1074

MARSHALL, J., dissenting

guably presented when persons on the venire who expressed reservations as to capital punishment were removed by peremptory challenges. In this case, applicant "conced[ed] in this petition [before the Supreme Court of Florida] that at his trial 'no veniremen were excluded' during voir dire, either for cause or through peremptory challenge." Harich v. Wainwright, 484 So. 2d 1237 (1986). Similarly, before this Court applicant makes no allegation that persons on the venire were excluded during voir dire because of any objections to capital punishment.

Accordingly, my vote is to deny the application for a stay of execution.

JUSTICE BRENNAN, dissenting.

Adhering to my view 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 (1976), I would grant the application for stay and the petition for writ of certiorari, and vacate the death sentence in this case. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

Four Justices of this Court have voted to defer consideration of the petition for certiorari accompanying this application for a stay pending our decision in Lockhart v. McCree, No. 84-1865. Applicant has raised a claim that would be directly affected by the decision in McCree. Although no prospective juror in this case was actually stricken because of expressed scruples against the death penalty, applicant alleges that the jurors' exposure to voir dire on their willingness to inflict the death penalty rendered them more likely to convict him. This is identical to a claim at issue in McCree. It is also identical to claims raised in James v. Wainwright, ante, p. 1074, and Adams v. Wainwright, ante, p. 1062, both of which were stayed by this Court, the former only hours ago. James, like applicant, relied solely on the jurors' exposure to death qualification; he nowhere claimed that the exclusion of jurors via peremptory strikes brought his case within the scope of McCree. See Pet. for Cert. in No. 85-6545, pp. 6-13. Although this Court has deferred consideration of numerous other petitions for certiorari pending our decision in McCree, and has issued stays of execution where necessary to permit this deferral, the Court inexplicably refuses to treat the case before us as we have treated these others.

More alarming is the Court's disregard of its own procedures in this case. Because at least three Justices have voted to defer consideration of the petition pending McCree, the Court has not, nor under its own procedures can it, dispose of the petition for certiorari. Thus, applicant is in the unusual and manifestly unfair position of facing execution before this Court has considered his petition. This Court has shown a bizarre willingness to ignore standard procedures as it pleases in order to bring about speedy executions. I can only lament this Court's own special contribution to the arbitrariness and freakishness that continues to characterize the implementation of the death penalty.

JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.

Because the Court has not yet acted on the petition for a writ of certiorari, I would stay applicant's execution until that petition is decided.

Miscellaneous Order

MARCH 20, 1986

No. A-721 (85-6557). JONES v. SMITH, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, ET AL. C. A. 11th Cir. Application for stay of execution of sentence of death scheduled for Friday, March 21, 1986, presented to JUSTICE POWELL, and by him referred to the Court, denied. JUSTICE BLACKMUN and JUSTICE STEVENS would grant the application for stay.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.

Adhering to my view 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 (1976), I would grant the application for stay and the petition for writ of certiorari, and vacate the death sentence in this case.

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

'Petitioner is scheduled to be executed at 12:01 tomorrow morning. In his application for a stay and petition for writ of habeas corpus, he claims that the death-qualification of his jury and the consequent exclusion for cause of one prospective juror from

the panel because of her opposition to the death penalty deprived him of his right to an impartial jury and his right to a jury selected from a representative cross section of the community in violation of the Sixth and Fourteenth Amendments. A case raising an identical claim is now pending before this Court. Lockhart v. McCree, No. 84-1865.

The District Court denied the petition and denied a certificate of probable cause. It found that petitioner had abused the writ, that petitioner's claims were procedurally barred, and, in any event, that these claims were meritless. The Court of Appeals for the Eleventh Circuit denied petitioner's application for a certificate of probable cause and a stay of execution, finding his claims to lack merit. 772 F. 2d 668 (1985).

Three times in the past six months a stay of execution has been granted in virtually identical circumstances. See Bowden v. Kemp, 474 U. S. 891 (1985); Moore v. Blackburn, No. A-261 (855555), Oct. 4, 1985; Celestine v. Blackburn, 473 U. S. 938 (1985). In light of the disposition of those applications, I can see no justification whatever for the Court's action today. As I noted only two days ago: "I can only lament this Court's own special contribution to the arbitrariness and freakishness that continues to characterize the implementation of the death penalty." Harich v. Wainwright, ante, at 1076.

Appeals Dismissed

MARCH 24, 1986

No. 85-1256. COMSTOCK v. HARRIS COUNTY, TEXAS. Appeal from Ct. App. Tex., 14th Sup. Jud. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 687 S. W. 2d 419.

No. 85-5400. ANDERSON v. DISTRICT COURT OF JEFFERSON COUNTY ET AL. Appeal from Sup. Ct. Colo. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

No. 85-6307. EIGENMAN v. CALIFORNIA. Appeal from App. Dept., Super. Ct. Cal., County of Tulare, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

No. 85-1271. COVENANT COMMUNITY CHURCH v. LOWE, KNOX COUNTY CLERK. Appeal from Sup. Ct. Tenn. dismissed for want of substantial federal question. Reported below: 698 S. W. 2d 339.

No. 85-1275. YORK v. OFFICE OF DISCIPLINARY COUNSEL OF THE SUPREME COURT OF OHIO. Appeal from Sup. Ct. Ohio dismissed for want of substantial federal question. Reported below: 19 Ohio St. 3d 150, 483 N. E. 2d 1179.

No. 85-1296. ROSENBAUM v. ROSENBAUM. Appeal from App. Ct. Ill., 1st Dist., dismissed for want of substantial federal question. Reported below: 131 Ill. App. 3d 1164, 493 N. E. 2d 1223.

No. 85-1311. GREEN ET AL. v. WEST VIRGINIA DEPARTMENT OF HUMAN SERVICES. Appeal from Cir. Ct. W. Va., Jefferson County, dismissed for want of substantial federal question.

No. 85-6217. REDERTH v. SOUTH DAKOTA. Appeal from Sup. Ct. S. D. dismissed for want of substantial federal question. Reported below: 376 N. W. 2d 579.

Certiorari Granted-Vacated and Remanded

No. 85-23. MARYLAND v. LODOWSKI. Ct. App. Md. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Moran v. Burbine, ante, p. 412. Reported below: 302 Md. 691, 490 A. 2d 1228.

No. 85-1074. FLORIDA v. HALIBURTON. Sup. Ct. Fla. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Moran v. Burbine, ante, p. 412. Reported below: 476 So. 2d 192.

Miscellaneous Orders

No. FITZGERALD v. CITY OF PHILADELPHIA. Motion to direct the Clerk to file petition for writ of certiorari out of time denied.

No. A-599 (85-1455). PRADO v. UNITED STATES. C. A. 5th Cir. Application for stay, addressed to JUSTICE STEVENS and referred to the Court, denied.

No. A-668 (85-1468). WOODS v. SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA (JONES, REAL PARTY IN INTER

EST). Ct. App. Cal., 1st App. Dist. Application for stay, addressed to JUSTICE BRENNAN and referred to the Court, denied.

No. A-709. MILLER ET AL. v. HIGGS ET AL. Application to continue the stay of mandate of the Supreme Court of Colorado, presented to JUSTICE WHITE, and by him referred to the Court, denied.

No. D-123. IN RE DISBARMENT OF CHVOSTA. Disbarment entered. [For earlier order herein, see 434 U. S. 979.]

No. D-404. IN RE DISBARMENT OF MIRRER. Disbarment entered. [For earlier order herein, see 465 U. S. 1063.]

No. D-541. IN RE DISBARMENT OF BOULDING. Disbarment entered. [For earlier order herein, see 474 U. S. 1044.]

No. D-548. IN RE DISBARMENT OF Marble. It is ordered that John Harrison Marble, of Cincinnati, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.

No. D-549. IN RE DISBARMENT OF DUKE. It is ordered that Charles Louis Duke, of Houston, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.

No. 105, Orig. KANSAS v. COLORADO. Motion for leave to file bill of complaint granted. Defendant is allowed 60 days within which to file an answer.

No. 84-6075. TISON v. ARIZONA (two cases). Sup. Ct. Ariz. [Certiorari granted, ante, p. 1010.] Motions for appointment of counsel granted, and it is ordered that Alan M. Dershowitz, Esquire, of Cambridge, Mass., be appointed to serve as counsel for petitioners in these cases.

No. 85-246. UNITED STATES v. DION. C. A. 8th Cir. [Certiorari granted, 474 U. S. 900.] Motion of the Solicitor General to permit Jeffrey P. Minear, Esquire, to present oral argument pro hac vice granted.

No. 85-499. PAPASAN, SUPERINTENDENT OF EDUCATION, ET AL. v. ALLAIN, GOVERNOR OF MISSISSIPPI, ET AL. C. A. 5th Cir.