798 F.2d 872 | 5th Cir. | 1986
Dissenting Opinion
dissenting:
Being of the view that Willie Watson’s application for a stay of execution should be granted, I respectfully dissent.
Of even greater importance, the Supreme Court’s standard for granting stays in cases raising the McCleskey issue is at best unclear, at worst random. In Berry v. Phelps, 795 F.2d 504 (5th Cir.1986), the petitioner raised a single issue, the same precise issue as presented here by Mr. Watson: whether the State of Louisiana discriminatorily administers its death penalty against defendants accused of killing Cau
Despite its action in Berry, the Supreme Court less than three weeks later refused to grant a stay of execution in a case also raising the McCleskey issue.- In Wicker v. McCotter, 798 F.2d 155 (5th Cir.1986), the petitioner, Chester Lee Wicker, argued that the State of Texas discriminatorily administers its death penalty against defendants accused of killing Caucasians. A panel of this Court, without mentioning the Supreme Court’s action in Berry, concluded that the grant of certiorari in McCleskey and Hitchcock did not require granting Mr. Wicker’s application for a stay of execution. On Monday, August 25, 1986, the Supreme Court, in a one sentence order and with four members dissenting, denied Mr. Wicker’s application for a stay of execution. Chester Lee Wicker was executed the following morning. To my mind the conflict between Berry and Wicker is positive, certain and inescapable.
What is clear, however, is that this Court, the United States Court of Appeals for the Fifth Circuit, has attached precedential weight to Supreme Court orders granting stays in cases raising issues pending before that Court. In Rault v. Louisiana, 774 F.2d 675, 677 (5th Cir.1985), the petitioner raised the Grigsby issue that was, at that time, pending before the Supreme Court in Lockhart v. McCree, — U.S. —, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). This Court first noted that our prior decisions had rejected the Grigsby claim. We nevertheless granted Rault’s application for stay of execution, noting that the Supreme Court had recently granted stays in two cases raising only the Grigsby issue.
Our reasons for doing so are apparent. Unlike other applications, errors in rejecting applications for stay of execution cannot be corrected. “There can be no writs of habeas corpus from a casket.” Bass v. Estelle, 696 F.2d 1154, 1161 (5th Cir.1983) (J. Goldberg, concurring). Where the Supreme Court has indicated that stays of execution will be granted in cases raising a particular issue, lower courts have a solemn responsibility to ensure that no petitioner raising such an issue is erroneously executed. Granting stays at this level, or at the district court level, helps make certain that no case “slips through the cracks” in its progress to the Supreme Court. Can it be disputed that such caution is justified, no matter how slight the risk, when a human life is at stake?
In Berry, the Supreme Court granted a stay of execution in a Louisiana case which clearly, directly and unambiguously presented only the McCleskey issue. The Supreme Court’s action in Berry is direct authority requiring, under Fifth Circuit case law, that we grant Mr. Watson’s application for a stay of execution. See Rault v. Louisiana, 774 F.2d 675 (5th Cir.1985). Mr. Watson’s case cannot be distinguished; it also is an application for stay of execution; it too comes from Louisiana; it likewise raises only the McCleskey issue. The majority does not explain, because it cannot, how the Berry case is different.
It is the Supreme Court’s action in Wicker that has muddied the waters.
To remove all uncertainty and avoid an unnecessary risk to the life of Mr. Watson, I would grant the application for a stay of execution and let the Supreme Court vacate the stay if indeed we are to be guided by Wicker rather than Berry.
. The temporary nature of the stay at issue requires emphasis. That stay would be in effect pending only the filing and disposition of Mr. Watson’s petition for a writ of certiorari.
. The muddy waters prompted a majority of the members of this Court on August 28, 1986, to attempt some clarification. The result was that all Fifth Circuit Chief District Judges were advised as follows:
The attached opinion of the panel in Wicker v. McCotter, 798 F.2d 155 expresses the law of this Circuit on the subject of stays of execution in death penalty cases. Please advise the judges of your court accordingly.
. It is specifically noted, however, that the Supreme Court has not vacated the stays it previously granted in Berry and in other cases also raising the McCleskey issue, including Wingo v. Blackburn, — U.S. —, 107 S.Ct. 9, 92 L.Ed.2d — and Messer v. Kemp, — U.S. —, 106 S.Ct. 3342, 92 L.Ed.2d —.
Lead Opinion
Watson’s appeal raises one issue only, a claim of discrimination in the imposition of the death penalty on blacks who murder whites. We agree with the district court that Wicker v. McCotter, 798 F.2d 155 (5th Cir.1986) represents the law of our Circuit and forecloses his claim. As a panel of our Court, we are bound to follow that law until the Supreme Court or our Court, sitting en banc, changes it.
The motion of Mr. Jed Stone to participate as co-counsel in this appeal is GRANTED.
The judgment of the district court denying habeas relief is AFFIRMED.
The applications for a certificate of probable cause and for a stay of execution are DENIED.
