Mr. Justice REHNQUIST, Circuit Justice.
This application for stay has come to me by reason of the
unavailability of Mr. Justice POWELL. On December 20, 1973,
following a trial and jury verdict, applicant was sentenced to
death pursuant to the Florida statute that we upheld in Proffitt v.
Florida,
428 U.S.
242, 96 S. Ct. 2960 (1976), for a murder committed in February
1973. On applicant's appeal, the Supreme Court of Florida affirmed
both the conviction and sentence, Spenkelink v. State,
313 So. 2d 666
(1975), and this Court denied certiorari. 428 U.S. 911 (1976).
Applicant next sought executive clemency from the Governor of
Florida, but his request for that relief was denied on September
12, 1977, and at the same time the Governor signed a death warrant
setting applicant's execution for 8:30 a. m. on September 19, 1977.
The following day, applicant filed a motion
Page 442 U.S.
1301 , 1302
collateral relief in the Florida trial court that had convicted
him; this motion, too, was denied, the Supreme Court of Florida
affirmed its denial, Spenkelink v. State,
350 So. 2d
85 (1977), and we again denied certiorari. 434 U.S. 960
(1977).
One day after he filed his petition for collateral relief in
state court, however, applicant filed a petition for federal habeas
corpus in the United States District Court for the Middle District
of Florida, which transferred the case to the Northern District of
Florida. That court stayed the execution and scheduled an
evidentiary hearing for September 21, 1977. At that time a hearing
was held, which lasted from the late morning into the evening and
produced over 300 pages of testimony. On September 23, the District
Court dismissed the petition and ordered that the stay of execution
previously issued by it terminate at noon on September 30. But the
District Court also granted applicant a certificate of probable
cause to appeal, and the Court of Appeals for the Fifth Circuit
then stayed applicant's execution pending its decision of his
appeal.
On August 21, 1978, a panel of the Court of Appeals for the
Fifth Circuit affirmed the judgment of the District Court.
Spenkelink v. Wainwright,
578 F.2d
582. In an opinion comprising 39 pages in the Federal Reporter,
the Court of Appeals for the Fifth Circuit dealt at length with all
of applicant's claims, which had previously been rejected by the
United States District Court and by the Supreme Court of Florida.
It affirmed the judgment of the District Court, and we again denied
certiorari on March 26, 1979, with Mr. Justice BRENNAN and Mr.
Justice MARSHALL dissenting on the basis of their views set forth
in Gregg v. Georgia,
428 U.S. 153, 227, 231,
2950, 2971, 2973d 859 (1976). 440 U.S. 976.
According to the application now before me, the Governor of
Florida again denied executive clemency on Friday, May 18, 1979,
and signed a death warrant authorizing the execution of
Page 442 U.S.
1301 , 1303
applicant on Wednesday, May 23, 1979, at 7 a. m., e.d.t. On
Monday, May 21, applicant filed a petition for a writ of habeas
corpus in the United States District Court for the Northern
District of Florida requesting the court to stay his execution
pending consideration and final determination of the petition.
According to the applicant, the only point he seeks to preserve in
his application to me for a stay is that under this Court's
decision in Presnell v. Georgia,
439 U.S. 14 ( 1978), "the
failure to accord petitioner adequate advance notice of the
aggravating circumstances alleged by the prosecution as the basis
for seeking the death penalty" denied applicant rights secured to
him by the Eighth and Fourteenth Amendments to the Constitution of
the United States. In Presnell, supra, this Court held that the
"fundamental principles of procedural fairness" enunciated in Cole
v. Arkansas,
333 U.S.
196 (1948), "apply with no less force at the penalty phase of a
trial in a capital case than they do in the guilt-determining phase
of any criminal trial." 439 U.S., at 16. Cole, in turn, had held
that "[t]o conform to due process of law, petitioners were entitled
to have the validity of their convictions appraised on
consideration of the case as it was tried and as the issues were
determined in the trial court." 333 U.S., at 202.
This claim was submitted to and denied by the District Court for
the Northern District of Florida on Monday, May 21, 1979. The
District Court simultaneously entered a second order refusing
certification of the appeal under both local and statutory rules,
and denying a stay of execution pending appeal. Today, a panel of
the Court of Appeals for the Fifth Circuit has, by a divided vote,
denied applicant a certificate of probable cause, a certificate for
leave to appeal in forma pauperis, and his motion for a stay of
execution.*
Page 442 U.S.
1301 , 1304
Throughout these many hearings, appeals, and applications, there
has been virtually no dispute that substantial evidence supported
the jury's verdict that applicant was guilty of first-degree
murder, or that the Florida state trial judge had ample basis for
following the jury's recommendation that the death penalty be
imposed. The Supreme Court of Florida in its opinion affirming
applicant's conviction stated:
"As more fully set out above the record shows this crime to be
premeditated, especially cruel, atrocious, and heinous and in
connection with robbery of the victim to secure return of money
claimed by Appellant. The aggravating circumstances justify
imposition of the death sentence. Both Appellant and his victim
were career criminals and Appellant showed no mitigating factors to
require a more lenient sentence." 313 So.2d, at 671.
The Court of Appeals for the Fifth Circuit, in affirming the
denial of federal habeas relief, said:
"On February 4, 1973, petitioner John A. Spenkelink, a 24-year-
old white male and twice convicted felon, who had escaped from a
California correctional camp, murdered his traveling companion,
Joseph J. Szymankiewicz, a white male, in their Tallahassee,
Florida motel room. Spenkelink shot Szymankiewicz, who was asleep
in bed, once in the head just behind the left ear and a second time
in the back, which fragmented the spine, ruptured the aorta, and
resulted in the victim's death. [Spenkelink] then recounted a cover
story to the motel proprietor in order to delay discovery of the
body and left." 578 F.2d, at 586.
When I granted an application for stay of execution as Circuit
Justice in Evans v. Bennett,
440 U.S. 1301 ( 1979), I
referred to the oft-repeated rule that a Circuit Justice must act
as surrogate for the entire Court when acting on a stay
application. Even though he would deny the application if
Page 442 U.S.
1301 , 1305
he were to consider only his own views as to its merits, he is
obligated to consider the views that each Member of the Court may
have as to its merits, and if he believes that four Members of the
Court would vote to grant certiorari to review the applicant's
claims, he is obligated to grant the application, provided it meets
the other requirements for a stay . In Evans, supra, although I
would not have voted to grant certiorari to consider applicant's
claims, I was satisfied that there was a reasonable probability
that four other Members of the Court would have voted differently.
I therefore granted the application pending referral to the next
scheduled Conference of the full Court.
In this case, by contrast, I have consulted all of my colleagues
who are available, and am confident that four of them would not
vote to grant certiorari to hear any of the numerous constitutional
claims previously presented by applicant in his three earlier
petitions for certiorari to this Court. It devolves upon me,
however, as a single Justice, to answer as best I can whether four
Members of the Court would grant certiorari to consider applicant's
new claim that his death sentence was imposed in violation of our
opinion in Presnell v. Georgia. The easiest way to find out, of
course, would be to have the necessary copies of applicant's papers
circulated to all eight of my colleagues in order to obtain their
firsthand assessment of this contention at the next regularly
scheduled Conference of the Court on Thursday. Even if I were only
marginally convinced that there were four Justices who might vote
to grant certiorari in order to hear this claim presented, in view
of the fact that applicant's life is at stake, I would probably
follow that course. But evaluating applicant's "new" claim as best
I can, it does not impart to me even that degree of conviction. As
I understand it, he contends that Presnell, which required that a
state appellate court affirm a capital sentence on the same theory
under which it had been imposed by the trial court, be extended to
require
Page 442 U.S.
1301 , 1306
that the defendant receive some sort of formal notice, perhaps
in the form of a specification in the indictment or information, of
each and every one of the statutorily prescribed aggravating
circumstances upon which the prosecution intends to rely for the
imposition of the death penalty. I do not believe that four Members
of this Court would find that claim either factually or legally
sufficient to persuade them to vote to grant certiorari in order to
review its denial in the federal habeas proceeding.
Applicant has conceded in his memorandum of law in support of
the present federal habeas action that "defense counsel could
properly have been expected to know that the State might seek a
death sentence on the grounds that the offense was (1) committed by
a defendant previously convicted of a felony involving the use or
threat of violence or (2) committed by a defendant under sentence
of imprisonment." Application, Exhibit B, p. 10. But the memorandum
goes on to state that "a homicide caused by a single gun shot wound
to the heart is not self-evidently 'especially heinous, atrocious,
or cruel.' And it was not until the sentencing hearing itself that
petitioner was appraised that the State would seek the death
penalty on this ground." Id., at 11.
Cole v. Arkansas, which Presnell simply extended to the
sentencing phase of a capital trial, was after all decided in 1948,
and was not then thought to embody any novel principle of
constitutional law. Applicant concedes that there was adequate
notice at the sentencing stage of the hearing for the State to seek
the death penalty on two of the statutorily defined aggravating
circumstances, and the fact that it has required six years for him
to discover that he did not have adequate notice as to the other
grounds upon which it was sought, and was thereby prejudiced, tends
to detract from the substantiality of his contention.
Applicant has had not merely one day in court. He has had many,
many days in court. It has been the conclusion of
Page 442 U.S.
1301 , 1307
the Supreme Court of Florida that the death sentence was imposed
in accordance with the requirements of Florida law as well as those
of the United States Constitution, and it has been the conclusion
of the United States District Court for the Northern District of
Florida and the Court of Appeals for the Fifth Circuit that there
was no federal constitutional error in the process by which
applicant was sentenced to death. Three times this Court has
refused to review the determinations of these state and federal
courts. I do not believe that the claim presented in the present
application would be any more successful than the claims presented
in the preceding three petitions for certiorari. The application
for stay of execution of John A. Spenkelink, presently scheduled
for Wednesday, May 23, 1979, at 7 a. m., e.d.t., is accordingly
Denied.
Dated at Washington, D. C., this twenty-second day of May, 1979,
at 7: 35 p. m., E. D. T.
Footnotes
[
Footnote *] In light of the
extensive scrutiny applicant's claims have received in the courts
below, I decline to take the extraordinary step of granting a
certificate of probable cause authorizing an appeal to the United
States Court of Appeals for the Fifth Circuit from the District
Court's judgment.
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