In 1976, applicant was convicted in a Florida state court of
first-degree murder and was sentenced to death. The Florida Supreme
Court ultimately affirmed, and this Court denied certiorari.
Applicant was also a party to an unsuccessful state court suit
challenging the Florida Supreme Court's use of extra-record
materials in conducting proportionality review of death sentences.
In 1982, the trial court denied applicant's motions for
postconviction relief, and the Florida Supreme Court affirmed.
Applicant also sought habeas corpus relief in Federal District
Court, which denied relief. The Court of Appeals ultimately
affirmed, and this Court denied certiorari. After applicant's
execution was set for January 24, 1984, his second state court
application for postconviction relief was denied, and the Florida
Supreme Court affirmed. That court also denied applicant's petition
for extraordinary relief. Applicant then filed a second habeas
petition in Federal District Court, which again denied relief. The
Court of Appeals held that the District Court was correct in
dismissing applicant's petition on the grounds that it presented
successive claims that had been previously considered, and
constituted an abuse of the writ as to any "new" claims, since they
should have been raised on the first habeas petition. However, the
Court of Appeals granted a temporary stay of execution until
January 25, at 12 noon, to afford applicant an opportunity to apply
to this Court for a stay of execution. After the Court of Appeals
denied a petition for rehearing, a suggestion for rehearing en
banc, and an application for a stay pending rehearing, applicant
filed with this Court a petition for writ of certiorari and an
application for a stay of execution pending consideration of the
With respect to the claims for relief that
applicant presented for the first time on his second habeas
petition, the District Court and the Court of Appeals properly
found that presentation of the claims constituted an abuse of the
writ. As applicant had presented the claims to the state courts
before the first habeas petition was filed, he cannot properly
contend that the claims were unknown to him at that time. Nor has
applicant shown any basis for disagreeing with the finding of the
Page 465 U. S. 201
Court and the Court of Appeals that the ends of justice would
not be served by reconsideration of those claims previously
presented on federal habeas. The federal and state courts carefully
and repetitively have reviewed applicant's challenges to his
conviction and sentence.
Certiorari and application for stay denied.
We consider an application for a stay of execution that had been
set for January 24, 1984, at 7 a. m., and a petition for writ of
certiorari. The Court of Appeals for the Eleventh Circuit granted a
temporary stay until January 25, at 12 noon, to afford applicant an
opportunity to apply to this Court for a stay of execution. At the
same time, the Court of Appeals denied applicant's request for
issuance of a certificate of probable cause and his application for
an indefinite stay of execution. [Footnote 1
] The application and petition now before us
were not filed until January 25, shortly after the expiration of
the temporary stay. [Footnote
] The State has filed an opposition to the pending
On August 27, 1976, a jury convicted applicant of first-degree
murder. He was sentenced to death. The evidence upon which the
conviction was based showed that applicant had planned the
"contract murder" of a Tampa police officer, apparently to prevent
the officer from testifying at a grand jury investigation of "Mob"
On the first appeal, the Florida Supreme Court remanded for a
hearing on the question whether the failure to disclose an
attorney's fees arrangement between the State and one of the
prosecution witnesses had violated applicant's due process
Page 465 U. S. 202
rights under Brady v. Maryland, 373 U. S.
(1963), and United States v. Agurs,
427 U. S. 97
(1976). Antone v. State, 355 So. 2d
(1978). The trial court found that there was no violation.
On the second appeal, the Florida Supreme Court affirmed the
conviction. Antone v. State, 382 So. 2d
(1980). This Court denied certiorari. 449 U.S. 913
Applicant was also a party to an unsuccessful suit challenging
the Florida Supreme Court's use of extra-record materials in
conducting proportionality review of death sentences. Brown v.
Wainwright, 392 So. 2d
(1981), cert. denied, 454 U.
(1981). (This practice was also challenged in
Ford v. Strickland,
696 F.2d 804 (CA11), cert.
464 U.S. 865 (1983); applicant was not a party to that
On January 6, 1982, applicant's execution was set for February
5, 1982. He then brought two motions for postconviction relief in
state court. The motions raised a number of claims, including
ineffective assistance of counsel, further Brady
violations, and challenges to applicant's arrest under Payton
v. New York, 445 U. S. 573
(1980), and to the constitutionality of the death penalty statute,
as well as various challenges to the selection of the jury and the
trial proceedings. After an evidentiary hearing, the trial court
denied relief, and the Florida Supreme Court affirmed. Antone
v. Strickland, 410 So. 2d 157
On January 22, 1982, applicant filed a petition for a writ of
habeas corpus in the District Court for the Middle District of
Florida. On January 29, 1982, after oral argument, the District
Court denied the petition. The Court of Appeals granted a stay and
remanded to the District Court for further consideration of
applicant's claims. On remand, the District Court again denied
relief, and the Court of Appeals affirmed. Antone v.
706 F.2d 1534 (CA11 1983). This Court denied
certiorari on November 28, 1983, 464 U.S. 1003, and denied a
petition for rehearing on January 9, 1984, 464 U.S. 1064.
Page 465 U. S. 203
On January 4, 1984, the Governor signed a warrant for the
execution of applicant between noon Friday, January 20, and noon
Friday, January 27. The execution was subsequently set for January
24, 1984, at 7 a. m.
On January 17, applicant filed a second motion for
postconviction relief in the state courts, alleging ineffective
assistance at the penalty stage of his trial and
unconstitutionality of the Florida death penalty statute under
Lockett v. Ohio, 438 U. S. 586
(1978). The motion was denied. On Friday afternoon, January 20, the
Florida Supreme Court affirmed, noting that these claims had been
considered and rejected in applicant's prior postconviction
proceeding. Applicant also filed a "petition for extraordinary
relief " in the Florida Supreme Court, questioning the propriety of
that court's use of extra-record materials in reviewing death
sentences. The State Supreme Court denied the petition, again
noting that applicant's claim previously had been considered by the
court in Brown v. Wainwright, supra,
and by the Court of
Appeals for the Eleventh Circuit in Antone v. Strickland,
Applicant then filed a second petition for a writ of habeas
corpus in the District Court on January 20. Of the claims presented
in that petition, applicant previously had raised in his first
federal habeas petition the contentions that trial counsel was
ineffective and that the State unjustifiably withheld testimony of
a confidential informant. Nonetheless, applicant urged that these
claims be reconsidered, as the press of time during the first set
of collateral proceedings had denied his counsel a "full and fair
opportunity" to develop the claims in the state and federal
Applicant's second habeas petition also contained several claims
that purportedly had not been raised in his first federal habeas
petition: (i) that the State violated Brady
by failing to disclose prior to trial that the chief
prosecution witness had counsel whose fees were paid by the State,
despite trial counsel's discovery demand for "any
Page 465 U. S. 204
material or information" relevant to the "credibility of the
State's witnesses"; (ii) that the "appearance of justice" was
denied by the Florida Supreme Court's consideration of applicant's
extra-record materials in deciding applicant's direct appeal; (iii)
that the statute under which applicant was sentenced
unconstitutionally excluded nonstatutory mitigating factors from
consideration, see Lockett v. Ohio, supra.
twice previously had been considered, as noted above, by the
Florida Supreme Court.
After a hearing on January 23, the District Court denied a stay
of execution, the petition for habeas corpus, and a certificate of
probable cause. The court concluded that the "ends of justice"
would not be served by reconsideration of the claims that had been
raised on the first petition for habeas corpus. Further, the court
expressed doubt that the claims that applicant described as "new"
had not been substantially considered during the first federal
habeas proceeding. It concluded, in any event, that applicant's
presentation of these claims on the present petition, insofar as
they were new, constituted an abuse of the writ, see
U.S.C. § 2254 Rule 9(b), as applicant showed "inexcusable neglect"
in not having raised these claims on the first petition.
On appeal, the Court of Appeals concluded in a per curiam
opinion that the District Court was "correct" in dismissing
applicant's petition on the grounds that it presented successive
claims and constituted an abuse of the writ. The Court of Appeals
therefore denied a certificate of probable cause and a stay of
execution pending an appeal on the merits of the habeas petition to
that court. The Court of Appeals, however, granted a temporary stay
until January 25, at 12 noon, to afford applicant an opportunity to
apply to this Court for a stay of execution.
Applicant then submitted to the Court of Appeals a petition for
rehearing, a suggestion for rehearing en banc, and an application
for a stay pending rehearing. Applicant contended that the
insufficient time allowed to his counsel to prepare
Page 465 U. S. 205
the first habeas corpus petition violated applicant's right to
effective assistance in capital postconviction proceedings; that
the inadequacy of counsel's preparation in any event should be
relevant to the question whether presentation of new claims
constituted abuse of the writ; and that the District Court should
have held an evidentiary hearing to inquire into the circumstances
under which the first habeas petition was prepared. The Court of
Appeals denied the petition for rehearing, the suggestion for
rehearing en banc, and the application for stay, with none of the
participating judges requesting a vote on the suggestion. Applicant
then filed with this Court a petition for writ of certiorari and an
application for stay pending consideration of the petition.
Applicant's petition for writ of certiorari repeats the claims
that were presented to the Court of Appeals in applicant's petition
for rehearing and suggestion for rehearing en banc. Applicant urges
that the lower courts should reconsider, after an evidentiary
hearing and in light of the haste with which applicant's first
habeas petition was prepared, their findings as to applicant's
abuse of the writ. [Footnote 3
Like the Court of Appeals, we conclude that these findings do not
warrant further review.
With respect to the grounds for relief that applicant presented
to the District Court for the first time on his second
Page 465 U. S. 206
habeas petition, we uphold the finding of the District Court and
the Court of Appeals that presentation of these claims constitutes
an abuse of the writ. As applicant had presented each of these
claims to the state courts before the first petition for habeas was
filed (and, indeed, the substance of these claims may have been
presented in the first habeas petition), applicant hardly can
contend that these claims were unknown to him at that time.
Nor has applicant shown any basis for disagreeing with the
finding of the District Court and the Court of Appeals that the
ends of justice would not be served by reconsideration of those
claims previously presented on federal habeas. The federal and
state courts carefully and repetitively have reviewed applicant's
challenges to his conviction and sentence.
Page 465 U. S. 207
Upon consideration of the extensive papers filed with the Court,
we find that none of these challenges warrants further review.
Indeed, the grounds relied upon by applicant all appear to be
For these reasons, we deny the petition for writ of certiorari
and deny the application for a stay.
It is so ordered.
Applicant then filed a motion with the Court of Appeals
suggesting a rehearing en banc and requesting a further stay. This
motion and request were denied by the Court of Appeals on January
Applicant lodged papers with this Court on January 20, while his
petition for a writ of habeas corpus was pending before the
District Court, but no formal filing for relief here occurred until
Applicant suggests that this haste denied him his right to
counsel in postconviction proceedings and refers us in particular
to Ross v. Moffitt, 417 U. S. 600
(1974), and Powell v. Alabama, 287 U. S.
(1932). Ross v. Moffitt
held that the State
has no obligation to provide counsel for discretionary direct
review of a conviction either in the state courts or in this Court.
Whether there is a right to counsel in repetitive collateral
proceedings in capital cases is not presented here, as applicant
had counsel throughout the relevant proceedings. See
with the courts below that the circumstances under which the first
petition for habeas was considered do not require those courts to
consider further the claims withheld from those petitions.
Applicant contends nonetheless that he could not have been
expected to present these claims in his first federal habeas
petition, as his present counsel was appointed when execution was
imminent, and therefore did not have time fully to familiarize
himself with the case. This contention is not new, has been
rejected by the courts below, and is meritless. The following
sequence, however, is of interest: applicant's conviction became
final upon affirmance by the Florida Supreme Court on March 27,
1980, and this Court denied a petition for writ of certiorari to
review the conviction on October 14, 1980. Applicant offers no
explanation as to why he allowed almost two years to elapse between
the affirmance of his conviction and the filing of his first motion
for postconviction relief in the state courts on January 15, 1982.
Nor does applicant contend that he was denied counsel during that
period. In fact, it appears that applicant continued to be
represented throughout this period by his trial counsel. That
counsel filed a motion to mitigate sentence that was acted upon on
January 29, 1981, was listed as applicant's counsel in the petition
for writ of certiorari in Brown v.
Wainwright, 392 So. 2d
(1981) (filed on April 3, 1981), and represented applicant
on his first postconviction motion and the notice of appeal from
denial of that motion in January, 1982.
Finally, the lower courts' consideration of the first federal
habeas petition, in which applicant was represented by his present
counsel, was not conducted under the pressure of imminent
execution, as the Court of Appeals had stayed execution pending
consideration of applicant's first habeas petition.
JUSTICE STEVENS, concurring.
In my opinion, the claims presented to the District Court, to
the Court of Appeals, and to this Court, by means of the second
petition for a federal writ of habeas corpus, are essentially the
same as claims that had previously been presented in the first
petition. While I join the Court's disposition of the application
and petition, I rely largely on the fact that the essence of each
of petitioner's current claims was raised in an earlier federal
habeas corpus proceeding. Antone v. Strickland,
1534 (CA11), cert. denied,
464 U.S. 1003 (1983). Nothing
alleged in this application persuades me that this Court should
exercise its discretion to permit petitioner to relitigate these
claims. I therefore find it unnecessary to consider the merits of
petitioner's arguments concerning hypothetical claims that were
raised in the second petition but not in the first.
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.
, 428 U. S. 227
231 (1976), we would grant the application for a stay of execution,
grant the petition for certiorari, and vacate the death