source: Caselaw Access Project

author: Justice Kennedy Justice Stevens,

license: Public Domain

text:
    UNITED STATES v. MONTALVO-MURILLO
    No. 89-163.
    Argued January 9, 1990
    Decided May 29, 1990

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 722.

      Deputy Solicitor General Bryson argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Dennis, and Jeffrey P. Minear.

      Bernard J. Panetta II argued the cause and filed a brief for respondent.
   Justice Kennedy

delivered the opinion of the Court.

Both the District Court, 713 F. Supp. 1407 (NM 1989), and the Court of Appeals for the Tenth Circuit, 876 F. 2d. 826 (1989), found that one Montalvo-Murillo, a suspect held in pretrial custody on federal criminal charges, posed a risk of flight and a danger to the community. Because no condition of release could give reasonable assurances against these contingencies, detention was required by the Bail Reform Act of 1984, 18 U. S. C. § 3142(e). The District Court and Court of Appeals held, nevertheless, that Montalvo-Murillo must be released because there had been a failure to observe the Act’s directions for a timely hearing. § 3142(f). To no one’s great surprise, the suspect became a fugitive after his release and is still at large.

We granted certiorari, 493 U. S. 807 (1989), to resolve a split among the Courts of Appeals on whether failure to comply with the prompt hearing provision of the Act requires the release of a person who is a flight risk or a danger to other persons or the community. We decide that the Act does not require release and so we reverse the Court of Appeals. Montalvo-Murillo, though now a fugitive, is the respondent here and is represented by appointed counsel. Respondent’s flight does not render the case moot, for our resolution of the dispute determines the course of proceedings if and when he is rearrested on the charges now pending. Since we reverse, the Government may detain respondent at once upon his rearrest without first seeking revocation of the existing release order. See 18 U. S. C. § 3148(b).

I

Two provisions of the Bail Reform Act of 1984 are relevant. The substantive provisions that allow detention are contained in subsection (e):

“Detention. — If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, [he] shall order the detention of the person before trial. ...” § 3142(e).

The controversy in this case centers around the procedures for a hearing, found in subsection (f):

“Detention Hearing. — The judicial officer shall hold a hearing to determine whether any condition or combination of conditions . . . will reasonably assure the appearance of such person as required and the safety of any other person and the community—
“The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days. During a continuance, such person shall be detained .... The person may be detained pending completion of the hearing. ...” § 3142(f).

We review the sequence of events to put the statutory issue in proper context. On Wednesday, February 8, 1989, United States Customs Service agents stopped respondent at a New Mexico checkpoint near the international border. The agents discovered approximately 72 pounds of cocaine hidden in respondent’s truck. Admitting his plan to link with cocaine purchasers in Chicago, Illinois, respondent agreed to cooperate with the Drug Enforcement Administration (DEA) and to make a controlled delivery under Government surveillance. The DEA took respondent and his truck to Chicago in an attempt to complete the transaction, but the anticipated purchasers did not arrive at the delivery point.

The Government then arranged to transfer respondent back to New Mexico, where a criminal complaint had been filed charging him with possession of cocaine with intent to distribute, in violation of 21 U. S. C. § 841. Before his departure, respondent was brought before a Magistrate in the.. Northern District of Illinois for a transfer hearing pursuant to Federal Rule of Criminal Procedure 40. The hearing was held on Friday, February 10, two days after the initial arrest in New Mexico. Respondent was represented by counsel, and it appears that all parties and the Magistrate agreed that the detention hearing would be held in New Mexico, where the charges were pending. Respondent was returned to New Mexico that same evening.

The weekend intervened. On Monday, February 13, the DEA asked the United States Magistrate’s office in New Mexico to schedule a detention hearing. A hearing was convened on Thursday, February 16, and respondent attended with retained counsel. Because the Pretrial Services Office had not yet prepared a report, the Magistrate, sua sponte, ordered a 3-day continuance, but, observing that the following Monday was a federal holiday, scheduled the hearing for Tuesday, February 21. The record shows no request for a waiver of the time limits, no advice to respondent of the right to a hearing wdthin the time provided by the Act, no finding of good cause for continuance, and no objection to continuance by either party. The detention hearing was held as scheduled on February 21. The Magistrate, unconvinced that respondent was a flight risk or danger to other persons or to the community, decided to order release of respondent upon the posting of a $50,000 bond and compliance with other conditions. The Government at once sought review in the District Court.

After holding a de novo detention hearing, on Thursday, February 23, the District Court agreed with the Government that no condition or combination of conditions reasonably would assure respondent’s appearance or the safety of the community. Nevertheless, it ordered respondent’s release. The court found that the detention hearing had not been held upon respondent’s first appearance as specified by § 3142(f), and that pretrial release on conditions was the appropriate remedy for violation of the statutory requirement. The Court of Appeals affirmed. Upon issuance of its mandate, respondent was released and took flight.

Though the Government notes that the statutory phrase “first appearance” is by no means clear, either as an abstract matter or as applied in this case, it does not challenge the Court of Appeals’ holding that respondent’s detention hearing was held after that event and that continuances were beyond what the Act permits. We decide the case on those same assumptions, though without passing upon them. The sole question presented on certiorari is whether the Court of Appeals was correct in holding that respondent must be released as a remedy for the failure to hold a hearing at his first appearance.

II

In United States v. Salerno, 481 U. S. 739 (1987), we upheld the Bail Reform Act of 1984 against constitutional challenge. Though we did not refer in Salerno to the time limits for hearings as a feature which sustained the constitutionality of the Act, we recognize that a vital liberty interest is at stake. A prompt hearing is necessary, and the time limitations of the Act must be followed with care and precision. But the Act is silent on the issue of a remedy for violations of its time limits. Neither the timing requirements nor any other part of the Act can be read to require, or even suggest, that a timing error must result in release of a person who should otherwise be detained.

The Act, as quoted above, requires pretrial detention of certain persons charged with federal crimes and directs a judicial officer to detain a person charged, pending trial, if the Government has made the necessary showing of dangerousness or risk of flight. 18 U. S. C. §§ 3142(e), (f). The Act authorizes detention “after a hearing [held] pursuant to the provisions of subsection (f) of this section.” § 3142(e). Subsection (f) provides that “[t]he judicial officer shall hold a hearing” and sets forth the applicable procedures. Nothing in § 3142(f) indicates that compliance with the first appearance requirement is a precondition to holding the hearing or that failure to comply with the requirement renders such a hearing a nullity. It is conceivable that some combination of procedural irregularities could render a detention hearing so flawed that it would not constitute “a hearing pursuant to the provisions of subsection (f)” for purposes of § 3142(e). A failure to comply with the first appearance requirement, however, does not so subvert the procedural scheme of § 3142(f) as to invalidate the hearing. The contrary interpretation— that noncompliance with the time provisions in § 3142(f) requires the release even of a person who presumptively should be detained under § 3142(e) — would defeat the purpose of the Act.

We hold that a failure to comply with the first appearance requirement does not defeat the Government’s authority to seek detention of the person charged. We reject the contention that if there has been a deviation from the time limits of the statute, the hearing necessarily is not one conducted “pursuant to the provisions of subsection (f).” There is no presumption or general rule that for every duty imposed upon the court or the Government and its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent. See French v. Edwards, 13 Wall. 506, 511 (1872) (“[M]any statutory requisitions intended for the guide of officers in the conduct of business devolved upon them ... do not limit their power or render its exercise in disregard of the requisitions ineffectual”). In our view, construction of the Act must conform to the “‘great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided.’” Brock v. Pierce County, 476 U. S. 253, 260 (1986) (quoting United States v. Nashville, C. & St. L. R. Co., 118 U. S. 120, 125 (1886)).

In Brock v. Pierce County, supra, the Court addressed a statute that stated that the Secretary of Labor “shall” act within a certain time on information concerning misuse of federal funds. The respondent there argued that a failure to act within the specified time divested the Secretary of authority to act to investigate a claim. We read the statute to mean that the Secretary did not lose the power to recover misused funds after the expiration of the time period. Congress’ mere use of the word “shall” was not enough to remove the Secretary’s power to act. Id., at 260 (footnote omitted) (“We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act”).

In a similar manner, in this case the word “shall” in the Act’s hearing time requirement does not operate to bar all authority to seek pretrial detention once the time limit has passed. Although the duty is mandatory, the sanction for breach is not loss of all later powers to act. The argument that failure to comply with the Act’s time limits prohibits the Government from moving for detention proves too much. If any variation from the time limits of subsection (f) prevents a detention hearing from being “a hearing pursuant to subsection (f),” then the same would have to be true of any deviation from the other procedures prescribed by § 3142(f). During the hearing, a person is entitled to be represented by counsel, present witnesses, testify on his own behalf, cross-examine Government witnesses, and present additional evidence. § 3142(f). If we suppose an error that infringes any of these rights in an insignificant way, we doubt that anyone would make the serious contention that a hearing, otherwise perfect, is not “a hearing pursuant to” the statute because such an error occurred. Nor should a hearing held after the person’s first appearance prevent detention.

To avoid the logical implications of his argument with regard to procedural violations other than timeliness, respondent admits that other infringements could be subject to a harmless-error analysis. This position cannot be reconciled with respondent’s contention that absolute compliance with the provisions of subsection (f) is mandated by subsection (e). If a failure to follow the provisions of subsection (f) with respect to timeliness means that a condition precedent for detention is lacking, then a failure to comply with the other provisions of subsection (f) would have the same effect. It is no answer to respond that a hearing that violates some of the procedural requirements of subsection (f) may still be “fair,” while a hearing held after the person’s first appearance cannot be “prompt.” If there has been a failure to observe the time limits of the Act, it does not follow that there must be a presumption of prejudice, either as an empirical matter or based on our precedents. We need seek only a practical remedy, not one that strips the Government of all authority to act. Bank of Nova Scotia v. United States, 487 U. S. 250 (1988).

Our conclusion is consistent with the design and function of the statute. We have sustained the Bail Reform Act of 1984 as an appropriate regulatory device to assure the safety of persons in the community and to protect against the risk of flight. We have upheld the substantive right to detain based upon the Government’s meeting the burden required by the statute. United States v. Salerno, 481 U. S. 739 (1987). Automatic release contravenes the object of the statute: to provide fair bail procedures while protecting the safety of the public and assuring the appearance at trial of defendants found likely to flee. The end of exacting compliance with the letter of § 3142(f) cannot justify the means of exposing the public to an increased likelihood of violent crime by persons on bail, an evil the statute aims to prevent. See S. Rep. No. 98-225, p. 3 (1983) (“Federal bail laws must address the alarming problem of crimes committed by persons on release and must give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released”). The Government’s interest in preventing these harms remains real and substantial even when the time limits have been ignored. The safety of society does not become forfeit to the accident of noncompliance with statutory time limits where the Government is ready and able to come forward with the requisite showing to meet the burden of proof required by the statute.

Assessing the situation in realistic and practical terms, it is inevitable that, despite the most diligent efforts of the Government and the courts, some errors in the application of the time requirements of § 3142(f) will occur. Detention proceedings take place during the disordered period following arrest. As this case well illustrates, circumstances such as the involvement of more than one district, doubts about whether the defendant was subject to temporary detention under § 3142(d), and ambiguity in requests for continuances may contribute to a missed deadline for which no real blame can be fixed. In these situations, there is no reason to bestow upon the defendant a windfall and to visit upon the Government and the citizens a severe penalty by mandating release of possibly dangerous defendants every time some deviation from the strictures of § 3142(f) occurs.

In the case before us, of course, it is not clear that the Government bears the responsibility for the delay, for the Magistrate continued the hearing sua sponte when the Government announced that it was ready to proceed. But even on the assumption that a violation of the Act occurred and that the Government should bear some of the responsibility for it, the Court of Appeals erred in holding that the Government is barred from proceeding under the Act.

We find nothing in the statute to justify denying the Government an opportunity to prove that the person is dangerous or a risk of flight once the statutory time for hearing has passed. We do not agree that we should, or can, invent a remedy to satisfy some perceived need to coerce the courts and the Government into complying with the statutory time limits. Magistrates and district judges can be presumed to insist upon compliance with the law without the threat that we must embarrass the system by releasing a suspect certain to flee from justice, as this one did in such a deft and prompt manner. The district court, the court of appeals, and this Court remain open to order immediate release of anyone detained in violation of the statute. Whatever other remedies may exist for detention without a timely hearing or for conduct that is aggravated or intentional, a matter not before us here, we hold that once the Government discovers that the time limits have expired, it may ask for a prompt detention hearing and make its case to detain based upon the requirements set forth in the statute.

An order of release in the face of the Government’s ability to prove at once that detention is required by the law has neither causal nor proportional relation to any harm caused by the delay in holding the hearing. When a hearing is held, a defendant subject to detention already will have suffered whatever inconvenience and uncertainty a timely hearing would have spared him. Release would not restore these benefits to him. United States v. Morrison, 449 U. S. 361, 364 (1981) (remedies should be tailored to the injury suffered). This case is similar to New York v. Harris, ante, p. 14, in which we held that an unlawful arrest does not require a release and rearrest to validate custody, where probable cause exists. In this case, a person does not become immune from detention because of a timing violation.

Our ruling is consistent also with Bank of Nova Scotia v. United States, 487 U. S., at 256, where we held that nonconstitutional error will be harmless unless the court concludes from the record as a whole that the error may have had a “substantial influence” on the outcome of the proceeding. In this case, it is clear that the noncompliance with the timing requirement had no substantial influence on the outcome of the proceeding. Because respondent was dangerous and likely to flee, he would have been detained if his hearing had been held upon his first appearance rather than a few days later. On these facts, the detention was harmless. See ibid.; Morrison, supra, at 364-367 (inappropriate to dismiss indictment because of Sixth Amendment violation that had no adverse impact on proceedings). This approach is consistent with the principle of harmless-error analysis that is the governing precept in most matters of criminal procedure. Fed. Rule Crim. Proc. 52. We have no need to consider in this case the remedies available to a person detained beyond the statutory limit and later found eligible for release. We hold that respondent was not, and is not, entitled to release as a sanction for the delay in the case before us.

The judgment of the Court of Appeals is

Reversed.

Justice Stevens,

with whom Justice Brennan and Justice Marshall join, dissenting.

This case involves two lawbreakers. Respondent, as the Court repeatedly argues, ante, at 713, 716, 721, failed to appear after his release on bail, an apparent violation of 18 U. S. C. § 3146. Even before that, however, the Government imprisoned respondent without a timely hearing, a conceded violation of §3142. In its haste to ensure the detention of respondent, the Court readily excuses the Government’s prior and proven violation of the law. I cannot agree.

I

Before examining the consequences that follow from the Government’s violation of § 3142, it is well to remember the magnitude of the injury that pretrial detention inflicts and the departure that it marks from ordinary forms of constitutional governance. Executive power to detain an individual is the hallmark of the totalitarian state. Under our Constitution the prohibition against excessive bail, the Due Process Clause of the Fifth Amendment, the presumption of innocence —indeed, the fundamental separation of powers among the Legislative, the Executive and the Judicial Branches of Government— all militate against this abhorrent practice. Our historical approach eschewing detention prior to trial reflects these concerns:

“From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U. S. 277, 285 (1895). Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” Stack v. Boyle, 342 U. S. 1, 4 (1951).

Sections 3142(e) and (f), allowing limited detention of arrestees, were enacted against this historical backdrop. Bail Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1976, 18 U. S. C. §§ 3142(e), (f). Congress carefully prescribed stringent procedures to govern this extraordinary departure from the guarantee of liberty normally accorded to presumptively innocent individuals. Accordingly, when this Court upheld the constitutionality of these provisions of the Bail Reform Act, it assumed that pretrial detention would be imposed only on those arrestees “found after an adversary hearing to pose a threat . . . which no condition of release can dispel. The numerous procedural safeguards detailed above must attend this adversary hearing.” United States v. Salerno, 481 U. S. 739, 755 (1987).

Section 3142(e) permits pretrial detention only “[i]f, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” Subsection (f) in turn sets forth specific deadlines, chosen “in light of the fact that the defendant will be detained during such a continuance,” S. Rep. No. 98-225, p. 22 (1983), within which a detention hearing must be held:

“The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of such person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days.” §3142(f)(2).

There was no such hearing — or finding of good cause for continuance — when respondent was arrested on February 8, 1989, when he first appeared before a Northern District of Illinois Magistrate on February 10, or when the New Mexico Magistrate convened the parties on February 16. No court considered the basis of detention until February 21, after respondent had been incarcerated for 13 days.

Congress’ specification of the timing of detention hearings defines one boundary of the courts’ power to order pretrial detention. “Because detention may be ordered under section 3142(e) only after a detention hearing pursuant to subsection (f), the requisite circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial.” S. Rep. No. 98-225, at 20. The clear terms of the statute demand strict adherence. See Hallstrom v. Tillamook County, 493 U. S. 20, 25-31 (1989) (holding notice and 60-day delay requirements mandatory conditions precedent to commencing suit under 42 U. S. C. § 6972); cf. Griggs v. Provident Consumer Discount Co., 459 U. S. 56 (1982) (Fed. Rule App. Proc. 4(a)(4) stating that a premature notice “shall have no effect” is mandatory and jurisdictional).

A federal prosecutor should have no difficulty comprehending the unequivocal terms of § 3142(f)(2) and complying with its deadlines by proceeding or obtaining a proper continuance at the arrestee’s first appearance. The rare failure to meet the requirements of subsection (f) will mean only that the Government forfeits the opportunity to seek pretrial detention in that case. Because the provisions of § 3142(f)(2) are a prerequisite only for hearings to consider this particular form of pretrial action, the prosecutor still may seek any conditions of release that are “reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.” § 3142(c)(1)(B) (xiv). The range of options — the sole safeguards that were available in cases prior to the creation of the special detention provisions in 1984 — remain viable.

II

The Court, however, concludes that no adverse consequences should flow from the prosecutor’s violation of this plain statutory command. Treating the case as comparable to an agency’s failure to audit promptly a grant recipient’s use of federal funds, see Brock v. Pierce County, 476 U. S. 253 (1986), the Court concludes that there is no reason to penalize the public for a prosecutor’s mistake. If a belated hearing eventually results in a determination that detention was justified, the error has been proved harmless. The Court apparently discards the possibility that the hearing might result in a determination that the arrestee is eligible for release — as the Magistrate so determined in this case — or that detention of any arrestee before establishing the legality of that intrusion on liberty could “affect substantial rights.” 876 F. 2d 826, 829 (CA10 1989); Fed. Rule Crim. Proc. 52(a). A harmless-error analysis fails to appreciate the gravity of the deprivation of liberty that physical detention imposes and the reality that “[rjelief in this type of case must be speedy if it is to be effective.” Stack, 342 U. S., at 4.

This casual treatment of official violations of law is disturbing in itself, but it is particularly troubling because it treats the pretrial detention statute as just another routine species of Government regulation of ordinary civilian affairs. The Court asserts that the requirements of § 3142(f) are in the category of statutory requisitions that do not limit the power of Government officers. Ante, at 717-718 (citing French v. Edwards, 13 Wall. 506, 511 (1872)). But the French Court also identified, and in fact applied, the opposite characterization of the procedural requirements of the sheriff’s sale there at issue. It held that laws “intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, . . . are not directory but mandatory,” concluding that such requisitions “must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise.” Id., at 511 (emphasis added). The grant of power that Congress gave courts to assess and enforce pretrial detention under §§ 3142(e) and (f) is also of a mandatory nature.

As Congress recognized, the magnitude of the injury inflicted by pretrial detention requires adherence to strict procedural safeguards that cannot be sacrificed in the name of community safety. While the Court regards any arrestee as “a person who presumptively should be detained under § 3142(e)” and as “a suspect certain to flee from justice,” ante, at 717, 721, I believe — and the Act reflects — that a new arrestee is initially presumed eligible for release no matter how guilty a prosecutor may believe him to be. Section 3142(e) recognizes that certain characteristics of the offense or arrestee may support a rebuttable presumption that no conditions of release exist, but such a presumption arises only “if such judicial officer finds” that those conditions do exist. (Emphasis added.) The magistrate’s say-so cannot make his reasoning any less of a bootstrap. A late detention hearing does not become permissible on the basis of a presumption that cannot exist until after the hearing is held.

Ill

Congress has written detailed legislation in a sensitive area that requires the Government to turn square corners. The Court today, however, permits federal prosecutors to violate the law with impunity. I agree with Justice Scalia’s observation that strict compliance with such rules may appear to “frustrate] justice in the particular case,” but

“[w]ith technical rules, above all others, it is imperative that we adhere strictly to what we have stated the rules to be. A technical rule with equitable exceptions is no rule at all. Three strikes is out. The State broke the rules here, and must abide by the result.” Jones v. Thomas, 491 U. S. 376, 396 (1989) (dissenting opinion).

I respectfully dissent.

       Compare United States v. Vargas, 804 F. 2d 157, 162 (CA1 1986) (violation of the time limits specified in the Act does not prevent the Government from seeking pretrial detention at a subsequent detention hearing); United States v. Clark, 865 F. 2d 1433, 1436 (CA4 1989) (en banc); and United States v. Hurtado, 779 F. 2d 1467, 1481-1482 (CA11 1985) (en banc), with United States v. Al-Azzawy, 768 F. 2d 1141, 1145 (CA9 1985) (failure to observe the time limits precludes detention).

       Respondent’s absence is irrelevant to the merits of the question upon which we granted certiorari. Its only bearing on this case is that it counsels utmost caution in our consideration because the adversarial character of the litigation may have been compromised. See United States v. Sharpe, 470 U. S. 675, 721 (1985) (Stevens, J., dissenting).

       “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U. S. Const., Arndt. 8.

       We have recognized that delay of a hearing related to detention itself can violate constitutional guarantees of due process. See Gerstein v. Pugh, 420 U. S. 103, 125-126 (1975) (state pretrial detention requires a “timely judicial determination” of probable cause before or promptly after arrest); cf. Morrissey v. Brewer, 408 U. S. 471, 485 (1972) (preliminary hearing is required “promptly after a parole violator’s arrest); id.; at 488 (parole revocation hearing “must be tendered within a reasonable time after the parolee is taken into custody”).

       “It is not a novel proposition that the Bail Clause plays a vital role in protecting the presumption of innocence. Reviewing the application for bail pending appeal by members of the American Communist Party convicted under the Smith Act, 18 U. S. C. § 2385, Justice Jackson wrote: ‘Grave public danger is said to result from what [the defendants] may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is . . . unprecedented in this country and . . . fraught with danger of excesses and injustice. . . . ’ Williamson v. United States, 95 L. Ed. 1379, 1382 (1950) (opinion in chambers) (footnote omitted).” United States v. Salerno, 481 U. S. 739, 766 (1987) (Marshall, J., dissenting).
      The Bail Reform Act of 1984 added 18 U. S. C. § 3142(j): “Nothing in this section shall be construed as modifying or limiting the presumption of innocence.”

       In limiting the construction of 18 U. S. C. §3147, which prescribes punishment for crimes committed by persons on pretrial release, we recognized that balancing among various policy objectives was the job of Congress:
      “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates the legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U. S. 522, 525-526 (1987).

       Both Houses of Congress were aware of the necessity of procedural protections:
      “[T]he Committee recognizes a pretrial detention statute may nonetheless be constitutionally defective if it fails to provide adequate procedural safeguards or if it does not limit pretrial detention to eases in which it is necessary to serve the societal interests it is designed to protect. The pretrial detention provisions of this section have been carefully drafted with these concerns in mind.” S. Rep. No. 98-225, p. 8 (1983).
      “Several of the states which have recently enacted pretrial detention statutes have also incorporated elaborate due process protections. These procedures have been recommended by the American Bar Association, the Association of the Bar of the City of New York and the National Association of Pretrial Services Agencies.” H. R. Rep. No. 98-1121, p. 14 (1984) (footnote omitted) (citing Wis. Const., Art. I, §8(3) (limiting any legislation allowing pretrial detention to a maximum of 10 days without a hearing and 60 days thereafter)).

       The unique dangers posed by any detention provision were more fully described by Justice Marshall in his dissenting opinion in Salerno:

      “This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution.” 481 U. S., at 755.

       Even the statutory provision applicable to arrestees who are aliens, pretrial releasees, or parolees allows detention only “for a period of not more than ten days” after proper judicial determination. 18 U. S. C. § 3142(d). The Senate recognized that “a deprivation of liberty of up to ten days is a serious matter,” but allowed the longer period “to give the government time to contact the appropriate court, probation, or parole official, or immigration official and to provide the minimal time necessary for such official to take whatever action on the existing conditional release that official deems appropriate.” S. Rep. No. 98-225, at 17.

       It is unnecessary to determine whether the time provisions of § 3142 actually create a jurisdictional bar, see Hallstrom, 493 U. S., at 31, nor is the question of the effect of violations of other provisions of § 3142(f) before us. The Court itself recognizes the possibility that “some combination of procedural irregularities could render a detention hearing so flawed that it would not constitute ‘a hearing pursuant to the provisions of subsection (f)’ for purposes of § 3142(e),” although it fails to identify what standards it would design to replace those stated by Congress. Ante, at 717. See also ante, at 720 (suggesting that “accident[s] of noneompliance” and “errors” are excusable); ante, at 721 (suggesting that “other remedies may exist. . . for conduct that is aggravated or intentional”).

      The Court seems satisfied to allow detention to continue without any-hearing at all, unless the arrestee demands the proceeding that is the prosecutor’s duty to instigate. The implication that an arrestee — who may well have just met temporary counsel at the first appearance — should be responsible for divining the Government’s intent to move for detention and for initiating a timely hearing under § 3142(f) is absurd.

       The Court vigorously declines to “satisfy some perceived need to coerce the courts and the Government into complying with the statutory time limits,” in the belief that compliance can be presumed “without the threat that we must embarrass the system by releasing a suspect certain to flee from justice.” Ante, at 721. This analysis incorrectly assumes that the courts have discretion over such matters. Congress has “perceived” the need to ensure that detention hearings are held promptly and has shouldered the responsibility for any “embarrassment” by precisely defining the authority of courts to order pretrial detention.


author: Per Curiam. Justice Brennan,

text:
    DEMOSTHENES et al. v. BAAL et al.
    No. A-857.
    Decided June 3, 1990
   Per Curiam.

The State of Nevada has moved to vacate an order of the Court of Appeals for the Ninth Circuit granting a stay of the execution of Thomas E. Baal. We grant the State’s motion to vacate the stay.

I

Thomas E. Baal was convicted and sentenced to death in Nevada District Court for first-degree murder and robbery with use of a deadly weapon. Evidence indicated that after attempting to rob Frances P. Maves, Baal stabbed her numerous times, took her car, and fled. Maves was pronounced dead some hours later. Police officers arrested Baal in Reno on February 28, 1988. After being given his Miranda warnings, Baal confessed to the robbery and murder.

In March 1988, two psychiatrists examined Baal and found that Baal was competent to stand trial, able to understand right from wrong at the time of the alleged offense, and disturbed but not psychotic. In June 1988, Baal was arraigned and pleaded not guilty and not guilty by reason of insanity. A third psychiatrist, Dr. O’Gorman, was appointed to examine Baal, and, following an examination on August 31, 1988, concluded that Baal was competent to stand trial. On September 22, 1988, Baal pleaded guilty to first-degree murder and to robbery, both with use of a deadly weapon. A three-judge panel unanimously sentenced Baal to death. The Nevada Supreme Court affirmed Baal’s conviction and sentence, rejecting Baal’s contention that he was incompetent to enter a guilty plea and that it was error not to conduct a competency hearing prior to accepting his pleas. Baal v. State, 106 Nev. 69, 787 P. 2d 391 (1990).

Baal filed a petition for state postconviction relief, but, prior to the hearing, changed his mind and withdrew the petition. On May 24, 1990, the state postconviction court held an evidentiary hearing to determine Baal’s competency. At that hearing, Baal testified that he did not want to continue any postconviction proceedings. He further testified that he knew the date he would be put to death, the reason he would be put to death, and that his waiver of postconviction relief would result in his death. A state psychiatrist testified that Baal was competent; a state prison official who had observed Baal also testified as to Baal’s competence. The court also reviewed the reports of three psychiatrists who had examined Baal and concluded that he was competent to stand trial. Based on this evidence, the court held that Baal was aware of his impending execution and of the reason for it, and thus was sane under the test set forth in Ford v. Wainwright, 477 U. S. 399 (1986). The court further held that Baal was in control of his faculties, was competent to choose to decline to pursue an appeal, and had made an intelligent waiver of his right to pursue postconviction relief.

Approximately one week later, on May 31, 1990, and hours before Baal’s scheduled execution, Edwin and Doris Baal (Baal’s parents) filed a petition for federal habeas corpus relief as “next friend” of Thomas E. Baal. As one of their grounds for relief, petitioners asserted: “Thomas Baal is not competent to waive federal review of his claims.” In support of this claim, petitioners relied on an affidavit of a nonexamining psychiatrist, Dr. Jerry Howie, and an affidavit of Doris Baal.

The United States District Court conducted a hearing and denied petitioners’ application for stay of execution, holding that, under this Court’s recent decision in Whitmore v. Arkansas, ante, p. 149, petitioners had failed to establish that the court had jurisdiction to entertain the petition. According to the District Court, petitioners had not provided an adequate explanation of why Baal could not appear on his own behalf to prosecute this action. Upon review of the record, the court found that all the evidence, other than the newly submitted affidavit of Dr. Howie, established that Baal was legally competent to understand the nature and consequences of his act and to represent his own interests in these proceedings. The court determined that Dr. Howie’s affidavit was not based on a first-hand examination, was conclusory, and was insufficient to warrant a psychiatric hearing or additional psychiatric examinations of Baal. The court subsequently denied petitioners’ motion for a certificate of probable cause. Petitioners appealed to the Court of Appeals for the Ninth Circuit.

A divided panel of the Court of Appeals granted petitioners’ certificate of probable cause and stayed Thomas Baal’s execution. That court held that petitioners had made “some minimum showing of [Baal’s] incompetence” and evidence in the record provided “at least an arguable basis for finding that a full evidentiary hearing on competence should have been held by the district court.” Order in Baal v. Godinez, No. 90-15716 (CA9, June 2, 1990), pp. 3, 5. Judge Kozinski, in dissent, asserted that there was no substantial evidence of Baal’s incompetence to warrant a further evidentiary hearing or to upset the Nevada District Court’s finding that Baal was competent, which is entitled to a presumption of correctness upon federal habeas review. Dissent, at 6, 7.

II

In Whitmore v. Arkansas, ante, at 165, we held that “one necessary condition for ‘next friend’ standing in federal court is a showing by the proposed ‘next friend’ that the real party in interest is unable to litigate his own cause due to mental incapacity.” See also Rosenberg v. United States, 346 U. S. 273, 291 (1953). This prerequisite is not satisfied “where an evidentiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed.” Whitmore, ante, at 165. In Whitmore, we relied on the competency findings made by the Arkansas Supreme Court and concluded that Whitmore lacked next-friend standing in federal court. Ante, at 165-166. In this case, the state court held such an evidentiary hearing just one week before petitioners brought this petition for habeas corpus. After reviewing the evidence and questioning Baal, the state court concluded that Baal had intelligently waived his right to pursue postconviction relief.

A state court’s determinations on the merits of a factual issue are entitled to a presumption of correctness on federal habeas review. A federal court may not overturn such determinations unless it concludes that they are not “fairly supported by the record.” See 28 U. S. C. § 2254(d)(8). We have held that a state court’s conclusion regarding a defendant’s competency is entitled to such a presumption. Maggio v. Fulford, 462 U. S. 111, 117 (1983). In this case, the state court’s conclusion that Baal was competent to waive his right to further proceedings was “fairly supported by the record.” Three psychiatrists who examined Baal had determined he was competent; a psychiatrist who had the opportunity to observe and talk to Baal testified that Baal was competent at the hearing; and the trial court concluded that Baal was competent after both observing Baal and questioning him extensively on the record. Accordingly, under §2254(d)’s presumption of correctness, the state court’s factual finding as to Baal’s competence is binding on a federal habeas court. See Maggio v. Fulford, supra; see also Marshall v. Lonberger, 459 U. S. 422 (1983) (§ 2254(d)’s presumption of correctness required federal habeas court to accept state court’s factual findings on the issue of respondent’s credibility).

The state evidentiary hearing took place on May 24, 1990. When petitioners filed their habeas petition in District Court the following week, on May 31, 1990, the only new evidence presented to the court was the affidavit of Dr. Jerry Howie, a psychiatrist who had not examined Baal. In the affidavit, Dr. Howie stated that he had examined the reports of the psychiatrists who had found Baal competent to stand trial and a 1987 admission, evaluation, and discharge summary from the Hawaii State Hospital. Dr. Howie did not directly assert that Baal was incompetent. Rather, based only on these reports, and without any opportunity personally to observe Baal, the doctor concluded that “there is reason to believe this person may not be competent to waive his legal remedies.” Petition for Habeas Corpus in Baal v. Godinez, No. 90-243 (D. Nev.), Exhibit D (emphasis added). Cf. Rees v. Peyton, 384 U. S. 312, 313 (1966) (District Court directed to make a judicial determination of petitioner’s competence after psychiatrist examined him and “filed a detailed report concluding that [petitioner] was mentally incompetent”). As the District Court determined, this affidavit is “conclusory and lacking sufficient foundation or substance to warrant either a psychiatric hearing or additional psychiatric examination of the defendant.” Order in Baal v. Godinez, No. CV-N-90-243-HDM (D. Nev., May 31, 1990), p. 3. The District Court also reviewed the state-court record and the transcript of the state-court proceeding, as well as speaking with Baal at length via telephone. Based on its review, it concluded that petitioners had failed to establish that Baal was not competent to waive further proceedings. In the absence of any “meaningful evidence” of incompetency, Whitmore v. Arkansas, ante, at 166, the District Court correctly denied petitioners’ motion for a further evidentiary hearing on the question of Baal’s competence to waive his right to proceed.

In holding that there was a “basis for finding that a full evidentiary hearing on competence should have been held,” Order in Baal v. Godinez, No. 90-15716 (CA9, June 2, 1990), p. 5, the Court of Appeals did not rely exclusively on the affidavit of Dr. Howie, the only evidence offered to indicate that Baal might have become incompetent at some time after the State’s evidentiary hearing. That affidavit, as noted, was not based on personal examination of Baal and stated only in conclusory and equivocal fashion that, based on his evaluation of the reports of the examining psychiatrists, Baal “may not be competent.” Rather, the Court of Appeals based its determination on the same evidence that had been before the State District Court — the reports of the three psychiatrists, the hospital report, and testimony regarding Baal’s prior suicide attempts. Indeed, because the Court of Appeals did not personally observe Baal, as the state court did, it had even less reason to overturn what is essentially a factual determination. See Maggio v. Fulford, supra, at 113. As there was no evidentiary basis for the Court of Appeal’s conclusion that the District Court erred in declining to conduct an evidentiary hearing, the stay granted by the court did not “reflect the presence of substantial grounds upon which relief might be granted.” Barefoot v. Estelle, 463 U. S. 880, 895 (1983).

We realize that last minute petitions from parents of death row inmates may often be viewed sympathetically. But federal courts are authorized by the federal habeas statutes to interfere with the course of state proceedings only in specified circumstances. Before granting a stay, therefore, federal courts must make certain that an adequate basis exists for the exercise of federal power. In this case, that basis was plainly lacking. The State is entitled to proceed without federal intervention. Accordingly, we grant the State’s motion to vacate the stay entered by the Court of Appeals.

It is so ordered.

Justice Blackmun and Justice Stevens dissent and would deny the application to vacate the stay.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

The Court today vacates a stay of execution that the United States Court of Appeals for the Ninth Circuit had entered so that it might consider the case in an orderly fashion. For the second time within the span of only a few weeks, this Court has seen fit to interfere with the administration of justice by the lower federal courts by vacating a stay issued in the sound discretion of judges who are much more familiar with the cases than we are. See Delo v. Stokes, ante, p. 320. I find this development unfortunate and distressing.

I

The Court’s action in the instant case is particularly unwise. The Court of Appeals issued the stay so that it could consider Mr. Baal’s first federal habeas petition, filed on his behalf by his parents in their capacity as next friends. It is wholly inappropriate to deny the court an opportunity to consider the case at such an early stage of the collateral review process. As even the Judicial Conference’s recent proposal for streamlined review in capital cases acknowledges, a prisoner is entitled at a minimum to “one complete and fair course of collateral review in the state, and federal system, free from the time pressure of impending execution.” Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal 6 (Aug. 1989) (emphasis added).

The Court recognizes that this case requires application of our recent decision in Whitmore v. Arkansas, ante, p. 149, which held that “a ‘next friend’ must provide an adequate explanation-such as . . . mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action.” Ante, at 163. In the instant case, the members of Mr. Baal’s family allege that he is not competent to waive federal review of his claims, and they seek a hearing to resolve that question. The Ninth Circuit granted a stay to examine their claim. Whether their arguments are persuasive to us is not the issue; the question is whether the Ninth Circuit abused its discretion in granting a stay to enable it to reflect on the family’s contentions and digest the record in a methodical and unhurried manner.

I do not believe that this decision can be characterized as an abuse of discretion, especially since the Ninth Circuit has set an expedited briefing and hearing schedule. The Court of Appeals has merely issued a certificate- of probable cause to appeal; it has not ruled on the merits of Baal’s competency or even on the question of whether an evidentiary hearing is required to determine whether Baal is competent. Rather, it has held merely that Mr. Baal’s family has made a “ ‘substantial showing of the denial of [a] federal right.’ ” Barefoot v. Estelle, 463 U. S. 880, 893 (1983) (citation omitted). The Court of Appeals may yet rule that Mr. Baal’s family has not pleaded facts sufficient to warrant an evidentiary hearing. The Court of Appeals has found only that “the issu[e] [is] debatable among jurists of reason; that a court could resolve the issu[e] [in a different manner]; or that the questions are ‘adequate to deserve encouragement to proceed further.’” Id., at 893, n. 4 (citation omitted).

In vacating the stay, this Court has decided quite precipitately that Mr. Baal’s family has failed even to allege sufficient facts to require an evidentiary hearing regarding his competence. A federal court has the power to conduct an evidentiary hearing to resolve disputed facts if it determines that a petitioner’s allegations, if proved true, would entitle him to relief under the appropriate legal standard. See Townsend v. Sain, 372 U. S. 293, 312 (1963). Assuming that the standard for competence to waive federal habeas corpus review of a death sentence is the same as that announced in Rees v. Peyton, 384 U. S. 312, 314 (1966), the question is whether Mr. Baal’s family alleged sufficient facts to show that Mr. Baal

“has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further ligitation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.”

In an order released only a few hours ago, the Ninth Circuit summarized the evidence warranting further inquiry into the question of Mr. Baal’s competence:

“Although the record contains three opinions by psychiatrists who found Baal competent in 1988 to stand trial, assist his attorneys, and understand the charges against him, the record also reveals that Baal has been hospitalized for behavioral and mental problems on numerous occasions since he was fourteen years old, has attempted suicide on at least four occasions since 1987, and has been diagnosed in the past as a latent schizophrenic, a borderline personality, depressed, and as suffering from organic brain syndrome. And although Dr. Jurasky declared him competent in March, 1988 to understand the charges against him, Dr. Jurasky described him as a ‘seriously and dangerously disturbed person’ whose judgment ‘is considered impulsive with strong antisocial tendencies.’
“In addition, petitioners presented to the district court an affidavit by board-certified psychiatrist Jerry Howie stating that, based on the reports that he reviewed, ‘there is reason to believe [Baal] may not be competent to waive his legal remedies.’ . . . This evidence, combined with the fact that Baal has changed his mind in the past after having decided to waive his legal remedies, and has attempted suicide twice in April of this year, provides at least an arguable basis for finding that a full evidentiary hearing on competence should have been held by the district court.” Order in Baal v. Godinez, No. 90-15716 (June 2, 1990), pp. 4-5 (footnote omitted).

The Court can reach the conclusion it does today only by, in effect, holding an evidentiary hearing in advance and resolving these complex factual issues on its own.

The fact that a state court held an evidentiary hearing one week ago and determined that Mr. Baal was competent offers no support for the Court’s action today. Maggio v. Fulford, 462 U. S. 111 (1983), on which the Court relies, is consistent with the view that the question of competence is ultimately a legal issue. See id., at 117; id., at 119 (White, J., concurring in judgment). A state court’s determination of subsidiary facts may enjoy a presumption of correctness in whatever federal hearing is held. This does not answer the antecedent question, however, whether an evidentiary hearing in federal court is warranted on the basis of the factual allegations made in the federal habeas petition. In addition, of course, the state courts findings would receive deference only if the state hearing provided a full and fair opportunity for resolution of the issue. See 28 U. S. C. § 2254(d). Because the proceedings in this case have been so hurried, it is not at all clear that the state hearing was “full and fair” and that the findings are supported by the record.

II

Even apart from the posture of the instant case, I would deny the application to vacate the stay entered by the Court of Appeals. I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting).


text:
    April 23, 1990
    No. 89-804.
    Minnesota v. Hershberger et al.
   Sup. Ct. Minn. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Employment Div., Oregon Dept. of Human Resources v. Smith, 494 U. S. 872 (1990).

Justice Stevens and Justice O’Connor dissent.


text:
    No.---.
    In re Martin.
   Motion to direct the Clerk to file petition for writ of certiorari denied.


text:
    No.---.
    Moore et al. v. Carr et al.
   Motion to direct the Clerk to file application for an extension of time and petition for writ of certiorari out of time denied.


text:
    No. 65, Orig.
    Texas v. New Mexico.
   Motion of the River Master for approval of fees granted, and the River Master is awarded $1,215.00 for the period January 1 through March 31, 1990, to be paid equally by the parties. [For earlier decision herein, see, e. g., 494 U. S. 111.]


text:
    No. D-857.
    In re Disbarment of Kay.
   Disbarment entered. [For earlier order herein, see 493 U. S. 1066.]


text:
    No. D-859.
    In re Disbarment of Dawes.
   Kenneth J. Dawes, Jr., of Trenton, N. J., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on February 20, 1990 [493 U. S. 1067], is hereby discharged.


text:
    No. D-893.
    In re Disbarment of Aulvin.
   It is ordered that John Lewis Aulvin, of Mount Carmel, 111., 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-894.
    In re Disbarment of Ostrowsky.
   It is ordered that Bernard Herbert Ostrowsky, of Skokie, 111., 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-895.
    In re Disbarment of Dineff.
   It is ordered that Louis Carl Dineff, of Summit, 111., 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 tlfe practice of law in this Court.


text:
    No. D-896.
    In re Disbarment of Johnson.
   It is ordered that Charles B. Johnson, of Pasadena, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-897.
    In re Disbarment of Hersh.
   It is ordered that Alan Mark Hersh, of Beverly Hills, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 89-839.
    Arizona v. Fulminante.
   Sup. Ct. Ariz. [Certiorari granted, 494 U. S. 1055.] Motion for appointment of counsel granted, and it is ordered that Stephen R. Collins, Esq., of Phoenix, Ariz., be appointed to serve as counsel for respondent in this case.


text:
    No. 89-1167.
    Brutsche v. Cleveland-Perdue, Successor Representative and Administratrix of the Estate of Jones.
   C. A. 7th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 89-1361.
    Church of Scientology of California v. Wollersheim.
   Ct. App. Cal., 2d App. Dist. Motion of National Council of Churches of Christ in the U. S. A. et al. for leave to file a brief as amici curiae granted. Justice Brennan took no part in the consideration or decision of this motion.


text:
    No. 89-1434.
    United States v. Haggerty et al.
   D. C. W. D. Wash. [Probable jurisdiction noted, 494 U. S. 1063.] Motion of appellee Darius Strong for leave to proceed further herein in forma pauperis granted. Motion for appointment of counsel granted, and it is ordered that Charles S. Hamilton III, Esq., of Seattle, Wash., be appointed to serve as counsel for appellee Darius Strong in this case for the purpose of filing a brief.


author: Justice Brennan and Justice Marshall,

text:
    No. 89-6868.
    Nowak v. Trezevant.
   Ct. App. D. C. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until May 14, 1990, within which to pay the docketing fee required by Rule 38(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

Justice Brennan and Justice Marshall,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petition for writ of certiorari without reaching the merits of the motion to proceed in forma pauperis.


text:
    No. 89-6840.
    In re Henderson.
   Petition for writ of prohibition denied.


text:
    No. 87-6796.
    Ford v. Georgia.
   Sup. Ct. Ga. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted limited to Questions 1 and 2 presented by the petition.


text:
    No. 89-1363.
    United States v. France.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted.


text:
    No. 89-1448.
    Virginia Bankshares, Inc., et al. v. Sandberg et al.
   C. A. 4th Cir. Motions of American Corporate Counsel Association and American Bankers Association et al. for leave to file briefs as amici curiae granted. Motion of American Bankers Association et al. for leave to file an amended brief as amici curiae granted. Certiorari granted limited to Questions 1 and 2 presented by the petition.


text:
    No. 89-5916.
    Demarest v. Manspeaker et al.
   C. A. 10th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted.


text:
    No. 89-6332.
    Minnick v. Mississippi.
   Sup. Ct. Miss. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted.


text:
    No. 89-915.
    Tennessee v. Cauthern.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 89-960.
    Tideland Welding Service et al. v. Sawyer et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1212.
    Davis v. Sullivan, Secretary of Health and Human Services.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-1223.
    Independent U. S. Tanker Owners Committee et al. v. Skinner, Secretary of Transportation, et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-1228.
    Local 54, Hotel Employees & Restaurant Employees International Union, AFL-CIO v. National Labor Relations Board.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1311.
    Carbaugh, Commissioner, Department of Agriculture and Consumer Services of Virginia v. Telco Communications, Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1375.
    BP Exploration (Alaska) Inc. et al. v. Baily, Attorney General of Alaska, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1376.
    Polyak v. Hulen et al.; Polyak v. Hulen et al.; Polyak v. Hamilton; and Polyak v. Buford Evans & Sons.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1379.
    Alston et al. v. General Motors Corp.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1381.
    Endress v. Dugger, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-1384.
    Ross et al. v. Bank South, N. A., et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-1386.
    Fishman v. Texas.
   Ct. App. Tex., 13th Dist. Certiorari denied.


text:
    No. 89-1388.
    Scott v. Dreamlite Holdings Ltd. et al.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 89-1406.
    Neistein v. Illinois Attorney Registration and Disciplinary Commission.
   Sup. Ct. 111. Certiorari denied.


text:
    No. 89-1407.
    Davis, by and Through her Guardian, Farmers Bank & Capital Trust Company of Frankfort, Kentucky v. Kentucky Finance Companies Retirement Plan et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1424.
    Crouch v. McIntyre.
   Ct. App. Ore. Certiorari denied.


text:
    No. 89-1449.
    Holman et al. v. Walling.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1457.
    Limonja et al. v. Virginia.
   Ct. App. Va. Certiorari denied.


text:
    No. 89-1465.
    Kozak v. United States Department of Agriculture.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1475.
    Silva et al. v. MacLaine et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1509.
    Wagner v. United States Bankruptcy Court.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1521.
    Lackey v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1528.
    Crutchfield v. Maryland.
   Ct. App. Md. Certiorari denied.


text:
    No. 89-1537.
    Solomon v. Hill et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-5985.
    Dierbeck v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 89-6205.
    Morton v. Dugger, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-6274.
    Olsen v. Drug Enforcement Administration.
   C. A. D. C. Cir. Certiorari denied;


text:
    No. 89-6303.
    Paige v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-6313.
    Chapoteau et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-6426.
    Cartier v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 89-6512.
    Duprey v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-6523.
    Eaton v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 89-6546.
    Buzard et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6760.
    Jayme v. Board of Veterans Appeals et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-6777.
    Bell v. Smith, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-6801.
    Crane v. Tennessee.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 89-6804.
    Schaening v. Rowland, Director, California Department of Corrections.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6819.
    Menefield v. Rowland et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6823.
    Williams v. Department of the Air Force.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 89-6824.
    Telk v. United States Postal Service et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-6825.
    Vinje-Morpurgo v. New York et al.
   C, A. 2d Cir. Certiorari denied.


text:
    No. 89-6826.
    Simon v. Bethlehem Steel Corp. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-6828.
    Rotman v. Worcester Police Department et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 89-6831.
    Freeman et al. v. City of Lagrange et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-6834.
    Cassell v. Gingrich et al. (two cases).
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 89-6836.
    Johnson v. Baxley, Assistant Defender, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-6842.
    Kucher v. Massachusetts Department of Employment Security et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 89-6844.
    Brennan v. Brennan et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-6850.
    Lepiscopo v. Jimenez-Maes et al.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 89-6853.
    Durosko v. Lewis, Director, Arizona Department of Corrections, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6854.
    Sanford v. Alameda-Contra Costa Transit District et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6861.
    Jones v. City of Hamtramck et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-6862.
    Sakovich v. Pandya.
   App. Ct. 111., 3d Dist. Certiorari denied.


text:
    No. 89-6863.
    Barnett v. Nevada.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 89-6873.
    Castro v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 89-6879.
    Barbella v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 89-6884.
    Busch v. Owens, Commissioner, Pennsylvania Department of Corrections, et al.
   Pa. Commw. Ct. Certiorari denied.


text:
    No. 89-6894.
    Justice v. Reda et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-6895.
    Holsey v. Cauffman et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-6908.
    Davis v. Tansy, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-6936.
    Baker v. New York State Department of Labor et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-6940.
    Bryant v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 89-6962.
    Zanzucchi v. Weinberg et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6975.
    Peoples v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-6977.
    Azure v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-6983.
    Obabueki v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6984.
    Dixon v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-6999.
    Shaid v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7001.
    Diaz v. United States et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7002.
    Cardenas v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7004.
    Martinez v. Texas.
   Ct. App. Tex., 4th Dist. Certiorari denied.


text:
    No. 89-7006.
    Sierra v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7018.
    McMillion v. Rollins, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7019.
    Munoz v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7021.
    Muhammad v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7027.
    Bradley v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-7034.
    Coleman v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-7040.
    Hernandez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7041.
    Montoya-Rojas v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7042.
    Jaworski v. Young et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-7050.
    Thomas v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7055.
    Beierle v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7065.
    Mains v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-794.
    McCambridge v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.

Justice Brennan and Justice White would grant certiorari.


text:
    No. 89-1079.
    PPG Industries, Inc. v. United States Environmental Protection Agency et al.
   C. A. 5th Cir. Motion of Society of the Plastics Industry, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 89-1084.
    DaSilva et al. v. United States.
   C. A. 2d Cir. Certiorari denied.

Justice White and Justice Black-mun would grant certiorari.


text:
    No. 89-1164.
    General Motors Corp. v. Carlson et al.
   C. A. 4th Cir. Motion of Motor Vehicle Manufacturers Association of the United States Inc. for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 89-1197.
    City of St. George, Utah v. Foremaster.
   C. A. 10th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 89-1336.
    Rushen, Director, California Department of Corrections v. Spain.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 89-1367.
    Wollersheim v. Church of Scientology of California.
   Ct. App. Cal., 2d App. Dist.. Certiorari denied. Justice Brennan took no part in the consideration or decision of this petition.


text:
    No. 89-1401.
    Exxon Corp. v. Wyoming State Board of Equalization.
   Sup. Ct. Wyo. Motions of Committee on State Taxation of the Council of State Chambers of Commerce and Institute of Property Taxation for leave to file briefs as amici curiae granted. Certiorari denied.


text:
    No. 89-5222.
    No. 89-6431.
    No. 89-6765.
    Fortenberry v. Alabama. Morrison v. Alabama. Carrera v. California.
   Sup. Ct. Ala.;

Ct. Crim. App. Ala.; and

Sup. Ct. Cal. 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 sentences in these cases.


author: Justice Marshall,

text:
    No. 89-6679.
    Swindler v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

A defendant’s interest in a fundamentally fair trial outweighs the State’s interest in trying the defendant in a particular venue. See, e. g., Lee v. Georgia, 488 U. S. 879 (1988) (Marshall, J., dissenting from denial of certiorari). Accordingly, state laws that restrict a court’s ability to protect a defendant from the possibility of juror exposure to prejudicial publicity unconstitutionally infringe on a defendant’s right to a fair and impartial jury. Relying in part on its interpretation of Arkansas law, see Ark. Code Ann. § 16-88-207 (1987) (“In no case shall a second removal of the same cause be allowed”), the trial court in this capital case refused to allow petitioner a second change of venue. I would grant the petition for certiorari to provide much needed guidance regarding the minimal due process requirements for state change of venue' rules. When, as here, a State frames its venue rule in absolute terms and fails to permit the trial court to consider a particular defendant’s right to a jury free from preconceptions regarding his guilt, such a rule violates due process. See Sheppard v. Maxwell, 384 U. S. 333, 352 (1966) (“‘It is true that in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process’ ”) (quoting Estes v. Texas, 381 U. S. 532, 542-543 (1965)). Even if I did not believe that this case merited plenary review, I would grant the petition for writ of certiorari and vacate the death penalty, because I continue to believe that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231-241 (1976) (MARSHALL, J., dissenting).

Petitioner was convicted of murdering a police officer and sentenced to death. His conviction was reversed by the Arkansas Supreme Court because of the trial court’s failure to grant a change of venue from Sebastian County, where the killing occurred. Swindler v. State, 264 Ark. 107, 113, 569 S. W. 2d 120, 123 (1978). Petitioner was thereafter retried in Scott County, a small rural county adjacent to Sebastian. Waldron, the seat of Scott County, is only 45 miles south of Fort Smith, the location of both the crime and the first trial.

During voir dire, a majority of the 120 venirepersons indicated that they were aware that petitioner had previously been found guilty of the crime and that he was wanted in another State for allegedly murdering two teenagers. More importantly, an overwhelming majority of the venire — 98 out of 120 — either tentatively or firmly believed that petitioner was guilty. The strong local feelings regarding petitioner’s guilt are reflected in the comments of venireperson Thomas Bricksey:

“Q. [Hjave you discussed this case -with anybody?
“A. Oh, yes, sir.
“Q. All right, and have these people expressed an opinion to you about this case?
“A. Yes, sir.
“Q. Could you tell me what those opinions were? Did they think the defendant was guilty?
“A. I am afraid it was almost unanimous.
“Q. Did you ever hear anybody state that they thought he was not guilty?
“A. No sir.” Tr. 1299.

Similar prejudicial attitudes surfaced in the voir dire of three other jurors whom petitioner challenged for cause but who, unlike Bricksey, ultimately served on petitioner’s jury. Each indicated that he believed petitioner was guilty as a result of exposure to pretrial publicity regarding petitioner’s first trial. One of the jurors, Thurman Jones, when asked whether he accepted the principle that a person is innocent until proved guilty, replied, “I do, and I would accept it more if he had not been tried. The only thing I am wondering about now, since he has had a trial, and I know about it, I am wondering if he is not going to have to prove to me that he is innocent.” Tr. 1149. Milton Staggs, another juror challenged by petitioner, when asked whether he had an opinion about the first verdict, stated, “Well, sure, based on what came out, I don’t know how it could be otherwise, you know.” Tr. 1223. Henry Sunderman, asked whether “you feel like because [the first jury] came to that conclusion that the defendant may well be guilty,” replied “I would say yes.” Tr. 979. The trial court, finding that each of the three challenged jurors was capable of setting aside his opinion regarding petitioner’s guilt, denied petitioner’s request that they be struck for cause.

During the five days of voir dire, petitioner requested a change of venue on several occasions. The trial court denied the motions, relying in part on the Arkansas venue statute, § 16-88-207. Tr. 878-879, 1407-1408, 1560. At other points, the trial judge rejected the venue change in apparent reliance on “the fact that [petitioner] still ha[d peremptory] challenges left,” Tr. 1075, although petitioner exhausted his challenges before the entire jury was seated. At the close of jury selection, petitioner moved for a mistrial on the ground that the state statute prohibiting a second change of venue unconstitutionally deprived him of a fair and impartial jury. The trial court conceded that “it is quite obvious that this case has received great amounts of publicity, and [that] it is very difficult to find a juror, not only [in] Sebastian County but apparently throughout this part of even the western part of Arkansas, who have [sic] not read, heard or seen a great deal about it.” Tr. 1559. The court nonetheless denied the motion on the basis of “the present Arkansas law and the record that was made” during jury selection. Tr. 1560.

Petitioner filed a petition for habeas corpus. The District Court denied relief and the Court of Appeals for the Eighth Circuit affirmed, rejecting petitioner’s claim that his constitutional right to a fair and impartial jury was compromised by the trial court’s refusal to change venue or to strike for cause jurors Jones, Staggs, and Sunderman. 885 F. 2d 1342, 1347-1350 (1989). The court afforded a “presumption of correctness” to the state-court findings regarding the ability of jurors to set aside whatever prejudice they harbored against petitioner. Id., at 1347. The court also relied on Eighth Circuit precedent, Simmons v. Lockhart, 814 F. 2d 504 (1987), in which the court had stated that “the fact that a venire panel is well informed on reported news is not by itself prejudicial.” Id., at 510. Lastly, the court rejected petitioner’s constitutional challenge to Arkansas’ change of venue rule because “the trial court based its denial of a second change of venue on the fact that Swindler had not established prejudice resulting from pretrial publicity.” 885 F. 2d, at 1347.

We have yet to address squarely the constitutionality of state change of venue rules that limit a trial court’s ability to protect a defendant from the effects of prejudicial publicity. Here, the Court of Appeals attempted to avoid the constitutional question by relying on the trial court’s finding that the empaneled jury was not unduly prejudiced. But the Court of Appeals failed to consider the extent to which the Arkansas rule affected the trial court’s assessment of prejudice. The transcript makes clear that the Arkansas rule was a strong factor in the trial court’s decision and that the court had difficulty separating its merits judgment from its fear that a transfer of venue to another county “would cause a serious jurisdictional problem” under Arkansas law. Tr. 1560.

The state court’s refusal to transfer venue may have been substantially affected by Arkansas’ venue rule. When, on the basis of such rules, a court fails to protect the defendant from a trial that may be “but a hollow formality,” Rideau v. Louisiana, 373 U. S. 723, 726 (1963), this Court has a special obligation to consider their constitutionality and to specify the due process constraints on their application. I dissent.

      The fact that petitioner’s claim in this case arises on a federal petition for habeas corpus does not bar its consideration. Cf. Teague v. Lane, 489 U. S. 288 (1989). Assuming that the rule sought by petitioner is “new,” it also falls within the category of “procedures without which the likelihood of an accurate conviction is seriously diminished.” Id., at 313. The likelihood of an accurate conviction is no doubt diminished when a defendant is tried by a jury that has prejudged his case.


text:
    No. 88-6677.
    No. 89-1122.
    No. 89-1126.
    No. 89-6261.
    No. 89-6458.
    No. 89-6556.
    Butler v. McKellar, Warden, et al., Christensen v. Pettey et al., Suehl et al. v. Iowa, Lawson v. California, MacGuire v. Miller, Shine & Bryan et al., McCone v. Sagebrush Properties, Inc., et al.,
   494 U. S. 407;

494 U. S. 1017;

494 U. S. 1017;

493 U. S. 1086;

494 U. S. 1019; and

494 U. S. 1035.

Petitions for rehearing denied.


text:
    No. 88-1650.
    Tafflin et al. v. Levitt et al.,
   493 U. S. 455. Second motion for leave to file petition for rehearing denied.


text:
    No. 89-1068.
    Rosenbaum v. Rosenbaum et al.,
   494 U. S. 1004. Application to suspend the effect of the order denying certiorari, addressed to Justice O’Connor and referred to the Court, denied. Petition for rehearing denied.


text:
    April 26, 1990
    No. A-748.
    Woomer v. Aiken, Warden, et al.
   Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 88-6393 (A-749).
    Woomer v. Aiken, Warden, et al.,
   489 U. S. 1091 and 490 U. S. 1077. Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied. Motion for leave to file second petition for rehearing denied.

Justice Brennan and Justice Marshall would grant the application for stay of execution.


text:
    April 27, 1990
    No. A-754 (89-5167).
    Tafero v. Dugger, Secretary, Florida Department of Corrections,
   494 U. S. 1090. Application to suspend the effect of the order denying certiorari, presented to Justice Kennedy, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall would grant the application.


text:
    April 30, 1990
    No. 89-6976.
    Klein v. Massachusetts.
   Appeal from Sup. Jud. Ct. Mass, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 89-5297.
    Hill v. United States.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Florida v. Wells, ante, p. 1.


text:
    No. 89-5446.
    Kordosky v. United States.
   C. A. 7th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Florida v. Wells, ante, p. 1.


text:
    No. 89-6903.
    Smith v. Missouri.
   Sup. Ct. Mo. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of McKoy v. North Carolina, 494 U. S. 433 (1990), and Boyde v. California, 494 U. S. 370 (1990).


text:
    No.---.
    Brown v. United States.
   Motion for leave to proceed informa pauperis without an affidavit of indigency executed by petitioner denied.


text:
    No.---.
    Mathis v. United States.
   Motion for leave to proceed informa pauperis without an affidavit of indigency executed by petitioner denied.


text:
    No.---.
    Lightfoot v. Sullivan, Secretary of Health and Human Services.
   Motion to direct the Clerk to file petition for writ of certiorari out of time denied.


text:
    No. A-700.
    Kulalani Ltd. et al. v. Corey.
   C. A. 9th Cir. Application for recall and stay of mandate, addressed to Justice Stevens and referred to the Court, denied.


text:
    No. A-747 (89-7307).
    Callins v. Texas.
   Ct. Crim. App. Tex. Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Blackmun and Justice Stevens would grant the application.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    No. 89-1104.
    Alcan Foil Products Division of Alcan Aluminum Corp. v. United States.
   C. A. 6th Cir. Motion of petitioner to strike Brief for United States granted.


text:
    No. 89-1322.
    No. 89-1435.
    Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma. American Railway & Airway Supervisors Assn. et al. v. Soo Line Railroad Co.
   C. A. 10th Cir.; and C. A. 8th Cir. The Solicitor General is invited to file briefs in these cases expressing the views of the United States.


text:
    No. 89-1433.
    No. 89-1434.
    United States v. Eichman et al. United States v. Haggerty et al.
   D. C. D. C. [Probable jurisdiction noted, 494 U. S. 1063]; and D. C. W. D. Wash. [Probable jurisdiction noted, 494 U. S. 1063.] Motion of appellees for divided argument denied. Motion of appellees Eichman, Blalock, Tyler, Haggerty, Garza, and Campbell for leave to proceed further herein in forma pauperis granted.


text:
    No. 89-7105.
    In re Green.
   Petition for writ of habeas corpus denied.


text:
    No. 89-1220.
    No. 89-6731.
    No. 89-6874.
    In re Van Sant; In re Feldman; and In re Feldman.
   Petitions for writs of mandamus denied.


text:
    No. 89-1149.
    Grogan et al. v. Garner.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 88-1564.
    Judge v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 88-7446.
    Ford v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1082.
    Jones Hirsch Connors & Bull v. United States District Court for the District of Puerto Rico et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 89-1172.
    Goldhofer Fahrzeugwerk GmbH & Co. v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 89-1201.
    Tollefson v. Montana.
   Sup. Ct. Mont. Certiorari denied.


text:
    No. 89-1242.
    Abortion Rights Mobilization, Inc., et al. v. United States Catholic Conference et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1255.
    National Small Shipments Traffic Conference, Inc., et al. v. United States et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1265.
    Capozzi v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-1275.
    O’Grady et vir v. Oberhand et al.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 89-1316.
    Behagen v. USA Basketball et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-1324.
    Gannett Co., Inc. v. Delaware et al.
   Sup. Ct. Del. Certiorari denied.


text:
    No. 89-1402.
    Heifner v. California.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 89-1404.
    Cameron et ux. v. Beeler, Schad & Diamond, P. C.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-1411.
    Tindall v. Florida Bar.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 89-1414.
    Howell v. Mauzy et al.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 89-1418.
    Illinois Corporate Travel, Inc., dba McTravel Travel Services v. American Airlines, Inc.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-1431.
    Myers v. South Dakota.
   Sup. Ct. S. D. Certiorari denied.


text:
    No. 89-1432.
    Jackson v. Johnstown/Consolidated Realty Trust et al.
   App. Ct. 111., 1st Dist. Certiorari denied.


text:
    No. 89-1437.
    Sutherland et al. v. Holcombe et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1440.
    Knox County, Tennessee, et al. v. McWherter, Governor of Tennessee, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1446.
    Ahtna, Inc. v. Alaska et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1447.
    Ideco Division of Dresser Industries, Inc. v. Crocker National Bank et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1466.
    Ryan v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 89-1487.
    Dunlap v. Lockhart, Director, Arkansas Department of Correction, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-1496.
    Gilliam v. National Commission on Certification of Physician Assistants, Inc., et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1535.
    Castro et al. v. United States et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-1540.
    Ames v. Summey et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-6500.
    Boudreau v. Collins, Superintendent, Moore Correctional Institution, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-6525.
    Reynolds v. Missouri.
   Ct. App. Mo., Western Dist. Certiorari denied.


text:
    No. 89-6565.
    Fry v. North Carolina.
   Ct. App. N. C. Certiorari denied.


text:
    No. 89-6646.
    Munster-Ramirez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6719.
    Bruno v. Federal Mine Safety and Health Review Commission et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-6783.
    Harrison v. Rollins, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-6839.
    In re Martin.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-6851.
    Demos v. United States District Court for the Western District of Washington.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6877.
    Taylor v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 89-6880.
    Conley v. Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 89-6897.
    Sevilla v. Illinois.
   Sup. Ct. 111. Certiorari denied.


text:
    No. 89-6898.
    Woods v. Solem, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-6901.
    Dowell v. Lensing, Warden, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-6902.
    Coleman v. Delaware.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-6904.
    Conley v. Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 89-6905.
    Holley v. Edwards, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-6907.
    Galowski v. Murphy, Superintendent, Columbia Correctional Institution.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-6909.
    Carter v. Vaughn, Superintendent, State Correctional Institution (and Diagnostic and Classification Center) at Graterford.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-6910.
    Starks v. Collins, Director, Texas Department of Criminal Justice.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-6914.
    Meyers v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 89-6915.
    Camden v. Circuit Court of Crawford County, Illinois, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-6921.
    Barclay v. Martinez, Governor of Florida, et al.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 89-6922.
    Hunt et al. v. Reynolds.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-6928.
    Cooper v. Moore, Director of Corrections, et al.
   Ct. App. Mo., Western Dist. Certiorari denied.


text:
    No. 89-6930.
    Frias v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 89-6931.
    Harris v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6938.
    Wilson v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-6947.
    Fountain v. West Point Military Academy et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-6955.
    Cumber et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-6974.
    Demos v. United States District Court for the Eastern District of Washington; Demos v. United States District Court for the Western District of Washington; and Demos v. United States District Court for the Western District of Washington.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6997.
    Harris v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7020.
    Swartz v. Internal Revenue Service et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7028.
    Fryhover v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7039.
    Williams v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7054.
    Despaigne v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7067.
    Barber v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-7073.
    Evidente v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7078.
    Faulkner v. Grayson, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7088.
    Thompson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7091.
    Hanley, aka Huntly v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7093.
    Hereau v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7098.
    Muniz-Melchor v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7106.
    Buenrostro v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7121.
    Williams v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7130.
    Evans v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 87-6927.
    No. 89-81.
    No. 89-5596.
    No. 89-6954.
    Hamilton, as Natural Mother and Next Friend of Smith v. Texas. Wilson et al. v. Lane, Director, Illinois Department of Corrections. Laws, by and Through Laws, as his Next Friend v. Delo, Superintendent, Potosi Correctional Center.
   Ct. Crim. App. Tex.; C. A. 7th Cir.; C. A. 8th Cir.; and Magwood v. Alabama. Sup. Ct. Ala. 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 sentences in these cases.


text:
    No. 89-1067.
    General Motors Corp. v. Wells et al.
   C. A. 5th Cir. Motion of Equal Employment Advisory Council for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 89-1159.
    Ferris v. Kentucky.
   Cir. Ct. Ky., Campbell County. Certiorari denied.

Justice White and Justice Blackmun would grant certiorari.


text:
    No. 89-1232 (A-552).
    Colorado v. Cleburn.
   Sup. Ct. Colo. Application for stay, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.


text:
    No. 89-1272.
    American Federation of Government Employees, AFL-CIO, et al. v. Skinner, Secretary of Transportation.
   C. A. D. C. Cir. Certiorari denied.

Justice Marshall would grant certiorari.


text:
    No. 89-1419.
    Halifax Hospital Medical Center v. Bolt et al.
   C. A. 11th Cir. Certiorari denied.

Justice White would grant certiorari.


text:
    No. 88-1264.
    No. 88-6613.
    No. 88-7222.
    No. 89-1226.
    No. 89-5998.
    No. 89-6395.
    No. 89-6455.
    No. 89-6553.
    No. 89-6594.
    No. 89-6639.
    Saffle, Warden, et al. v. Parks, Boyde v. California, Tassin v. Louisiana, Walker v. Suburban Hospital Assn. et al., Hamilton v. California, McClain v. Mitchell et al., In re Warren, Gaunce v. Burgener et al., In re Martin, Kim v. United States, 494 U. S. 1037.
   494 U. S. 484;

494 U. S. 370;

493 U. S. 874;

494 U. S. 1056;

494 U. S. 1039;

494 U. S. 1006;

494 U. S. 1025;

494 U. S. 1035;

494 U. S. 1025; and

Petitions for rehearing denied.