478 U.S. 1044 (1986)

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U.S. Supreme Court

DAVIS v. WAINWRIGHT , 478 U.S. 1044 (1986)

478 U.S. 1044

Allen Lee DAVIS v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, et al
No. A-224

Kenneth Wayne HARDWICK v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, et al
No. A-225

Supreme Court of the United States

September 23, 1986

On applications for stay.

The application for stay of execution of the sentence of death, presented to Justice POWELL and by him referred to the Court, is granted pending the timely filing and disposition by this Court of a petition for writ of certiorari. Should the petition for a writ of certiorari be denied, this stay terminates automatically. In the event the petition for writ of certiorari is granted, this stay shall continue pending issuance of the mandate of this Court.

Justice POWELL, with whom THE CHIEF JUSTICE joins, concurring.

Allen Davis and Kenneth Hardwick were scheduled to be executed on September 23, 1986. On the morning of September 22, Davis and Hardwick filed habeas corpus petitions in the Florida Supreme Court, that has original jurisdiction to issue extraordinary writs under Fla.Rule App.Proc. 9.030(a)(3). The Florida Court denied both applications by order, stating in each case that it would "file an opinion at a later date setting forth its reasons for the denial of this Petition." At 10:25 p.m. on that day, less than nine hours before the scheduled executions, Davis and Hardwick filed applications with me, as Circuit Justice, seeking stays of execution until this Court can consider their petitions for writs of certiorari to review the Florida decisions. The sole basis for their request is a claim that in Florida capital punishment

Page 478 U.S. 1044 , 1045

is applied discriminatorily on the basis of the race of the victim. I granted a temporary stay until September 23 at 3 p.m. and referred the applications to the full Court.


The State asks us to deny the applications, claiming that Davis and Hardwick were barred by state law from raising their claims in the Florida Supreme Court. The State asserts that Davis's claim was barred because he did not raise it on direct appeal from his conviction. See Stone v. State, 481 So.2d 478, 479 (Fla.1985). The State also asserts that Hardwick's claim was filed in the wrong forum. See Ford v. Wainwright, 451 So.2d 471 ( Fla.1984) (a claim may not be raised for the first time in original habeas proceedings in the Florida Supreme Court). According to the State, Hardwick's claim should have been filed in a Florida trial court under Fla. Rule Crim.Proc. 3.850. Davis and Hardwick ask us to ignore these procedural questions.

We note that Davis filed a habeas petition last night, September 22, in the federal district court for the Middle District of Florida (Black, J .). This morning, that Court denied the petition and refused to grant a certificate of probable cause. Judge Black concluded that Davis had abused the writ by "intentionally delaying the raising of grounds for relief." 1

Despite this record of unexplained delay, I concur in the Court's decision to grant these applications. They now raise claims similar to the issue presented in Hitchcock v. Wainwright, 476 U.S. ___ (1986) (writ of certiorari granted), to be argued here on October 15, 1986. No Florida court has specifically addressed the State's contentions that the claims are procedurally barred. The Florida Supreme Court decisions may rest on those grounds, but that Court has not published an opinion. In the past I have found procedural bars apparent on the face of a stay application. See Woodard v. Hutchins, 464 U.S. 377, 378 (1984) (POWELL, J., concurring). I am reluctant to do so here, however, because the alleged bars depend on an interpretation of state law. In these applications, I am unwilling to assume that the Florida Supreme [478 U.S. 1044 , 1046]

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