WILLIAMS v. KING, SECRETARY, LOUISIANA DEPARTMENT OF CORRECTIONS, ET AL.
No. 83-5902 (A-450)
C. A. 5th Cir.
December 13, 1983
1027
No. 83-5902 (A-450). WILLIAMS v. KING, SECRETARY, LOUISIANA DEPARTMENT OF CORRECTIONS, ET AL. C. A. 5th Cir. Application for stay of execution of sentence of death, addressed to JUSTICE BRENNAN and referred to the Court, denied. JUSTICE BRENNAN and JUSTICE MARSHALL would grant the application for stay. Certiorari denied.
JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting.
Adhering to our views that the death penalty is in аll circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.
No. 82-2116. DALGETY FOODS, INC. v. AVINA, ante, p. 801;
No. 83-5026. JACKSON v. BUTTERWORTH, SHERIFF OF BROWARD COUNTY, FLORIDA, ante, p. 916;
No. 83-5104. TORPY v. UNITED STATES, ante, p. 856;
No. 83-5369. DONNELL v. FREEMAN ET AL., ante, p. 941;
No. 83-5375. CHAPMAN v. BANK OF THE COMMONWEALTH ET AL., ante, p. 923; and
No. 83-5481. CASTRO v. FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER FOR BANCO CREDITO Y AHORRO PONCENO, ET AL., ante, p. 964. Petitions for rehearing denied.
DECEMBER 13, 1983
No. A-455. STEPHENS v. KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER. Application for stay of execution of sentence оf death set for Wednesday, December 14, 1983, presented to JUSTICE POWELL, and by him referred to the Court, is granted pending the decision of the United States Court of Appeals for the Eleventh Circuit in Spencer v. Zant, 715 F. 2d 1562 (1983), rehearing en banc granted, id., at 1583, or until further order of this Court.
JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O‘CONNOR join, dissenting.
This is another capital casе in the now familiar process in which an application for a stay is filed here within the shadow of the date and time set for execution.
As summarized by the Court of Appeals the relevant facts are:
“After escaping from сounty jail, petitioner was interrupted committing a burglary in Twiggs County by his victim whom he and an accomplice robbed, kidnapped, drove into Bleckley County and brutally killed; he was caught the next morning with the murder weapon in his possession. . . . [H]е confessed and pleaded guilty in Twiggs County to armed robbery, kidnapping with bodily injury, and the theft of a motor vehicle. . . .” 721 F. 2d 1300, 1304 (CA11 1983).
A jury convicted applicant of murder and sentenced him to death in early 1975. In the nearly nine years that since have transpired, Stephens has repetitively moved between state and federal courts in pursuing postconviction remedies. His direct and collateral attacks have taken his case through the state court system threе times and through the federal system twice. This Court has considered Stephens’ case four times excluding his present proceedings. See Zant v. Stephens, 462 U. S. 862 (1983); Stephens v. Zant, 454 U. S. 1035 (1981); Stephens v. Hopper, 439 U. S. 991 (1978); Stephens v. Georgia, 429 U. S. 986 (1976).
The case before us today commenced with the filing of a federal habeas petition on November 15, 1983, in the United States District Court for the Middle District of Georgia. The State answered the petition and pleaded that Stephens’ petition for a writ of habeas corpus was an abuse of the writ. On November 16, 1983, the Distriсt Court held a hearing on the abuse question and five days later, on November 21, 1983, the District Court denied relief. 578 F. Supp. 103. It filed a full opinion in which it concluded that “the claims raised by petitioner in his successive petition under
Today, the Court of Appeals denied Stephens’ request for a hearing en bаnc by an evenly divided vote. 722 F. 2d 627. The six judges who dissented from the denial of rehearing filed a brief opinion expressing the view that Stephens had presented a claim that warranted a stay of his execution. The dissent reasoned thаt Stephens’ claim that the Georgia death penalty statute is being applied in an arbitrary and discriminatory manner is identical to the issue in Spencer v. Zant, 715 F. 2d 1562 (CA11 1983). The Court of Appeals—apparently also today—granted a rehearing en banc in Spencer and the dissent argued that Stephens should receive like treatment. It was suggested that Stephens had not abused the writ with respect to this issue because the statistical study on which he bases his claim did not become available until after he had filed his first federal habeas petition. The fact that 6 of the 12 active judges of the Court of Appeals wished to defer action on Stephens’ case prompted this Court to grant Stephens’ request for a stay. I dissent from this action.
The Court and the judges in dissent in the Court of Appeals apparently misconstrue, as I view it, the posture of this case. We should now be concerned, as was the panel of the Court of Appeals, with whethеr the District Court erred in its finding that Stephens is guilty of having abused the writ of habeas corpus. In Sanders v. United States, 373 U. S. 1 (1963), this Court observed that the “abuse of the writ” doctrine should be governed by “equitable principles.” Id., at 17. The Court noted that consideration of abuse normаlly is left to the “discretion of federal trial
In determining whether the District Court properly exercised its discretion in finding an abuse we should look not to the merits of a petitioner‘s claims but to the petitioner‘s reasоns for not having raised the claims in his first habeas proceeding. As the Court of Appeals noted, “[t]here is no disagreement among the parties as to the standard applicable to second and subsequent petitions for habeas corpus which present wholly new issues. In order to constitute abuse, presentation of such issues must result from (1) the intentional withholding or intentional abandonment of those issues on the initial petition or (2) inexcusable negleсt.” 721 F. 2d, at 1303. Under this analysis, it is clear that the District Court properly dismissed Stephens’ claim of discriminatory application of the Georgia death penalty without holding an evidentiary hearing on the merits of that claim.
Apparently Stephens concedes that the equal protection issue is being raised for the first time, but he alleges that a 1980 study by a Dr. David Baldus supports the claim that Georgia‘s death penalty statute is discriminatorily administered against black citizens. As his еxcuse for not having raised this issue in his first habeas petition, Stephens states that the study was not made available to the public until 1982.
Stephens’ argument sidesteps the crucial issue. The State having alleged that he had abused the writ, the burden rests on Stephens to explain why he did not raise the constitutionality of the application of the death penalty statute in his earlier petition. See Stephens v. Zant, 631 F. 2d 397 (CA5 1980), modified on rehearing, 648 F. 2d 446 (1981). He did not satisfy this burden in the District Court, in the Court of Appeals, or here. Although it is possible that Stephens did not know about the Baldus study even though it was published in 1982,2 this does not explain his
Stephens simply failed to explаin his failure to raise his claim in his first federal habeas petition, and therefore his case comes squarely within Rule 9(b). In addition, Stephens made no factual showing to the District Court that the statistics contained in the Baldus study supported his аllegation of particularized discrimination in the imposition of the death penalty in Georgia.
This Court has now stayed Stephens’ execution until the Court of Appeals has decided Spencer. In my view, for the reasons noted below, I am sаtisfied that the Court will conclude that Spencer—however it may come out—will not control this case.3 It should be apparent from the decisions of this Court since Gregg v. Georgia, 428 U. S. 153 (1976), was decided that claims based merely on general statistics are likely to have little or no merit under statutes such as that in Georgiа.
That Stephens is innocent of the brutal, execution-style murder, after kidnaping and robbing his victim, is not seriously argued.
In conclusion, I reiterate what the Court said in the cоncluding paragraph in our recent per curiam in Sullivan v. Wainwright, ante, at 112: We recognize, of course, as do state and other federal courts, that the death sentence is qualitatively different from all other sentences, and thereforе special care is exercised in judicial review. In this case, it is perfectly clear to me that this care has been exercised in abundance. Accordingly, I would deny the application for a stay.
DECEMBER 14, 1983
No. 83-836. GLASSEY v. UNITED STATES. C. A. 7th Cir. Certiorari dismissed under this Court‘s Rule 53.
No. 83-5544 (A-461). SMITH v. KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER, ante, p. 1003. Petition for rehearing denied. Application for stay of execution of sentence of death pending disposition of a petition for rehearing, presented to JUSTICE POWELL, and by him referred to the Court, denied.
JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting.
Adhering tо 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, grant the petition for rehearing, and vacate the death sentence in this case.