*1 1050 1986 Life Insurance Co. No. 86-7. Connecticut General

Dredge dismissed under et al. C. A. 10th Cir. Certiorari Court’s Rule Secretary, Florida A-252.

Department stay Application Corrections, et al. to Justice Powell, death, presented of sentence Court, denied. by him referred to the and Marshall, dissenting. Brennan Justice Justice is in all circum- penalty views that the death Adhering to our Eighth punishment prohibited cruel and unusual stances Amendments, 428 U. Georgia, S. Gregg and Fourteenth order (1976), grant we would certiorari, for writ of petition file a time to give applicant the death sentence and vacate and would case. Brennan, Justice Stevens, with whom Justice

Justice join, dissenting. Marshall, Blackmun Justice first-degree convicted of murder Roy Allen Stewart was The sentenced Circuit Court and County Dade Stewart v. the conviction Supreme Court affirmed State, (1982), denied, cert. 2d So. filed a death warrant. signed

The Governor under Florida Rule of Criminal relief counsel. The ineffective assistance of 3.850, alleging Procedure evidentiary hearing, and de execution, held stayed the affirmed. Supreme Court petition. nied 481 So. 2d 1210 scheduling death warrant signed a second Governor 7, 1986. Stewart 7 a.m. on October execution for of execution in the and application post-trial Court, arguing the State’s administration violates the Fourteenth Amend- penalty of the death imposed disproportionately is capital punishment ments because race. of the white were members whose victims prisoners *2 v. in to those is similar This 85-6756, cases that Wainwright, No. 84-6811, and Hitchcock v. No. 15, The Flor on October this Court argued to be before are stay, for application denied Stewart’s ida Court previous claim in his 3.850 did not raise this that “Stewart ruling raising peti motion, and he is 489, 490 494 So. 2d v. tion.” Stewart relief and for a second motion claim. McCleskey/Hitchcock Court, raising in for Circuit v. stay application. State Court denied Circuit 26, (Sept. at Stewart, slip op., procedural of a finding the Circuit Court affirmed failure justification no for his had shown that Stewart bar, reasoning in first motion for post- claim his /Hitchcock McCleskey to raise 164, 495 So. 2d relief. conviction exe- of filed On October certiorari with this Court. of a filing pending cution application. Because denies today majority A of Court application of the incomplete rest, in on an may part, this denial recently set forth Smith default, as procedural doctrine dissent. (1986), I respectfully 477 U. S. 527 Murray, pris- to consider a state refusing before requires Smith conviction and sentence on to his challenge oner’s constitutional must two federal court answer default, a ground procedural law, (1) is consideration of state As a matter separate questions: (2) bar? And procedural a valid the claim foreclosed bar, procedural the state notwithstanding federal matter of in a “fundamental result of the claim rejection Id., at 538. justice?” raise, on direct appeal failed to prisoner a state Court, his Virginia Supreme to the and sentence his conviction use of the prosecution’s challenge constitutional had related information prisoner to whom psychiatrist, of a bus. conduct on a school sexual incident of deviant about a federal petition of Smith’s the denial Court, reviewing This had failed to demon- prisoner relief, held that habeas rules. state procedural with noncompliance for his strate cause appli- of whether inquiry to the second proceeded then The Court of procedural cation doctrine bar would offend principles justice:

“As Carrier, we noted and reaffirmed in Engle ap- ‘“[i]n propriate comity cases” the principles finality inform concepts cause yield “must imperative correcting fundamentally unjust incarcer- Carrier, (1986)], ation.’” Murray v. U. S. [477 (1982)]. Isaac, [107, quoting Engle Accord- ingly, ‘where a probably constitutional violation has resulted actually innocent, conviction of one who is a federal ha- beas court the writ even the absence of a show- ing procedural Carrier, of cause Murray default.’ [supra, 496]. acknowledge concept ‘actual,’

“We as distinct *3 ‘legal,’ innocence does not easily translate into con- the alleged text of an error the sentencing phase a trial on capital offense. think Nonetheless, we it clear on rec- that application ord of the cause and test will re- not in a ‘fundamental miscarriage justice.’ Engle, sult supra, allegation at 135. There is no the testimony that about the any school bus incident was false or in way misleading. Nor can it be argued prospect that Dr. Pile later might testify him against had the effect of foreclosing meaningful exploration psychiatric defenses. While that concern is a very abstract, real one in the here the clearly record shows Dr. did petitioner Pile ask to discuss the crime he stood accused of as well committing as incidents deviant Although initially sexual conduct. so, to reluctant do ulti- mately petitioner was on forthcoming subjects. both short, alleged precluded constitutional error neither development of true nor facts resulted in the admission Thus, false ones. even assuming legal matter, as a Dr. Pile’s not should have been to jury, its admission did not serve to pervert jury’s deliberations concerning the ultimate whether in petitioner fact society. constituted a threat continuing cir- Under these cumstances, we do not believe that refusal to consider the de- on faulted claim federal habeas carries with it the risk of a Id., justice.”

manifest miscarriage at 537-538. case, Roy In this Allen Stewart predicates his for a on a claim that “because the State of has sentencing its in an applied capital arbitrary statute and capricious by allowing manner race to determine, significant part, will who penalty, receive death his sentence was imposed violation and Fourteenth Amendments to the Constitution of noted, the United States.”* As his claim is similar to the claims by petitioners advanced

and Hitchcock Wainwright, No. 85-6756. As matter appears claim Stewart’s is procedurally one, however, barred. No yet has carried out the second inquiry mandated Smith: whether as a matter of federal law refusal to his consider claim the merits con- if, stitute a justice” “fundamental miscarriage Stewart as- serts, the fact that his victim was a member of the white race was a critical impose element the decision to death sentence upon him. No federal has yet decided whether this claimed racially discriminatory factor, in the Court’s words in pervert served “to the jury’s concerning deliberations the ultimate he question” put whether should be Today the to grant Court declines of execution even his though claims, true, if profoundly yet raise serious and as unresolved questions about the federal'constitutionality of his capital Arguably, justified by decision is facts that this case to us comes request, as a for review of the Florida courts’ denial of collateral relief and the justice” inquiry “fundamental can bet- ter performed by a federal district court in a federal habeas proceeding which now commence. Never- *4 theless, in sure inquiry may order make that this critical performed moot, before the case I becomes execution until Court has the McCleskey decided and Hitch- cock cases.

I respectfully dissent. Stay *Application Pending Filing Disposition Execution Peti- Supreme Florida, tion for Writ of Certiorari Court of filed in the (Initial App. Court of United Brief States Appellant September Court of Florida filed