"Th[e] definition of reasonable doubt was the exact inverse of what it should have been. . . . Instead of requiring the government to prove guilt, it called upon petitioners to establish doubt in the jurors' minds. That is an inescapable violation of In re Winship. . . ." 570 F. 2d, at 24 (footnote and citations omitted).

Though reviewing a state conviction on collateral review, the Dunn panel concluded that the defect in the trial court's instruction was of sufficient magnitude to warrant a retrial. Id., at 25.

The First Circuit's analysis of the reasonable-doubt instructions in Dunn directly conflicts with rulings of the South Carolina Supreme Court applied in this case as well as recent decisions of several other State Supreme Courts. Since this conflict is the culmination of chronic disagreement over the correct definition of reasonable doubt,' I find this petition an appropriate candidate for review. See this Court's Rule 17.1(b).

I would grant the petition.

No. 83-5833. WEBER v. STONY BROOK HOSPITAL ET AL. Ct. App. N. Y. Motion of petitioner to expedite consideration of the

son to hesitate before making an important personal decision, the First Circuit made clear in its decision that the constitutionally defective portion of the Dunn instruction was the equation of a reasonable doubt to a substantial and articulable doubt. Id., at 24–25. In these two respects, the Dunn instruction and the instruction given at petitioner's trial are identical. As the instruction in petitioner's case equated reasonable doubt with "a strong and well-founded doubt," the trial court in Dunn defined reasonable doubt to be "a strong and abiding conviction.". Where petitioner's instruction likened a reasonable doubt to "a doubt for which you can give a reason," the Dunn instruction referred to a reasonable doubt as a “doubt as for the existence of which a reasonable person can give or suggest a good and sufficient reason."

3

See, e. g., State v. Derrico, 181 Conn. 151, 169-171 434 A. 2d 356, 367–368 (1980); Stirparo v. State, 287 A. 2d 394 (Del. 1972); State v. Osbey, 213 Kan. 564, 571-573, 517 P. 2d 141, 148 (1973); State v. Davis, 482 S. W. 2d 486, 489 (Mo. 1972).

"Throughout this century, both federal and state courts have criticized reasonable-doubt instructions similar to the South Carolina charge given in this case. See, e. g., Taylor v. Kentucky, 436 U. S. 478, 488 (1978); Pettine v. Territory of New Mexico, 201 F. 489, 495-497 (CA8 1912); Laird v. State, 251 Ark. 1074, 476 S. W. 2d 811, 813 (1972); State v. Davis, supra, at 490 (Seiler, J., concurring); Frazier v. State, 117 Tenn. 430, 459-467, 100 S. W. 94, 102-103 (1907); Owens v. Commonwealth, 186 Va. 689, 704-706, 43 S. E. 2d 895, 902 (1947); State v. McDonald, 89 Wash. 2d 256, 273-274, 571 P. 2d 930, 940 (1977).

petition for writ of certiorari granted. Certiorari denied. Reported below: 60 N. Y. 2d 208, 456 N. E. 2d 1186.

No. 83-5902 (A-450). WILLIAMS v. KING, SECRETARY, LOUISIANA DEPARTMENT OF CORRECTIONS, ET AL. C. A. 5th Cir. Application for stay of execution of sentence of death, addressed to JUSTICE BRENNAN and referred to the Court, denied. JusTICE BRENNAN and JUSTICE MARSHALL would grant the application for stay. Certiorari denied. Reported below: 719 F. 2d 730. 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 and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.

Rehearing Denied

No. 82-2116.

DALGETY FOODS, INC. v. AVINA, ante, p. 801; No. 83-5026. JACKSON v. BUTTERWORTH, SHERIFF OF BROWARD COUNTY, FLORIDA, ante, p. 916;

No. 83-5104. TORPY v. UNITED STATES, ante, p. 856;

No. 83-5375.

No. 83-5369. DONNELL v. FREEMAN ET AL., ante, p. 941; CHAPMAN v. BANK OF THE COMMONWEALTH ET AL., ante, p. 923; and

No. 83-5481. CASTRO v. FEDERAL DEPOSIT ISURANCE CORPORATION, RECEIVER FOR BANCO CREDITO Y AHORRO PONCENO, ET AL., ante, p. 964. Petitions for rehearing denied.

Assignment Order

An order of THE CHIEF JUSTICE designating and assigning Justice Stewart (retired) to perform judicial duties in the United States Court of Appeals for the First Circuit beginning June 4, 1984, and ending June 8, 1984, and for such further time as may be required to complete unfinished business, pursuant to 28 U. S. C. § 294(a), is ordered entered on the minutes of this Court, pursuant to 28 U. S. C. § 295.

Miscellaneous Order

DECEMBER 13, 1983

No. A-455. STEPHENS v. KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER. Application for stay

of execution of sentence of death set for Wednesday, December 14, 1983, presented to JUSTICE POWELL, and by him referred to the Court, is granted pending the decision of the United States Court of Appeals for the Eleventh Circuit in Spencer v. Zant, 715 F.2d 1562 (1983), rehearing en banc granted, id., at 1583, or until further order of this Court.

JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting.

This is another capital case in the now familiar process in which an application for a stay is filed here within the shadow of the date and time set for execution.

As summarized by the Court of Appeals the relevant facts are: "After escaping from county jail, petitioner was interrupted committing a burglary in Twiggs County by his victim whom he and an accomplice robbed, kidnapped, drove into Bleckley County and brutally killed; he was caught the next morning with the murder weapon in his possession. [H]e confessed and pleaded guilty in Twiggs County to armed robbery, kidnapping with bodily injury, and the theft of a motor vehicle. . . ." 721 F. 2d 1300, 1304 (CA11 1983).

A jury convicted applicant of murder and sentenced him to death in early 1975. In the nearly nine years that since have transpired, Stephens has repetitively moved between state and federal courts in pursuing postconviction remedies. His direct and collateral attacks have taken his case through the state court system three times and through the federal system twice. This Court has considered Stephens' case four times excluding his present proceedings. See Zant v. Stephens, 462 U. S. 862 (1983); Stephens v. Zant, 454 U. S. 1035 (1981); Stephens v. Hopper, 439 U. S. 991 (1978); Stephens v. Georgia, 429 U. S. 986 (1976).

The case before us today commenced with the filing of a federal habeas petition on November 15, 1983, in the United States District Court for the Middle District of Georgia. The State answered the petition and pleaded that Stephens' petition for a writ of habeas corpus was an abuse of the writ. On November 16, 1983, the District Court held a hearing on the abuse question and five days later, on November 21, 1983, the District Court denied relief. 578 F. Supp. 103. It filed a full opinion in which it concluded that "the claims raised by petitioner in his successive petition under 28 U. S. C. § 2254 constitute an abuse of the writ under

Rule 9(b), Rules Governing Section 2254 cases in the United States District Courts, and are hereby DISMISSED in their entirety." Id., at 108. On December 9, 1983, a panel of the Court of Appeals for the Eleventh Circuit considered Stephens' emergency application for a certificate of probable cause to appeal and a stay of execution. Also in a full opinion, the panel found that the District Court had not erred in finding an abuse of the writ. 721 F. 2d 1300 (1983).

Today, the Court of Appeals denied Stephens' request for a rehearing en banc by an evenly divided vote. 722 F. 2d 627. The six judges who dissented from the denial of rehearing filed a brief opinion expressing the view that Stephens had presented a claim that warranted a stay of his execution. The dissent reasoned that Stephens' claim that the Georgia death penalty statute is being applied in an arbitrary and discriminatory manner is identical to the issue in Spencer v. Zant, 715 F. 2d 1562 (CA11 1983). The Court of Appeals-apparently also today-granted a rehearing en banc in Spencer and the dissent argued that Stephens should receive like treatment. It was suggested that Stephens had not abused the writ with respect to this issue because the statistical study on which he bases his claim did not become available until after he had filed his first federal habeas petition. The fact that 6 of the 12 active judges of the Court of Appeals wished to defer action on Stephens' case prompted this Court to grant Stephens' request for a stay. I dissent from this action.

The Court and the judges in dissent in the Court of Appeals apparently misconstrue, as I view it, the posture of this case. We should now be concerned, as was the panel of the Court of Appeals, with whether the District Court erred in its finding that Stephens is guilty of having abused the writ of habeas corpus. In Sanders v. United States, 373 U. S. 1 (1963), this Court observed that the "abuse of the writ" doctrine should be governed by "equitable principles." Id., at 17. The Court noted that consideration of abuse normally is left to the "discretion of federal trial

"Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ."

POWELL, J., dissenting

464 U. S. judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits." Id., at 18. In determining whether the District Court properly exercised its discretion in finding an abuse we should look not to the merits of a petitioner's claims but to the petitioner's reasons for not having raised the claims in his first habeas proceeding. As the Court of Appeals noted, "[t]here is no disagreement among the parties as to the standard applicable to second and subsequent petitions for habeas corpus which present wholly new issues. In order to constitute abuse, presentation of such issues must result from (1) the intentional withholding or intentional abandonment of those issues on the initial petition or (2) inexcusable neglect." 721 F. 2d, at 1303. Under this analysis, it is clear that the District Court properly dismissed Stephens' claim of discriminatory application of the Georgia death penalty without holding an evidentiary hearing on the merits of that claim.

Apparently Stephens concedes that the equal protection issue is being raised for the first time, but he alleges that a 1980 study by a Dr. David Baldus supports the claim that Georgia's death penalty statute is discriminatorily administered against black citizens. As his excuse for not having raised this issue in his first habeas petition, Stephens states that the study was not made available to the public until 1982.

Stephens' argument sidesteps the crucial issue. The State having alleged that he had abused the writ, the burden rests on Stephens to explain why he did not raise the constitutionality of the application of the death penalty statute in his earlier petition. See Stephens v. Zant, 631 F. 2d 397 (CA5 1980), modified on rehearing, 648 F. 2d 446 (1981). He did not satisfy this burden in the District Court, in the Court of Appeals, or here. Although it is possible that Stephens did not know about the Baldus study even though it was published in 1982, this does not explain his

The Baldus study, relied upon by Stephens, has not been presented to us. It was made in 1980 and apparently has been available at least since 1982. Although characterized by the judges of the Court of Appeals who dissented from the denial of hearing en banc as a "particularized statistical study" claimed to show "intentional race discrimination," no one has suggested that the study focused on this case. A "particularized" showing would require-as I understand it-that there was intentional race discrimination in indicting, trying, and convicting Stephens, and presumably in the state appellate and