The application for stay of execution of the sentence of death
presented to JUSTICE POWELL and by him referred to the Court is
denied.
Justice BRENNAN and Justice MARSHALL dissenting:
Adhering to our views 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, 231,
2950, 2973 (1976), we would grant the application for stay in order
to give applicant time to file a petition for writ of certiorari,
and would grant the petition and vacate the death sentence in this
case.
Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL,
and Justice BLACKMUN join, dissenting from the denial of the
application for stay of execution.
Roy Allen Stewart was convicted of first-degree murder in Dade
County circuit court and sentenced to death. The Florida Supreme
Court affirmed the conviction and sentence. Stewart v. State,
420 So. 2d 862
(Fla.1982), cert. denied, 460 U.S. 1103 (1983). The governor signed
Stewart's death warrant. Stewart filed a petition for
post-conviction relief under Florida Rule of Criminal Procedure
3.850, alleging ineffective assistance of counsel. The court stayed
the execution, held an evidentiary hearing, and denied the
petition. The Florida Supreme Court affirmed. Stewart v. State,
481 So. 2d
1210 (Fla. 1985).
The governor signed a second death warrant scheduling the
execution for 7:00 A.M. on October 7, 1986. Stewart then filed a
post-trial motion and application for stay of execution in the
Florida Supreme Court, arguing that the State's administration of
the death penalty violates the Eighth and Fourteenth Amend-
Page 478 U.S.
1050 , 1051
ments because capital punishment is imposed disproportionately
on prisoners whose victims were members of the white race. This
question is similar to those presented in McCleskey v. Kemp, No.
84-6811, and Hitchcock v. Wainwright, No. 85-6756, cases that are
to be argued before this Court on October 15, 1986. The Florida
Supreme Court denied Stewart's motion and application for stay,
ruling that "Stewart did not raise this claim in his previous 3.850
motion, and he is procedurally barred from raising it in this
petition." Stewart v. Wainwright,
494 So. 2d
489, 490 (Fla., 1986). Stewart then filed a second motion for
post- conviction relief and application for stay in circuit court,
raising the McCleskey/Hitchcock claim. The circuit court denied the
petition and stay application. State v. Stewart, No. 79-6621, slip
op. at 2 (Sept. 26, 1986 ). The Florida Supreme Court affirmed the
circuit court's finding of a procedural bar, reasoning that Stewart
had shown no justification for his failure to raise the
McCleskey/Hitchcock claim in his first motion for post-conviction
relief. Stewart v. State,
495 So. 2d
164, 165 (1986).
On October 1, 1986, Stewart filed an application for stay of
execution pending filing of a petition for certiorari with this
Court. A majority of this Court today denies that application.
Because this denial may rest, in part, on an incomplete application
of the doctrine of procedural default, as recently set forth in
Smith v. Murray, --- U.S . ___ (1986), I respectfully dissent.
Smith requires that, before refusing to consider a state
prisoner's constitutional challenge to his conviction and sentence
on the ground of procedural default, a federal court must answer
two separate questions: ( 1) As a matter of state law, is
consideration of the claim foreclosed by a valid procedural bar?
and (2) As a matter of federal law, notwithstanding the state
procedural bar, would rejection of the claim result in a "
fundamental miscarriage of justice?" Id. at 2668.
In Smith, a state prisoner failed to raise, on direct appeal of
his conviction and sentence to the Virginia Supreme Court, his
constitutional challenge to the prosecution's use of the testimony
of a psychiatrist, to whom the prisoner had related information
about a prior incident of deviant sexual conduct on a school bus.
This Court, reviewing the denial of Smith's petition for federal
habeas corpus relief, held that the prisoner had failed to
demonstrate cause for his noncompliance with state procedural
rules. The Court then proceeded to the second inquiry of whether
appli-
Page 478 U.S.
1050 , 1052
cation of the doctrine of procedural bar would offend principles
of justice:
"As we noted in Engle and reaffirmed
in Carrier, " '[i]n appropriate cases' the principles of comity and
finality that inform the concepts of cause and prejudice 'must
yield to the imperative of correcting a fundamentally unjust
incarceration.' " Murray v. Carrier, supra, --- U.S., at ___,
quoting Engle v. Isaac, 456 U.S., [ 107] at 135 [, 1576 (1982) ].
Accordingly, 'where a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a
showing of cause for the procedural default.' Murray v. Carrier,
supra, ___ U.S. ___.
"We acknowledge that the concept of
'actual,' as distinct from 'legal,' innocence does not translate
easily into the context of an alleged error at the sentencing phase
of a trial on a capital offense. Nonetheless, we think it clear on
this record that application of the cause and prejudice test will
not result in a 'fundamental miscarriage of justice.' Engle, 456
U.S., at 135 . There is no allegation that the testimony about the
school bus incident was false or in any way misleading. Nor can it
be argued that the prospect that Dr. Pile might later testify
against him had the effect of foreclosing meaningful exploration of
psychiatric defenses. While that concern is a very real one in the
abstract, here the record clearly shows that Dr. Pile did ask
petitioner to discuss the crime he stood accused of committing as
well as prior incidents of deviant sexual conduct. Although
initially reluctant to do so, ultimately petitioner was forthcoming
on both subjects. In short, the alleged constitutional error
neither precluded the development of true facts nor resulted in the
admission of false ones . Thus, even assuming that, as a legal
matter, Dr. Pile's testimony should not have been presented to the
jury, its admission did not serve to pervert the jury's
deliberations concerning the ultimate question whether in fact
petitioner constituted a continuing threat to society. Under these
circumstances, we do not believe that refusal to consider the
defaulted claim on federal habeas carries with it the risk of a
manifest miscarriage of justice." Id., at 2668.
Page 478 U.S.
1050 , 1053
In this case, Roy Allen Stewart predicates his application for a
stay of execution on a claim that "because the State of Florida has
applied its capital sentencing statute in an arbitrary and
capricious manner by allowing race to determine, in significant
part, who will receive the death penalty, his sentence was imposed
in violation of the Eighth and Fourteenth Amendments to the
Constitution of the United States." * As noted, his claim is
similar to the claims advanced by the petitioners in McCleskey v.
Kemp, No. 84-6811, and Hitchcock v. Wainwright, No. 85-6756.
As a matter of Florida law, it appears that Stewart's claim is
procedurally barred. No one, however, has yet carried out the
second inquiry mandated by Smith: whether as a matter of federal
law the refusal to consider his claim on the merits would
constitute a "fundamental miscarriage of justice" if, as Stewart
asserts, the fact that his victim was a member of the white race
was a critical element in the decision to impose the death sentence
upon him. No federal court has yet decided whether this claimed
racially discriminatory factor, in the Court's words in Smith,
served "to pervert the jury's deliberations concerning the ultimate
question" whether he should be put to death.
Today the Court declines to grant Stewart's application for stay
of execution even though his procedurally barred claims, if true,
raise profoundly serious and as yet unresolved questions about the
federal constitutionality of his capital sentence. Arguably, the
Court's decision is justified by the facts that this case comes to
us as a request for review of the Florida courts' denial of
collateral relief and the " fundamental miscarriage of justice"
inquiry can better be performed by a federal district court in a
federal habeas corpus proceeding which Stewart may now commence.
Nevertheless, in order to make sure that this critical inquiry may
be performed before the case becomes moot, I would stay Stewart's
execution until the Court has decided the McCleskey and Hitchcock
cases.
I respectfully dissent.
Footnotes
[
Footnote *] Application for Stay of
Execution Pending Filing and Disposition of Petition for Writ of
Certiorari to the Supreme Court of Florida, filed in the Supreme
Court of the United States on October 1, 1986, App. at 10 ( Brief
to the Supreme Court of Florida on Appeal from the Denial of Motion
for Post-Conviction Relief).
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