478 U.S. 1040 (1986)

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U.S. Supreme Court

ROOK v. RICE , 478 U.S. 1040 (1986)

478 U.S. 1040

John William ROOK
Nathan A. RICE, Warden
No. A-211 (86-5500)

Supreme Court of the United States

September 18, 1986

The application for stay of execution of the sentence of death presented to THE CHIEF JUSTICE and by him referred to the Court is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting from denial of application for stay of execution.


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, 227, 2950, 49 L. Ed.2d 859 (1976) (BRENNAN, J., dissenting), I would grant the stay application and the petition for certiorari and would vacate the sentence in this case.


But even if I did not hold this view, I would grant the stay of execution in this case and vote to hold the petition for certiorari pending this Court's disposition of McCleskey v. Kemp, No. 84-6811, and Hitchcock v. Wainwright, No. 85-6756. Rook contends that newly available social science evidence demonstrates unconstitutional, system-wide racial disparities in North Carolina's capital sentencing system. He maintains that the evidence is sufficient to warrant a hearing on his claim. These questions are similar to those presented in McCleskey and Hitchcock, cases that will be argued in October of the 1986 term, and other petitions that are before the Court and upon which the Court has not yet acted.

Other petitioners have presented similar claims of system-wide racial disparities in capital sentencing and have requested stays of execution from this Court in light of our grants of certiorari in McCleskey and Hitchcock. This Court has granted stays of

Page 478 U.S. 1040 , 1041

execution in Berry v. Phelps, ___ U.S. ___ ( 1986); Wingo v. Blackburn, ___ U.S. ___ ( 1986); Watson v. Blackburn, ___ U.S. ___ ( 1986); Glass v. Blackburn, ___ U.S. ___ ( 1986); Moore v. Blackburn, ___ U.S. ___ ( 1986); Brogdon v. Blackburn, ___ U.S. ___ ( 1986), and most recently, Rault v. Blackburn, ___ U.S. ___ (1986).

In this case, the district court and the Fourth Circuit have refused to grant a stay of execution on the ground that Rook's petition for habeas corpus relief is successive and therefore barred pursuant to Habeas Corpus Rule 9(b), 28 U.S.C. foll. 2254. Rook concedes that his arguments regarding the unconstitutional application of the death penalty in North Carolina were presented in his previous federal petition; he maintains, however, that his petition should be heard pursuant to the "ends of justice" exception recognized by this Court in Sanders v. United States, 373 U.S. 1 (1963). He contends that a new study, Arbitrariness of the Capital Death Penalty, authored by Professors Nakell and Hardy of the University of North Carolina does not suffer from the inadequacies which the district court found in the evidence submitted in support of his first petition. Moreover, the study was not available at the time Rook filed his initial petition for habeas relief. He further argues that the new study provides substantial support for his theory that the administration of the death penalty in North Carolina suffers from a systemic unconstitutional flaw.

The Fourth Circuit held that Rook had not made the necessary showing that he did not receive a "full and fair" hearing on the question and found that the new evidence did not "bear on the constitutionality of the applicant's detention." See Townsend v. Sain, 372 U.S. 293, 83 S.Ct.745 (1963). This Court evidently agrees that the petition is successive, and I therefore dissent.

Initially, I note that Rule 9(b) is phrased in permissive, and not mandatory terms:

A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

In Sanders v. United States, 373 U.S. 1 (1963), this Court set forth guidelines for cases involving potentially successive petitions: [478 U.S. 1040 , 1042]

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