On application to vacate stay.
The application of the Attorney General of Florida for an order
to vacate the stay of execution of sentence of death entered by the
United States District Court for the Northern District of Florida
presented to Justice KENNEDY and by him referred to the Court is
denied.
Justice O'CONNOR, with whom THE CHIEF JUSTICE joins,
dissenting.
Larry Joe Johnson was scheduled to be executed on March 9, 1988.
The State informs us that it was served with a petition for a writ
of habeas corpus at about 5:45 p.m. on March 7, 1988. That petition
raised an issue, under Caldwell v. Mississippi,
472 U.S. 320 (1985), in
which Johnson claims that the sentencing jury was improperly
informed that its role in the sentencing decision was merely
advisory. Noting that issues similar or identical to Johnson's
Caldwell claim are pending before the United States Court of
Appeals for the Eleventh Circuit and before this Court, the United
States District Court for the Northern District of Florida granted
an indefinite stay of execution. The United States Court of Appeals
for the Eleventh Circuit denied the State's mo-
Page 485 U.S.
945 , 946
tion to vacate the stay. The State then applied to the Circuit
Justice for the Eleventh Circuit for a vacation of the stay, and
the application was referred to the full Court. Johnson did not
file any response, and this Court has voted to deny the
application. I respectfully dissent.
The State argues that Johnson has abused the writ of habeas
corpus by raising his Caldwell claim at this time. The State avers
that Johnson had raised the same claim, along with others, in a
previous petition for federal habeas, which was filed before this
Court's decision in Caldwell. The claim was rejected on procedural
grounds at that time, and it was not among the issues on which
Johnson appealed to the Eleventh Circuit. Our decision in Caldwell
was announced while the appeal was pending in the Eleventh Circuit,
and Johnson apparently did not bring it to the attention of that
court. Concluding that the claim was abandoned, the State now urges
that Johnson's effort to renew the claim at this time constitutes
an abuse of the writ.
In my view, the State is clearly correct to argue that the writ
of habeas corpus is abused when a claim is raised in one petition,
abandoned on appeal, and then raised again in a successive
petition. If Johnson's Caldwell claim falls into this category,
then the District Court would seem to have abused its discretion by
granting an indefinite stay of execution on the ground that
Caldwell issues are present in other cases pending before the
Eleventh Circuit and before this Court.
Without ruling out the possibility that extraordinary
circumstances might justify a stay of execution in this case, I
note that no such circumstances have been called to our attention.
The District Court did not address the argument that the State has
made to this Court. The State explains this in the following way.
In an effort to facilitate the District Court's consideration of
any habeas petition that Johnson might file, it lodged an
anticipatory response with that court. That response did not
address Johnson's Caldwell claim because the State considered that
claim abandoned. After Johnson filed his petition on March 7, the
State prepared a supplemental response, which it expected to offer
to the court at a hearing that was scheduled for the next morning
at 10 o'clock. Counsel for the State arrived at 9:30, but "was
informed that the hearing was cancelled and that the [District]
Court had entered a stay without allowing the State to be heard."
The State's attorney filed its written supplemental response
with
Page 485 U.S.
945 , 947
the Clerk of the District Court, and subsequently filed a motion
to vacate the stay with the Eleventh Circuit.
Arguing before the Eleventh Circuit, Johnson gave two reasons
for concluding that the District Court had considered and rejected
the State's abuse-of-the-writ argument. First, Johnson had
anticipated and answered the argument in his petition. Second, the
stay of execution was not actually entered until 10:31 a.m. on
March 8, by which time the District Court would have had an
opportunity to review the State's supplemental response to the
petition. Johnson also argued to the Eleventh Circuit that entry of
the stay of execution was not an abuse of discretion because he did
not "consciously" abandon the Caldwell claim he raised on his first
petition for federal habeas. Rather, he suggested, in failing to
appeal the rejection of that claim his attorneys merely "conceded
defeat on the merits."
On March 11, 1988, the Eleventh Circuit denied the State's
motion to vacate the stay of execution. No reasons were given, and
the only allusion to the State's arguments was the following
sentence: "Such denial is without prejudice to [the State's] right
to present in district court its argument that petitioner's
Caldwell claim is barred because of failure to exhaust, procedural
default or otherwise."
The standard under which we consider motions to vacate stays of
execution is deferential, and properly so. Only when the lower
courts have clearly abused their discretion in granting a stay
should we take the extraordinary step of overturning such a
decision. In the present case, however, there is no evident legal
basis whatsoever for a stay. The State has presented an apparently
meritorious argument that Johnson's attempt to raise a Caldwell
claim at this time is an abuse of the writ, and Johnson's
suggestion that his previous abandonment of the claim was a
"concession of defeat on the merits," rather than a "conscious
abandonment" seems altogether specious. If the District Court
refused to consider the State's apparently meritorious argument,
that was certainly an abuse of discretion. If the District Court
considered the argument but deemed it too insubstantial to require
any comment, that too must be considered an abuse of discretion
unless and until we are informed of reasons that would justify the
implicit rejection of the State's position. The Eleventh Circuit
articulated no such reasons, and in fact appeared to indicate that
it knew of none.
Page 485 U.S.
945 , 948
The Eleventh Circuit seems to have thought that the proper
course was to leave the stay in effect, but to indicate that the
State was free to return to the District Court and repeat the
argument it had sought to present earlier. I disagree. When a stay
of execution has been granted without an apparent legal basis, and
the court of appeals cannot articulate a reason for leaving the
stay in effect, the proper course is to vacate the stay. Because
neither the District Court nor the Court of Appeals has articulated
an adequate legal basis for entering a stay in this case, I would
grant the State's application to vacate. Johnson would, of course,
remain free to return to the District Court and seek a stay based
on adequate legal grounds, if there are any.
A majority of this Court has previously expressed its
disapproval of the litigation tactics that seem to have been
employed in this case:
"This is another capital case in which a last-minute application
for a stay of execution and a new petition for habeas corpus relief
have been filed with no explanation as to why the claims were not
raised earlier or why they were not all raised in one petition. It
is another example of abuse of the writ." Woodard v. Hutchins,
464 U.S. 377,
377-378, 752 ( 1984) (Powell, J., joined by Burger, C.J., and
Blackmun, Rehnquist, and O'Connor, JJ., concurring).
While the details of this case are somewhat different, we are
faced once again with a last-minute effort to obtain a stay of
execution on the basis of a claim that appears to be procedurally
barred. Allowing this stay to remain in effect creates incentives
that will almost surely lead to similar problems in the future:
"If this Court defers only to grants of stays, while giving
searching review to every denial of a stay, the lower federal
courts may in time come to issue stays routinely. In that event,
Barefoot v. Estelle's statement that stays of execution are not
automatic in capital cases, 463 U.S.
Page 485 U.S.
945 , 880
, at 895 [, at 3396, 77 L. Ed. 2d 1090 (1983) ], would
effectively be overruled." Wainwright v. Booker,
473 U.S. 935, 936, n. 3
(1985) ( Powell, J., concurring).
Accordingly, I respectfully dissent from the Court's denial of
the State's application in this case.
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