*1 A. 11th Cir. Nо. Cer- 88-5281. Barwick. Williams tiorari before Sup.
No. Ct. 88-5315. 111. Certiorari Wilson Illinois. Marshall, joins, Justice whom Justice Brennan dissenting. Illinois,
For the Lego (Mar- рage reasons stated dissenting), would order to re- grant shall, J., I solve court, question recognizing whether when a new procedure, constitutional rule criminal is bound by the retroactivity so, Court, fashioned and if principles whether the principle announcеd in Kentucky, S. 314 to a state-court decision applies recognizing rule, such a notwithstanding pre- the state court’s that, determinаtion under the retroactivity decisions Gñ'iffith this Court force, then in given the new rule prospective would be application I only. dissent. Lego Sup. Ct. Certiorari de- Illinois.
nied. Marshall, joins, with whom Justice Brennan
dissenting.
I Adhering to view death is in all circum stances cruel and unusual punishment prohibited by Eighth Amendments, and Fourtеenth Gregg Georgia, (1976) (Marshall J., I dissenting), grant would for certiorari and vacate sentence in this case. Even if I did not take I order rе court, solve the recognizing when new rule governing constitutional is bound procedure, so, and if fashioned principle whethеr the announced in S. Kentucky, 479 U. to a state-court decision rule, such a recognizing notwithstanding pre the state court’s under the decisions of force, then in new given this Court rule would be prospective application only.
II mur 1984, in state court In March was tried petitioner court the trial dire, that During proposed der. voir the petitioner presump in the the venirepersons they “believe[d] ask crime.” with a charged person tion of innocence as it con subsequently was The trial court The petitionеr refused. In to death. and, sentenced hearing, victed after a ar petitioner Supreme appeal his direct to the Illinois vio proposed ask the gued that the trial court’s refusal (1984), 1062 472, N. E. 2d 469 Zehr, Ill. 2d People lated the petitioner’s after months six approximately which was issued deprived defendant is a criminal that trial concluded. Zehr held a trial court’s refusal jury” impartial of his to “a fair and presumption their view on on prospective jurors to question Id., 2d, at 1064. 477, 469 N. E. innocence. at claim, not rejected petitioner’s Supreme The Illinois E. 2d 575 Britz, 314, that ing retroactively not be applied it had held that Zehr would 116 Ill. in Illinois law.’” ‘“represеnted change because it (1987) Britz, 338, 323, 800, (quoting supra, 507 N. E. 2d 2d 577). dissented, finding at 493 N. E. at Justice Simon subsequent Britz be with this Court’s de squared could not In held that decisions аn Griffith, cision in the Court Griffith. procedure new constitutional rules nouncing cases, federal, retroactively pend be to all stаte or applied are “to S., final.” 479 at 328. In so yet on direct review or not U. ing exception, abandoned the “clear break” explicitly doing, rule not retro applied which a new constitutional be under past prece from departure if it а substantial actively represented practice. or accepted dent Britz decision is above, the Illinois Court’s
As notеd but the exception, “clear break” on this now-discredited based petitioner’s on it applying court nonetheless insisted Hаms, not made clear until for reasons nom. Wilson N. E. 2d 335 cert. denied sub 2d Illinois, ante, There, explained: at 902. court “Grif retroactivity at the time this court de not the law on was fith requiring us to recon- Britz. We do not read cided sider our holding earlier in Britz.” - words, (emphasis original). other the state apply believes that it need not Griffith’s retroactively. difficulty The is that it judgment, n very decision, namely,
to contradiсt of the premise newly that “failure to constitutional rule to crimi- apply declared nal basic cases direct reviеw violates norms of con- S., least, Not it adjudication.” 322. similarly “creates the . . . problem treating not situated defend- Id., at ants the same.” unpersuaded by respondent’s
I am contention that the Illi ignore nois Court was free to *3 state, Zehr ruling because was a rather than fed Harris, eral, by law. in This assertion is belied the fact the state court by understood itself to be bound federal 2d, (“[A]t precedents. 129, 526 N. E. at 341 the time Britz was correctly decided this court followed the applicable law on as articulated the United Stаtes Court”).* And, Erickson, explained v. looks to the
retroactivity precedents
when the
announced
only
is
fed
id.,
eral
constitutiоnal dimension.
See
(“Because
pertains
addresses
rule which
a con
to
the
and
defendant herein
appli
seeks retroactive
cation of a rule
pertains
which
to a statutory right, we do not
deem
controlling”).
is proper
assume, therefore,
It
that Zehr
recognizes
federal right.
event,
any
this Court typically retains a role when the state
court “has been influenсed
an
accompanying interpretation
of federal law.” Three
Tribes Wold Engineering,
Affiliated
C.,
(1984).
P.
Indeed,
appears,
whеre it
as it
here,
does
“state
proceeded
court has
on an
per-
incorrect
law,”
ception
federal
hаs
stepped
Court
and “reviewed
on which
the state-law
Thus,
have been premised.”
even if Zehr
premised
is
*Indeed,
for the statе court in Harris was whether
only question
precedent
applicable retroactivity
claim based on Zehr is
for a
-Griffith
Walker,
Linkletter
beginning
itself or a
of cases
series
Johnson,
culminating with United
States
U. S. 618
and
457 U. S.
law,
retroactivity of that deci-
may
on state
consider
to our
solely
prece-
sion because the
looked
Illinois
Court
dents
its
determination.
making
raise a
Becausе the instant case and
law,
pe-
I would
substantial
issue of
I dissent.
cases.
titions for certiorari
both
City
Florida,
Myers,
of Fort
No. 87-6489. Howard
rеhearing
for
1044. Petition
al.,
et
Terry
Reagin
and
No. A-289. Bell Texas stay of execution of sen- Application ment of Corrections. death, him рresented tence of to and referred White, granted pending timely filing disposition by to the and of a for writ of certiorari. Should dеnied, stay automatically. for writ of certiorari be terminates stay granted, In the event the for writ certiorari is of this sending shall cоntinue down of the Court. *4 Virginia Assn., v. American Booksellers noted, jurisdiction A. 4th [Probable al. Cir.
Inc., certified, 1082; Judgment va- questions 383.] U. S. U. S. Vir- light cated and rеmanded for further consideration Assn., Inc., v. American Booksellers 236 Va. 372 S. ginia of Ford. Disbarment en- re No. D-710. Disbarment herein, see 486 1030.] earlier order [For tered.