An application to vacate the Court of Appeals' stay of
respondent's execution is denied. The papers presented do not show
that the Court of Appeals abused its discretion in granting a stay
pending a hearing on the merits in respondent's habeas corpus
proceedings.
JUSTICE POWELL, Circuit Justice.
Respondent Smith, a convicted murderer, is scheduled to be
executed by the State of Georgia at 8 a.m. tomorrow, Thursday,
August 25.
At about 4:25 p.m. on August 23, the Court of Appeals for the
Eleventh Circuit -- reversing the District Court -- granted a stay
of execution. Its brief opinion stated that substantial issues were
raised in this habeas corpus proceeding that justified review of
their merits. Judge Hill dissented. At about 10 a.m. today, the
Attorney General of Georgia filed an application with me as Circuit
Justice requesting that I dissolve and vacate this stay. A response
to this application was received this afternoon in my chambers at
about 3 o'clock.
This is the fourth time that this capital case has required
action by this Court: once on direct appeal, once on state habeas
corpus, once on federal habeas corpus, and now in Smith's second
federal habeas proceeding. Apart from rehearings, this case has
been reviewed 16 times by state and federal courts since Smith's
conviction in 1975. In these circumstances, and for the reasons
stated by Judge Hill in his dissenting opinion below, it is not
clear to me that the Court of Appeals is correct in thinking that
substantial issues may remain for further consideration.
But in the present posture of the case, the question before me
as Circuit Justice is whether the Court of Appeals has
Page 462 U. S. 1322
abused its discretion in granting a temporary stay pending a
hearing on the merits. I am not able so to conclude. It is apparent
from the papers presented that the Court of Appeals heard arguments
at some length yesterday afternoon. Moreover, and quite properly,
that court has provided for an expeditious hearing on the
merits.
Accordingly, the application to vacate the stay ordered by the
Court of Appeals is denied.
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