Stephens filed his second petition for habeas relief on
November 14, 1983, two days before his scheduled execution.
[Footnote 1]
Anticipating
Page 469 U.S.
1043 , 1045
that the State of Georgia would plead abuse of the writ
pursuant to 28 U.S. C. 2254 Rule 9(b), Stephens explained that his
discrimination claim was " based on factual evidence which
Petitioner, as an indigent, did not have the independent means to
develop and present." 1 Record 17. Stephens continued:
"In mid-1982, however, statistical
evidence became available that demonstrates that racial factors
play a real and persistent role in the imposition of capital
punishment in the State of Georgia, even when statutory and
nonstatutory aggravating and mitigating circumstances are held
constant and where only those cases indicted and convicted of
murder are considered. A two-week evidentiary hearing to consider
this extensive new social scientific evidence began on August 8,
1983 in McCleskey v. Zant, [580 F.
Supp. 338 (ND Ga .), hearing en banc granted, 729 F.2d
1293 (CA11 1984) ], before Honorable J. Owen Forester. Under
these circumstances, Petitioner's assertion of this claim upon this
newly available factual basis cannot be deemed an abuse of the
writ." Ibid.
Stephens requested "a hearing at which proof may be offered
concerning the allegations of this petition," id., at 49, indicated
that the McCleskey record would form the basis of his proffer at
such a hearing, and stated that he wished to call as expert
witnesses the three statisticians who recently had testified in
McCleskey, id., at 59-60.
Later on the afternoon of November 14, Stephens' counsel were
notified by telephone that the District Court had scheduled an
emergency oral argument for the next afternoon. According to an
affidavit subsequently filed by one of the attorneys:
"[We] called Judge Wilbur Owens' law clerk to specifically
ask what we needed to prepare for the argument. We indi-
Page 469 U.S.
1043 , 1046
cated that on only one days notice it was almost impossible
to produce witnesses at that time.
". . . Judge Owen's [sic] law clerk responded that the Judge
was interested in hearing argument on whether Mr. Stephens petition
was an abuse of the writ. The law clerk further informed us that
the Judge did not expect counsel to bring witnesses to Savannah."
Affidavit of George B. Daniels, attached to Petition for Rehearing
and Suggestion for Rehearing En Banc, Appeal No. 83-8844
(CA11).
The State of Georgia filed its response to Stephens' petition
the next morning; as expected, the State alleged that Stephens was
abusing the writ. Oral argument commenced at 3:30 that afternoon.
The court announced that it had convened the session to hear
argument whether "a successor petition should be entertained by
this Court" and whether the execution should be stayed to permit
further proceedings. 2 Record 3, 76.
Stephens' counsel described the nature and findings of the
statistical studies that recently had been found sufficient to
trigger an evidentiary hearing in McCleskey, and indicated that
those studies would form the proffer if a hearing were granted in
the instant case. [Footnote 2]
The court responded that "I am familiar with the circumstances" of
the studies and that "[t]his has been discussed in other cases with
me." Id., at 33. When the court expressed skepticism that the
studies could be characterized as "new" evidence,3 Stephens'
counsel emphasized that the studies had become available only after
Stephens' first habeas petition had been dismissed, that as an
indigent Stephens could not have afforded the prohibitive cost of
underwriting independent studies, and that because the studies
could not reasonably have been produced in previous proceedings,
they were properly characterized as "new" evidence within the
meaning of Habeas Corpus Rule 9(b). Id., at 31-32. When the court
asked for more specific details concerning
Page 469 U.S.
1043 , 1047
the studies, counsel responded that the methodology was
"fairly complicated" and suggested that, if the court wished to
review the data, counsel not later than the next morning could
deliver the several file drawers of evidence adduced at the
McCleskey hearing. Id., at 42.
Much of the remaining argument was devoted to a discussion
whether the court should hold an evidentiary hearing to probe the
issues in further detail. In response to the court's question,
"What kind of evidentiary hearing am I going to hold", id., at
68-69, Stephens' counsel reviewed the evidence they proposed to
introduce and emphasized that "we are prepared to proceed
immediately, just as soon as the Court will give us a hearing, with
the trial to put on our evidence and to hold an evidentiary
hearing." Id., at 75.
In postargument motions filed shortly after the argument,
Stephens again reviewed the evidence he proposed to introduce at an
evidentiary hearing,4 moved for a reference of the discrimination
issue to a magistrate,5 and called to the court's attention two
recent cases in which the Eleventh Circuit had remanded habeas
petitions for evidentiary hearings on the identical statistical
evidence. [Footnote 6]
On November 21, the District Court summarily dismissed
Stephens' petition as an abuse of the writ and denied his
applications for a stay of execution, for discovery, and for funds
to retain experts. 578 F.
Supp. 103, 108 (MD Ga.1983). The court also specifically denied
Stephens' requests for an evidentiary hearing. Ibid. With respect
to the merits of the discrimination claims, the court
stated:
Page 469 U.S.
1043 , 1048
"[I]t is the opinion of this trial judge that petitioner's
excuse is insufficient to justify a consideration of them in this
successive petition. The statistical evidence which petitioner
desires to present to support his claims is not 'newly discovered.'
Nothing prevented the compilation of this information prior to this
late date. Accordingly, petitioner having no valid excuse for
failing to raise these claims in his prior habeas petition, these
claims constitute an abuse of the writ and must be DISMISSED." Id.,
at 107.
The court endeavored in a footnote to distinguish Stephens'
case from other Eleventh Circuit cases holding that the identical
statistical surveys are newly discovered evidence and sufficient to
trigger a right to an evidentiary hearing:
"Had petitioner raised these challenges to Georgia's capital
sentencing statute in his prior habeas petition, this court would
not have hesitated to hold an evidentiary hearing to ascertain the
relevant facts upon which he relies in support of his
claims.
"The court notes however that even if it were proper to
consider the merits of petitioner's claims in this successive
petition, at the November 16 [sic], 1983 hearing he was unable to
present any facts in support of his claim. He chose instead to rely
upon bare conclusions." Id., at 107, n. 2 (emphasis in
original).
Stephens filed emergency applications for a certificate of
probable cause and for a stay of execution with the Eleventh
Circuit. A panel of that court heard oral argument on December 7
and, on December 9, denied both of Stephens' applications.
721 F.2d
1300 (1983). The panel did not address the District Court's
conclusion that the statistical evidence was not newly discovered
within the meaning of 2254. Rather, it seized upon note 2 of the
District Court's opinion to conclude that Stephens in fact had
received the required evidentiary hearing and had failed to make a
proper "proffer" of the statistical evidence. [Footnote 7]
Page 469 U.S.
1043 , 1049
Stephens filed a petition for rehearing and a suggestion for
rehearing en banc on December 10, which was denied on December 13
in a 6-6 vote. 722 F.2d
627 (1983). Five of the dissenting judges argued that (1) the
statistical data were "newly discovered" within the meaning of 2254
; (2) Stephens had made an adequate proffer for purposes of the
November 15 oral argument; and (3) the November 15 oral argument
had not been an " evidentiary hearing." Id., at 628-629. Judge
Kravitch, who had joined in the earlier panel decision, now filed a
separate dissenting opinion emphasizing that there was "a serious
question concerning petitioner's opportunity to proffer evidence at
the district court hearing, a factor crucial to the panel's
holding." Id., at 629.
Stephens filed an emergency application for a stay of
execution with Justice POWELL, which was referred by him to the
entire Court and granted late in the evening of December 13. The
Court issued an order staying Stephens' execution "pending the
decision of the United States Court of Appeals for the Eleventh
Circuit in Spencer v. Zant, [715 F.2d
1562 (1983), reconsideration en banc stayed, 729 F.2d
1293 (1984) ], or until further order of this Court." 464 U.S.
1027, 1028 ( 1983). The Court subsequently denied the State's
motion to vacate the stay of execution. 465 U.S. 1016 (1984). Today
the Court reverses itself and decides, without explanation, that
Stephens can be put to death notwithstanding the continued pendency
of Spencer and the other cases consolidated for resolution by the
Eleventh Circuit.
II
We need not decide whether Stephens' proffered statistical
evidence is sound or whether, if sound, it sufficiently
demonstrates
Page 469 U.S.
1043 , 1050
an invidious application of Georgia's capital sentencing
scheme. [Footnote 8] At the
time Stephens filed his second petition the law in the Eleventh
Circuit was that the identical evidence was sufficient to trigger
an evidentiary hearing, and the Eleventh Circuit en banc has now
consolidated three cases to resolve issues concerning the accuracy
and materiality of this evidence. 9 The principled approach would
be to stay Stephens' execution pending the outcome of these
consolidated cases; that is what the Court initially ordered last
December. 464 U.S.
1027 (1983 ). Today the Court has abandoned this course,
apparently on the strength of two inexplicable findings by the
courts below: (a) that Stephens' proffered evidence is not "newly
discovered"; and (b) that Stephens in fact has already received the
"evidentiary hearing" that he has requested.
The only ground raised by Georgia in its abuse-of-the-writ
allegation concerning Stephens's discrimination claim is that
Stephens unreasonably failed to assert this claim in his prior
habeas petition, in violation of Habeas Corpus Rule 9(b). Congress
has
Page 469 U.S.
1043 , 1051
instructed the courts that a "petitioner's failure to assert
a ground in a prior petition is excusable," and thus not an abuse
of the writ, if the ground rests on "newly discovered evidence."
Advisory Committee's Note to Habeas Corpus Rule 9, 28 U.S.C., p.
358. "Newly discovered evidence" has a well-settled meaning: it is
"evidence which could not reasonably have been presented" by the
petitioner in the earlier proceeding. Townsend v. Sain, 372 U.S.
293, 317, 759 (1963).10
To reject Stephens' statistical evidence on the ground that
"[n] othing prevented the compilation of this information prior to
this late date," 578 F.Supp., at 107, would eviscerate Congress'
instruction that newly discovered evidence be given fair
consideration. For "newly discovered evidence" by definition always
existed at an earlier time; the inquiry, rather, is whether the
petitioner reasonably either did not know about it or could not
have presented it at an earlier proceeding (as would be the case,
for example, with the discovery of a hidden gun or a fugitive
eyewitness). Townsend v. Sain, supra.
There is no question in the instant case that the pertinent
statistical studies did not become available until long after
Stephens filed his first habeas petition in February 1979. Indeed,
work on these studies had barely commenced at that time. See also
Spencer v. Zant, 715 F.2d, at 1582 (noting that as late as May 1982
these studies were available only through oral testimony). As the
Eleventh Circuit en banc dissenters noted, at the time of Stephens'
first habeas petition the then extant social science evidence had
been held inadequate as a matter of law to raise a colorable claim
of discrimination in Georgia's capital sentencing system. 722 F.2d,
at 628, citing Spinkellink v. Wainwright, 578
F.2d 582 (CA5 1978), cert. denied, 440 U.S. 976, 59 L. Ed. 2d
796 (1979); and Smith v. Balkcom, 660 F.2d
573 (CA5 1981), modified, 671 F.2d
858, mandate recalled, 677 F.2d
20, cert. denied, 459 U.S. 882 (1982). And no fair-minded
person could suggest that indigent, uneducated, incarcerated
petitioners like Stephens should be charged with inexcusable
neglect for having failed themselves to
Page 469 U.S.
1043 , 1052
perform or to underwrite sophisticated statistical sampling
surveys and complex regression analyses of racial bias.
Moreover, courts within the Eleventh Circuit have repeatedly
held that the identical studies offered by Stephens are newly
discovered evidence within the context of a first habeas petition
and, therefore, that "cause" existed for failing to introduce them
at trial. See n. 9, supra. The test for "newly discovered evidence"
is the same whether the evidence is presented in a first habeas
petition or in a successor petition. See n. 10, supra. Even if some
Members of this Court for some reason disagreed with the Eleventh
Circuit's determination that these studies represent "new"
evidence, the proper course would be to resolve the issue on review
of the Eleventh Circuit consolidated cases. It would be enough for
present purposes to conclude that evidence characterized by the
Eleventh Circuit as "new" for purposes of a first habeas petition
must also be characterized as "new" for purposes of a
second.
B
It is settled law that, once the State pleads abuse of the
writ, the petitioner is entitled to an opportunity to rebut the
allegation. Sanders v. United States, 373 U.S. 1, 20-21,
1079-1080 (1963); Price v. Johnston, 334 U.S.
266, 292, 1063 (1948). "If the answer is inadequate, the court
may dismiss the petition without further proceedings." Ibid. But
unless it is " 'conclusively show[n]' " that the response is
without merit, the petitioner must receive an evidentiary hearing
on the abuse-of-the-writ issue. Sanders v. United States, supra,
373 U.S., at 20, citing Machibroda v. United States, 368 U.S. 487, 495-496
(1962) ( where petitioner makes "specific and detailed factual
assertions," evidentiary hearing must be scheduled); see also Price
v. Johnston, supra; 28 U.S.C. 2254 Rule 8.
To be sure, courts may employ means short of a full-blown
evidentiary hearing to determine whether such a hearing is
required. For example, a court may call upon the petitioner to
explain in writing why his successor petition is excusable.
Congress has approved just such a form notice, appended to Habeas
Corpus Rule 9, which admonishes the petitioner to include all the
factual allegations necessary to support the response. Similarly,
the Rules encourage courts to hold oral arguments and " prehearing
conferences" when there is doubt concerning the necessity of an
evidentiary hearing. Such arguments " 'may limit the questions to
be resolved, identify areas of agreement and dispute, and
Page 469 U.S.
1043 , 1053
explore evidentiary problems that may be expected to arise. .
. . [S]uch conferences may also disclose that a hearing is
unnecessary.' " Advisory Committee's Note to Habeas Corpus Rule 8,
28 U.S.C., p. 356 (citation omitted). This practice is common and
uncontroversial. But whether the petitioner's response is elicited
in writing or through oral argument, the governing standard is
clear: if the response pleads facts that, if true, would entitle
the petitioner to relief, an evidentiary hearing must be held to
determine those facts. Sanders v. United States, supra, 373 U.S.,
at 21-22.11
In the instant case, the District Court held an oral argument
the day after Stephens filed his habeas petition and the afternoon
after the State had pleaded abuse of the writ. As discussed in Part
I, supra, the purpose of this argument was to clarify whether (1)
Stephens' execution should be stayed, and (2) whether and to what
extent an evidentiary hearing was necessary to resolve the
underlying merits of Stephens' petition and the State's allegation
of abuse. For purposes of the oral argument, the discussion by
Stephens' counsel of the discrimination claim was more than
adequate to contest the State's allegation of abuse and to require
an evidentiary hearing on the matter. Counsel explained the
studies' findings and how they related to the constitutionality of
the impending execution; noted that other courts had held that the
studies required an evidentiary hearing; emphasized that the
studies had not been available when Stephens filed his first habeas
petition, and therefore constituted " newly discovered evidence";
and stressed that Stephens was prepared to proceed with an
evidentiary hearing on the issue at the court's earliest
convenience. [Footnote
12]
Page 469 U.S.
1043 , 1054
The court responded that it was fully "familiar with the
circumstances" of the studies. 2 Record 33.
Incredibly, the District Court and the Eleventh Circuit both
appear to have concluded that this oral argument, unbeknownst to
Stephens or his counsel, in fact constituted the "evidentiary
hearing" Stephens and his counsel were seeking to obtain, and that
counsel's failure physically to present the several file drawers of
statistical data or the testimony of Stephens' three designated
witnesses at that time waived any right to further consideration of
the issue. [Footnote 13]
With all respect, I submit this is a shockingly unprincipled basis
on which to send Stephens to the electric chair. Counsel have sworn
that they were instructed by Judge Owens' law clerk not to bring
witnesses to the oral argument, and there is nothing in this record
to suggest to the contrary. Indeed, the entire tenor of the
November 15 session demonstrates that it was the sort of
nonevidentiary oral argument held hundreds of times every day in
federal courthouses across the country. Five of the Eleventh
Circuit en banc dissenters had no difficulty in concluding that
"[t]he hearing held by the district court on November 15, 1983, was
not an evidentiary hearing," 722 F.2d, at 628, n. 3, and repeatedly
so emphasized, see also id., at 628, n. 1. Judge Kravitch, who
initially had joined the panel judgment, stressed in a separate
dissent that, at the very least, there was "a serious question
concerning petitioner's opportunity to proffer evidence at the
district court hearing." Id., at 629.
If counsel were expected physically to proffer the evidence
they had described in the petition and to appear in court with
Stephens' designated expert witnesses, they should have been so
informed. They were not. Stephens' petition for certiorari
therefore raises
Page 469 U.S.
1043 , 1055
substantial questions implicating what I had thought until
today were settled and fundamental principles under the Fifth
Amendment, the habeas statutes, and the Habeas Corpus
Rules.
First. Until today there was "no doubt" that the Due Process
Clause requires at a minimum that adjudications affecting an
individual's life, liberty, or property be preceded by (1) notice
"reasonably calculated, under all the circumstances," to inform the
aggrieved party of the pendency and nature of the proceedings
against him; and (2) a meaningful hearing " 'appropriate to the
nature of the case.' " Armstrong v. Manzo, 380 U.S.
545, 550, 1190 (1965), quoting Mullane v. Central Hanover Bank
& Trust Co., 339 U.S.
306, 313, 656 (1950). "Due process of law . . . does not allow
a hearing to be held . . . without giving [petitioners] timely
notice, in advance of the hearing, of the specific issues that they
must meet." In re Gault, 387 U.S. 1, 33-34,
1446-1447 ( 1967). Particularly where a human life hangs in the
balance, I had thought this principle axiomatically required fair
notice of the nature of the hearing and whether evidence must be
tendered at that time.
Second. The habeas statutes themselves require federal courts
to follow minimum procedural safeguards in resolving petitioners'
claims. To be sure, courts may "summarily hear and determine the
facts," 28 U.S.C. 2243, and habeas petitioners should therefore
expect expedited processing of their claims. But Congress has
instructed us to ensure that such expedited resolution be
accomplished "as law and justice require." Ibid. Accordingly, the
procedures surrounding an evidentiary hearing must "allow
development, for purposes of the hearing, of the facts relevant to
disposition of a habeas corpus petition," and habeas petitioners
must receive a "full opportunity for presentation of the relevant
facts." Harris v. Nelson, 394 U.S.
286, 298, 1090 ( 1969) (emphasis added). At Congress'
direction, "it is the duty of the court to provide the necessary
facilities and procedures for an adequate inquiry." Id., at 300.
The ultimate question must always be whether the hearing accorded a
defendant was in fact a "fair and meaningful evidentiary hearing."
Ibid. (emphasis added).
This Court is not unfamiliar with the inherent tensions
between expedited resolution of habeas petitions in capital cases
and the need for fundamentally fair procedures. Just two Terms ago,
for example, the Court decided in Barefoot v. Estelle, 463 U.S.
880, 894, 3395 (1983), that a court of appeals may expedite
briefing and hearing on the merits of a capital case where the
petitioner has
Page 469 U.S.
1043 , 1056
requested a stay of execution for consideration of his
claims. The Court emphasized, however, that such expedited
scheduling is permissible only " provided that counsel has adequate
opportunity to address the merits and knows that he is expected to
do so." Ibid. (emphasis added). In the absence of such "appropriate
notice," a court may not proceed to deny the stay. Ibid.
I would have thought that a similar conclusion must surely
follow here. Where a habeas petitioner has designated with
precision the documentary evidence and witnesses he would produce
at an evidentiary hearing, the court may be entitled to schedule an
expedited evidentiary hearing. [Footnote 14] But counsel must be given notice that he is
expected to produce the exhibits and the witnesses at the hearing.
Where counsel reasonably believes that the scheduled session will
consist merely of oral argument on the facial merits of the
petition-the sort of preliminary argument that frequently is held
in this sort of situation, see supra, at 1052-1053-and has received
no notice suggesting to the contrary, the oral argument cannot
later be characterized as an "evidentiary hearing" at which the
petitioner unknowingly had and lost his only chance to avoid
execution. I would have thought this principle applied with even
greater force where, as here, there is uncontradicted record
evidence that counsel in fact were affirmatively advised not to
bring their witnesses to the argument.
Third. The Court's action also flies in the face of the
Habeas Corpus Rules approved by Congress. Rule 8(c), for example,
provides that an evidentiary hearing "shall be conducted as
promptly as practicable, having regard for the need of counsel for
both parties for adequate time for investigation and preparation."
The Advisory Committee's Note to Rule 8 stresses that courts
are
Page 469 U.S.
1043 , 1057
to follow those procedures necessary to ensure that counsel
can "prepare adequately for an evidentiary hearing." 28 U.S.C., p.
356 (emphasis added ). I would have thought it elementary that a
necessary component of such procedures is adequate notice that
counsel will be expected to produce the documentary evidence and
witness testimony on which the petition rests.
Similarly, Habeas Corpus Rule 11 commands the federal courts
to apply the Federal Rules of Civil Procedure "to the extent that
they are not inconsistent with these rules." The notion of fair and
adequate notice permeates the Civil Rules. Rule 12(c), for example,
provides that if a court considers matters outside the pleadings in
determining whether to enter judgment, the motion shall be
considered as one for summary judgment " and all parties shall be
given reasonable opportunity to present all material made pertinent
to such a motion." Similarly, Rule 56 has consistently been
interpreted to require both (1) "fair notice" to the nonmovant that
he is expected to present controverting evidence, so as to avoid
"unfair surprise" in the summary resolution of the dispute; and (2)
a "reasonable opportunity" to present such evidence. Macklin v.
Butler, 553 F.2d
525, 528-529 (CA7 1977); see also Plante v. Shivar, 540 F.2d
1233, 1234-1235 (CA4 1976) (per curiam); Dale v. Hahn,
440 F.2d
633, 638 ( CA2 1971). Notwithstanding the expedited scheduling
of habeas petitions in capital cases, these requirements are not
"inconsistent" with the Habeas Rules. Indeed, they are a basic
prerequisite to ensuring that the habeas remedy is administered "as
law and justice require." 28 U.S.C. 2243.
III
I continue to adhere 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 (1976) (BRENNAN, J., dissenting), and would
therefore grant certiorari and vacate the death sentence in this
case. But even if I believed otherwise, I would at the very least
continue the stay of execution pending the Eleventh Circuit's en
banc resolution of the underlying discrimination issue.
Stephens' petition presents questions that cut to the very
heart of the Court's professed desire to ensure the fair
administration of 2254, particularly where the petitioner has been
condemned to death. One need not reach the underlying merits of
Stephens' discrimination claim to conclude that, on the basis of
the record
Page 469 U.S.
1043 , 1058
before us, there is at the very least a substantial question
whether his fate should be governed by the outcome of the
consolidated cases that are now pending before the Eleventh Circuit
en banc-cases that present the identical issues and turn on the
identical evidence. Instead, Stephens will go to the electric chair
on the strength of a finding that the evidentiary hearing he so
fervently has sought has, in fact, already been held. This
resolution does not comport with the administration of the Great
Writ "as law and justice require." 28 U.S.C. 2243. Rather, it is at
best an example of result-orientation carried to its most cynical
extreme.
I dissent from the Court's denial of certiorari and its
vacation of the stay of execution.
Justice STEVENS, dissenting.
In my opinion the Court should not act on the petition for
writ of certiorari, and should not vacate its stay, until after the
Court of Appeals for the Eleventh Circuit has decided the
consolidated cases of Ross v. Hopper, 716 F.2d
1528 (1983), rehearing en banc granted, 729
F.2d 1293 (1984), Spencer v. Zant, 715 F.2d
1562 (1983), reconsideration en banc stayed, 729 F.2d
1293 (1984), and McCleskey v. Zant, 580 F.
Supp. 338 ( ND Ga.), hearing en banc granted, 729 F.2d
1293 (1984).
Footnotes
Footnote 1 The tortuous
history of Stephens' first federal habeas action is summarized in
the District Court's opinion below. 578 F.
Supp. 103, 104- 105 (MD Ga.1983). That action was not finally
terminated until September 19, 1983, when the Court of Appeals for
the Eleventh Circuit on remand from this Court considered and
rejected the remaining claims in Stephens' first habeas petition.
Over the next six weeks, Stephens' counsel investigated possible
claims to raise in a second habeas petition and drafted the
appropriate papers. On November 1, 1983, the Superior Court of
Bleckley County, Ga., set Stephens' execution date for November 16,
1983. Stephens filed his second state habeas petition on November 7
in the Superior Court of Butts County. One week later, on November
14, those state proceedings were concluded when the Supreme Court
of Georgia denied Stephens' application for a certificate of
probable cause to appeal the lower state court's denial of his
petition. Stephens filed his federal petition later that same
afternoon. The Supreme Court of Georgia stayed the execution to
permit Stephens to pursue his federal action, and the Superior
Court of Bleckley County thereafter reset Stephens's execution for
December 14, 1983. This Court issued an indefinite stay only hours
before the scheduled execution. See infra, at 1049.
Footnote 2 Counsel
stated, for example, that "[t]he evidence is that there is a
greater willingness by prosecutors to permit white defendants to
plead to voluntary manslaughter in black victim cases; that there
is a greater likelihood of a black receiving a conviction for
murder in white victim cases; and, a sharply higher death
sentencing rate for white victim cases among cases advancing to the
penalty phase." 2 Record 41.
Footnote 3 See, e.g.,
id., at 31-32: "Are you telling me that nobody could have dug up
that same evidence before? . . . [W]hat prevented them from doing
it, is my question? Nothing, isn't that the truth?"
Footnote 4 Stephens
stated that the McCleskey record on this issue "is in excess of
2,000 pages and contains over 150 exhibits, none of which is
self-explanatory," and indicated that if the court had any
remaining doubts Stephens was "prepared to proffer this record to
show the evidence that would be introduced in this case showing
discriminatory application of the death penalty." 1 Record
102.
Footnote 5 The motion was
made pursuant to 28 U.S.C. 636 and 28 U.S.C. 2254 Rule 8(b).
Stephens urged that such a reference would permit a thorough
evidentiary hearing on the accuracy and materiality of the "
voluminous and complex scientific evidence" being proffered
"without overburdening this Court." 1 Record 110.
Footnote 6 Id., at 102,
citing Ross v. Hopper, 716 F.2d
1528 (CA11 1983), rehearing en banc granted, 729 F.2d
1293 (1984); and Spencer v. Zant, 715 F.2d
1562 (CA11 1983), reconsideration en banc stayed, 729 F.2d
1293 (1984).
Footnote 7 The panel
noted that Stephens' discrimination claim
"relies on this court's recent decision in Spencer v. Zant. .
. . In claiming that Georgia's death penalty statute is
administered in an arbitrary and discriminatory manner in violation
of his eighth and fourteenth amendment rights, petitioner must
prove ' "some specific act or acts evidencing intentional or
purposeful . . . discrimination against [ the petitioner]" on the
basis of race, sex or wealth.' . . . Petitioner alleges that a 1980
study by a Dr. David Baldus supports his claim. This is a similar
contention to that made in Spencer. Here, however, the similarity
ends. In Spencer, which involved a first petition for habeas
corpus, the so-called Baldus study was proffered as evidence at the
district court hearing. A panel of this court held that the
evidence as proffered was material and should have been received.
In the present case the issue arose at a hearing concerning abuse
of the writ but no such proffer was made by petitioner. Indeed, no
evidence of any kind was proffered that would either establish
petitioner's claim or demonstrate that the claim was supported by
intervening facts." 721 F.2d, at 1303.
Footnote 8 The Fourteenth
Amendment condemns the racially discriminatory application of
legislation that is neutral on its face. See, e.g., Yick Wo v.
Hopkins, 118 U.S.
356 (1886). Circumstantial or statistical evidence may
sometimes demonstrate such " stark" racially disproportionate
impact as to leave no room for any conclusion but that the
legislation is being administered in an intentionally
discriminatory manner. See, e.g., Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S.
252, 266, 564 (1977). Members of this Court recurrently have
noted that statistical evidence of disproportionate capital
sentencing might demonstrate the constitutional infirmity of an
otherwise neutral sentencing scheme. See, e.g., Furman v. Georgia,
408 U.S. 238,
389-390, n. 12, 2803-2804, n. 12 (1972) (BURGER, C.J., dissenting)
("While no statistical survey could be expected to bring forth
absolute and irrefutable proof of a discriminatory pattern of
imposition, a strong showing would have to be made, taking all
relevant factors into account"); id., at 449 (POWELL, J.,
dissenting) ("If a Negro defendant, for instance, could demonstrate
that members of his race were being singled out for more severe
punishment than others charged with the same offense, a
constitutional violation might be established").
Footnote 9 See, e.g.,
Ross v. Hopper, 716 F.2d
1528 (CA11 1983), rehearing en banc granted, 729 F.2d
1293 (1984); Spencer v. Zant, 715 F.2d
1562 (CA11 1983), reconsideration en banc stayed, 729 F.2d
1293 (1984); McCleskey v. Zant, 580 F.
Supp. 338 (ND Ga.), hearing en banc granted, 729 F.2d
1293 ( CA11 1984). Spencer was argued en banc on January 17,
1984; Ross and McCleskey were argued en banc on June 12, 1984; and
all three cases are pending decision by the Eleventh
Circuit.
Footnote 10 The "newly
discovered evidence" standard was articulated in Townsend v. Sain,
a case addressing first federal habeas petitions. The test is the
same for successor petitions. See, e.g., Sanders v. United States,
373 U.S.
1, 18, 1078 (1963) ( standards concerning foreclosure from
federal collateral review "govern equally" in the context of a
successor writ).
Footnote 11 A court
may of course also require the petitioner to submit the evidence he
relies upon, so that the court may review that evidence to ensure
that it fairly supports the petitioner's factual allegations and is
sufficient to require an evidentiary hearing. This too is a common
practice. Of course, the court must actually inform the petitioner
that he must tender his evidence and must give him a reasonable
opportunity to do so. If the petitioner after such reasonable
opportunity has neither submitted his evidence nor offered a
reasonable explanation for failing to do so, the court may dismiss
the petition. See, e.g., Smith v. Balkcom, 660
F.2d 573, 575, n. 2, 585, n. 33 (CA5 1981), modified, 671 F.2d
858, mandate recalled, 677 F.2d
20, cert. denied, 459 U.S. 882 (1982).
Footnote 12 The
Eleventh Circuit en banc dissenters emphasized that this was a
sufficient proffer for purposes of the oral argument:
"Counsel for Stephens proffered
evidence based on newly available studies, (referring by name to
the Baldus Study relied on in Spencer ), summarized briefly the
conclusions of the studies indicating a racially disproportionate
imposition of the death penalty in Georgia, and when pressed for
specifics stated that there would be presented the same evidence
presented in the August, 1983 case of McCleskey v. Zant, . . . and
that the evidence would be presented tomorrow if the court
pleased." 722 F.2d, at 628, n. 1.
Footnote 13 The
Eleventh Circuit clearly construed the November 15 argument as
having been an evidentiary hearing, see supra, at 1048, and n. 7,
as does the State, see Brief in Opposition ii, 8, 9, n. 2, 12,
14-16, 18. If the District Court meant in the cryptic second
footnote of its opinion to suggest instead that Stephens had failed
to allege sufficient facts to require any further inquiry at all,
that conclusion was clearly erroneous for the reasons discussed in
the immediately preceding paragraph in text.
Footnote 14 To comply
with Habeas Corpus Rule 8, however, such expediting is permissible
only if the petitioner's counsel has had "adequate time for
investigation and preparation." In scheduling the evidentiary
hearing, the court must "take account of the complexity of the
case, the availability of important materials, the workload of the
attorney general, and the time required by appointed counsel to
prepare." Advisory Committee's Note to Habeas Corpus Rule 8, 28
U.S.C., p. 356. See also Barefoot v. Estelle, 463 U.S.
880, 915, 3406 (1983) (MARSHALL, J., dissenting) ("In view of
the irreversible nature of the death penalty and the extraordinary
number of death sentences that have been found to suffer from some
constitutional infirmity, it would be grossly improper for a court
. . . to establish special summary procedures for capital
cases").