Rehearing Denied March 5, 1985.
See 470 U.S. 1046.
On petition for writ of certiorari to the United States Court of
Appeals for the Eleventh Circuit.
The application for stay of execution of the sentence of death
presented to Justice REHNQUIST and by him referred to the Court is
denied. The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
Adhering 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, 231, 2973, 49 L. Ed. 2d 859 (1976) (MARSHALL, J.,
dissenting), I would grant Witt's application for a stay of
execution. But even if I thought otherwise, I would stay this
execution because Witt's petition raises an issue-crucial to the
administration of capital punishment in this country-on which there
exists a split of authority among the Courts of Appeals. This Court
is certain to grant certiorari in the immediate future to resolve
this issue, and our resolution will govern the question whether
Witt's death sentence is constitutional. Under these circumstances,
a denial of Witt's application for a stay is manifestly unjust.
Page 470 U.S.
1039 , 1040
I
Witt was convicted of murder and sentenced to death. After
exhausting Florida's postconviction remedies, he sought federal
habeas corpus relief. The United States Court of Appeals for the
Eleventh Circuit upheld Witt's conviction but reversed his sentence
on the basis of Witherspoon v. Illinois,
391 U.S. 510 (1968 ).
Witt v. Wainwright,
714 F.2d
1069 (CA11 1983). This Court reversed and remanded. Wainwright
v. Witt,
469 U.S.
412d 841 (1985). A second federal habeas petition was filed in
Federal District Court on February 26, 1985, while Witt was
simultaneously exhausting state remedies. On March 1, 1985, the
District Court denied habeas relief and an application for stay of
execution pending appeal. On March 4, the Court of Appeals affirmed
the denial of habeas relief and denied an application for a stay of
execution pending disposition of a petition for certiorari to this
Court. On the same day Witt petitioned this Court for certiorari
and applied for a stay of execution pending disposition of that
petition. Barring a stay by this Court, Witt will be executed at 7
a.m. on March 6, 1985.
Witt alleges that his Sixth and Fourteenth Amendment rights were
violated when the State submitted the general venire to a process
of " death-qualification." The crux of Witt's argument is that the
currently permissible, but constitutionally circumscribed, voir
dire process in capital cases of excluding jurors opposed to the
death penalty, see Wainwright v. Witt, supra, has the
unconstitutional effect of rendering juries more predisposed to
find a defendant guilty than would a jury from which those opposed
to the death penalty had not been excused. This argument implicates
both the right to an impartial jury and the right to a jury from
which an identifiable segment of the community has not been
excluded. See, e.g., Taylor v. Louisiana,
419 U.S.
522, 538, 701 (1975).
Witherspoon explicitly left open the question that Witt raises.
The Court declined to address the question primarily because the
empirical data then available were too fragmentary to permit
conclusive resolution of the question whether "death-qualified"
juries are unconstitutionally prone to convict. We made quite
clear, however, that a sufficient empirical showing to that effect
would raise grave constitutional questions:
"[T]he question would then arise
whether the State's interest in submitting the penalty issue to a
jury capable of imposing capital punishment may be vindicated at
the expense of the
Page 470 U.S.
1039 , 1041
defendant's interest in a completely fair determination of guilt
or innocence-given the possibility of accommodating both interests
by means of a bifurcated trial, using one jury to decide guilt and
another to fix punishment." 391 U.S., at 520, n. 18, n. 18.
See also Bumper v. North Carolina,
391 U.S.
543, 545, 1790 (1968). Our recent decision in Wainwright v.
Witt, supra, in no way forecloses this issue, and may have made its
immediate resolution imperative. See id., 469 U.S., at 460, n. 11,
n. 11 (BRENNAN, J., dissenting).
The District Court in this case ruled on the merits of Witt's
claim and rejected the argument that the "death-qualified" jury is
unconstitutionally prone to convict. Tr. 17. In doing so, the court
followed a recent en banc ruling of the Eleventh Circuit rejecting
the identical claim. See McCleskey v. Kemp,
753
F.2d 877 (1985). To support rejection of the claim the Eleventh
Circuit in McCleskey specifically relied on Spinkellink v.
Wainwright,
578 F.2d
582, 583-596 (CA5 1978), cert. denied, 440 U.S. 976 (1979). In
Spinkellink, the Fifth Circuit had held that, irrespective of
empirical data showing that "death-qualified" juries are biased in
favor of the prosecution, the process of "death-qualification" of
capital jurors violates no constitutional rights of a capital
defendant because the proposition that "a death-qualified jury is
more likely to convict than a nondeath-qualified jury does not
demonstrate which jury is impartial. It indicates only that a
death-qualified jury might favor the prosecution and that a
nondeath-qualified jury might favor the defendant." 578 F.2d, at
593-594 (emphasis added). The Fourth Circuit has in recent months
also relied on the Fifth Circuit's analysis in Spinkellink to
reject a challenge identical to the one presented in this case. See
Keeten v. Garrison,
742 F.2d
129 (4 Cir., 1984).
A recent en banc decision of the Eighth Circuit directly
conflicts with this established Fourth, Fifth, and Eleventh Circuit
law. See Grigsby v. Mabry,
758 F.2d
226 (CA8 1985). After carefully scrutinizing a large body of
empirical evidence on which the District Court had relied in making
the factual finding that "death-qualified" juries are more prone to
convict, the Eighth Circuit ruled that a conviction rendered by
such a jury violates the capital defendant's Sixth and Fourteenth
Amendment rights to an impartial jury. Id., at 241-242 ("The issue
is not whether a jury would be biased one way or the other, but
whether an impartial jury
Page 470 U.S.
1039 , 1042
can exist when a distinct group in the community is excluded by
systematically challenging them for cause"). In reaching this
conclusion, the Eighth Circuit acknowledged and explained its
rejection of the analysis that led the Fifth Circuit in
Spinkellink, the Fourth Circuit in Keeten, and the Eleventh Circuit
in McCleskey to a contrary result. Grigsby v. Mabry, supra, at
238-242.
This Court will certainly grant certiorari to resolve this issue
in the immediate future because it presents a clear split in the
Courts of Appeals on an issue of constitutional law whose
importance to the administration of the States' criminal justice
systems is undoubted. In light of the certainty that this Court
will soon address the issue and the uncertainty as to its proper
resolution, the State of Florida's effort to execute Witt should be
stayed pending our disposition of the issue.
II
Despite the overwhelming public importance of this issue, the
State of Florida, raising a procedural barrier to Witt's claim,
would allow Witt to die with the issue still hanging in the
balance. The State argues that Witt should not be allowed to have
the issue aired because he did not present it in an earlier federal
habeas petition; on the basis of this argument, the Eleventh
Circuit closed its doors to Witt's substantial constitutional
claim. Abuse of the writ was found because in Witt's first federal
habeas petition, filed on May 5, 1980, he did not raise his death-
qualified jury claim-a claim accepted for the first time by any
court on August 5, 1983. See Grigsby v. Mabry,
569 F.
Supp. 1273 (ED Ark.1983), aff'd,
758 F.2d
226 (CA8 1985) (en banc). Witt's claim raises questions going
to the heart of the jury system by which he was convicted, and to
bar him from raising it merely because his counsel either did not
know of the claim in 1980 or recognized the futility of raising it
at that time would cast serious doubt on the willingness of this
Court to ensure that executions are carried out in compliance with
the Constitution.
This Court has had little occasion to address the
abuse-of-the-writ principles now codified in 28 U.S.C. 2244(b) and
in 28 U.S.C. 2254 Rule. In 1948, shortly before 2244(b) was passed,
the Court in Price v. Johnston,
334 U.S.
266, 291, 1063 (1948), overturned a District Court's dismissal
without a hearing of a fourth habeas petition that presented issues
not previously adjudicated. Discussing general equitable principles
governing issuance of the
Page 470 U.S.
1039 , 1043
writ, the Court noted that "[t]he primary purpose of a habeas
corpus proceeding is to make certain that a man is not unjustly
imprisoned," and that the mere fact that petitioner had filed three
previous petitions was no reason to refuse to reach the merits of
his claim. In Sanders v. United States,
373 U.S. 1 (1963), the
Court undertook its only full explication of abuse-of-the-writ
principles. Citing the deliberate bypass standard of Fay v. Noia,
372 U.S. 391, 83
S. Ct. 822 (1963), the Court in Sanders emphasized that previously
unadjudicated claims must be decided on the merits unless the
petitioner has made a conscious decision deliberately to withhold
them, is pursuing "needless piecemeal litigation," or the claims
are raised only to " vex, harass, or delay." 373 U.S., at 18. To
illustrate the proper application of this principle, the Court
discussed Wong Doo v. United States,
265 U.S. 239 (1924), in
which the petitioner had raised two claims in a first petition but
offered no evidence on one of those claims. An attempt to reassert
that claim in a second petition was held an abuse of the writ, for
the petitioner was found to have deliberately abandoned the claim
in the earlier proceeding.
Other than these isolated instances, the Court has had little
occasion in full opinions to elaborate upon the contours of the
abuse-of- the-writ doctrine. Instead, the doctrine develops sub
rosa when this Court refuses to stay executions or to consider
substantive claims raised in certiorari petitions that arise from
second or later habeas petitions. That alone should be reason to
pause before declining, without plenary consideration, to reach the
merits of the major issue in current death- penalty law that this
stay application and certiorari petition raise; lower courts, as
well as the public, are entitled to guidance as to what standards
this Court is employing when it refuses to reach the merits of what
are clearly substantial issues in the administration of the death
penalty. Surely the mere fact that this is a second habeas petition
is not in and of itself enough to bar consideration of the merits
of Witt's claim. See Woodard v. Hutchins,
464 U.S.
377, 383, 755 (1984) (WHITE and STEVENS, JJ., dissenting).
Moreover, while the Court has abandoned Fay's deliberate bypass
standard in some contexts and required petitioners to show cause
and prejudice for their delay in presenting issues, see Wainwright
v. Sykes,
433 U.S.
72 (1977), it is clear that the deliberate bypass standard of
Sanders still governs dismissal of successive
Page 470 U.S.
1039 , 1044
habeas petitions. First, in enacting Rule 9(b), Congress
explicitly adopted the abuse-of-the-writ standard announced in
Sanders. See Rose v. Lundy,
455 U.S.
509, 521, 1205 (1982). Second, Congress explicitly rejected a
"cause and prejudice" test in this context; although a proposed
draft of the Rule would have allowed dismissal when the failure to
raise a claim earlier was "not excusable," see H.R.Rep. No.
94-1471, p. 8 (1976), Congress amended the proposed Rule for fear
that "the 'not excusable' language created a new and undefined
standard that gave a judge too broad a discretion to dismiss a
second or successive petition." Id., at 5 (emphasis added).
Instead, a less stringent standard-that of Sanders -was adopted.
Under that standard, dismissal is allowed only when a second
petition "constitute[s] an abuse of the writ." H.R.Rep. No.
94-1471, at 5, 8.
Thus, a successive petitioner is not required to demonstrate
that he was unable to raise the claim earlier. Instead, the
petitioner need show only that the claim was not deliberately
withheld for the purpose of abusing the process in some way. Witt
cannot be accused of such abuse. First, unlike Wong Doo, Witt did
not present this claim in his first petition and then abandon it.
See also Antone v. Dugger,
465 U.S. 200 (1984).
Second, Witt can hardly be said to be engaging in "needless
piecemeal litigation," Sanders, supra, 373 U.S., at 18 (emphasis
added); his only failing was to raise his claim at a time when it
was clear that it was foreclosed in Florida, see, e.g., Riley v.
State,
366 So. 2d
19 (Fla.1978), and in the Eleventh Circuit, see Spinkellink v.
Wainwright,
578 F.2d
582 (CA5 1978), cert. denied, 440 U.S. 976 (1979), and when
this Court had refused to entertain the claim many times. Were the
rule otherwise, as it seems to be becoming, defense counsel in
every criminal case would have to include in a first federal habeas
petition a laundry list of potentially meritorious but clearly
rejected constitutional claims in order to preserve them should the
law later change. Rather than promoting efficiency, such a rule
would further clog the courts and confound lower court judges.
Third, Witt's petition is not one "whose only purpose is to vex,
harass, or delay." 373 U.S., at 18. Witt has raised a substantial
claim going to the validity of his conviction. Finally, it is clear
that, were this Court upon plenary consideration to invalidate
death-qualified juries, such a holding would constitute an
intervening change in law sufficient to allow Witt then to have his
claim adjudicated on the merits. Surely Witt's fate should not
Page 470 U.S.
1039 , 1045
rest on the fortuity of his execution having been scheduled
before, rather than after, this Court's consideration of the Eighth
Circuit's decision.
Perhaps of even greater importance, Sanders left no doubt that a
claim raised for the first time in a second or later habeas
petition could be considered if "the ends of justice" would thereby
be served. See id., at 17. "Even as to [a successive] application,
the federal judge clearly has the power-and, if the ends of justice
demand, the duty-to reach the merits." Id., at 18-19-1079. Yet I
fail to see how this standard can be applied in any meaningful way
before we address the merits of the underlying death-qualified
juror claim that the Court must soon face. Witt's claim strikes at
the heart of every premise upon which the legitimacy of his
conviction rests. A great deal of empirical work has been devoted
to exploring this claim, and the evidence supporting it is strong
enough to have convinced the en banc Eighth Circuit, and two
District Courts, that the claim is sound. Until we have the issue
before us for plenary consideration, examine the underlying
evidence, and reach some decision on both the merits of the claim
and the nature and scope of any constitutional defect that might
exist, I simply cannot understand how the "ends of justice" test
can be applied to determine whether Witt's claim should be
procedurally barred. " The availability of habeas corpus relief
should depend primarily on the character of the alleged
constitutional violation and not on the procedural history
underlying the claim." Rose v. Lundy, supra, 455 U.S., at
547-548-1219 (STEVENS, J., dissenting). To apply the procedural bar
in advance of full consideration of this central issue is to turn
the Great Writ on its head.
III
Witt will not be the first person whose execution this Court has
sanctioned notwithstanding a claim that his conviction by a "death-
qualified" jury violated the Sixth and Fourteenth Amendments. See,
e.g., Knighton v. Maggio, 468 U.S. 1229 (1984) ( BRENNAN, J.,
dissenting); Woodard v. Hutchins, supra, 464 U.S., at 382 (BRENNAN,
J., dissenting). Nor will he be the first person whose execution
this Court has sanctioned "while the constitutionality of his
sentence is in doubt." See, e.g., Stephens v. Kemp, 469 U.S. 1098,
1099, ___ (1984) ( BRENNAN, J., dissenting); Green v. Zant,
469 U.S.
1143, 1144, 828 (1985) (BRENNAN, J., dissenting). The
responsibility to decide profoundly difficult and divisive legal
questions is not
Page 470 U.S.
1039 , 1046
a comfortable one. All too often, judges seek to avoid this
responsibility by hiding behind unexplained and unexplainable
procedural " rules" that purport to allow cases to be disposed of
without confronting their merits. Every Member of this Court knows
that certiorari must be granted in the immediate future to resolve
the issue that Witt has raised in his petition for certiorari. Our
refusal to grant his stay application pending resolution of the
issue unmasks the hollowness of this Court's purported commitment
to unique procedural safeguards against arbitrariness " 'on a
matter so grave as the determination of whether a human life should
be taken or spared.' " Zant v. Stephens,
462 U.S.
862, 874, 103 S. Ct. 2733, 2741 (1983) (quoting Gregg v.
Georgia,
428 U.S.
153, 189, 2932 (1976)); see also Lockett v. Ohio,
438 U.S.
586, 604, 2964 (1978) ( BURGER, C.J.).
I dissent.
Justice STEVENS would grant the application for stay.
Justice POWELL took no part in the consideration or decision of
this application and this petition.