1057 MARSHALL, J., dissenting Court, the Court of Appeals held that Young had been denied effective assistance at the guilt-or-innocence phase of the trial. The Court of Appeals said nothing, however, to disturb the District Court's holding that the jury's finding of aggravating circumstances was not reasonably supported by the evidence presented at trial. Indeed, the opinion notes the District Court's conclusion with apparent approval because it cites counsel's obliviousness to the clear insufficiency of the evidence as yet another example of counsel's incompetence. 677 F. 2d, at 799, and n. 12. The Georgia Supreme Court has committed a glaring error by ignoring the Court of Appeals' express limitation of its ruling to the question whether petitioner had been denied effective assistance of counsel at the guilt-or-innocence phase of his trial. The opinion clearly states that "[t]he district court's denial of the writ of habeas corpus with respect to the guilt phase of Charlie Young's trial is therefore REVERSED" (emphasis added). Id., at 800. In light of the Court of Appeals' explicit statement that it reversed only with respect to the guilt phase of petitioner's trial, it is inexplicable how the Supreme Court of Georgia could conclude that the effect of the Court of Appeals' holding was "to nullify the entire opinion of the district court." 251 Ga., at 155, 303 S. E. 2d, at 433. Given appropriate recognition, the District Court's undisturbed ruling that the jury's finding of aggravating circumstances was not rationally supported by the evidence solidly supports the petitioner's claim that the State should be prevented by the Double Jeopardy Clause from seeking to reimpose a death sentence upon him. This conclusion is dictated by this Court's decisions in Bullington v. Missouri, 451 U. S. 430 (1981), and Burks v. United States, 437 U. S. 1 (1978). In Bullington, this Court held that the Double Jeopardy Clause was applicable to the sentencing proceeding in a capital case in Missouri because, under the relevant state law, the sentencing proceeding "was itself a trial on the issue of punishment." 451 U. S., at 438. Describing the trial-like features of the sentencing procedure, the Court observed: "The jury [in the sentencing phase of the trial] was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was MARSHALL, J., dissenting 464 U. S. presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts." Ibid. These features also characterize the sentencing proceeding under which the petitioner was initially sentenced to death. In Georgia, as in Missouri, an accused may be sentenced to death only after a separate sentencing hearing, governed by the beyond-a-reasonabledoubt standard. Indeed, the Georgia Supreme Court has itself noted that the Missouri death penalty statute "is essentially identical to the Georgia statute." Godfrey v. State, 248 Ga. 616, 617, 284 S. E. 2d 422, 425 (1981), cert. denied, 456 U. S. 919 (1982). Young, then, like the accused in Bullington, supra, was sentenced in a proceeding that was itself a trial on the issue of punishment and thus a proceeding subject to the Double Jeopardy Clause. In Burks, supra, the Court held that an accused may not be subjected to a second trial when conviction in the initial trial is reversed based on insufficiency of evidence. Because the sentencing hearing under Georgia's capital punishment scheme is the equivalent of a trial, at least for the purposes of determining the applicability of the Double Jeopardy Clause, the District Court's holding that the jury's finding of aggravating circumstances is not rationally supported by the evidence should preclude the State from again seeking the death penalty on the basis of those aggravating circumstances. Moreover, the State should be precluded from seeking the death penalty in this case even though it has alleged a third aggravating circumstance in addition to the two it alleged in the first trial. Having been given one fair chance to prove beyond a reasonable doubt the existence of aggravating circumstances sufficient to justify the execution of Charles Young, Jr., the State should not be allowed a second chance to have him condemned to death. We stated in Burks, supra, that "[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." 437 U. S., at 11. Tacking on an additional allegation of an aggravating circumstance is merely a transparent attempt by the State to create a second opportunity to supply evidence which it failed to muster in the first sentencing hearing. Furthermore, in Bullington, supra, the Court specifically noted that its decision to prevent a State from seeking the death penalty in a retrial where, in the previous trial, a jury had declined to impose a death sentence did "not at all depend upon the State's announced intention to rely only upon the same aggravating circumstances it sought to prove at [the] first trial or upon its statement that it would introduce no new evidence in support of its contention that [the accused] deserves the death penalty." 451 U. S., at 446. This Court has indicated in a wide variety of contexts that in matters involving capital punishment, a heightened degree of judicial scrutiny is warranted, given the special nature of the interest at stake: the very life of the accused. Here, however, the Court is willing to allow the State of Georgia to seek anew to impose the death penalty upon Charlie Young, Jr., even though it is almost certainly the case that absent the Georgia Supreme Court's egregious misreading of the United States Court of Appeals' decision in Young v. Zant, supra, the State would be barred from again seeking the death penalty. I therefore dissent from the Court's denial of a writ of certiorari. No. 83-5659. CHILDRESS v. UNITED STATES. C. A. 8th Cir. Certiorari denied. JUSTICE BRENNAN and JUSTICE MARSHALL would grant certiorari. Reported below: 715 F. 2d 1313. No. 83-5670. LEVASSEUR v. VIRGINIA. Sup. Ct. Va.; No. 83-5695. DOBARD v. ALABAMA. Sup. Ct. Ala.; No. 83-5701. ADAMS v. WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS. C. A. 11th Cir.; and No. 83-5705. COE v. TENNESSEE. Sup. Ct. Tenn. Certiorari denied. Reported below: No. 83-5670, 225 Va. 564, 304 S. E. 2d 644; No. 83-5695, 435 So. 2d 1351; No. 83-5701, 709 F. 2d 1443; No. 83-5705, 655 S. W. 2d 903. 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 sentences in these cases. January 9, 1984 464 U. S. Rehearing Denied No. 82-1868. ARNOLD TRANSIT CO., INC., ET AL. v. CITY OF MACKINAC ISLAND, ante, p. 804; No. 82-1971. SCHAEFER V. NATIONAL LABOR, RELATIONS BOARD, ante, p. 945; No. 82-2057. LESIAK v. FERGUSON, AUDITOR OF THE STATE OF OHIO, ante, p. 826; No. 82-6744. PRASAD v. WASSAIC DEVELOPMENTAL CENTER ET AL., ante, p. 834; No. 82-6768. FINNEY V. MICHIGAN DEPARTMENT OF SOCIAL SERVICES, ante, p. 923; No. 82-6922. DE LA ROSA v. TEXAS, ante, p. 865; No. 82-6997. HINES v. UNITED STATES, ante, p. 972; No. 83-180. SOUTHERN PACIFIC TRANSPORTATION Co. v. SECRETARY OF THE INTERIOR ET AL., ante, p. 960; No. 83-279. PIUS XII ACADEMY, INC. v. COMMISSIONER OF INTERNAL REVENUE, ante, p. 982; No. 83-296. LEBOVITZ v. UNITED STATES, ante, p. 992; No. 83-314. OSTRIC v. CORPORATION OF ST. MARY'S COLLEGE, NOTRE DAME, ET AL., ante, p. 936; No. 83-428. BARWICK v. SOUTH CAROLINA, ante, p. 938; No. 83-5064. EWING ET AL. v. UNITED STATES, ante, p. 997; WHAM v. UNITED STATES POSTAL SERVICE, No. 83-5200. ante, p. 860; No. 83-5274. FITZPATRICK v. SMITH, SUPERINTENDENT, AT TICA CORRECTIONAL FACILITY, ante, p. 963; No. 83-5291. NOE v. TEXAS, ante, p. 997; No. 83-5334. ATTWELL v. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, ante, p. 941; No. 83-5339. DICK v. KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER, ante, p. 986; No. 83-5354. AMADEO v. KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER, ante, p. 956; No. 83-5389. MINCEY v. GEORGIA, ante, p. 977; No. 83-5406. BUNCH v. VIRGINIA, ante, p. 977; No. 83-5430. LAMORE v. INLAND DIVISION OF GENERAL MOTORS CORP. ET AL., ante, p. 963; No. 83-5491. BROWN v. DOUGLAS, JUDGE, ante, p. 985; and No. 83-5644. ANTONE v. STRICKLAND, SUPERINTENDENT, FLORIDA STATE PRISON, ET AL., ante, p. 1003. Petitions for rehearing denied. 464 U. S. January 11, 12, 16, 1984 JANUARY 11, 1984 Certiorari Granted. (See No. 81-2159, ante, at 248.) Certiorari Denied No. 83-6017 (A-533). HUTCHINS v. GARRISON, WARDEN, ET AL. C. A. 4th Cir. Application for stay of execution of sentence of death, presented to THE CHIEF JUSTICE, and by him referred to the Court, denied. Certiorari denied. Certiorari denied. Reported below: 724 F.2d 1425. 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 the application for stay of execution, grant certiorari, and vacate the death sentence in this case. JANUARY 12, 1984 Dismissal Under Rule 53 No. A-457. RAJNEESH ET AL. v. MCGREER. D. C. Ore. Application for stay dismissed under this Court's Rule 53. Appeal Dismissed JANUARY 16, 1984 No. 82-1899. TRANS WORLD AIRLINES, INC. v. NEW YORK STATE HUMAN RIGHTS APPEAL BOARD ET AL. Appeal from Ct. App. N. Y. dismissed for want of substantial federal question. Reported below: 58 N. Y. 2d 778, 445 N. E. 2d 220. Miscellaneous Orders No. A-470. CLARK, SECRETARY OF THE INTERIOR, ET AL. v. CALIFORNIA ET AL.; and No. A-471. WESTERN OIL & GAS ASSN. ET AL. v. CALIFORNIA ET AL. D. C. C. D. Cal. Motion to vacate the stay heretofore entered by JUSTICE REHNQUIST on December 20, 1983 [post, p. 1304], denied. No. A-491. CONSUMER VALUE STORES v. BOARD OF PHARMACY OF NEW JERSEY. Super. Ct. N. J., App. Div. Application for stay, addressed to JUSTICE BLACKMUN and referred to the Court, denied. |