Applications to stay the executions of the four applicants, each
convicted in a Missouri state court of capital murder, are granted,
where the Missouri Supreme Court, after affirming each conviction
and sentence on direct appeal, set the execution in each case on a
date within the period for petitioning this Court for a writ of
certiorari for direct review of the conviction and sentence.
JUSTICE BLACKMUN, Circuit Justice.
I have before me applications to stay the executions of Samuel
Lee McDonald, Leonard Marvin Laws, Thomas Henry Battle, and George
Clifton Gilmore, each convicted in a Missouri state court of
capital murder and each sentenced to die on January 6, 1984. Their
respective convictions and sentences have been affirmed by the
Supreme Court of Missouri on direct appeal,
State v.
McDonald, 661 S.W.2d
497 (1983);
State v. Laws, 661 S.W.2d
526 (1983);
State v. Battle, 661 S.W.2d
487 (1983);
State v. Gilmore, 650 S.W.2d
627 (1983), but review here on such federal grounds as the
respective applicants may possess has not yet been had. The
execution date in each case has been fixed by the Missouri Supreme
Court.
See Mo.Rule Crim. Proc. 29.08(d).
In
Williams v. Missouri, 463 U.
S. 1301 (1983), I granted a stay of execution pending
timely filing and disposition of a petition for certiorari on
direct review. That case procedurally was similar to these, and the
Supreme Court of Missouri there, also, had denied a stay of its
mandate. In a short accompanying opinion, I pointed out that, if a
federal question is involved, the process of direct review
"
includes the right
Page 464 U. S.
1307
to petition this Court for a writ of certiorari,'"
ibid., quoting Barefoot v. Estelle, 463 U.
S. 880, 463 U. S. 887
(1983). I specifically stated:
"[I]f a State schedules an execution to take place before filing
and disposition of a petition for certiorari, I must stay that
execution pending completion of direct review, as a matter of
course."
463 U.S. at
463 U. S.
1302. Every defendant in a state court of this Nation
who has a right of direct review from a sentence of death, no
matter how heinous his offense may appear to be, is entitled to
have that review before paying the ultimate penalty. The right of
review otherwise is rendered utterly meaningless. It makes no sense
to have the execution set on a date within the time specified for
that review,
see 28 U.S.C. §§ 1257 and 2101; this Court's
Rule 20.1, and before the review is completed. I thought I had
advised the Supreme Court of Missouri once before, in
Williams, that, as Circuit Justice of the Circuit in which
the State of Missouri is located, I, upon proper application, shall
stay the execution of any Missouri applicant whose direct review of
his conviction and death sentence is being sought and has not been
completed. I repeat the admonition to the Supreme Court of
Missouri, and to any official within the State's chain of
responsibility, that I shall continue that practice. The stay, of
course, ought to be granted by the state tribunal in the first
instance, but, if it fails to fulfill its responsibility, I shall
fulfill mine.
Accordingly, in each of the four cases, I grant the application
to stay the execution now scheduled for January 6, 1984. Orders are
being entered accordingly.
* Together with No. A-526,
Laws v. Missouri; No. A-527,
Battle v. Missouri; and No. A-531,
Gilmore v.
Missouri, also on applications for stays of executions.
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