text:
    NATIONAL MINES CORP. v. CARYL, TAX COMMISSIONER OF WEST VIRGINIA
    No. 89-337.
    Decided June 28, 1990
   Per Curiam.

Petitioner National Mines Corp. (National) is principally-engaged in the business of producing and selling coal. Among its other activities, National mines coal in Kentucky and Pennsylvania and sells it wholesale in West Virginia. During the period relevant here, West Virginia imposed a gross receipts tax on wholesale sales of tangible property. W. Va. Code § ll-13-2c (1983). Local producers were subject to taxes on their production activities, but exempt from the tax on wholesale activities. § 11-13-2.

On December 22, 1980, the State Tax Department of West Virginia assessed $475,345.02 in business and occupation tax (plus interest and penalties) for the period January 1, 1975, through December 31, 1979, on National’s wholesale sales of coal in West Virginia. National filed a petition for reassessment, asserting that the tax violated the Due Process Clause of the Fourteenth Amendment and the Commerce Clause of the Federal Constitution. The State Tax Commissioner upheld the assessment, concluding that the tax was fairly apportioned, that the measure of the tax was reasonably related to the benefits conferred by the State, and that the tax did not discriminate against interstate commerce.

A few days before National appealed to the State Circuit Court, this Court issued its opinion in Armco Inc. v. Hardesty, 467 U. S. 638 (1984), which held that the West Virginia business and occupation tax sought to be collected from petitioner was unconstitutional. National’s action was held in abeyance while the West Virginia Supreme Court of Appeals considered a similar challenge to the state tax in light of Armco. See Ashland Oil, Inc. v. Rose, 177 W. Va. 20, 850 S. E. 2d 531 (1986). After analyzing the retro-activity of Armco under a state-law test that it considered to “follow closely the analysis employed by the United States Supreme Court in Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971),” 177 W. Va., at 23, n. 6, 350 S. E. 2d, at 534, n. 6, the court concluded that Armco applied prospectively only. The State Supreme Court thus permitted the State to collect the gross receipts taxes due for fiscal years prior to the date of decision in Armco. 177 W. Va., at 25-26, 350 S. E. 2d, at 536-537.

The State Circuit Court in this case followed Ashland Oil to uphold the State’s collection of the assessed taxes. The West Virginia Supreme Court of Appeals refused to consider National’s petition for appeal.

In its petition for certiorari to this Court, National contends, among other claims, that the state court erred in following Ashland Oil’s nonretroactivity decision and allowing the State to enforce an unconstitutional tax statute. We agree. For the reasons stated today in Ashland Oil, Inc. v. Caryl, ante, p. 916, we hold that Armco applies retroactively under the reasoning of either the plurality or the dissent in American Trucking Assns., Inc. v. Smith, 496 U. S. 167 (1990). Because the State Circuit Court failed to consider the constitutionality of the taxes assessed against National in light of our decision in Armco, we grant the petition for cer-tiorari, reverse the judgment of the State Circuit Court, and remand for further proceedings not inconsistent with this opinion.

It is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    No. 89-761.
    Rice v. Ohio Department of Transportation et al.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Rutan v. Republican Party of Ill., ante, p. 62.


text:
    No. 89-936.
    INF, Ltd. v. Spectro Alloys Corp.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Maislin Industries, U. S., Inc. v. Primary Steel, Inc., ante, p. 116.


text:
    No. 89-944.
    Georgia v. Stewart et ux.
   Ct. App. Ga. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Illinois v. Rodriguez, ante, p. 177. Justice Stevens dissents.


text:
    No. 89-1575.
    Vastola et al. v. United States.
   C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Ojeda Rios, 495 U. S. 257 (1990).


text:
    No. 89-5849.
    Messer et al. v. Curci et al.
   C. A. 6th Cir. Motion of petitioners for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Rutan v. Republican Party of Ill., ante, p. 62.


text:
    No. A-850 (89-1947).
    Graham v. Wernz.
   Sup. Ct. Minn. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. D-868.
    In re Disbarment of Molony.
    [For earlier order herein, see 494 U. S. 1002.]
   Disbarment entered.


text:
    No. D-871.
    In re Disbarment of Price.
    [For earlier order herein, see 494 U. S. 1002.]
   Disbarment entered.


text:
    No. D-885.
    In re Disbarment of Sanders.
    [See 495 U. S. 954.]
   Disbarment order amended.


text:
    No. D-895.
    In re Disbarment of Dineff.
    [For earlier order herein, see 495 U. S. 902.]
   Disbarment entered.


text:
    No. D-913.
    In re Disbarment of Williams.
   It is ordered that Isaiah White Williams, of St. Petersburg, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-914.
    In re Disbarment of Watkins.
   It is ordered that William W. Watkins, Sr., of Columbia, S. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 89-1391.
    Rust et al. v. Sullivan, Secretary of Health and Human Services; and New York et al. v. Sullivan, Secretary of Health and Human Services.
    No. 89-1392.
   C. A. 2d Cir. [Certiorari granted, 495 U. S. 956.] Motion of Alan Ernest for leave to represent children unborn and born alive denied. Motion of Legal Defense for Unborn Children for leave to file a brief as amicus curiae denied.


text:
    No. 89-5900.
    Rust v. Gunter et al.,
   496 U. S. 914. Motion of Alvin J. Bronstein for reimbursement of travel expenses granted.


text:
    No. 89-7347.
    In re Brooks.
   Petition for writ of prohibition denied.


text:
    No. 89-1500.
    Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., et al.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 89-1541.
    Dole, Secretary of Labor v. Occupational Safety and Health Review Commission et al.
   C. A. 10th Cir. Certiorari granted.


text:
    No. 89-56.
    No. 89-79.
    No. 89-101.
    Allevato, Personal Representative of the Estate of Ferrantino, et al. v. County of Oakland et al.; City of Detroit v. County of Oakland et al.; and Young, Mayor of the City of Detroit v. County of Oakland et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-933.
    Carpenter et al. v. Thomas.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1287.
    Jacquin v. Stenzil, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1296.
    Oklahoma Natural Gas Co. v. Williams Natural Gas Co. et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-1377.
    Johnston v. Texas.
   Ct. App. Tex., 14th Dist. Certiorari denied.


text:
    No. 89-1413.
    Hernandez-Escarsega v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1511.
    American Mining Congress et al. v. United States Environmental Protection Agency et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-1527.
    Railway Labor Executives’ Assn. et al. v. Chicago & North Western Transportation Co. et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-1611.
    Reese v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 89-1617.
    Bernard et al. v. Gulf Oil Corp. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1641.
    News/Sun Sentinel Co. v. National Labor Relations Board et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-1660.
    Castiglia v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1674.
    Carota v. Celotex Corp.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 89-1687.
    Communications Satellite Corp. v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-1688.
    Gates v. Michigan.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 89-1695.
    Law Engineering, Inc. v. Georgetown Steel Corp. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1702.
    Mennen Co. et al. v. Martin.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1703.
    Snyder v. Lewis, Secretary of the Commonwealth of Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 89-1704.
    Illinois Human Rights Commission et al. v. Babcock & Wilcox Co.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 89-1712.
    Northwest Food Processors Assn. et al. v. Reilly, Administrator, Environmental Protection Agency.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1730.
    Fink v. Fink.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 89-1739.
    U. S. Gold & Silver Investments, Inc. v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1749.
    Public Service Commission of the State of New York et al. v. National Fuel Gas Supply Corp.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1764.
    Miller v. Prudential Bache Securities, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1776.
    Fontham v. Committee on Professional Responsibility, Louisiana State Bar Assn.
   Sup. Ct. La. Certiorari denied.


text:
    No. 89-1791.
    Lamborn v. Delaware.
   Sup. Ct. Del. Cer-tiorari denied.


text:
    No. 89-1796.
    Hasso et al. v. Duggan.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 89-1812.
    Espinueva v. Garrett, Secretary of the Navy.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-1826.
    Church By Mail, Inc. v. United States et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-1830.
    Jackson et ux. v. United States District Court for the Eastern District of California (Western Farm Credit Bank et al., Real Parties in Interest).
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1839.
    Blue Cross & Blue Shield of Kansas, Inc., et al. v. Reazin et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-1841.
    Nordstrom et al. v. Washington et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1851.
    Donofrio v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-1858.
    Eastern Auto Distributors, Inc. v. Peugeot Motors of America, Inc.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1860.
    Main v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1864.
    Arboleda v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1870.
    Utz v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 89-5654.
    Redmond v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-6618.
    Barnett v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 89-6959.
    Shaffer v. Senkowski, Superintendent, Clinton Correctional Facility, et al.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 89-7047.
    Buckley v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari de-ni“d.


text:
    No. 89-7081.
    Wallace v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7100.
    No. 89-7294.
    Gifford v. United States; and Kelly v. United States.
   C. A. 3d Cir. Certiorari denied. Reported below: No. 89-7100, 892 F. 2d 263; No. 89-7294, 892 F. 2d 255.


text:
    No. 89-7153.
    Watson v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7166.
    Paris v. Young.
   Cir. Ct. Md., Baltimore City. Certiorari denied.


text:
    No. 89-7238.
    Amiri v. Johnson, Judge, United States District Court for District of Columbia.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-7255.
    Santiago v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7274.
    Lee v. McCaughtry, Superintendent, Waupun Correctional Institution.
   C. A. 7th Cir. Certio-rari denied.


text:
    No. 89-7337.
    Gallion v. Zinn et al.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 89-7338.
    Belle v. Freeman et al.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 89-7339.
    Willis v. First Bank National Assn.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 89-7340.
    Whitaker v. Bay Area Rapid Transit.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 89-7342.
    Deming v. Richner et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7344.
    Fixel v. Deeds, Warden, et al.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 89-7353.
    Christopherson et ux. v. Shawano County.
   Ct. App. Wis. Certiorari denied.


text:
    No. 89-7358.
    Thomas et ux. v. SouthTrust Bank of Alabama, as Assignee of SouthTrust Mobile Services.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7365.
    Shuman v. Celeste, Governor of Ohio, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7368.
    Long et al. v. Fauver, Commissioner, New Jersey Department of Corrections, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7371.
    Moore v. District of Columbia Department of Public Works.
   Ct. App. D. C. Certiorari denied.


text:
    No. 89-7372.
    Kerns v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7373.
    Klacsmann v. Castellano.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7374.
    Klacsmann v. Fedak.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7375.
    Kurtz v. Edmiston, Superintendent, Southern State Correctional Facility, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7381.
    Brown v. Toombs et al.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 89-7384.
    Cosby v. Doyle et al.
   C. A. 4th Cir. Certio-rari denied.


text:
    No. 89-7389.
    Brown v. Sherman et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7404.
    Potter v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7407.
    Bryant v. Tate, Superintendent, Chillicothe Correctional Institute.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7415.
    Sun v. Kessler et al.
   Ct. App. Ga. Certio-rari denied.


text:
    No. 89-7422.
    Bell v. Texas.
   Ct. App. Tex., 3d Dist. Cer-tiorari denied.


text:
    No. 89-7428.
    Demos v. Court of Appeals of Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 89-7429.
    Demos v. Supreme Court of Washington.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 89-7431.
    Benson v. Barrasso et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7435.
    Davis et al. v. County of Jefferson, Alabama, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7471.
    Poorman v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 89-7497.
    Demos v. Bonamy, Superintendent, Special Offender Center.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 89-7499.
    Demos v. Bonamy, Superintendent, Special Offender Center.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 89-7501.
    Dougherty v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7506.
    Harris v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7508.
    McMillan v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7514.
    Huynh v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7515.
    Block v. American Telephone & Telegraph Co. et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7516.
    Betancourt v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7524.
    Becerra et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7532.
    Mathis v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 89-7533.
    Libreros v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7544.
    Reino v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 89-7545.
    Ramos-Benavidez v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7552.
    Proctor v. Jabe, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7553.
    Corpus v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 89-7556.
    Gamble v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7557.
    Rodriguez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7560.
    Sierra v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7563.
    Pulliam v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7566.
    Barber v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7567.
    Beaulieu v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7568.
    Beaulieu v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7573.
    Frank v. United States.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 89-7575.
    Sanchez-Rodriguez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7579.
    Mukhtar v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7585.
    Romero et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7590.
    Holsey v. Nuth, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7611.
    Evans v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7620.
    Williams v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7622.
    Ramirez v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7624.
    White v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 88-1958.
    Supreme Beef Processors, Inc. v. Yaquinto, Trustee for Caravan Refrigerated Cargo, Inc.
   C. A. 5th Cir. Motions of Shippers National Freight Claims Council, Inc., and National Industrial Transportation League et al. for leave to file briefs as amici curiae granted. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 88-7318.
    No. 88-7432.
    No. 89-516.
    No. 89-6062.
    No. 89-6091.
    No. 89-6324.
    No. 89-6509.
    Cain v. South Carolina. West v. Tennessee. Evans v. Thompson, Superintendent, Mecklenburg Correctional Center. Murtishaw v. California. Ransom v. Texas. Moore v. Zant, Superintendent, Georgia Diagnostic and Classification Center. Hopkinson v. Shillinger, Warden, et al. Barefield v. Texas. Callins v. Texas. Pickens v. Arkansas. Barnes v. Thompson, Warden. Barrow v. Illinois. Huffman v. Indiana.
   Sup. Ct. S. C.;

Sup. Ct. Tenn.;

C. A. 4th Cir.;

Sup. Ct. Cal.;

Ct. Crim. App. Tex.;

C. A. 11th Cir.;

C. A. 10th Cir.;

No. 89-7007.

No. 89-7307.

No. 89-7308.

No. 89-7322.

No. 89-7380.

No. 89-7442.

Ct. Crim. App. Tex.;

Ct. Crim. App. Tex.;

Sup. Ct. Ark.;

Sup. Ct. Va.;

Sup. Ct. Ill.; and

Sup. Ct. Ind. Certiorari denied. Reported below: No. 88-7318, 297 S. C. 497, 377 S. E. 2d 556; No. 88-7432, 767 S. W. 2d 387; No. 89-516, 881 F. 2d 117; No. 89-6062, 48 Cal. 3d 1001, 773 P. 2d 172; No. 89-6091, 789 S. W. 2d 572; No. 89-6324, 885 F. 2d 1497; No. 89-6509, 866 F. 2d 1185 and 888 F. 2d 1286; No. 89-7007, 784 S. W. 2d 38; No. 89-7307, 780 S. W. 2d 176; No. 89-7308, 301 Ark. 244, 783 S. W. 2d 341; No. 89-7380, 133 Ill. 2d 226, 549 N. E. 2d 240; No. 89-7442, 543 N. E. 2d 360.

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. 89-1756.
    Royal Crown Cola Co. v. Coca-Cola Co. et al.
   C. A. 11th Cir. Certiorari denied. Justice Blackmun took no part in the consideration or decision of this petition.


text:
    No. 89-1759.
    Lockhart, Director, Arkansas Department of Correction v. Hill.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


author: Justice Brennan, Justice Marshall,

text:
    No. 89-5346.
    Bradley v. Ohio.
   Sup. Ct. Ohio. Certiorari denied.

Justice Brennan,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice Marshall,

dissenting.

In Miranda v. Arizona, 384 U. S. 436 (1966), this Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id., at 444. Consistent with the need for a bright-line rule, the Court adopted a straightforward definition of “custodial interrogation”: “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Ibid. In this case, petitioner, a prison inmate, challenged the admission of statements he made in response to direct questioning by prison officials following the murder of a prison employee on the ground that they had not given him the Miranda warnings. Notwithstanding Miranda’s clear language, the State Court of Appeals held that petitioner was not in custody for purposes of Miranda, see No. 1583 (Sept. 22, 1987), App. to Pet. for Cert. A-129-A-130, and the Ohio Supreme Court affirmed this point without discussion, 42 Ohio St. 3d 136, 148, 538 N. E. 2d 373, 385 (1989). Because the Courts of Appeals have approached the issue of what constitutes custody in the prison setting in differing ways, this Court should grant the petition for certiorari to state clearly when Miranda applies in this context.

On February 2, 1984, the supervisor of the Southern Ohio Correctional Facility’s sheet metal shop was beaten to death. Immediately after the murder, prison officials closed off the shop area and began to conduct a strip search of the inmates there. During the search, the officials found blood on one inmate’s clothing. When he was asked for an explanation, another inmate, petitioner William Bradley, told the officials that the first prisoner “had nothing to do with this.” 42 Ohio St. 3d, at 138, 538 N. E. 2d, at 376. The officials then searched petitioner and found blood on his clothing. The state court described the questioning that ensued:

“Corrections Officer Richard Taylor . . . asked for an explanation. [Petitioner] pointed to where [the] body had been and stated that it was the foreman’s blood. Officer Taylor called the spot to the attention of Deputy Superintendent Seth, who repeated the questions to [petitioner] and received the same answers. Officer Taylor then asked [petitioner], ‘[D]id you do it?’ [Petitioner] replied, ‘[Y]eah, I did it.’” Ibid.

Although petitioner was not apprised of his Miranda rights before this questioning, the trial court denied his motion to suppress the incriminating responses. Petitioner was convicted of aggravated murder and sentenced to death. On this direct appeal, the State Court of Appeals found that “the detention of [petitioner] and other inmates here was similar to those restrictions imposed with every incident that would take place at the prison, [so] it did not necessarily place an added imposition on his freedom of movement such as to make a reasonable person believe there had been a restriction of his freedom over and above that in his normal prisoner setting.” App. to Pet. for Cert. A-130. Thus, although it acknowledged that petitioner had been interrogated, the court found that petitioner had not been in custody, as defined by Miranda. The court therefore held that Miranda warnings were not required. The Supreme Court affirmed the conviction. 42 Ohio St. 3d, at 148, 538 N. E. 2d, at 385.

To determine whether a person is in custody for purposes of Miranda, “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U. S. 492, 495 (1977)). This Court recently left open the question whether “[t]he bare fact of custody [would] in every instance require a warning even when the suspect is aware that he is speaking to an official.” Illinois v. Perkins, 496 U. S. 292, 299 (1990). In my view, Miranda and its progeny have already answered that question. In this case, petitioner was clearly in custody because he had been formally arrested. Moreover, his incarceration resulted in a severe restraint on his freedom of movement. That his incarceration was the result of a conviction for a crime unrelated to the murder of the prison employee is irrelevant. See Mathis v. United States, 391 U. S. 1, 4-5 (1968) (holding that a person serving a prison sentence for one crime was in custody when he was interrogated about another, unrelated crime). His familiarity with the prison environment is also irrelevant to the Miranda analysis. See Orozco v. Texas, 394 U. S. 324, 326-327 (1969) (holding that suspect who had been arrested in his home and questioned in his bedroom was in custody, notwithstanding his familiarity with his surroundings).

The state courts here, like some Courts of Appeals, see note, supra, nevertheless maintained that a prison inmate is in custody for purposes of Miranda only if some additional restriction on his freedom of movement is imposed. See App. to Pet. for Cert. A-129. Even if this “additional restriction” test were consistent with Miranda, petitioner satisfies it: His freedom was curtailed more severely than was usual even in the controlled environment of prison — he was detained in the sheet metal shop, targeted as a suspect in a serious crime, and forcibly strip-searched.

The second requirement for the application of Miranda — interrogation— is also present in this case. Prison officials asked petitioner a series of direct questions about a murder in which he was a suspect. Contrary to the State’s assertion, Brief in Opposition 10-11, these questions cannot accurately be characterized as “on-the-scene questioning” exempt from the Miranda requirements. The Miranda Court stated that

“[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” 384 U. S., at 477-478.

Here, though, prison officials had been summoned by a witness to the incident, had seen both the body and the weapon, and had detained those persons who could be responsible for the murder. The questioning of petitioner, directed at discovering whether he had committed the crime, thus went well beyond “on-the-scene questioning.” Indeed, the State Court of Appeals acknowledged that this questioning constituted interrogation. App. to Pet. for Cert. A-128.

Under this Court’s recent decision in Perkins, supra, petitioner may also have to establish that his statements were “coerced.” 496 U. S., at 299. The type of coercive environment described by the Court in Perkins was present in this case. First, the questioning occurred in prison, undoubtedly a ‘“police-dominated atmosphere.’” Id., at 296. And when the guards rounded up the inmates and strip-searched them, the sense of police domination was increased. Second, the prison officials were openly acting as agents of the State, and petitioner knew that they were responsible for determining the extent of his freedom. See id., at 297 (“Questioning by captors, who appear to control the suspect’s fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect’s will”). Given the virtually complete control that prison officials exercise over prisoners’ lives, petitioner surely felt compelled to answer questions “by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.” Ibid.

Thus, petitioner was in custody, was interrogated by prison officials, and was subjected to police coercion. Because the guards did not inform him of his Miranda rights before interrogating him, his responses to their direct questioning could not be used against him at trial. This case represents more than an opportunity to correct an erroneous decision, however; it provides the Court a chance to clarify what constitutes “custody” for Miranda purposes in the prison setting. I would therefore grant the petition for certiorari. Even if I did not believe that this case otherwise merited review, I would grant the petition and vacate petitioner’s death sentence on the ground that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting).

      See United States v. Cooper, 800 F. 2d 412, 414-415 (CA4 1986) (holding that prison inmate was not in custody for Miranda purposes because his free-do n of movement was not restricted more than it would normally be in the pr son environment); Flittie v. Solem, 751 F. 2d 967, 974 (CA8 1985) (“Incarceration does not ipso facto make a statement involuntary”); Cervantes v. Walker, 589 F. 2d 424, 427-429 (CA9 1978) (refusing to apply Miranda to questioning of a prison inmate that the court characterized as “on-the-scene questioning” and holding that prison inmate’s freedom of movement was not diminished more than usual in the prison context); United States v. Scalf, 725 F. 2d 1272, 1276 (CA10 1984) (same).


author: Justice Brennan,

text:
    No. 89-5934.
    Cartwright v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.

Justice Brennan,

with whom Justice Marshall

joins, concurring in part and dissenting in part.

I join the Court’s decision except insofar as the judgment, which is without prejudice to further sentencing proceedings, does not expressly preclude the reimposition of the death penalty. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting), I would direct that the resentencing proceedings be circumscribed such that the State may not reimpose the death sentence.


text:
    No. 89-7387.
    Doughty et al. v. Board of County Commissioners for the County of Weld et al.
   C. A. 10th Cir. Certiorari before judgment denied.


text:
    No. 89-81.
    No. 89-1465.
    No. 89-6914.
    No. 89-6954.
    No. 89-7028.
    Wilson et al. v. Lane, Director, Illinois Department of Corrections, Kozak v. United States Department of Agriculture, Meyers v. Indiana, Magwood v. Alabama, Fryhover v. United States,
   495 U. S. 923;

495 U. S. 905;

495 U. S. 921;

495 U. S. 923; and

495 U. S. 922.

Petitions for rehearing denied.


text:
    June 26, 1990
    No. A-917 (89-7838).
    No. A-921 (89-7842).
    Hamilton, as Natural Mother and Next Friend to Smith v. Texas. Hamilton, as Natural Mother and Next Friend to Smith v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   Ct. Crim. App. Tex.; and

C. A. 5th Cir. Applications 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 dissent and would grant the applications.

Justice Brennan,

with whom Justice Marshall joins,

dissenting.

Tonight, for the second time within a month, see Demosthenes v. Baal, 495 U. S. 731 (1990), this Court permits a State to execute a prisoner who has waived further appeals on his behalf when serious doubts remain concerning his mental competence. I believe that we shirk our responsibility if we do not articulate standards by which the adequacy of procedures in state competency hearings may be judged. I would grant the petitions for certio-rari and the corresponding applications for stay of execution. Indeed, four Members of this Court have voted to grant certiorari in this case, but because a stay cannot be entered without five votes, the execution cannot be halted. For the first time in recent memory, a man will be executed after the Court has decided to hear his claim. Cf. Watson v. Butler, 483 U. S. 1037, 1038 (1987) (stay denied although four Justices voted to hold, rather than to grant, petition for certiorari).

I

In Whitmore v. Arkansas, 495 U. S. 149 (1990), this Court 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.” Id., at 165. Although the Court noted that 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,” ibid., we did not have occasion in that case to decide the procedures that are required when a state court determines that a prisoner is competent to forgo further appeals in his case. We face that issue tonight.

Petitioner, the mother of condemned prisoner James Edward Smith, challenges the decision of the Texas courts, to which the United States District Court for the Southern District of Texas and the United States Court of Appeals for the Fifth Circuit have deferred, that Smith is competent to waive further appeal of his case. The state trial court held a hearing to determine Smith’s competency, a hearing which seems to have been little more than a nonadversarial, ex parte chat among the trial judge, the prosecutor, and Smith. The hearing was scheduled without notice to Smith’s mother and next friend, Ms. Alexzene Hamilton, despite the fact that Ms. Hamilton had appeared as petitioner on Smith’s behalf as early as May 7, 1988. Indeed, it was upon her application that we granted a stay of execution in Hamilton v. Texas, 485 U. S. 1042 (1988). Smith was unrepresented by counsel; although the trial judge had arranged for an attorney to be present in the event that Smith wished to consult with him, the judge stated: “I’m not going to force a lawyer to represent you.” After Smith indicated that he did not wish to speak with the attorney, that was the end of the matter. There was no cross-examination at the hearing. No evidence was received beyond the bare reports of a Harris County psychiatrist and a Harris County psychologist who did not perform psychological tests and who were not given access to several reports of the history of Smith’s mental illness, including the fact that he had been found not guilty by reason of insanity o ' a prior Florida robbery.

Whether Smith is competent to waive his right to appeal may be a complex, fact-intensive question. But we need not face it tonight. Instead, we need judge only the adequacy of the state procedures used to determine his competency. These, I submit, were dubious procedures indeed. In Ford v. Wainwright, 477 U. S. 399, 410-418 (1986) (plurality opinion), Justice Marshall outlined certain procedures to be used in ascertaining the sanity of a prisoner prior to execution. Justice Marshall stressed the importance of an adversarial proceeding, noting that “without any adversarial assistance from the prisoner’s representative — especially when the psychiatric opinion he proffers is based on much more extensive evaluation than that of the state-appointed commission — the factfinder loses the substantial benefit of potentially probative information.” Id., at 414. In addition, Justice Marshall observed that “[c]ross-examination of the psychiatrists, or perhaps a less formal equivalent, would contribute markedly to the process of seeking truth in sanity disputes by bringing to light the bases for each expert’s beliefs, the precise factors underlying those beliefs, any history of error or caprice of the examiner, any personal bias with respect to the issue of capital punishment, the expert’s degree of certainty about his or her own conclusions, and the precise meaning of ambiguous words used in the report.” Id., at 415. In sum, Justice Marshall found that “any procedure that precludes the prisoner or his counsel from presenting material relevant to his sanity or bars consideration of that material by the factfinder is necessarily inadequate” and that “the adversarial] presentation of relevant information [must] be as unrestricted as possible.” Id., at 414, 417. Although these procedures are not directly applicable in a context in which prisoners seeking to waive their appeals actively resist appointment of counsel on their behalf, they might provide a useful guide. I would grant the petitions for certiorari to examine this important question.

A related issue presented by the instant case results from the failure of the District Court to grant an evidentiary hearing of its own. Both the District Court and the Fifth Circuit accorded the state trial court’s findings deference despite the procedural inadequacies of the state-court proceedings. The District Court believed that it was “bound by the state court’s findings,” Civ. Action No. H-90-2011 (June 24, 1990), p. 7, and the Fifth Circuit maintained that because the findings were “fairly supported by the record,” they were “binding” on the Court of Appeals. 905 F. 2d 825, 828 (1990). Regardless of a State’s obligation to provide a competency hearing, it is clearly error for a federal court to accord deference to state-court findings when the state hearing is procedurally inadequate. A federal court is obliged to hold its own evi-dentiary hearing on habeas corpus if, among other factors, “the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing,” 28 U. S. C. § 2254(d)(2); or “the material facts were not adequately developed at the State court hearing,” § 2254(d)(3); or “the applicant did not receive a full, fair, and adequate hearing in the State court proceeding.” § 2254(d)(6). This case presents the important legal question of the procedures required to determine the competence of a prisoner to forgo further appeals, a question which has relevance both for state courts and for federal courts reviewing the state-court findings on habeas corpus.

II

Even apart from the merits of the instant case, I would grant the applications for stay of execution pending disposition of the petitions for certiorari. 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).

      There is a great deal of evidence casting Smith’s competence in doubt. Smith has had a long history of mental illness dating from his discharge from the Navy and his hospitalization for psychiatric evaluation in the Great Lakes Naval Hospital in 1972. In 1978, he was found not guilty by reason of insanity in a robbery prosecution by a Florida state court. In 1981, he attempted suicide and was placed under psychiatric care. In 1985, the Texas trial court determined that Smith was not competent to handle his appeal and appointed an attorney to prosecute his appeal. Smith has suffered several head injuries in car accidents and falls. Smith’s mother has retained a clinical psychologist — an associate professor at Florida State University — who has sought access to Smith for the purpose of performing neurological tests. Although these tests have not yet been conducted, the psychologist has formed a conclusion on the basis of existing evidence:
      “I have formed a professional opinion with a reasonable degree of medical certainty concerning James Edwards Smith’s current mental state. My opinion is that Mr. Smith has a history of schizophrenia that appears to be paranoid in nature, marked by suicidal tendencies and religious delusions. There is also the possibility of organic brain damage, indicated by Mr. Smith’s history of head injuries, drug and alcohol abuse, and symptoms of neurological damage. At this time, based on Mr. Smith’s condition, it is my opinion that he is mentally ill; that this illness prevents Mr. Smith from understanding his actual legal position and the options available to him; and that this illness prevents Mr. Smith from making a rational choice among his options.” Pet. for Cert, in No. 89-7838, p. 17.


text:
    June 28, 1990
    No. 89-628.
    Mountain States Legal Foundation et al. v. National Wildlife Federation.
   C. A. D. C. Cir. Certiorari

granted, judgment vacated, and case remanded for further consideration in light of Lujan v. National Wildlife Federation, ante, p. 871.


text:
    No. 89-1052.
    Three Buoys Houseboat Vacations U. S. A., Ltd. v. Morts et al.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Sisson v. Ruby, ante, p. 358.


text:
    No. 89-1506.
    Gedan et al. v. Partington et al.
   C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990).


text:
    No. 89-1697.
    O’Riley v. Union Oil Company of California.
   Ct. App. Cal., 2d App. Dist. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Tafflin v. Levitt, 493 U. S. 455 (1990).

Justice White, Justice Blackmun, and Justice O’Connor dissent.


text:
    No. 89-1754.
    Texaco Refining & Marketing Inc. et al. v. Estate of Dau Van Tran et al.
   Ct. App. Tex., 9th Dist. Motion of Maritime Law Association of the United States for leave to file a brief as amicus curiae granted. Certiorari granted, judgment vacated, and case remanded for further consideration in

light of Sisson v. Ruby, ante, p. 358.

Justice Stevens dissents.


text:
    No. 89-1760.
    Immuno, A. G. v. Moor-Jankowski.
   Ct. App. N. Y. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Milkovich v. Lorain Journal Co., ante, p. 1.


text:
    No. 89-5396.
    Bockting v. Nevada.
   Sup. Ct. Nev. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Idaho v. Wright, ante, p. 805.


text:
    No. 89-6260.
    Huff v. North Carolina.
   Sup. Ct. N. C. 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).


text:
    No. 89-6289.
    Spotted War Bonnet v. United States.
   C. A. 8th 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 Idaho v. Wright, ante, p. 805.


text:
    No.-.
    Kanekoa et al. v. City and County of Honolulu et al.
   Motion of Charles K. Kanekoa for leave to proceed informa pauperis granted. Motion for leave to proceed in forma pauperis without affidavits of indigency executed by petitioners Warren E. Kanekoa and Damien Melemai denied.


text:
    No. A-844.
    Jaffer v. Granet et al.
   C. A. 7th Cir. Application for stay of lower court proceedings, addressed to Justice Marshall and referred to the Court, denied.


text:
    No. A-881.
    Thomas et ux. v. Manufacturers Hanover Mortgage Corp.
   C. A. 7th Cir. Application for stay, addressed to Justice Marshall and referred to the Court, denied.


author: Justice Marshall,

text:
    No. D-891.
    In re Disbarment of Day.
    [For earlier order herein, see 494 U. S. 1076.]
   Disbarment entered.

Justice Marshall,

with whom The Chief Justice joins, dissenting.

After respondent pleaded guilty to various felonies, the State Bar of Texas brought a disciplinary action in state court seeking respondent’s disbarment. The state trial court enjoined respondent from practicing law in Texas. This Court then issued an order suspending respondent from the practice of law in this Court and requiring respondent to show cause why he should not be disbarred from such practice. Respondent has appealed the trial court’s ruling, and that appeal is currently pending.

In view of the pendency of respondent’s appeal, I do not believe it is appropriate that this Court should enter a disbarment order. This Court should not provide fewer procedural protections than the States themselves provide for appealing an adverse disciplinary determination. If the State of Texas affords respondent a means of challenging his suspension from practice, this Court should await the result of that challenge before disbarring respondent in this Court. Unless and until respondent’s suspension becomes final under state law, then, I cannot join the Court’s disposition. We place great weight on state procedures in determining whether to admit attorneys to practice in this Court. I do not believe that we should ignore those procedures when we decide whether discipline here is appropriate.


text:
    No. 89-1889.
    Pinhas v. Summit Health, Ltd., et al.
   C. A. 9th Cir. Motion of the parties to expedite consideration of the cross-petition for writ of certiorari or, in the alternative, to delay briefing in No. 89-1679, Summit Health, Ltd., et al. v. Pinhas [certiorari granted, 496 U. S. 935], denied.


text:
    No. 89-1929.
    Sullivan, Secretary of Health and Human Services v. Massachusetts et al.
   C. A. 1st Cir. Motion of respondent to consolidate this case with No. 89-1391, Rust et al. v. Sullivan, Secretary of Health and Human Services [certiorari granted, 495 U. S. 956], and No. 89-1392, New York et al. v. Sullivan, Secretary of Health and Human Services [certiorari granted, 495 U. S. 956], denied.


text:
    No. 89-7189.
    Wei v. Delaware.
   Sup. Ct. Del. Motion of petitioner for reconsideration of May 21, 1990, order denying leave to proceed informa pauperis [495 U. S. 946] denied.


text:
    No. 89-7272.
    Harmelin v. Michigan.
   Ct. App. Mich. [Certiorari granted, 495 U. S. 956.] Motion for appointment of counsel granted, and it is ordered that Carla J. Johnson, Esq., of Detroit, Mich., be appointed to serve as counsel for petitioner in this case.


text:
    No. 89-7401.
    Clarke v. West Virginia Board of Regents et al.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until July 19, 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, Justice Marshall, Justice Blackmun, and Justice Stevens,

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. 89-7507.
    In re Malloy.
   C. A. 11th Cir. Petition for writ of common-law certiorari denied.


text:
    No. 89-7581.
    No. 89-7664.
    In re Hegwood; and In re D’Amario.
   Petitions for writs of mandamus denied.


text:
    No. 89-1715.
    Burns v. Reed.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 89-1784.
    Insurance Company of the State of Pennsylvania et al. v. Ben Cooper, Inc.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 89-1629.
    Salve Regina College v. Russell.
   C. A. 1st Cir. Certiorari granted limited to Question 1 presented by the petition.


text:
    No. 89-5961.
    Parker v. Dugger, Secretary, Florida Department of Corrections, et al.
   C. A. 11th Cir. Motion of petitioner for leave to proceed informa pauperis granted. Certiorari granted.


text:
    No. 89-7260.
    Burns v. United States.
   C. A. D. C. Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted.


text:
    No. 89-30.
    Endsley, Executrix of the Estate of Endsley, et al. v. Young.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1345.
    Beverly Hills Savings & Loan Assn. et al. v. Carter.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1366.
    Bullock v. Utah.
   Sup. Ct. Utah. Certiorari denied.


text:
    No. 89-1454.
    Hamilton v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 89-1567.
    Aspromonti v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1569.
    Solid Waste Services, Inc., et al. v. Dole, Secretary of Labor.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1570.
    Hajecate et ux. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1593.
    McAfee v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1642.
    United Transportation Union v. Interstate Commerce Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-1643.
    Strube v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1710.
    Iron Workers Mid-South Pension Fund et al. v. Borden Chemical.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1719.
    Pantoja et al. v. Texas Gas Transmission Corp. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-1720.
    Douglas v. Stone, Secretary of the Army.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1724.
    Celebrity World, Inc., et al. v. Celebrity Service International, Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1725.
    Perron v. Gulf Oil Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1733.
    Foreman v. Aetna Casualty & Surety Co.
   Ct. App. Tex., 14th Dist. Certiorari denied.


text:
    No. 89-1741.
    Hayse v. Board of Trustees of the University of Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 89-1742.
    Christmas v. Marson et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1746.
    Reliance Insurance Co. v. Glados, Inc.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-1747.
    Churchill, Informal Administrator of the Estate of Churchill, et al. v. F/V Fjord et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1750.
    Local 4501, Communications Workers of America v. Ohio State University et al.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 89-1751.
    Eastern Publishing & Advertising, Inc., t/a Armed Forces News v. Chesapeake Publishing & Advertising, Inc., t/a The Military News, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-1752.
    Mason v. Departmental Disciplinary Committee, Appellate Division of the Supreme Court of New York, First Judicial Department, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-1761.
    Barnett et al. v. Petro-Tex Chemical Corp. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1762.
    Myers et al. v. AP Propane, Inc.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1763.
    Cornwell v. Crawford et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-1766.
    United Brotherhood of Carpenters & Joiners of America, Union No. 1149, et al. v. Seaview Industries, Inc.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 89-1783.
    Meyer v. State Bar of Texas; and Meyer v. Lowry, District Judge, 261st Judicial District, Travis County, Texas, et al.
   Sup. Ct. Tex. Certiorari denied.


text:
    No. 89-1792.
    Pollack v. Gruis et al.
   Ct. App. D. C. Certiorari denied.


text:
    No. 89-1803.
    Schaefer v. Gallego et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 89-1809.
    Townsend et al. v. Cramblett et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-1823.
    Kopcho v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-1825.
    Ramirez v. Woods, Judge, District Court of Texas, Webb County, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-1844.
    McLendon v. Pettey.
   Ct. App. Tex., 12th Dist. Certiorari denied.


text:
    No. 89-1872.
    City of Sansom Park, Texas, et al. v. Peelman et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-6917.
    Gallion v. Zinn.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-6988.
    Clark v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 89-7044.
    Lloyd v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 89-7051.
    Lee v. Flannigan, Administrator, Menard Psychiatric Center, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-7069.
    Etlin v. Etlin; and In re Etlin.
   Ct. App. Va. Certiorari denied.


text:
    No. 89-7104.
    Nunn et al. v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 89-7182.
    Myers v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7306.
    Winston v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 89-7364.
    Hauges v. United States Postal Service.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 89-7394.
    Lepiscopo v. Esquibel et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7395.
    Johnson v. Leapley et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7410.
    Turner v. Illinois.
   App. Ct. Ill, 1st Dist. Certiorari denied.


text:
    No. 89-7416.
    Accolla v. Sullivan, Superintendent, Sing Sing Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7417.
    Watkins v. Murray et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7418.
    Curtis v. American Bakeries Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7419.
    Sands v. Crist, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7420.
    Franklin v. Lockhart, Director, Arkansas Department of Correction.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7424.
    Spillers v. Burns, Warden, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7426.
    Wood et ux. v. Ohio.
   Ct. App. Ohio, Lucas County. Certiorari denied.


text:
    No. 89-7434.
    Davis v. Bush et al.
   C. A. 5th Cir. Certio-rari denied.


text:
    No. 89-7440.
    Reed v. Murray, Director, Virginia Department of Corrections.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7445.
    Littlejohn v. South Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7446.
    Martin v. Farnan.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7449.
    Martin v. Huyett.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7450.
    Lepiscopo v. Sannicks.
   C. A. 10th Cir. Cer-tiorari denied.


text:
    No. 89-7453.
    Evans v. Pennsylvania.
   Sup. Ct. Pa. Cer-tiorari denied.


text:
    No. 89-7454.
    Walker v. Jones, Superintendent, Great Meadows Correctional Facility, et al.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 89-7457.
    Hilliard v. Fulcomer, Superintendent, Huntingdon Correctional Institution.
   C. A. 3d Cir. Cer-tiorari denied.


text:
    No. 89-7458.
    Klacsmann v. Jensen.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7459.
    Lepiscopo v. Tansy, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7460.
    Morgan v. Rowe et al.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 89-7461.
    O’Melia v. Santa Monica Municipal Court et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7466.
    Rogers v. Slansky et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 89-7467.
    Ramsey v. Garraghty et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7470.
    Carter v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 89-7472.
    Taylor v. Jones et al.
   C. A. 4th Cir. Cer-tiorari denied.


text:
    No. 89-7500.
    Williams et ux. v. United States et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7504.
    Moerlien v. Grgurinovich et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7505.
    Herrera v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 89-7510.
    Lussy v. Ticor Title Insurance Co.
   Sup. Ct. Mont. Certiorari denied.


text:
    No. 89-7523.
    Boren v. N. L. Industries, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7529.
    Klacsmann v. Lockheed Space Operations Co.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7538.
    Manchester v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7562.
    Wey v. United States.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 89-7580.
    Levine v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7601.
    Martinez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 89-7608.
    Connor v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7612.
    Wilson v. Kassicieh et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7630.
    Saahir v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 89-7635.
    Harris et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7636.
    King v. United States.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 89-7646.
    Johnson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7650.
    Covington v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7651.
    Fitz v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7660.
    Sheffield v. Keane, Superintendent, Sing Sing Correctional Facility, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 89-7666.
    Hinojosa-Ramos v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7670.
    Jackson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 89-7673.
    Laroque v. United States et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 89-7677.
    Sullivan v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 89-7680.
    Smith v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 89-7688.
    Cialoni v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89-7690.
    Garcia v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 89-7693.
    Goree v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 89-7709.
    Hodgdon v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 88-1553.
    Lewis, Director, Arizona Department of Corrections, et al. v. Adamson.
   C. A. 9th Cir. Motion of respondent for leave to proceed informa pawperis granted. Certiorari denied. The Chief Justice, Justice White, and Justice Scalia would grant the petition for writ of certiorari, vacate the judgment, and remand the case for further consideration in light of Walton v. Arizona, ante, p. 639, Lewis v. Jeffers, ante, p. 764, and Alabama v. Smith, 490 U. S. 794 (1989).

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


text:
    No. 88-6512.
    No. 88-7332.
    No. 88-7444.
    No. 88-7451.
    No. 89-5008.
    No. 89-5016.
    No. 89-5121.
    No. 89-5133.
    No. 89-5146.
    No. 89-5219.
    No. 89-5232.
    No. 89-5265.
    No. 89-5435.
    No. 89-5443.
    No. 89-5470.
    No. 89-5513.
    No. 89-5545.
    No. 89-5616.
    No. 89-5633.
    No. 89-5635.
    No. 89-5704.
    Sutton v. Tennessee. Jimerson v. Illinois. Thompson v. Tennessee. Otey v. Grammer, Warden. Salazar v. Illinois. Libberton v. Arizona. Hamblen v. Dugger, Secretary, Florida Department of Corrections. McCall v. Arizona. Odle v. Illinois. Young v. Illinois. Phillips v. Illinois. Nash v. Arizona. Mahaffey v. Illinois. Flores v. Illinois. Taylor v. Tennessee. Henley v. Tennessee. Bracy v. Arizona. McKinney v. Idaho. Hooper v. Arizona. Miller v. Tennessee. Allen v. Zant, Superintendent, Georgia Diagnostic and Classification Center. Foster v. Oklahoma. Kennedy v. Dugger, Secretary, Florida Department of Corrections. Stewart v. Florida. Coleman v. Illinois. Owens v. Illinois. Jackson v. Dugger, Secretary, Florida Department of Corrections. Buxton v. Collins, Director, Texas Department of Criminal Justice, Institutional Division. Lankford v. Idaho. Sidebottom v. Missouri. Holman v. Illinois. Kokoraleis v. Illinois. Bertolotti v. Dugger, Secretary, Florida Department of Corrections. Collins v. Maryland. Lusk v. Dugger, Secretary, Florida Department of Corrections. Isaacs v. Georgia. Siebert v. Alabama.
   Sup. Ct. Tenn.;

Sup. Ct. Ill.;

Sup. Ct. Tenn.;

C. A. 8th Cir.;

Sup. Ct. Ill.;

Sup. Ct. Ariz.;

C. A. 11th Cir.;

Sup. Ct. Ariz.;

Sup. Ct. Ill.;

Sup. Ct. Ill.;

Sup. Ct. Ill.;

Sup. Ct. Ariz.;

Sup. Ct. Ill.;

Sup. Ct. Ill.;

Sup. Ct. Tenn.;

Sup. Ct. Tenn.;

Sup. Ct. Ariz.;

Sup. Ct. Idaho;

Sup. Ct. Ariz.;

Sup. Ct. Tenn.;

Super. Ct. Ga., Butts County;

No. 89-5848.

No. 89-5990.

No. 89-6298.

No. 89-6317.

No. 89-6459.

No. 89-6461.

No. 89-6600.

No. 89-6626.

No. 89-6778.

No. 89-6870.

No. 89-6953.

No. 89-7080.

No. 89-7178.

No. 89-7474.

No. 89-7512.

No. 89-7528.

Ct. Crim. App. Okla.;

Sup. Ct. Fla.;

Sup. Ct. Fla.;

Sup. Ct. Ill.;

Sup. Ct. Ill.;

Sup. Ct. Fla.;

C. A. 5th Cir.;

Sup. Ct. Idaho;

Sup. Ct. Mo.;

Sup. Ct. Ill.;

Sup. Ct. Ill;

C. A. 11th Cir.;

Ct. App. Md.;

C. A. 11th Cir.;

Sup. Ct. Ga.; and

Sup. Ct. Ala. Certio-rari denied. Reported below: No. 88-6512, 761 S. W. 2d 763; No. 88-7332, 127 Ill. 2d 12, 535 N. E. 2d 889; No. 88-7444, 768 S. W. 2d 239; No. 88-7451, 859 F. 2d 575; No. 89-5008, 126 Ill. 2d 424, 535 N. E. 2d 766; No. 89-5133, 160 Ariz. 119, 770 P. 2d 1165; No. 89-5146, 128 Ill. 2d 111, 538 N. E. 2d 428; No. 89-5219, 128 Ill. 2d 1, 538 N. E. 2d 453 and 461; No. 89-5232, 127 Ill. 2d 499, 538 N. E. 2d 500; No. 89-5435, 128 Ill. 2d 388, 539 N. E. 2d 1172; No. 89-5443, 128 Ill. 2d 66, 538 N. E. 2d 481; No. 89-5470, 771 S. W. 2d 387; No. 89-5513, 774 S. W. 2d 908; No. 89-5616, 115 Idaho 1125, 772 P. 2d 1219; No. 89-5635, 771 S. W. 2d 401; No. 89-5848, 779 P. 2d 591; No. 89-5990, 551 So. 2d 461; No. 89-6298, 549 So. 2d 171; No. 89-6317, 129 Ill. 2d 321, 544 N. E. 2d 330; No. 89-6459, 129 Ill. 2d 303, 544 N. E. 2d 276; No. 89-6461, 554 So. 2d 1168; No. 89-6600, 879 F. 2d 140; No. 89-6626, 116 Idaho 860, 781 P. 2d 197; No. 89-6778, 781 S. W. 2d 791; No. 89-6870, 132 Ill. 2d 128, 547 N. E. 2d 124; No. 89-6953, 132 Ill. 2d 235, 547 N. E. 2d 202; No. 89-7080, 883 F. 2d 1503; No. 89-7178, 318 Md. 269, 568 A. 2d 1; No. 89-7474, 890 F. 2d 332; No. 89-7512, 259 Ga. 717, 386 S. E. 2d 316; No. 89-7528, 555 So. 2d 780.

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. 88-7629.
    Vickers v. Arizona.
   Sup. Ct. Ariz. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting), I would grant the petition for certiorari and vacate the death penalty in this case. Even if I did not hold this view, I would grant the petition to decide whether the Constitution requires a State to provide an indigent defendant access to diagnostic testing necessary to prepare an effective defense based on his mental condition, when the defendant demonstrates that his sanity at the time of the offense will be a significant issue at trial. I believe that our decision in Ake v. Oklahoma, 470 U. S. 68 (1985), compels us to answer that question in the affirmative.

Petitioner Robert Wayne Vickers was convicted of murdering a prison inmate and sentenced to death. His only defense at trial was insanity. Specifically, Vickers claimed that he suffered from temporal lobe epilepsy, a brain disorder that can cause violent behavior and render a person unable to appreciate the nature and wrongfulness of his acts. Vickers’ court-appointed psychiatrist, Dr. Paul Bindelglas, determined, after a lengthy interview and an exhaustive review of Vickers’ medical records, that Vickers suffered from “definite dissociative reactions” possibly due to temporal lobe epilepsy. App. to Pet. for Cert. B-7. Dr. Bindelglas based his opinion on Vickers’ history of cerebral trauma and seizures, neurological deficits reported by a psychologist when Vickers was a child, improvement in Vickers’ condition when he was placed on anti-convulsive and psychotropic medications and reversion when he was taken off the medication, and an abnormal electroencephalogram (EEG) performed four years before the murder. Ibid. Dr. Bindelglas further opined that Vickers probably was in a dissociative state at the time of the offense, which made him “incapable of rendering any judgement and . . . unable to know right from wrong.” Id., at B-9. Dr. Bindelglas stated that he could not make a definitive diagnosis, however, without certain neuropsychological testing. Ibid.

Based on Dr. Bindelglas’ recommendation, petitioner requested that the trial court provide access to diagnostic testing. Petitioner included with his request an affidavit from a second psychiatrist, Dr. David Bear, who, after reviewing petitioner’s records and examining him for five hours, agreed that there was a “substantial possibility” that Vickers suffered from temporal lobe epilepsy, which may have impaired his ability to “appreciate the quality and nature of the act and its wrongfulness.” Id., at C-4, C-9. Dr. Bear also stated that diagnostic testing, including a careful neurological examination and multiple EEG’s, was necessary “before professional judgment can be rendered regarding Mr. Vickers’ mental state at the time of the subject offense.” Id., at C-12. In addition, the State’s own expert, Dr. Maier Tuchler, testified at petitioner’s competency hearing that diagnostic testing was necessary to determine definitely whether Vickers suffered from temporal lobe epilepsy. Finally, petitioner supplied the court with the affidavits of two other psychiatrists who testified that strong evidence indicated that Vickers suffered from a mental disorder which impaired his capacity to make rational judgments, but that diagnostic testing was necessary before a firm conclusion could be reached. App. to Pet. for Cert. D and E.

Despite the consensus of these medical experts that diagnostic testing was necessary, the court denied petitioner’s request. The court relied on a two-paragraph letter from a psychiatrist appointed at the State’s request, Dr. William Masland. Dr. Masland concluded, on the basis of a quick review of petitioner’s medical records, conversations with prisoners and prison staff, and a brief interview with Vickers, that “there is absolutely nothing to suggest that this man is epileptic” and that “further diagnostic testing . . . would be totally superfluous.” Id., at F. The court refused to reconsider its order after receiving additional affidavits from Dr. Bindelglas and Dr. Bear and two neurologists that vehemently contested Dr. Masland’s opinion and reemphasized the need for diagnostic testing.

Because of the lack of diagnostic testing, Dr. Bindelglas could testify at trial only that there was a “definite probability” of temporal lobe epilepsy. 159 Ariz. 532, 536, 768 P. 2d 1177, 1181 (1989). Before sentencing, petitioner again requested diagnostic testing to establish the brain disorder as a mitigating circumstance; again the court denied his motion.

The Arizona Supreme Court rejected petitioner’s argument that the State violated due process by denying him an adequate opportunity to prove his insanity defense. Ibid. The court reasoned that the requested testing would have been expensive and would have posed a “burdensome security problem.” Id., at 537, 768 P. 2d, at 1182. The court also claimed that nothing indicated that testing would have helped petitioner prove his insanity defense. Ibid.

In Ake v. Oklahoma, supra, at 83, this Court held that when an indigent “defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” (Emphases added.) The right to a competent psychiatrist necessarily includes the right to have the State provide the psychiatrist with the tools he requires to conduct an adequate examination and evaluation of the defendant. To hold otherwise is analogous to requiring the State to provide an indigent defendant with an attorney, but not requiring it to pay for the attorney’s legal research expenses.

This is not to say that an indigent defendant is entitled to every scientific procedure that has only a remote possibility of bolstering his defense. Thus, we recognized in Ake that “the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy.” 470 U. S., at 77 (citing Ross v. Moffitt, 417 U. S. 600 (1974)). But when a defendant demonstrates that his sanity will be a significant issue at trial, and his psychiatrist makes a plausible showing that certain testing is necessary for him to perform his Ake function, that testing must be considered one of “the raw materials integral to the building of an effective defense” that the State must provide. 470 U. S., at 77.

Petitioner undoubtedly satisfied the threshold requirements. First, his sanity was a significant factor in his defense. Vickers’ “sole defense was that of insanity,” id., at 86, and six experts testified that there was a substantial possibility that Vickers suffered from a mental disorder at the time of the offense that might have impaired his capacity to understand the nature of his actions. Indeed, the trial court’s appointment of Dr. Bindelglas itself shows that petitioner’s sanity was a significant issue. Second, Vickers’ court-appointed psychiatrist established that testing was necessary for him to perform his Ake role adequately. Dr. Bindelglas stated in the clearest terms that he could not make a definitive diagnosis without specific testing. App. to Pet. for Cert. B-9. Six other medical experts, including the State’s expert, Dr. Tuchler, affirmed the need for testing. Pet. for Cert. 7. Without such testing, Dr. Bindelglas could offer only a tentative opinion at trial. Clearly, then, Dr. Bindelglas’ ability to contribute to petitioner’s defense was impaired unreasonably by the State’s refusal to provide access to diagnostic testing.

The trial court’s reliance on Dr. Masland’s opinion that testing would be superfluous — an opinion not shared by any of the other doctors — does not justify its denial of access to testing. Ake requires the appointment of a psychiatrist who will assist in the preparation of the defense, not one who will merely give an independent assessment to the judge or jury. 470 U. S., at 83. Although a judge or jury may choose to believe the State’s experts rather than the defendant’s at trial, a court may not permit the State’s experts to determine what resources the defendant’s experts may use. To allow such a veto power is akin to permitting a prosecutor to decide on what cases defense counsel may rely or what witnesses he may call. As long as the defendant makes the threshold showing of the need for testing, the court must provide access to it.

The Arizona Supreme Court affirmed the trial court’s decision in part on the assumption that the necessary testing would have to be performed out of state and would last four to six weeks, thus imposing substantial costs on the State and creating a security problem. 159 Ariz., at 537, 768 P. 2d, at 1182. The court based this assumption on Dr. Bindelglas’ request that Vickers be tested in a California hospital “if at all possible” because the Arizona State Hospital might have been prejudiced in favor of its previous diagnosis and might not perform the job adequately. App. to Pet. for Cert. B-9. The trial court, however, never sought a compromise; it refused to provide for testing altogether. Any problem posed by sending Vickers to California is a red herring, then, to the extent that less burdensome testing would have satisfied the State’s obligation. If, however, the testing procedure suggested by Dr. Bindelglas was in fact the only adequate means of arriving at a medically sound diagnosis, the burden on the State does not justify denying that testing. As we held in Ake, the State’s interest in preserving its fisc is not substantial when compared with the compelling interest of both the defendant and the State in the fair and accurate adjudication of a criminal case, particularly one in which the defendant’s life is at stake. 470 U. S., at 78-79.

Finally, the Arizona high court maintained that further testing was of “questionable value” to petitioner’s insanity defense and that the risk of an erroneous judgment was minimal because three state experts testified that Vickers was not insane at the time of the offense. 159 Ariz., at 537, 768 P. 2d, at 1182. This reasoning wrongly subjects Ake claims to harmless-error analysis. In Ake, we did not endeavor to determine whether the petitioner’s case had been prejudiced by the lack of a psychiatrist. Rather, we determined that, in general, psychiatric assistance is of extreme importance in cases involving an insanity defense, id., at 79-82, and that without that assistance “the risk of an inaccurate resolution of sanity issues is extremely high,” id., at 82. Because the petitioner had made the threshold showing that his sanity was a significant issue at trial and the State had failed to offer psychiatric assistance, we reversed and remanded for a new trial. In this case, then, the trial testimony of the State’s experts is irrelevant. Vickers’ sanity was a significant issue at trial and testing was necessary for his psychiatrist to perform his Ake function. Because the trial court nevertheless refused to require the State to provide access to the requisite testing, Vickers is entitled to a new trial.

Our decision in Ake v. Oklahoma recognized the right of an indigent defendant to a competent court-appointed psychiatrist when his sanity is seriously in question. To deprive a defendant of diagnostic testing necessary for the psychiatrist to perform adequately his Ake function renders that right meaningless. I therefore dissent from the denial of certiorari.


text:
    No. 89-867.
    F. & H. R. Farman-Farmaian Consulting Engineers Firm et al. v. Harza Engineering Co.
   C. A. 7th Cir. Certiorari denied. Justice White would grant certiorari.


text:
    No. 89-1556.
    Whitacre v. Davey.
   C. A. D. C. Cir. Certiorari denied. Justice White would grant certiorari.


text:
    No. 89-1372.
    Delo, Superintendent, Potosi Correctional Center v. Newlon.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 89-1757.
    Scully, Superintendent, Greenhaven Correctional Facility, et al. v. Peterson.
   C. A. 2d Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 89-1425.
    Maryland v. Ferrell.
   Ct. App. Md. Motion of respondent for leave to proceed in forma pauperis without an affidavit of indigency executed by respondent granted. Cer-tiorari denied.


text:
    No. 89-1531.
    Partington v. Gedan et al.
   C. A. 9th Cir. Motion of petitioner to strike suggestion of mootness denied. Certiorari denied.


text:
    No. 89-1882.
    Foley v. WCCO TV, Inc., et al.
   Ct. App. Minn. Certiorari denied. Justice Blackmun took no part in the consideration or decision of this petition.


author: Justice White,

text:
    No. 89-7175.
    Beaulieu v. United States.
   C. A. 10th Cir. Certiorari denied.

Justice White,

dissenting.

The issue presented is whether a district judge may rely on testimony from the trial of a defendant’s co-conspirators in sentencing the defendant. The Tenth Circuit held that the District Court’s reliance on such evidence did not violate any constitutional provision. 900 F. 2d 1531 (1990). The Tenth Circuit expressly rejected the position adopted by the Eleventh Circuit which has concluded that reliance on such testimony violates a defendant’s rights. See United States v. Castellanos, 882 F. 2d 474 (CA11 1989). I would grant certiorari to resolve the conflict.

Rule 10 of the Rules of this Court “indicate the character of reasons” that will be considered in granting or denying petitions for certiorari. Among these considerations is whether there is a conflict between two courts of appeals, between a court of appeals and the highest court of a State, or between two state courts of last resort. These considerations frequently lead to granting certiorari. Just this past Monday, we granted certiorari in two cases that, absent conflict between Courts of Appeals, very likely would not have been granted. Dole v. Occupational Safety and Health Review Comm’n, ante, p. 1002; Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., ante, p. 1002. This is a weekly occurrence, but it also regularly happens that certiorari is denied in other cases presenting the kind of conflicts singled out by Rule 10. This case is one of them, and there are many others this Term, as there have been in other Terms.

As of June 21, I had noted my dissent from denial of certiorari 67 times during this Term. My notes on these dissents indicate that on 48 occasions I dissented because in my view there were conflicts among Courts of Appeals sufficiently crystallized to warrant certiorari if the federal law is to be maintained in any satisfactory, uniform condition. In seven other cases, there were differences on the same federal issue between Courts of Appeals and state courts; in another case, state courts of last resort differed with each other. Finally, there were 11 cases that did not involve a conflict between courts but in my view presented important issues that should be settled by this Court.

In some of these cases it is perhaps arguable that the alleged conflict was not “real” or “square.” In most of these cases, however, it is very difficult to deny the conflict, especially where, as in this case, the court of appeals expressly differs with another court, yet certiorari is denied because the conflict is “tolerable” or “narrow,” or because other courts of appeals should have the opportunity to weigh in on one side or another of the unsettled issue, or for some other unstated reason. In any event, denial underlines the fact that the federal law is being administered in different ways in different parts of the country; citizens in some circuits are subject to liabilities or entitlements that citizens in other circuits are not burdened with or entitled to.

It is surely arguable that we should not grant more cases in one Term than we can decide in one Term. Being current in our docket is a major consideration; and it may not be wise to delay prompt review in every case, even though many of them involve issues of paramount importance, simply to overcrowd our argument docket with many other cases of lesser significance. But I suggest that we should do what we can, and it is plain enough to me that quite a number of the cases involving conflicts have been denied re .dew but could have been granted without presenting any danger of not being current in our docket.

Of course, even if we have taken all of the cases that we could be expected to decide, which is not the fact as I see it, there would remain those unreviewed cases that leave in place the many different interpretations and applications of the federal law as administered in the courts of appeals, an issue that merits the attention of Congress and the legal establishment.


text:
    No. 89-333.
    No. 89-1574.
    No. 89-1587.
    No. 89-1592.
    No. 89-6243.
    No. 89-6494.
    No. 89-6706.
    No. 89-6764.
    No. 89-6912.
    No. 89-6944.
    No. 89-6972.
    No. 89-6976.
    No. 89-6979.
    California v. Federal Energy Regulatory Commission et al., General Motors Corp. et al. v. Department of Revenue of Alabama, Reynolds Metals Co. v. Sizemore, Commissioner of Revenue of Alabama, Ramirez v. United States, Leal v. Collins, Director, Texas Department of Criminal Justice, Institutional Division, Asante v. United States, Berbick v. Provident National Bank et al., Scott v. Department of the Army, Taylor v. Department of Health and Human Services, Cooper v. Remax Wyandotte County Real Estate, Inc., et al., Lake v. California, Klein v. Massachusetts, Fox v. United States Department of the Interior, Mikesell v. Department of Transportation, National Transportation Safety Board, et al., Roe v. Texas, Castillo et al. v. United States, Castillo v. Collins, Director, Texas Department of Criminal Justice, Institutional Division, Flanagan v. United States, Williams v. Georgia, Allustiarte et al. v. Cooper, Baasch v. United States et al., Martin v. Supreme Court of Pennsylvania et al., Martin v. Supreme Court of Pennsylvania, Martin v. Shank et al., Hawk-Bey v. United States, Kelley v. International Total Services, Inc., et al., Donald v. United States Department of Education, McLaughlin v. Latessa, Whirty v. Latessa, Superintendent, Massachusetts Correctional Institution, Cochran v. Turner, Warden,
   495 U. S. 490;

496 U. S. 912;

496 U. S. 912;

495 U. S. 933;

495 U. S. 934;

495 U. S. 934;

494 U. S. 1085;

495 U. S. 935;

494 U. S. 1090;

495 U. S. 935;

495 U. S. 960;

495 U. S. 916;

495 U. S. 936;

No. 89-6991.

No. 89-7000.

No. 89-7009.

No. 89-7017.

No. 89-7057.

No. 89-7070.

No. 89-7111.

No. 89-7117.

No. 89-7118.

No. 89-7119.

No. 89-7126.

No. 89-7129.

No. 89-7173.

No. 89-7205.

No. 89-7243.

No. 89-7263.

No. 89-7285.

495 U. S. 949;

495 U. S. 937;

495 U. S.

960;

495 U. S. 937;

495 U. S. 938;

495 U. S. 950;

495 U. S. 960;

495 U. S. 938;

495 U. S. 960;

495 U. S. 960;

495 U. S. 961;

495 U. S. 938;

496 U. S. 909;

496 U. S. 910;

495 U. S. 952;

495 U. S. 952; and

496 U. S. 929. Petitions for rehearing denied.


text:
    No. 89-1545.
    Quarterman et ux. v. Commissioner of Internal Revenue,
   495 U. S. 932. Motion of petitioners for leave to proceed further herein in forma pauperis granted. Petition for rehearing denied.


text:
    No. 89-7280.
    Golub v. IBM Corp.; Golub v. Ernst & Whinney et al.; Golub v. Weiner & Co.; and Golub v. University of Chicago,
   495 U. S. 941. Petition for rehearing denied.

Justice Blackmun and Justice Stevens took no part in the consideration or decision of this petition.


text:
    July 9, 1990
    No. A-929.
    Karem v. Priest et al.
   Application for stay pending appeal to the United States Court of Appeals for the Fifth Circuit, addressed to Justice Brennan and referred to the Court, denied.

Justice Brennan and Justice Marshall would grant the application.


text:
    July 12, 1990
    No. 90-5103 (A-35).
    Thomas v. Jones, Warden.
   C. A. 11th Cir. Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

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


text:
    July 16, 1990
    No. 89-7094.
    In re Marsh.
   Petition for writ of mandamus dismissed under this Court’s Rule 46.


text:
    July 17, 1990
    No. A-43.
    Derrick v. Collins, Director, Texas Department of Criminal Justice, Institutional Division.
   Application for stay of execution of sentence of death and certificate of probable cause, 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 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:
    July 18, 1990
    No. A-46.
    Dugger, Secretary, Florida Department of Corrections v. Hamblen.
   Application of the Attorney General of Florida for an order to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit, presented to Justice Kennedy, and by him referred to the Court, denied.


text:
    July 19, 1990
    No. A-48.
    Dugger, Secretary, Florida Department of Corrections v. White.
   Application of the Attorney General of Florida for an order to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit, presented to Justice Kennedy, and by him referred to the Court, denied.


text:
    No. A-54 (90-5195).
    Boggs v. Muncy, Warden.
   C. A. 4th Cir. Application for stay of execution of sentence of death, presented to The Chief Justice, and by him referred to the Court, denied.

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:
    July 27, 1990
    No. A-77.
    Bertolotti v. Dugger, Secretary, Florida Department of Corrections.
   Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied.

Justice Marshall,

dissenting.

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


text:
    August 13, 1990
    No. A-677 (89-6967).
    Burke v. Beyer.
   C. A. 3d Cir. Application for bail, addressed to Justice White and referred to the Court, denied.


text:
    No. D-876.
    In re Disbarment of Tobin.
    [For earlier order herein, see 494 U. S. 1024.],
   Disbarment entered.


text:
    No. D-882.
    In re Disbarment of Tierney.
    [For earlier order herein, see 494 U. S. 1058.]
   Disbarment entered.


text:
    No. D-889.
    In re Disbarment of Mazur.
    [For earlier order herein, see 494 U. S. 1065.]
   Disbarment entered.


text:
    No. D-898.
    In re Disbarment of Kelly.
    [For earlier order herein, see 495 U. S. 945.]
   Disbarment entered.


text:
    No. D-903.
    In re Disbarment of Hagman.
    [For earlier order herein, see 495 U. S. 955.]
   Disbarment entered.


text:
    No. D-915.
    In re Disbarment of Kokernak.
   It is ordered that Bruce G. Kokernak, of Sarasota, Fla., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-916.
    In re Disbarment of Johnstone.
   It is ordered that Robert Bruce Johnstone, of Eagle Creek, Ore., 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-917.
    In re Disbarment of Henderson.
   It is ordered that Barry J. Henderson, of Baltimore, Md., 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-918.
    In re Disbarment of Lovell.
   It is ordered that Howell Lovell, Jr., of San Francisco, 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-919.
    In re Disbarment of Nichols.
   It is ordered that John A. Nichols, of Parchman, Miss., 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-920.
    In re Disbarment of Dodge.
   It is ordered that James Colvin Dodge, of West Liberty, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-921.
    In re Disbarment of Yinger.
   It is ordered that David Harrison Yinger, Jr., of Frederick, Md., 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-922.
    In re Disbarment of Weiss.
   It is ordered that Ralph Weiss, of Baltimore, Md., 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-923.
    In re Disbarment of Morrow.
   It is ordered that Charles Stanley Morrow, of Mars, Pa., 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. 88-1943.
    No. 89-1509.
    No. 89-1551.
    No. 89-1682.
    No. 89-1693.
    No. 89-1767.
    No. 89-5962.
    No. 89-6223.
    No. 89-6778.
    No. 89-6795.
    No. 89-6882.
    No. 89-6889.
    No. 89-6920.
    No. 89-7048.
    No. 89-7095.
    No. 89-7109.
    No. 89-7146.
    Office of Personnel Management v. Richmond, Wagner v. United States Bankruptcy Court, Pogue v. White Stone Baptist Church et al., Stalheim v. Albert Lea Medical Surgical Center, Ltd., et al., Norton v. Nicholson et al., Wilk et al. v. Joint Commission on Accreditation of Hospitals et al., Taylor v. United States, Bittaker v. California, Sidebottom v. Missouri, McCarter v. California, Roberts v. Georgia, In re McFadden, Stull v. United States, Cargill v. Zant, Warden, McFadden v. Commissioner of Internal Revenue, Allustiarte et al. v. Cooper, Freeman v. Alabama, Salsman et ux. v. United States, Everson v. Ott et al., Downs v. Collins, Director, Texas Department of Criminal Justice, Institutional Division, Amiri v. Johnson, Judge, United States District Court for District of Columbia, Amiri v. District of Columbia et al., Elmore v. South Carolina, Fluker v. Townsend, Sindram v. District of Columbia et al., Jackson et ux. v. Dixon-Bookman, McCollum v. Indiana, McColpin v. City of Wichita et al., Whisenhant v. Alabama, In re Brooks, Wexler v. Department of the Interior, In re Seitu, Martin v. Farnan, Martin v. Huyett, Lusk v. Dugger, Secretary, Florida Department of Corrections,
   496 U. S. 414;

495 U. S. 905;

495 U. S. 957;

496 U. S. 937;

496 U. S. 938;

496 U. S. 927;

496 U. S. 907;

496 U. S. 931;

ante, p. 1032;

496 U. S. 927;

495 U. S. 963;

496 U. S. 904;

495 U. S. 959;

495 U. S. 963;

496 U. S. 909;

495 U. S. 960;

496 U. S. 912;

No. 89-7150.

No. 89-7212.

No. 89-7224.

No. 89-7238.

No. 89-7239.

No. 89-7253.

No. 89-7259.

No. 89-7266.

No. 89-7273.

No. 89-7275.

No. 89-7277.

No. 89-7314.

No. 89-7347.

No. 89-7377.

No. 89-7423.

No. 89-7446.

No. 89-7449.

No. 89-7474.

495 U. S. 939;

496 U. S. 910;

496 U. S. 928;

ante, p. 1006;

496 U. S. 928;

496 U. S. 931;

496 U. S. 940;

496 U. S. 940;

496 U. S. 929;

496 U. S. 931;

496 U. S. 940;

496 U. S. 943;

ante, p. 1002;

496 U. S. 929;

496 U. S. 903;

ante, p. 1028;

ante, p. 1028; and

ante, p. 1032. Petitions for rehearing denied.


text:
    No. 89-243.
    Eli Lilly & Co. v. Medtronic, Inc.,
   496 U. S. 661. Petition for rehearing denied.

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


text:
    No. 89-6285.
    Chambers v. Office of Federal Contract Compliance Programs et al.,
   494 U. S. 1032. Motion for leave to file petition for rehearing denied.


text:
    August 14, 1990
    No. 89-7730.
    Fierro v. Texas.
   Ct. Crim. App. Tex. Certiorari dismissed under this Court’s Rule 46.


text:
    August 15, 1990
    No. 90-5248 (A-87).
    Williams v. California.
   Sup. Ct. Cal. Application for stay of execution of sentence of death, presented to Justice O’Connor, and by her referred to the Court, denied. Certiorari denied.

Justice Marshall,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Cr'egg v. Georgia, 428 U. S. 153, 231 (1976), I 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:
    August 21, 1990
    No. A-126 (89-6324).
    Moore v. Zant, Superintendent, Georgia Diagnostic and Classification Center,
   ante, p. 1010. Application for stay of execution of sentence of death, presented to Justice Kennedy, and by him referred to the Court, granted pending this Court’s action on the petition for rehearing. The respondent is invited to file a response to the petition for rehearing within 30 days.


text:
    August 30, 1990
    No. A-14 (90-272).
    Brooks et al. v. Georgia State Board of Elections et al.
   D. C. S. D. Ga. Application for injunction and stay pending appeal, addressed to Justice White and referred to the Court, denied.


text:
    No. A-910 (89-6967).
    Burke v. Beyer.
   C. A. 3d Cir. Application for transfer, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. 89-1080.
    Board of Education of Oklahoma City Public Schools, Independent School District No. 89, Oklahoma County, Oklahoma v. Dowell et al.
   C. A. 10th Cir. [Certiorari granted, 494 U. S. 1055.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 89-1149.
    Grogan et al. v. Garner.
   C. A. 8th Cir. [Certiorari granted, 495 U. S. 918.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 89-1298.
    Ingersoll-Rand Co. v. McClendon.
   Sup. Ct. Tex. [Certiorari granted, 494 U. S. 1078.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 89-1436.
    United States v. R. Enterprises, Inc., et al.
   C. A. 4th Cir. [Certiorari granted, 496 U. S. 924.] Motion of the Solicitor General to dispense with printing the joint appendix granted. Motion of respondents for divided argument denied.


text:
    No. 89-1448.
    Virginia Bankshares, Inc., et al. v. Sandberg et al.
   C. A. 4th Cir. [Certiorari granted, 495 U. S. 903.] Motions of American Corporate Counsel Association et al. and American Bankers Association et al. for leave to file briefs as amici curiae granted. Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 89-1646.
    United States et al. v. Smith et al.
   C. A. 9th Cir. [Certiorari granted, 496 U. S. 924.] Motion of the Solicitor General to dispense with printing the joint appendix granted.


text:
    No. 89-5120.
    Perry v. Louisiana.
   19th Jud. Dist. Ct., Crim. Section V, Parish of East Baton Rouge, La. [Certiorari granted, 494 U. S. 1015.] Motion of Coalition for the Fundamental Rights and Equality of Ex-Patients for leave to file a brief as amicus curiae granted.


text:
    No. 89-6332.
    Minnick v. Mississippi.
   Sup. Ct. Miss. [Cer-tiorari granted, 495 U. S. 903.] Motion of Mississippi State Bar for leave to file a brief as amicus curiae granted.


text:
    No. 90-5581 (A-157).
    Gilmore v. Delo, Superintendent, Potosi Correctional Center.
   C. A. 8th Cir. Application for stay of execution of sentence of death, presented to Justice Blackmun, and by him referred to the Court, denied. Certiorari denied. Justice Scalia took no part in the consideration or de-cisión of this application and this petition.

Justice Marshall,

dissenting.

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