Application for suspension of this Court's order denying
certiorari on applicant's petition attacking constitutionality of
Arizona death penalty statute, or for a stay of execution of such
penalty against applicant, pending action on his petition for
rehearing, is denied where it is unlikely that the petition for
rehearing will be granted.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicant Willie Lee Richmond requests either a suspension of
our order denying certiorari, 433 U.S. 915 (1977), or a stay of
execution pending action on his petition for rehearing. The Supreme
Court of Arizona has fixed September 14, 1977, as the date of
execution of applicant, and has denied his application for a stay.
Because the petition for rehearing seems to me to demonstrate
nothing that would indicate any reasonable likelihood of this
Court's reversing its previous decision and granting certiorari, I
have decided to deny the application.
On appeal of his conviction and death sentence to the Arizona
Supreme Court, applicant argued that the Arizona capital punishment
statute, Ariz.Rev.Stat.Ann. § 13-454 (Supp. 1973), was
unconstitutionally ambiguous in not specifically limiting
mitigating circumstances to the four factors enumerated in
13-454(F). After the Arizona Supreme Court ruled that only the
enumerated factors could be taken into account, 114 Ariz. 186,
560 P.2d 41
(1976), applicant moved for a rehearing on the ground that the
statute as so limited failed to allow consideration of the
character of the defendant in determining whether the death penalty
should be imposed. While the statute includes in its list of
mitigating
Page 434 U. S. 1324
circumstances significant impairment of a defendant's capacity
to tell right from wrong or to conform to the law, it fails to take
into account other factors such as age, lack of prior criminal
history, and intellectual level. Rehearing was denied.
Applicant renewed his constitutional attack against the Arizona
death penalty statute in his petition for certiorari before this
Court, again on the ground that it failed to allow consideration of
the character and record of the individual offender. While
specifically noting that the statute does not allow consideration
of the defendant's age or prior criminal history, the applicant did
not suggest that such factors were relevant in his case. Certiorari
was denied by this Court on June 27, 1977, with JUSTICES BRENNAN
and MARSHALL dissenting.
Applicant in his petition for rehearing here continues his
attack on Arizona's failure to adopt a more expansive list of
mitigating circumstances. Applicant argues that our grant of
certiorari in
Bell v. Ohio, 433 U.S. 907 (1977), is an
intervening circumstance that demands, as a matter of "justice and
judicial economy," that we also grant certiorari in his case.
Certiorari was granted in
Bell v. Ohio, however, on the
same day in which we denied certiorari in this case. Applicant's
assertion attributes a degree of irrationality to the Court in
simultaneously granting Bell's petition and denying his in which I
cannot join. In my opinion, the cases are quite different. The Ohio
and Arizona death penalty statutes are similar in that their lists
of mitigating circumstances do not include such factors as age and
lack of prior criminal convictions, which are included in the
Florida statute approved in
Proffitt v. Florida,
428 U. S. 242
(1976). Applicant, unlike Bell, however, does not allege that he
would be aided by an expansion of the statutory list of mitigating
circumstances. The petition in
Bell pointed out that the
defendant was 16 at the time of the penalty trial, had a low IQ,
was considered
Page 434 U. S. 1325
emotionally immature and abnormal, had cooperated with the
police, and had no significant history of prior criminal activity.
What evidence is alluded to in the applicant's papers does not
suggest that any of the factors that applicant contends must be
considered in imposing capital punishment would be relevant to his
case. There is no indication in any of the applicant's papers as to
his age at either the time of the offense or trial. It is doubtful,
particularly after our grant of certiorari in
Bell, that
applicant would have failed to include this fact in his petition
for rehearing if he had been a minor at these times. The record
also indicates that applicant had previously been convicted of
kidnaping a victim at knifepoint. The only mitigating ground
apparently suggested by applicant before the Arizona courts was
psychological testimony characterizing applicant as a
sociopath.
Applicant raises a second argument in his petition for rehearing
that was not raised either before the Arizona Supreme Court or in
his earlier petition for certiorari. Applicant argues that the
Arizona statute violates the Sixth, Eighth, and Fourteenth
Amendments in failing to provide for jury input into the
determination of whether aggravating and mitigating circumstances
do or do not exist. Such jury input would not appear to be required
under this Court's decision in
Proffitt.
In summary, I conclude that there is no reasonable likelihood
that applicant's petition for rehearing would be granted by the
full Court. I am fortified in this view by consultation with my
colleagues. Applicant's argument as to mitigating factors was
before us in his initial petition for certiorari. He does not
suggest any new reason why our initial decision to deny certiorari
was wrong. Applicant's jury contention appears to have been
rejected in
Proffitt. A motion for rehearing of an order
denying certiorari does not automatically suspend the order during
the Term, unlike a petition for rehearing after full consideration
of the case on the merits. The petitioner must apply to an
individual Justice for a suspension
Page 434 U. S. 1326
of the order denying certiorari.
Cf. this Court's Rules
25(2) and 59(2). The question under such circumstances must be
whether there is any reasonable likelihood of the Court's changing
its position and granting certiorari. As elaborated above, there
does not seem to me to be any such likelihood here. The application
for a suspension of our order denying certiorari or, in the
alternative, a stay of execution is therefore denied.
Comments
Be the first to comment
Leave a Comment