*1 No. 86-6355. Kubat v. Illinois, ante, p. 1007; No. In re Gray, ante, 86-6367. p. 1003; No. 86-6428. Mraovic v. Lynaugh, Interim Director, Department Texas of Corrections, ante, p. 1020; and
No. 86-6438. Martin v. et al., ante, Perezous p. 1021. Petitions for rehearing denied.
May 27, 1987 No. A-861. Williams v. Lynaugh, Director, Texas De partment of Corrections. Application for stay of execution death, of sentence of presented White, Justice by and Court, to the referred denied. Brennan
Justice and Justice Marshall, dissenting. to our Adhering views that the penalty death inis all circum- stances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, v. Gregg Georgia, 428 U. S. (1976), we would grant the application stay of execu- tion 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.
May 29, 1987 Dayton-Hudson Corp. No. 86-1688. v. Altus. Ct. App. Tex., 1st Dist. Certiorari dismissed under this Court’s Rule 53. (A-860).
No. 86-6955 Kemp, Tucker v. Warden. C. A. 11th Cir. Application stay of execution of death, sentence of presented to Powell, Justice himby referred to Court, denied. Certiorari denied. The order heretofore stay- entered ing the execution of sentence of death until 7 p.m., May will not be extended.
Justice Brennan, with whom Justice Marshall joins, and with whom Justice joins II, Blackmun as to dissenting. Part
I Adhering my view that the is in all penalty death circum- stances cruel and unusual punishment prohibited Eighth Amendments, and Fourteenth Gregg Georgia, 428 U. S. (1976) (Brennan, dissenting), grant stay ap- J., *2 and the for certiorari and plication would vacate the death sentence this case.
II
if I
Even
did not hold this
would still
the
grant
applica-
tion for
stay
a
and the
certiorari. Petitioner raises a
substantial claim
the trial
jury
that
court’s instruction to the
un-
constitutionally shifted the burden of
to
proof
viola-
(1985).
Franklin,
tion of Francis v.
“Ladies and Statute there shall be a union joint operation of this State which or intention, or criminal negligence. of act and “Now, certain going give you I’m to A presumptions. person discretion, is to be sound mind and but the presumed pre- of be rebutted. The acts a sumption may person sound of of presumed product mind and discretion are to be the the of will. A sound mind and discretion is person’s person pre- of sumed to intend the natural and probable consequences of But, may these be rebutted. The presumptions person act. intention, to act with criminal the will not be but presumed facts, you jury, may trier and that’s the such inten- find of words, conduct, the demeanor and tion consideration upon of circumstances connected with the act which the ac- other added). Tr. 822-823 (emphasis cused is prosecuted.” murder, of kid- deliberations, jury the returned a verdict After robbery by intimidation. After a bodily injury, with naping Tucker was sentenced to death. hearing, sentencing Franklin, supra, In Francis gave the trial court a similar the jury: instruction to of a statute of this in which there
“A crime is a violation State act, operation of act or omission joint shall be a union of A not negligence. person or criminal shall and intention accident crime committed misfortune or guilty any found of no criminal scheme satisfactorily appears it there was where The acts negligence. or intention or criminal undertaking or mind and discretion are presumed a sound person of of will, may hut the person’s presumption he the product of pre- A sound mind and discretion is person he rehutted. of probable consequences sumed to intend the natural and he rebutted. A will may person his acts but the presumption but trier not be to act with criminal intention presumed is, criminal intention facts, Jury, may upon that find of a consideration words, conduct, demeanor, motive and *3 the of with the act which all other circumstances connected for prosecuted.” the accused is S., (emphasis 471 at 311-312 U. added). Franklin, created a manda-
In the Court held that this instruction shifted to the defendant the burden of tory presumption that intent, thereby depriving process the element of of due on Amendment. The in Tucker’s charge given under the Fourteenth Franklin. in virtually jury identical to the instruction case is corpus, the District for a of habeas petitioned writ the Franklin claim for time in a court. the first federal raising evidentiary an on this claim hearing The District Court denied that the constituted an abuse of solely petition on its conclusion writ, petition had filed a for federal previous the because Tucker in on that did not corpus January District Court the Franklin claim. The Court of It con- Appeals agreed. raise “Franklin since, in not ‘new cluded that its did constitute law[,’] petitioner’s Franklin claim should have been raised of the writ petition,” his first and that therefore it was an abuse §2254. 9(b), Habeas Rule 28 U. S. C. 819 F. 2d Corpus under (CA11 1987). 9(b) a court to dismiss 980 Rule allows federal federal are grounds a second when “new and different if “the the alleged,” judge petitioner finds that the failure of the prior petition assert those a constituted an abuse of grounds writ.”
1076 Franklin claim in his to raise the failure view, Tucker’s
In not constitute abuse habeas relief does for federal first 9(b). States, In v. United Sanders Rule the under of writ cases involving for guidelines established (1963),the Court 1U. S. the of writ: abuse potential withholds one deliberately prisoner if a
“Thus, example, filing at the time of relief collateral for federal grounds two of hearings two granted hope being in the of application, first his reason, may he be other such or for some than one rather ap- on a second hearing to a right to have waived deemed may same The ground. the withheld presenting plication States, S. 239 265 U. Doo United if, Wong [v. as in true grounds abandons one of his deliberately (1924)],the prisoner habeas cor- in the traditions of Nothing hearing. first at the piecemeal needless courts to tolerate the federal requires pus whose proceedings only entertain collateral or to litigation, Id., (emphasis at 18 harass, delay.” or vex, is to purpose added). a habeas requires the Eleventh Circuit Appeals
The Court the present ground that “the failure to demonstrate an intentional the result of neither prior proceeding in the of inexcusable ne withholding product nor or abandonment v. Wain petition. Witt subsequent of a to avoid dismissal glect” 469 U. S. grounds, rev’d on other F. 2d wright, 1478, 794 F. 2d Fleming Kemp, (1985), quoted 1986). (CA11 execution, facing a man present petition considering evidentiary hearing, an refused to conduct District Court abandonment, deliberate with- of intentional finding no
but made
*4
an
represents
this
neglect.1
inexcusable
holding, or
Sanders,
in
set forth
from the standards
departure
unexplained
peti-
that under Sanders
establishes
Tucker’s
supra.
the writ.
abuse of
not constitute
tion does
29,
The
1985.
April
Franklin until
not decide
did
This Court
appeal
Franklin’s
dismissed
had earlier
Supreme
Georgia
months before
1980, eight
in
issue
the burden
raising
that, because
Appeals found
the Court of
the District Court
1 Both
with Sandstrom
precedent
in
break
represent a substantial
Franklin
did not
failing to raise
Montana,
(1979),
Tucker had no excuse
1077
appeal
Tucker’s
to that same court. Franklin
State,
v.
245 Ga.
(1980).
141, 153-154,
666,
263 S. E. 2d
674
Tucker did not raise
the Franklin claim at that
Thus,
time.
perfectly
had a
valid reason for his failure to raise the Franklin claim in his first
federal habeas petition
obviously
have been frivolous to
—it
do so. The Georgia Supreme Court repeatedly rejected Franklin
claims
during
years
two
in which Tucker had the opportunity
present
courts,
the claim in state
prior to filing his first federal
habeas
in January
g.,
e.
See,
1982.
State,
Rose v.
249
628, 631,
Ga.
292 E.
Zant Gaddis,
678,
S.
2d
(1982);
681
v.
247 Ga.
717, 718,
The in record this case contains no evidence that the Franklin claim was intentionally abandoned or deliberately withheld. The affidavit of petitioner’s counsel states:
“At the time we filed the original petition for writ of habeas corpus had no basis for believing that the portion of the charge concerning intent and state of mind in any way con- stitutionally infirm. The language of the charge was taken nearly verbatim from Georgia statutes which had repeatedly been upheld by the Georgia Supreme Court. I was aware of no case that would indicate that this portion of the jury charge was unconstitutional and I had no reason to believe that that charge was improper.
“We included the petition for writ of corpus all claims which appeared to be viable based on our reasoned and professional judgment of the facts and law. It was our intent to include all nonfrivolous claims. didWe not deliberately withhold this claim or intentionally abandon it. This claim was not included the petition because the exercise of our professional reasoned judgment we were not aware that it ex- *5 Kocher, Eric B. Remar and G. Affidavits of Robert isted.” 2d, F. at 980.2 pertinent in all charge held that a identical In Franklin we Amend- the Fourteenth given here violated to the one respects a crimi- every element of prove that State requirement ment’s Here, permits a reasonable doubt. Court beyond nal offense the likelihoodthat his conviction despite a man to be executed law. fundamental tenet of our criminal of this in violation obtained that has abused ground untenable so on the It does held without repeatedly a claim anticipate that by failing writ vindicated ultimately be Supreme the State merit I here. dissent. that himself submitted an affidavit states: Petitioner that -[Frank- Mr. Remar or Mr. Kocher to withhold “At no time did instruct attorneys fact, agreed my believed had we that all claims that claim]. lin my corpus petition. any habeas . . . merit should be asserted intentionally deliberately any aban- have I withheld claims or “At no time attorneys every aware of to any I wanted claim that were claims. doned Boyd corpus petition.” my original Affidavit of William filed in Cert.). (Exhibit F to Pet.