Motion of the Attorney General of Florida to vacate the order
entered by Hon. Elbert Parr Tuttle, Senior Judge of the United
States Court of Appeals for the Fifth Circuit on May 22, 1979,
denied.
Mr. Justice REHNQUIST, dissenting.*
I cannot join the Court's unexplained denial of the State's
motion to vacate the stay order entered a few minutes before
Page 442 U.S.
901 , 902
midnight on May 22, 1979, by the Honorable Elbert P. Tuttle,
Senior Circuit Judge of the United States Court of Appeals for the
Fifth Circuit. My difficulty with the Court's action, and with the
action of Judge Tuttle in granting a stay in this case, undoubtedly
stems from the six years of litigation revolving about the question
of whether the State of Florida is entitled to impose the death
sentence on respondent. This procedural history is set forth in
detail in my May 22 chambers opinion in which I denied respondent's
application for a stay.
442 U.S. 1301. The stay
occasioning the instant motion is, in my view, the product of a
clear abuse of the writ of habeas corpus, and I am concerned that
this Court's action implicitly sanctions the use of such tactics to
frustrate the attempts of the State to effectuate the will of its
citizens.
Mr. Justice REHNQUIST reserves the right to file a written
statement at a future date.
May 25, 1979. On Motion to Vacate Stay of Execution.
Attorneys representing defendants under sentence of death have a
difficult and arduous task to perform, but in seeking stays of
execution they need devote little time to the oft-litigated issue
of "irreparable injury." "[D]eath is a punishment different from
all other sanctions in kind rather than degree." Woodson v. North
Carolina,
428 U.S.
280, 303- 304 (1976) (opinion of STEWART, POWELL, and STEVENS,
JJ.). The irreversible nature of the penalty makes irreparable by
definition any injury inflicted in violation of the United States
Constitution. But because imposition of the death penalty is
irreversible, I respectfully suggest that there may be a tendency
on the part of individual judges or courts exercising the
extraordinary writ authority conferred upon them by 28 U.S.C. 1651
not merely to resolve all constitutional questions fairly admitting
of doubt in favor of a federal habeas petitioner under sentence of
death, but to create or assume such doubts where in fact there are
none.
My understanding of the principal opinions in Gregg v. Georgia,
428 U.S. 153
(1976), Proffitt v. Florida,
428 U.S. 242
Page 442 U.S.
901 , 903
(1976), Jurek v. Texas,
428 U.S. 262 (1976),
Woodson v. North Carolina, supra, and Roberts v. Louisiana,
428 U.S. 325
(1976), is that a State whose citizens have expressed through their
elected representatives and their judges and juries a will to
impose the death penalty for offenses such as murder may do so if
the State conforms its trial and sentencing procedures to the
requirements enunciated in this Court's cases. Considering,
however, that there are several hundred federal judges in the
United States who have authority to issue stays under the
provisions of 28 U.S.C. 1651, even the relatively limited authority
found open to the States under the Constitution in the above-cited
cases could turn out, as a practical matter, to be entirely closed
to them. Most, if not all, States provide for some lapse of time
between the entry of a final order setting a date for execution and
the date itself. Thus, the entry of a stay of execution by a
federal court or judge, even though later dissolved, will generally
require a State to set a new execution date, often 30 to 60 days
after it is released from the constraints of the federal stay. As
the new execution date approaches, new claims are conceived and, at
the last minute, new stay applications are filed. Understandably,
because no mortal can be totally satisfied that within the
extremely short period of time allowed by such a late filing he has
fully grasped the contentions of the parties and correctly resolved
them, judges are inclined to grant such 11th-hour stay
applications. Then, again, new execution dates must be set and the
process begins anew. This now familiar pattern could in fact result
in a situation where States are powerless to carry out a death
sentence, even though it has been judicially determined that the
sentence was imposed in complete conformity with the United States
Constitution.
Thus, it can hardly be said that a State will never be injured
by issuance of such last-minute stays of execution. When a State
has taken all steps required by our capital cases, its will, as
represented by the legislature that authorized the imposition of
the death sentence and by the juries and courts that
Page 442 U.S.
901 , 904
imposed and upheld it, must be carried out. Constant and
repeated frustration of the State's lawful action in such a
situation is contrary to the underlying assumptions of our federal
system. This Court was faced with a similar problem in Rosenberg v.
United States,
346
U.S. 273, 73 S. Ct. 1152 (1953). There, Mr. Justice Douglas had
granted a stay of execution later found by the full Court to have
been improvidently granted. The Court said:
"This Court has the responsibility to supervise the
administration of criminal justice by the federal judiciary. This
includes the duty to see that the laws are not only enforced by
fair proceedings, but also that the punishments prescribed by the
laws are enforced with a reasonable degree of promptness and
certainty. The stay which had been issued promised many more months
of litigation in a case which had otherwise run its full course."
Id., at 287, 73 S. Ct., at 1160.
In the same case, Mr. Justice Clark, joined by the Chief
Justice, Mr. Justice Reed, Mr. Justice Jackson, Mr. Justice Burton,
and Mr. Justice Minton, stated:
"Our liberty is maintained only so long as justice is secure. To
permit our judicial processes to be used to obstruct the course of
justice destroys our freedom. Over two years ago the Rosenbergs
were found guilty by a jury of a grave offense in time of war.
Unlike other litigants they have had the attention of this Court
seven times ; each time their pleas have been denied. Though the
penalty is great and our responsibility heavy, our duty is clear."
Id., at 296.
Under the present combination of statutes and rules by which
stay authority is exercised, however, a result so at odds with a
government of law is by no means foreordained. This Court has
authority pursuant to 28 U.S.C. 1651 to vacate any stay granted by
any other federal court or judge pursuant
Page 442 U.S.
901 , 905
to that same section. And under Rules 50 and 51 of this Court,
the Circuit Justice for the Circuit in question may take any action
that the full Court might take under 1651. Holtzman v. Schlesinger,
414 U.S.
1304, 1308 (1973) (MARSHALL, J., in chambers). Vacation of a
stay order that is palpably erroneous is authorized under 1651,
even though vacation of the stay would result in execution of the
death sentence. SeeO'Brien v. Brown,
409 U.S.
1, 5, 34 L. Ed. 2d 1 (1972).
Here, respondent has not had an opportunity to file any response
to the motion to vacate the stay. Given the gravity of the
consequences of vacation of the stay, only the most demonstrable
and self-evident error on the part of the judge or court issuing
the stay would lead me to conclude that it should be vacated. Here,
the circumstances surrounding issuance of the stay convince me that
such error is present.
Respondent's "Original Petition for a Writ of Habeas Corpus by a
Person in State Custody," filed with Judge Tuttle six years after
respondent's trial and less than nine hours before respondent was
scheduled to die, alleged for the first time that respondent's
trial attorney had rendered ineffective assistance of counsel. The
petition further alleged that respondent's "post-conviction
attorneys," who are, incidentally, extraordinarily skilled and
experienced in the area of capital punishment cases, rendered
ineffective assistance in failing to claim that respondent's trial
counsel had been ineffective. It strains credulity to suppose that
six years and countless courthouses after his trial, respondent
suddenly determined that his trial attorney had been ineffective.
Either he does not believe the claim himself or he had held the
claim in reserve, an insurance policy of sorts, to spring on the
federal judge of his choice if all else fails. This Court has
disapproved of such tactics before:
"Thus, for example, if a prisoner deliberately withholds one of
two grounds for federal collateral relief at the time of filing his
first application, in the hope of being granted
Page 442 U.S.
901 , 906
two hearings rather than one or for some other such reason, he
may be deemed to have waived his right to a hearing on a second
application presenting the withheld ground. . . . Nothing in the
traditions of habeas corpus requires the federal courts to tolerate
needless piecemeal litigation, or to entertain collateral
proceedings whose only purpose is to vex, harass, or delay."
Sanders v. United States,
373 U.S.
1, 18 (1963).
See also Federal Habeas Corpus Rule 9(b).
Moreover, respondent, for unexplained but obvious reasons,
presented his original petition not to the United States District
Court for the Northern District of Florida, the jurisdiction in
which he is detained and which had twice denied him post-conviction
relief, but to a Senior Circuit Judge residing several hundred
miles away in Atlanta, Ga. Title 28 U.S.C . 2242, designed to deter
such forum shopping, requires that petitions for habeas corpus
"addressed to the Supreme Court, a justice thereof or a circuit
judge . . . shall state the reasons for not making application to
the district court of the district in which the applicant is held."
Nowhere in respondent's original petition is such an allegation
made.
For the foregoing reasons, I am compelled to dissent from the
Court's denial of the State's motion.
Footnotes
[
Footnote *] The Court's denial of
the motion took place on Thursday, May 24. Though the later action
of the Court of Appeals for the Fifth Circuit in vacating the stay
has robbed this Court's denial of any lasting significance, the
legal questions involved are bound to recur in later cases. I am
therefore filing this opinion dissenting from the Court's
action.
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