STEPHENS v. KEMP
469 U.S. 1043

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U.S. Supreme Court

STEPHENS v. KEMP , 469 U.S. 1043 (1984)

469 U.S. 1043

Alpha Otis O'Daniel STEPHENS v. Ralph KEMP, Superintendent, Georgia Diagnostic & Classification Center
No. 83-1845

Supreme Court of the United States November 26, 1984 Rehearing Denied Dec. 11, 1984. See 469 U.S. 1099.

On petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.

The order entered December 13, 1983 staying execution of sentence of death is vacated.

The petition for a writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

The petitioner Alpha Otis O'Daniel Stephens has been condemned to death by electrocution. In this second petition for federal habeas relief, Stephens contends, inter alia, that he received the death penalty pursuant to a pattern and practice of racial discrimination in the administration of Georgia's capital sentencing system, in violation of the Eighth and Fourteenth Amendments. Specifically, he points to recently available statistical studies allegedly demonstrating a persistent and pronounced disparity in capital sentencing in Georgia based on the race of the defendant and the race of the victim. Stephens unsuccessfully has sought an evidentiary hearing to prove the accuracy and materiality of these data.

The courts below acknowledged that the Court of Appeals for the Eleventh Circuit has recently held in several cases that the identical evidence proffered by Stephens is sufficient to require an evidentiary hearing under 28 U.S.C. 2254. The Eleventh Circuit in fact is currently considering en banc the very issues presented in Stephens' petition- whether the newly developed studies are reliable, and whether they are material to the constitutionality of Georgia's capital sentencing scheme. Stephens' petition has not been held pending the outcome of this en banc

Page 469 U.S. 1043 , 1044

consideration, however, because the courts below have concluded that Stephens has engaged in abuse of the writ. Specifically, they have determined that (1) although the new studies constitute "newly discovered evidence" for purposes of permitting relief on a first petition for habeas review, the identical studies do not constitute "newly discovered evidence" for purposes of securing relief on a second petition; and (2) Stephens in fact received an "evidentiary hearing" at which he failed to make an adequate "proffer" of the new studies.

Just last December, this Court stayed Stephens' execution pending the Eleventh Circuit's en banc resolution of the discrimination issue "or until further order of this Court." 464 U.S. 1027, 1028 (1983). In today's "further order," the Court inexplicably reverses course and decides that the execution may proceed notwithstanding the continued pendency of the discrimination issue before the Eleventh Circuit. To the extent this reversal purports to rest on deference to the lower courts' abuse-of-the-writ findings, I would respectfully submit that those findings fly in the face of the Fifth Amendment, 28 U.S.C. 2254 and its attendant Rules, and well-settled precedent. Specifically, the record before us makes clear that (1) the proffered statistical studies are "newly discovered evidence" within the meaning of 2254; and (2) Stephens did not receive the full and fair opportunity to introduce these studies to which he was entitled by law. At the very least, this case presents substantial questions concerning the abuse-of-the-writ doctrine that will recur with ever-increasing frequency. I therefore dissent from the Court's denial of certiorari and its vacation of the stay of execution.

I

Stephens filed his second petition for habeas relief on November 14, 1983, two days before his scheduled execution. [Footnote 1] Anticipating [469 U.S. 1043 , 1045]


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