The application for stay of execution of the sentence of death
presented to THE CHIEF JUSTICE and by him referred to the Court is
denied.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting
from denial of application for stay of execution.
I
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 227, 2950, 49 L. Ed. 2d 859 (1976) (BRENNAN, J.,
dissenting), I would grant the stay application and the petition
for certiorari and would vacate the sentence in this case.
II
But even if I did not hold this view, I would grant the stay of
execution in this case and vote to hold the petition for certiorari
pending this Court's disposition of McCleskey v. Kemp, No. 84-6811,
and Hitchcock v. Wainwright, No. 85-6756. Rook contends that newly
available social science evidence demonstrates unconstitutional,
system-wide racial disparities in North Carolina's capital
sentencing system. He maintains that the evidence is sufficient to
warrant a hearing on his claim. These questions are similar to
those presented in McCleskey and Hitchcock, cases that will be
argued in October of the 1986 term, and other petitions that are
before the Court and upon which the Court has not yet acted.
Other petitioners have presented similar claims of system-wide
racial disparities in capital sentencing and have requested stays
of execution from this Court in light of our grants of certiorari
in McCleskey and Hitchcock. This Court has granted stays of
Page 478 U.S.
1040 , 1041
execution in Berry v. Phelps, ___ U.S. ___ ( 1986); Wingo v.
Blackburn, ___ U.S. ___ ( 1986); Watson v. Blackburn, ___ U.S. ___
( 1986); Glass v. Blackburn, ___ U.S. ___ ( 1986); Moore v.
Blackburn, ___ U.S. ___ ( 1986); Brogdon v. Blackburn, ___ U.S. ___
( 1986), and most recently, Rault v. Blackburn, ___ U.S. ___
(1986).
In this case, the district court and the Fourth Circuit have
refused to grant a stay of execution on the ground that Rook's
petition for habeas corpus relief is successive and therefore
barred pursuant to Habeas Corpus Rule 9(b), 28 U.S.C. foll. 2254.
Rook concedes that his arguments regarding the unconstitutional
application of the death penalty in North Carolina were presented
in his previous federal petition; he maintains, however, that his
petition should be heard pursuant to the "ends of justice"
exception recognized by this Court in Sanders v. United States,
373 U.S. 1 (1963).
He contends that a new study, Arbitrariness of the Capital Death
Penalty, authored by Professors Nakell and Hardy of the University
of North Carolina does not suffer from the inadequacies which the
district court found in the evidence submitted in support of his
first petition. Moreover, the study was not available at the time
Rook filed his initial petition for habeas relief. He further
argues that the new study provides substantial support for his
theory that the administration of the death penalty in North
Carolina suffers from a systemic unconstitutional flaw.
The Fourth Circuit held that Rook had not made the necessary
showing that he did not receive a "full and fair" hearing on the
question and found that the new evidence did not "bear on the
constitutionality of the applicant's detention." See Townsend v.
Sain,
372 U.S.
293, 83 S. Ct. 745 (1963). This Court evidently agrees that the
petition is successive, and I therefore dissent.
Initially, I note that Rule 9(b) is phrased in permissive, and
not mandatory terms:
A second or successive petition may be dismissed if the judge
finds that it fails to allege new or different grounds for relief
and the prior determination was on the merits or, if new and
different grounds are alleged, the judge finds that the failure of
the petitioner to assert those grounds in a prior petition
constituted an abuse of the writ.
In Sanders v. United States,
373 U.S. 1 (1963), this
Court set forth guidelines for cases involving potentially
successive petitions:
Page 478 U.S.
1040 , 1042
'Controlling weight may be given to denial of a prior
application for federal habeas corpus or 2255 relief only if (1)
the same ground presented in the subsequent application was
determined adversely to the applicant on the prior application, (2)
the prior determination was on the merits, and (3) the ends of
justice would not be served by reaching the merits of the
subsequent application. Id., at 15.
The Court recently stated that, as a means of identifying those
cases in which federal courts should exercise their discretion to
hear a successive petition, we will "continue to rely on the
reference in Sanders to the 'ends of justice.' " Kuhlmann v.
Wilson, ___ U.S. ___, ___, 2626 (1986) (plurality opinion). See
also id.-2636 (BRENNAN, J., dissenting).
Petitioner has made the necessary showing that the "ends of
justice" will be served by the hearing of his second petition. When
petitioner initially raised his racial-disparity claim in petitions
for both state and federal post-conviction relief, the study upon
which he now relies, which examines the imposition of the death
penalty in North Carolina between 1977 and 1978, was not available.
When Rook filed the instant petition, he raised only the
racial-disparity claim and presented in support of that claim the
Nakell and Hardy manuscript.
The Fourth Circuit felt that petitioner's new evidence was
inadequate because (1) it does not address the time period in which
Rook's punishment was assessed, and (2) it does not demonstrate
that Rook's sentence was the result of intentional discrimination.
As to the first point, the significance of the new study is a
matter to be determined at an evidentiary hearing and not in haste
on a stay application. The question presented in Hitchcock involves
the evidentiary showing necessary to obtain a hearing on one's
claim that the imposition of the death penalty in a certain state
is tainted by a systemic flaw. We simply do not now know whether
the Nakell and Hardy study would raise a serious question about the
constitutionality of petitioner's sentence. The Court has, in
effect, prejudged the value of petitioner's proffered evidence. As
to the second point, the necessity of proof of intentional
discrimination is the subject of the upcoming McCleskey case.
Under these circumstances, it cannot be said that petitioner has
not presented sufficient evidence to invoke the "ends of
justice"
Page 478 U.S.
1040 , 1043
exception to the successive petition rule. Petitioner has not
deliberately withheld evidence; he has at no point abandoned his
claim. He has persisted in asserting the unconstitutionality of his
sentence and now seeks to present evidence supporting his claim,
which he could not have presented at any earlier moment. His
petition is nonetheless deemed successive and is summarily
rejected. I suggest that today's action leaves habeas petitioners
with a cold choice: omit the claim from the initial federal
petition and be deemed to abuse the writ when the claim is raised
in a second petition after the discovery of new evidence, or
include the claim in the initial petition and be deemed to have
filed a successive petition in the event new evidence arises to
justify a second petition. Under well established standards of this
Court, the petition is not successive.*
III
Finally, the Court finds itself once again in the morally
compromised position taken in Straight v. Wainwright, ___ U.S. ___,
2006 (1986). Four Justices have voted to stay Rook's execution and
hold the case until a decision is reached in McCleskey. Thus, there
are four votes to stay the execution, and four votes to hold the
petition for certiorari, but not a fifth vote to stay the
execution. Under normal circumstances, then, this case would be
held pending the decision of this Court in McCleskey. "It is
unthinkable to me that the practice that four votes to grant
certiorari trigger an 'automatic' fifth vote to stay an execution
should not apply to a 'hold' when a man's life is in the balance."
Id..
I dissent.
Justice BLACKMUN and Justice STEVENS would grant the application
for a stay.
______--- * Most recently, in Kuhlmann, supra, this Court
examined the parameters of the "ends of justice" exception to the
successive petition rule, and a plurality suggested that the "ends
of justice" are served by successive review only where the
petitioner supplements his constitutional claim with a colorable
showing of factual innocence. Initially, I note that the
plurality's analysis plainly has no bearing on the instant case,
which involves the constitutionality of a sentence of death, rather
than the constitutionality of a conviction. The presence of
aggravating circumstances and the legitimacy of the sentencing
procedures are the crucial questions when one assesses the validity
of the death sentence, not the justification for the conviction.
See id. n. 7 (BRENNAN, J., dissenting).
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