Application to stay, pending the filing of a petition for
certiorari, California Superior Court's retrial of applicant for
murder is denied. The application contains nothing to contradict
the Superior Court's finding that the prosecutor's error that
resulted in a mistrial at the first trial was not calculated to
force applicant to move for a mistrial, and, accordingly, it is
unlikely that this Court would grant certiorari to review
applicant's double jeopardy claim.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicant's motion to stay the proceedings in the Superior Court
of Santa Clara County, Cal., is denied.
In July, 1977, applicant filed a similar motion for stay pending
review in this Court of his claim that the Double Jeopardy Clause
of the United States Constitution prohibits the State of California
from retrying him for murder. In denying the stay, I noted the
California Superior Court's finding that the error resulting in the
court's mistrial declaration was not intentionally committed by the
prosecution for the purpose of provoking applicant's mistrial
request.
Divans v. California, 434 U.
S. 1303 (1977) (in chambers). During January of last
Term, both MR. JUSTICE BRENNAN and I denied applicant's second stay
application, in which he alleged that additional facts had come to
light which proved that the prosecutor had acted in bad faith at
the first trial.
In the instant motion, applicant contends that he has acquired
still more information demonstrating the prosecutor's bad faith.
Applicant presents, however, only his own assertions to this
effect, and none of the moving papers before me contain any
findings which contradict the Superior Court's finding, referred to
in my earlier in-chambers opinion, that
Page 439 U. S. 1368
the prosecutor's error was not calculated to force applicant to
move for a mistrial. On the contrary, repeated summary rejections
of applicant's claim in the California state courts indicate that
the Superior Court's original finding stands undisturbed.
Accordingly, I remain convinced that this Court would not grant
certiorari to review applicant's double jeopardy claim.
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