089.
    No. 84-5093.
    No. 84-5095.
    No. 84-5217.
    No. 84-5284.
    No. 84-5296.
    No. 84-5300.
    No. 84-5382.
    No. 84-5404.
    McKee v. AMAF Industries, Inc., Baig v. United States, Walker v. Navajo-Hopi Indian Relocation Commission, Harris v. District of Columbia Department of Employment Services, Robinson v. Thompson, Governor of Illinois, et al., Fuentes v. Ross et al., Cooper v. Davis, Warden, Royster v. Adams et al., In re Thaper, Perry v. Lockhart, Director, Arkansas Department of Corrections,
   ante, p. 862;

ante, p. 863;

ante, p. 918;

ante, p. 863;

ante, p. 876;

ante, p. 886;

ante, p. 887;

ante, p. 919;

ante, p. 878; and

ante, p. 920. Petitions for rehearing denied.


text:
    No. 83-1916.
    Jarboe-Lackey Feedlots, Inc. v. United States,
   ante, p. 825. Motion of petitioner to withdraw the petition for rehearing denied. Petition for rehearing denied.


text:
    No. 83-2005.
    Zweibon et al. v. Mitchell,
   ante, p. 880. Petition for rehearing denied.

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


text:
    No. 84-5287.
    David v. American Telephone & Telegraph Co. et al.,
   ante, p. 900. Petition for rehearing denied.

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


text:
    December 3, 1984
    No. 84-717.
    Lussy v. Davidson et al.
   Appeal from Sup. Ct. Mont, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-7034.
    Viccarone v. Drug Enforcement Administration et al.
   C. A. 7th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for reconsideration in light of § 2(c) of the Central Intelligence Agency Information Act, Pub. L. 98-477, 98 Stat. 2209, and for such further proceedings as are indicated. See Shapiro v. Drug Enforcement Administration, ante, p. 14.


text:
    No. A-326.
    Sawyer v. United States.
   Application for release pending appeal, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-463.
    In re Disbarment of Hopt.
   It is ordered that Larry W. Hopt, of Seattle, Wash., 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-464.
    In re Disbarment of McDaniel.
   It is ordered that Marlin K. McDaniel, of Richmond, Ind., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-465.
    In re Disbarment of Pelle.
   It is ordered that Michael A. Pelle, of North Miami Beach, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 83-1545.
    Western Air Lines, Inc. v. Criswell et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 815.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 83-1748.
    Allis-Chalmers Corp. v. Lueck.
   Sup. Ct. Wis. [Certiorari granted, ante, p. 815.] Motions of Chamber of Commerce of the United States and American Federation of Labor and Congress of Industrial Organizations for leave to file briefs as amici curiae granted.


text:
    No. 83-1785.
    Air France v. Saks.
   C. A. 9th Cir. [Certiorari granted, ante, p. 815.] Motions of International Air Transport Association and the Republic of France for leave to file briefs as amici curiae granted.


text:
    No. 83-2146.
    Wilson et al. v. Garcia.
   C. A. 10th Cir. [Certiorari granted, ante, p. 815.] Motion for appointment of counsel granted, and it is ordered that Steven G. Farber, Esquire, of Santa Fe, N. M., be appointed to serve as counsel for respondent in this case.


text:
    No. 83-2166.
    Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio.
   Sup. Ct. Ohio. [Probable jurisdiction noted, ante, p. 813.] Motion of American Civil Liberties Union et al. for leave to file a brief as amici curiae granted.


text:
    No. 83-5424.
    Ake v. Oklahoma.
   Ct. Crim. App. Okla. [Certiorari granted, 465 U. S. 1099.] Motion of petitioner for leave to file a supplemental brief after argument granted.


text:
    No. 84-4.
    Williamson County Regional Planning Commission et al. v. Hamilton Bank of Johnson City.
   C. A. 6th Cir. [Certiorari granted, ante, p. 815.] Motion of National Association of Counties et al. for leave to file a brief as amici curiae granted.


text:
    No. 84-28.
    No. 84-143.
    Brockett v. Spokane Arcades, Inc., et al.; and Eikenberry, Attorney General of Washington, et al. v. J-R Distributors, Inc., et al.
   C. A. 9th Cir. [Probable jurisdiction noted, ante, p. 813.] Motion of Morality in Media, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 84-205.
    Virginia ex rel. Department of Conservation and Economic Development et al. v. Clark, Secretary of the Interior, et al.
   C. A. 4th Cir. [Certiorari granted, ante, p. 979.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 84-480.
    P. I. A. Asheville, Inc., et al. v. North Carolina ex rel. Edmisten, Attorney General.
   C. A. 4th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 84-5350.
    Maxwell v. Pennsylvania,
   ante, p. 971. Respondent is invited to file a response to the petition for rehearing within 30 days.


text:
    No. 84-5564.
    No. 84-5605.
    Dano v. Szombathy. Mohamed v. United States.
   Super. Ct. N. J., App. Div.; and

C. A. Fed. Cir. Motions of petitioners for leave to proceed in forma pawperis denied. Petitioners are allowed until December 24, 1984, within which to pay the docketing fee required by Rule 45(a) and to submit petitions in compliance with Rule 33 of the Rules of this Court.

Justice Brennan, Justice Marshall, and Justice Stevens,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petitions for writs of certiorari without reaching the merits of the motions to proceed in forma pawperis.


text:
    No. 83-2032.
    Immigration and Naturalization Service v. Rios-Pineda et al.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 84-510.
    Aspen Skiing Co. v. Aspen Highlands Skiing Corp.
   C. A. 10th Cir. Certiorari granted.


text:
    No. 83-1624.
    United States v. Albertini.
   C. A. 9th Cir. Certiorari granted. In addition to the question presented in the petition, the parties are requested to address the following question: Whether the respondent’s attendance at the “open house” at Hickam Air Force Base on May 16, 1981, was the kind of reentry that Congress intended to prohibit in 18 U. S. C. § 1382?


text:
    No. 84-433.
    School Committee of the Town of Burlington, Massachusetts, et al. v. Department of Education of Massachusetts et al.
   C. A. 1st Cir. Certiorari granted limited to Questions I and V presented by the petition.


text:
    No. 84-5240.
    Jean et al. v. Nelson, Commissioner, Immigration and Naturalization Service, et al.
   C. A. 11th Cir. Motion of petitioners for leave to proceed informa pauperis and certiorari granted.


text:
    No. 83-1836.
    Burton v. Board on Professional Responsibility of the District of Columbia Court of Appeals.
   Ct. App. D. C. Certiorari denied.


text:
    No. 83-1986.
    Haimowitz v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-2073.
    Ferguson v. Walters, Administrator of the Veterans Administration.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-6990.
    Lauchli v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-223.
    Triple “A” Machine Shop, Inc. v. Southwest Marine, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-236.
    Alberici v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-241.
    Garvey v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 84-324.
    Gamble v. Van Der Eyken.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 84-332.
    No. 84-340.
    Agency Holding Corp. et al. v. Malley-Duff & Associates, Inc.; and Crown Life Insurance Co. et al. v. Malley-Duff & Associates, Inc., et al.
   C. A. 3d Cir. Certiorari denied. Reported below: 734 F. 2d 133.


text:
    No. 84-338.
    A & P Steel, Inc. v. Rosebud Sioux Tribe.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-352.
    Cody et al. v. Donovan, Secretary of Labor, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-358.
    Local 1814, International Longshoremen’s Assn. v. National Labor Relations Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-404.
    Beale v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-407.
    Hoskins v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-460.
    Greene v. New York City Health & Hospital Corp.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-492.
    Arrington v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 84-563.
    Century Air Freight, Inc. v. American Airlines, Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-567.
    Nord v. Arkansas.
   Ct. App. Ark. Certiorari denied.


text:
    No. 84-568.
    Armstrong, Trustee of the Estates of Lindberg et al. v. Lindberg et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-569.
    Pennzoil Co. v. Public Service Commission of West Virginia.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 84-570.
    Vuyanich et al. v. Republic National Bank of Dallas.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-582.
    Kollias v. Bay Tankers, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-583.
    Williams v. Melton et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-602.
    City of Alameda v. Premier Communications Network, Inc.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 84-613.
    EMI Ltd. v. Bennett et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-618.
    Bratton, Administrator of the Estate of Bratton v. Safeway Stores, Inc.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-622.
    Eddie Steamship Co. Ltd. v. P. T. Karana Line.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-624.
    Manetas v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-625.
    Taylor v. California Unemployment Insurance Appeals Board (San Diego State University, Real Party in Interest).
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 84-674.
    Napoli v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-704.
    Tropigas, S.A. v. Anderson et al.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 84-705.
    Tapia v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-726.
    Brady v. Commissioner of Internal Revenue.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-737.
    Gindes et al. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-5260.
    Shaw v. Dixon et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5282.
    Layton v. Florida Parole and Probation Commission et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5314.
    Kulik v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 84-5473.
    Bollin v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5551.
    Winchester v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 84-5552.
    Petrofsky v. Intermountain Research & Engineering Co.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5561.
    Barrows et al. v. Idaho et al.
   Sup. Ct. Idaho. Certiorari denied.


text:
    No. 84-5563.
    Tarrant v. Ponte, Superintendent, Massachusetts Correctional Institution, et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-5565.
    Telepo v. Diana, Judge, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5567.
    Moore v. Rice, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5569.
    Williams v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5576.
    Garcia v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 84-5578.
    Rothschild v. Carroll et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5579.
    Johnpoll v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5581.
    Wilson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5583.
    Schirripa v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5584.
    Vlasic v. Lippman, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5586.
    Bennett v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5589.
    Beldin et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5590.
    Johnson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5600.
    Webb v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5603.
    Ortiz v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5604.
    Martin-Trigona v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5615.
    Miller v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5617.
    Reed v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5619.
    Ruble v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5620.
    Long v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5621.
    Gallegos v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5629.
    Smith v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5633.
    Sando v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5638.
    Labadie v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5639.
    Foster v. Clifford, Clerk of the Circuit Court of St. Louis County, Missouri.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5643.
    Parker v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5645.
    Wolff v. United States et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5646.
    Stanley v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-5647.
    Mazak v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5652.
    Hirsch v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5653.
    Greene v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 83-2089.
    Burdgick v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Motion of respondent to defer consideration of the petition for writ of certiorari denied. Certiorari denied.


text:
    No. 84-188.
    Energy Reserves Group, Inc., et al. v. Department of Energy et al.
   Temp. Emerg. Ct. App. Certiorari denied.

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


text:
    No. 84-594.
    Smith v. Honeywell, Inc., et al.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 84-608.
    Westinghouse Electric Corp. et al. v. S/S Leslie Lykes et al.
   C. A. 5th Cir. Certiorari denied.

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


text:
    No. 84-5606.
    Engberg v. Wyoming.
   Sup. Ct. Wyo. 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 certiorari and vacate the death sentence in this case.


text:
    No. 83-6468.
    No. 83-6832.
    No. 84-5002.
    No. 84-5073.
    No. 84-5206.
    No. 84-5244.
    No. 84-5249.
    Askew v. F & W Express, Inc., et al., Eddmonds v. Illinois, Willis v. Procunier, Director, Texas Department of Corrections, Mack v. W. R. Grace & Co. et al., Albanese v. Illinois, Attwell et ux. v. U. S. Postal Service et al., Stewart v. Illinois,
   ante, p. 916;

ante, p. 894;

ante, p. 859;

ante, p. 805;

ante, p. 892;

ante, p. 868; and

ante, p. 920. Petitions for rehearing denied.


text:
    No. 83-6862.
    Mack v. American Telephone & Telegraph Co. et al.,
   ante, p. 871. Petition for rehearing denied.

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


text:
    December 10, 1984
    No. 84-644.
    National Rifle Association of America et al. v. Minnesota State Ethical Practices Board.
   C. A. 8th Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Brennan,

text:
    No. 83-6673.
    Rodrigues v. Hawaii.
   Appeal from Sup. Ct. Haw. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

There are two facts of consequence in this case: first, at the time the case arose, Hawaii permitted the issue of insanity to be tried by a judge prior to the empaneling of a jury, and second, the defendant, who availed himself of this procedure, was acquitted. These facts raise an issue of substantial importance: may the State, consistent with the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment, appeal an acquittal based upon insanity entered prior to the empaneling of a jury.

I

Rodrigo Rodrigues, a 23-year-old Marine, was indicted on three counts of sodomy and one count of rape. Prior to the empaneling of a jury, Rodrigues’ attorney raised the defense of mental disease. Pursuant to Haw. Rev. Stat. §704-408 (1976), the trial court suspended preliminary proceedings, appointed a panel of three psychiatrists to examine the defendant, and proceeded to try the issue of insanity. Over the course of 10 days, both the defendant and the State adduced extensive testimony as to the defendant’s sanity. Five experts, two of whom served on the panel appointed by the court, testified that the defendant was afflicted with multiple-personality syndrome, a dissociative disorder in which an individual’s personality separates into complicated and autonomous subpersonalities. The judge concluded that the defendant was insane and entered an acquittal. The State appealed. The Supreme Court of Hawaii, in a divided opinion, reversed and remanded on the ground that the trial court erred in weighing the evidence as to insanity.

II

This Court has repeatedly stated that a fundamental purpose of the Double Jeopardy Clause is to protect acquittals based upon the resolution of the factual elements of an offense.

“An acquittal is accorded special weight. ‘The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal,’ for the ‘public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though ‘the acquittal was based upon an egregiously erroneous foundation.’ See Fong Foo v. United States, 369 U. S. 141, 143. If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair. Arizona v. Washington, 434 U. S., at 503. The law ‘attaches particular significance to an acquittal.’ United States v. Scott, 437 U. S., at 91.”

The Court has also stated that because an acquittal based upon a finding of insanity constitutes such a resolution, it may not be appealed. The rationale behind the principle according acquittals special weight is that an appeal or retrial following an acquittal would produce “an unacceptably high risk that the Government, with its superior resources, would wear down a defendant, thereby ‘enhancing the possibility that even though innocent he found guilty.’”

The question presented is whether these equal force to the period prior to the formal commencement of a trial. In other words, does jeopardy attach if the judge has tried the crime prior to the empaneling of a jury?

Conceding that in this case the judge the issue of insanity, the Supreme Court of Hawaii nonetheless held that jeopardy had not attached at the time of the acquittal. The court relied upon Serfass v. United States, 420 U. S. 377 (1975), in holding that the Double Jeopardy Clause is irrelevant to those acquittals issued prior to the empaneling of a jury or the calling of the first witness. The indictment

The court’s upon in Serfass was dismissed for reasons wholly unrelated to a resolution of the factual elements of the crime. The defendant, who had been refused status as a conscientious objector, was subsequently indicted for failure to report for or submit to induction. Prior to trial, the defendant moved to dismiss on the ground that the Government had inadequately set forth its reasons for initially refusing his request for classification as a conscientious objector. The District Court agreed, and the case was dismissed for the Government’s failure to provide due process, not because the indictment was defective nor because the defendant was tried and found innocent as to the elements of the crime. discussed nor

The issue in the instant case — an addressed in Serfass — is whether jeopardy attaches to an acquittal based upon a resolution of a factual element of the crime that occurred prior to the empaneling of a jury or the calling of the first witness. The principles summarized in the above quotation from DiFrancesco strongly suggest that jeopardy does attach to such acquittals and that it is of no consequence that the defendant’s acquittal occurred before the formal commencement of trial. The question posed by this case has engendered division amongst the commentators as well as a conflict among the Courts of Appeals. Because we have not addressed the question and because it is of some importance, I believe that plenary consideration is appropriate.

I therefore dissent from the denial of the petition for certiorari.

       Hawaii Rev. Stat. § 704-408 (1976): “Determination of irresponsibility. If the report of the examiners filed pursuant to section 704-404 states that the defendant at the time of the conduct alleged suffered from a physical or mental disease, disorder, or defect which substantially impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, and the court, after a hearing if a hearing is requested, is satisfied that such impairment was sufficient to exclude responsibility, the court, on motion of the defendant, shall enter judgment of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.” This section was amended in 1980. Given the frequency with which the issue in this case arises and the existing conflict between the Courts of Appeals (see infra, at 1081), the amendment of the section is of no bearing on the decision to grant the petition for certiorari2

       67 Haw. 70, 78-79, 679 P. 2d 615, 621 (1984)3

        United States v. DiFrancesco, 449 U. S. 117, 129-130 (1980); United States v. Scott, 437 U. S. 82, 97 (1978); Burks v. United States, 437 U. S. 1, 16 (1978); United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (14 United States v.

        United States v. DiFrancesco, supra, at 1295

        United States v. Scott, supra, at 97-98.

         United States v. DiFrancesco, supra, at 130.

       67 Haw., at 79, 679 P. 2d, at 621.

       Serfass v. United States, 420 U. S., at 379.

       Compare 15 C. Wright, A. Miller, & B. Cooper, Federal Practice and Procedure § 3919, p. 673 (1976) (stating that jeopardy attaches); Comment, Double Jeopardy and Government Appeals of Criminal Dismissals, 52 Texas L. Rev. 303, 337-338 (1974) (same), with 1 W. LaFave & J. Israel, Criminal Procedure § 24.3, pp. 82-83 (1984) (stating that jeopardy does not attach); Caruso, Double Jeopardy and Government Appeals in Criminal Cases, 12 Colum. J. L. & Soc. Prob. 295, 325-328 (1976) (same).

       Compare United States v. Patrick, 532 F. 2d 142, 145-147 (CA9 1976) (holding that jeopardy attaches); United States v. Southern R. Co., 485 F. 2d 309, 312 (CA4 1973) (same); United States v. Hill, 473 F. 2d 759, 761-763 (CA9 1972) (same); United States v. Oppenheimer, 242 U. S. 85, 87-88 (1916) (same), with United States v. Pecora, 484 F. 2d 1289, 1293-1294 (CA3 1973) (holding that jeopardy does not attach).


text:
    No. 84-603.
    Freeman v. Washington.
   Appeal from Ct. App. Wash. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 84-658.
    Frontier Properties et al. v. Elliott et al.; and Ross v. Standing Committee on Discipline of the United States District Court for the Southern District of California.
   Appeals from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeals were taken as a petition for writ of certiorari, certiorari denied. Reported below: 735 F. 2d 1168 (second case).


text:
    No. 84-150.
    Wisconsin Elections Board et al. v. Republican Party of Wisconsin et al.
   Appeal from D. C. E. D. Wis. Judgment vacated and case remanded with instructions to dismiss the complaint.


text:
    No. 84-97.
    Robinson, Former Commissioner of Bureau of Corrections of Pennsylvania, et al. v. Story et al. (two cases).
   C. A. 3d Cir. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of Pennhurst State School & Hosp. v. Halderman, 465 U. S. 89 (1984).

JUSTICE WHITE, JUSTICE BLACKMUN, and JUSTICE STEVENS dissent.


text:
    No. 84-115.
    Heckler, Secretary of Health and Human Services v. Lopez et al.
   C. A. 9th Cir. Motion of respondents Mario Lopez et al. for leave to proceed infor'ma pauperis and certiorari granted. Judgment vacated and case remanded to the Court of Appeals to be remanded to the United States District Court for the Central District of California with instructions to: (1) remand the cases of the named respondents to the Secretary for review pursuant to § 2(d)(2)(C) of the Social Security Disability Benefits Reform Act of 1984; (2) make any necessary clarifications in the definition and scope of the class; (3) remand the cases of the unnamed class members to the Secretary for proceedings pursuant to § 2(d)(3) of that Act; and (4) take other actions appropriate in light of that Act.


text:
    No. 84-5412.
    Lindsey v. United States Bureau of Prisons et al.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of the Solicitor General's present interpretation of Fed. Rule Crim. Proc. 32 asserted in his brief filed November 14, 1984, on behalf of respondents.


text:
    No. 84-55.
    Employers National Insurance Co. v. Ochoa.
   C. A. 5th Cir. [Certiorari granted, ante, p. 929.] Judgment vacated `and case remanded for further consideration in light of Pub. L. 98-426.


text:
    No. A-370 (84-5662).
    Wright v. United States.
   C. A. 4th Cir. Application for stay, addressed to JUSTICE MARSHALL and referred to the Court, denied.