1027 POWELL, J., dissenting failure to raise his equal protection claim at all. The availability of such a claim is illustrated by the procedural history in Spencer v. Zant, supra. In Spencer, the defendant raised this constitutional challenge to the application of the Georgia death penalty statute in 1978 in his state habeas proceeding and pursued that claim in his first federal habeas petition. Id., at 1579. See also Ross v. Hopper, 538 F. Supp. 105, 107 (SD Ga. 1982), rev'd and remanded, 716 F. 2d 1528 (CA11 1983). Stephens simply failed to explain his failure to raise his claim in his first federal habeas petition, and therefore his case comes squarely within Rule 9(b). In addition, Stephens made no factual showing to the District Court that the statistics contained in the Baldus study supported his allegation of particularized discrimination in the imposition of the death penalty in Georgia. This Court has now stayed Stephens' execution until the Court of Appeals has decided Spencer. In my view, for the reasons noted below, I am satisified that the Court will conclude that Spencer-however it may come out-will not control this case.3 It should be apparent from the decisions of this Court since Gregg v. Georgia, 428 U. S. 153 (1976), was decided that claims based merely on general statistics are likely to have little or no merit under statutes such as that in Georgia. That Stephens is innocent of the brutal, execution-style murder, after kidnaping and robbing his victim, is not seriously argued. state collateral review that several times followed the trial. If the Baldus study is similar to the several studies filed with us in Sullivan v. Wainwright, ante, p. 109, the statistics in studies of this kind, many of which date as far back as 1948, are merely general statistical surveys that are hardly particularized with respect to any alleged "intentional” racial discrimination. Surely, no contention can be made that the entire Georgia judicial system, at all levels, operates to discriminate in all cases. Arguments to this effect may have been directed to the type of statutes addressed in Furman v. Georgia, 408 U. S. 238 (1972). As our subsequent cases make clear, such arguments cannot be taken seriously under statutes approved in Gregg v. Georgia, 428 U. S. 153 (1976). 3 With all respect, I disagree with the judges on the Court of Appeals who say that this case presents the "identical issue" to be considered in Spencer. That case is readily distinguishable. As noted above, the discriminatory application of capital punishment-the equal protection issue was raised in the first habeas petition in Spencer, and has been pressed at all subsequent stages. In this case, it was not raised until last month. In a fundamental sense, therefore, there could have been no abuse of writ issue in Spencer. There are other distinguishing factors, but these need not be stated here. This is a contest over the application of capital punishment-a punishment repeatedly declared to be constitutional by this Court. In the nearly nine years of repetitive litigation by state and federal courts there has been no suggestion that the death sentence would not be appropriate in this case. Indeed, if on the facts here it was not appropriate, it is not easy to think of a case in which it would be so viewed. Once again, as I indicated at the outset, a typically "last minute" flurry of activity is resulting in additional delay of the imposition of a sentence imposed almost a decade ago. This sort of procedure undermines public confidence in the courts and in the laws we are required to follow. In conclusion, I reiterate what the Court said in the concluding paragraph in our recent per curiam in Sullivan v. Wainwright, ante, at 112: We recognize, of course, as do state and other federal courts, that the death sentence is qualitatively different from all other sentences, and therefore special care is exercised in judicial review. In this case, it is perfectly clear to me that this care has been exercised in abundance. Accordingly, I would deny the application for a stay. DECEMBER 14, 1983 Dismissal Under Rule 53 No. 83-836. GLASSEY v. UNITED STATES. Certiorari dismissed under this Court's Rule 53. 715 F. 2d 352. Rehearing Denied C. A. 7th Cir. Reported below: No. 83-5544 (A-461). SMITH V. KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC DIAGNOSTIC AND CLASSIFICATION CENTER, ante, p. 1003. Petition for rehearing denied. Application for stay of execution of sentence of death pending disposition of a petition for rehearing, presented to JUSTICE POWELL, and by him referred to the Court, denied. 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 the petition for rehearing, and vacate the death sentence in this case. 464 U. S. December 14, 1983, January 4, 6, 9, 1984 JUSTICE STEVENS, dissenting. In my opinion all executions in Georgia should be postponed until the United States Court of Appeals for the Eleventh Circuit renders its en banc decision in Spencer v. Zant, 715 F. 2d 1562 (1983). See Sanders v. United States, 373 U. S. 1, 15-17 (1963). The "ends of justice would not be served" by the execution of this petitioner while the Court of Appeals is deciding the merits of the claim he asserts. I therefore would grant the stay application. JANUARY 4, 1984 Dismissal Under Rule 53 No. 83-704. FRANKLIN COMPUTER CORP. v. APPLE COMPUTER, INC. C. A. 3d Cir. Certiorari dismissed under this Reported below: 714 F. 2d 1240. Court's Rule 53. No. 82-2042. JANUARY 6, 1984 WESTINGHOUSE ELECTRIC CORP. v. VAUGHN ET AL. C. A. 8th Cir. [Certiorari granted, ante, p. 913.] Writ of certiorari dismissed as to respondent Marion Gee under this Court's Rule 53. JANUARY 9, 1984 Appeals Dismissed No. 83-524. WYNMOOR LIMITED PARTNERSHIP ET AL. v. CoCONUT CREEK CABLE T.V., INC., ET AL. Appeal from Dist. Ct. App. Fla., 4th Dist., dismissed for want of substantial federal question. Reported below: 434 So. 2d 903. No. 83-694. GONZALEZ v. COMMISSION ON JUDICIAL PERFORMANCE OF CALIFORNIA (CALIFORNIA ET AL., REAL PARTIES IN INTEREST). Appeal from Sup. Ct. Cal. dismissed for want of substantial federal question. Reported below: 33 Cal. 3d 359, 657 P. 2d 372. No. 83-715. RIO VISTA NON-PROFIT HOUSING CORP. v. COUNTY OF RAMSEY. Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question. Reported below: 335 N. W. 2d 242. No. 83-5517. BLATCHFORD V. WINANS, WARDEN. 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. Reported below: 100 N. M. 333, 670 P. 2d 944. Miscellaneous Orders No. DAVIS v. UNITED STATES ET AL. Motion to direct the Clerk to file the petition for writ of certiorari that does not comply with the Rules of this Court denied. No. A-377. MEADOWS v. REDMAN. Application for bail, addressed to THE CHIEF JUSTICE and referred to the Court, denied. No. A-485. SCIOTO TRAILS CO. ET AL. v. OHIO DEPARTMENT OF LIQUOR CONTROL ET AL. Ct. App. Ohio, Franklin County. Application for continuation of stay, addressed to JUSTICE STEVENS and referred to the Court, denied. No. A-486. WEBB v. HUTTO. C. A. 4th Cir. Application for stay, addressed to JUSTICE MARSHALL and referred to the Court, denied. No. A-490 (83-5958). KEEFE, AS GUARDIAN AD LITEM AND NEXT FRIEND OF THREE JUVENILES v. MASSACHUSETTS. Sup. Jud. Ct. Mass. Application for stay, addressed to JUSTICE BLACKMUN and referred to the Court, denied. No. D-369. IN RE DISBARMENT OF CANTAGALLO. Phillip John Cantagallo, of Ashtabula, Ohio, having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on October 17, 1983 [ante, p. 911], is hereby discharged. No. 96, Orig. PUERTO RICO v. IOWA. Motion for leave to file bill of complaint denied. No. 82-963. MASSACHUSETTS v. SHEPPARD. Sup. Jud. Ct. Mass. [Certiorari granted, 463 U. S. 1205.] Motion of respondent to strike the brief of Illinois State Bar Association as amicus curiae denied. No. 82-1608. SOUTH-CENTRAL TIMBER DEVELOPMENT, INC. v. LERESCHE, COMMISSIONER, DEPARTMENT OF NATURAL RESOURCES OF ALASKA, ET AL. C. A. 9th Cir. [Certiorari 464 U. S. granted, ante, p. 890.] et al. for leave to file a January 9, 1984 Motion of Pacific Rim Trade Association brief as amici curiae granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. Ct. App. No. 82-1724. NEW YORK v. UPLINGER ET AL. N. Y. [Certiorari granted, ante, p. 812.] Motions for leave to file briefs as amici curiae by the following were granted: American Psychological Association et al., Center for Constitutional Rights et al., American Civil Liberties Union et al., Committees on Sex and Law et al. of the Association of the Bar of the City of New York, American Association for Personal Privacy et al., Lambda Legal Defense & Education Fund, Inc., and National Association of Business Councils et al. No. 82-1734. PALMORE v. SIDOTI. Dist. Ct. App. Fla., 2d Dist. [Certiorari granted, ante, p. 913.] Motion of Leigh Earls et al. for leave to file a brief as amici curiae granted. No. 82-1913. GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY ET AL.; and No. 82-1951. DONOVAN, SECRETARY OF LABOR v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY ET AL. Tex. [Probable jurisdiction noted, ante, p. 812.] pellees for divided argument denied. D. C. W. D. Motion of ap No. 83-128. UNITED STATES v. GOUVEIA ET AL. C. A. 9th Cir. [Certiorari granted, ante, p. 913.] Motion for appointment of counsel granted, and it is ordered that Joseph F. Walsh, Esquire, of Los Angeles, Cal., be appointed to serve as counsel for respondent Robert Ramirez in this case. Motion for appointment of counsel granted, and it is ordered that Joel Levine, Esquire, of Los Angeles, Cal., be appointed to serve as counsel for respondent Philip Segura in this case. Motion of respondent William Gouveia for leave to proceed in forma pauperis granted. Motion for appointment of counsel granted, and it is ordered that Michael J. Treman, Esquire, of Santa Barbara, Cal., be appointed to serve as counsel for respondent William Gouveia in this case. Motion for appointment of counsel granted, and it is ordered that Charles P. Diamond, Esquire, of Los Angeles, Cal., be appointed to serve as counsel for respondents Robert E. Mills and Richard Raymond Pierce in this case. Motion of respondents Robert |