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have jurisdiction to review it. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 483 (1975).

I would therefore grant certiorari, vacate the judgment of the Court of Special Appeals, and reinstate the dismissal of the indictment.

No. 82-2091. MOODY v. MEYERS ET AL. C. A. 5th Cir. Motions of Washington Legal Foundation, American Conservative Union et al., and Citizens Economic Foundation for leave to file briefs as amici curiae granted. Certiorari denied. below: 693 F. 2d 1196.

Reported

Certiorari

No. 82-6913. JONES v. ILLINOIS. Sup. Ct. Ill. denied. Reported below: 94 Ill. 2d 275, 447 N. E. 2d 161.

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 vacate the death sentence in this case.

JUSTICE MARSHALL, dissenting.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of Illinois insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (MARSHALL, J., dissenting). However, even if I believed that the death penalty could be imposed constitutionally under certain circumstances, I would grant certiorari and vacate the death sentence imposed here.

Given the wording of the Illinois death penalty statute and the trial court's instructions in this case, I am not convinced that petitioner's sentencing jury balanced mitigating factors and aggravating circumstances in the manner required by this Court in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982). Under the Illinois statute, once a sentencing jury finds a statutorily defined aggravating factor to exist, the jury proceeds to consider aggravating and mitigating factors. “If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death." Ill. Rev. Stat.,

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ch. 38, ¶9-1(g) (Supp. 1982). At the sentencing trial in this case, the trial judge instructed the jury on how to evaluate mitigating evidence: "[Y]ou go out and determine whether or not this evidence has taken away the [aggravating] factors, mitigated the factors so that you might say no, we don't want to vote for the death penalty.'" See People v. Jones, 94 Ill. 2d 275, 302, 447 N. E. 2d 161, 174 (1982) (Simon, J., concurring in part and dissenting in part). Notwithstanding other portions of the trial court's instructions, this instruction coupled with the Illinois statute's ambiguous reference to "preclud[ing] the imposition of the death sentence" may well have led the sentencing jury to conduct its deliberation under the assumption that petitioner had the burden of proving that the death penalty was inappropriate in his particular case. Since I do not understand this Court's precedents to permit the placing of such a burden on a defendant, I would grant the petition.

No. 83-284. MOON ET AL. v. HYOSUNG AMERICA, INC. C. A. 9th Cir. Motion of respondent for damages denied. Certiorari

denied.

No. 83-5053. PETRELLA v. UNITED STATES. C. A. 2d Cir. Certiorari denied. Reported below: 707 F. 2d 64.

JUSTICE WHITE, with whom JUSTICE BLACKMUN joins, dissenting.

Petitioner was admitted to the United States in 1978 and obtained a 1-year trainee visa. Upon expiration of his visa, he failed to depart voluntarily and, after protracted deportation proceedings, was deported to Italy. Approximately one month later, petitioner attempted to cross the border at Highgate Springs, Vt. He was arrested and charged with violating 8 U. S. C. § 1326, which proscribes unauthorized entry or attempted entry into this country by one who "has been arrested and deported or excluded and deported."

Prior to trial, petitioner moved to dismiss the indictment on the ground that the earlier deportation proceedings had denied him due process. The District Court refused to review the earlier proceedings and denied the motion. Petitioner was found guilty by a jury and sentenced to a term of imprisonment of one year, all but 30 days of which was suspended. On appeal, the Court of Appeals for the Second Circuit affirmed petitioner's conviction,

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holding that Congress did not intend to allow collateral attacks on deportation orders in § 1326 prosecutions. 707 F. 2d 64 (1983). The question presented in this petition is unresolved. In United States v. Spector, 343 U. S. 169 (1952), the Court expressly reserved decision on this precise issue because it had not been raised in the proceedings below. Moreover, as the Court of Appeals in this case noted, the Courts of Appeals that have addressed the question of the permissibility of collateral attack are divided. 707 F. 2d., at 65. Arguably supporting petitioner's position that collateral attack is permitted are: United States v. Rangel-Gonzales, 617 F. 2d 529, 530 (CA9 1980) ("deportations are subject to collateral attack"); United States v. Bowles, 331 F. 2d 742, 750 (CA3 1964) (deportation order may be attacked on ground that there is "no basis in fact for the Board's conclusion in respect to deportability" or there is "no warrant in law" for issuance of order). Arguably supporting the Government's position that collateral attack is not permitted are: United States v. De La Cruz-Sepulveda, 656 F. 2d 1129, 1131 (CA5 1981) ("a defendant cannot collaterally attack the original deportation order”); Arriaga-Ramirez v. United States, 325 F. 2d 857, 859 (CA10 1963) ("a deportation cannot be collaterally attacked in a prosecution under 8 U. S. C. § 1326"). As a further reflection of the uncertainty in this area, both parties to this proceeding rely on United States v. Rosal-Aguilar, 652 F. 2d 721, 723 (CA7 1981) (agrees that collateral attacks are barred, but accepts the proposition that the Government must prove the underlying deportation to have been "based on a valid legal predicate and obtained according to law").

The issue presented in this case is one of considerable importance to the consistent enforcement of this Nation's immigration laws. Accordingly, I would grant the petition to resolve the issue left open in United States v. Spector.

No. 83-5209. BOOKER v. WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS. C. A. 11th Cir.; and

No. 83-5267. SULLIVAN v. WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS. C. A. 11th Cir. Certiorari denied. Reported below: No. 83-5209, 703 F. 2d 1251; No. 83-5267, 695 F. 2d 1306.

JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth

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and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.

OCTOBER 31, 1983

Appeals Dismissed

No. 82-6768. FINNEY v. MICHIGAN DEPARTMENT OF SOCIAL SERVICES. Appeal from Sup. Ct. Mich. dismissed for want of substantial federal question. Reported below: 415 Mich. 512, 330 N. W. 2d 33.

No. 83-140. PITTSBURG & MIDWAY COAL MINING CO. v. REVENUE DIVISION, TAXATION AND REVENUE DEPARTMENT OF NEW MEXICO. Appeal from Ct. App. N. M. dismissed for want of substantial federal question. Reported below: 99 N. M. 545, 660 P. 2d 1027.

No. 83-366. PENOBSCOT NATION v. STILPHEN, COMMISSIONER, DEPARTMENT OF PUBLIC SAFETY OF MAINE, ET AL. Appeal from Sup. Jud. Ct. Me. dismissed for want of substantial federal question. Reported below: 461 A. 2d 478.

No. 83-333. C.P. CHEMICAL CO., INC. v. COMMISSIONER OF PUBLIC HEALTH OF MASSACHUSETTS. Appeal from Sup. Jud. Ct. Mass. Motion of appellant to dispense with printing partial appendix granted. Appeal dismissed for want of substantial federal question. Reported below: 388 Mass. 707, 448 N. E. 2d 367.

No. 83-518. JACQUES ET UX. v. UNITED STATES ET AL. Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

No. 83-5322. ELLIOTT v. ELLIOTT. Appeal from Sup. Ct. N. M. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

No. 83-5375. CHAPMAN v. BANK OF THE COMMONWEALTH ET AL. Appeal from C. A. 6th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 711 F.2d 1055.

October 31, 1983

No. 83-5431. COJANIS v. COJANIS ET AL. 9th Cir. dismissed for want of jurisdiction.

464 U. S.

Appeal from C. A. Treating the papers

whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.

Certiorari Granted-Vacated in Part and Remanded

No. 82-6830. SMITH V. OKLAHOMA. Ct. Crim. App. Okla. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. The judgment is vacated insofar as it leaves undisturbed the death penalty imposed and the case is remanded for further consideration in light of the position presently asserted by the Attorney General of Oklahoma in his memorandum filed September 14, 1983. Reported below: 659 P. 2d 330.

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JusTICE MARSHALL join, concurring in part and dissenting in part.

I concur in the remand of this case to the Court of Criminal Appeals of Oklahoma, but I am neither comfortable nor content with this Court's vacation of only the death penalty. I would vacate petitioner's conviction as well as his sentence and thereby permit the Court of Criminal Appeals to review the case afresh. That court is free, of course, after appropriate consideration and if the circumstances warrant, to reinstate the conviction. I, however, would have the Oklahoma tribunal make that move affirmatively, rather than be tempted (it would be error, in my view) not to act at all because it misperceives an implication in this Court's vacation limited to the death penalty.

I reach this conclusion because the Attorney General of Oklahoma, in his response to the petition for a writ of certiorari, says only:

"The transcript reveals that the sole evidence which linked the Petitioner to the death of the victim is contained in a statement given by the Petitioner to Sheriff Ingram. The crucial part of this statement appears on pages 137-140 of the trial transcript. According to Sheriff Ingram, the Petitioner advised him that, when he started walking away from the victim's pickup, he observed his co-defendant Goforth, place 'some paper or something' under the front seat of the pickup (Tr. 139). Nowhere is it stated that the Petitioner observed his co-defendant set fire to the pickup.

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