442 U.S. 901 (1979)

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U.S. Supreme Court

WAINWRIGHT v. SPENKELINK , 442 U.S. 901 (1979)

442 U.S. 901

Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, et al., applicants,
No. A-1020

Supreme Court of the United States

May 24, 1979

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 [442 U.S. 901 , 903]

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