485 U.S. 945 (1988)

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U.S. Supreme Court

DUGGER v. JOHNSON , 485 U.S. 945 (1988)

485 U.S. 945

Richard L. DUGGER, Secretary, Florida Department of Corrections, et al.
Larry Joe JOHNSON.
No. A-693

Supreme Court of the United States

March 15, 1988

On application to vacate stay.

The application of the Attorney General of Florida for an order to vacate the stay of execution of sentence of death entered by the United States District Court for the Northern District of Florida presented to Justice KENNEDY and by him referred to the Court is denied.

Justice O'CONNOR, with whom THE CHIEF JUSTICE joins, dissenting.

Larry Joe Johnson was scheduled to be executed on March 9, 1988. The State informs us that it was served with a petition for a writ of habeas corpus at about 5:45 p.m. on March 7, 1988. That petition raised an issue, under Caldwell v. Mississippi, 472 U.S. 320 (1985), in which Johnson claims that the sentencing jury was improperly informed that its role in the sentencing decision was merely advisory. Noting that issues similar or identical to Johnson's Caldwell claim are pending before the United States Court of Appeals for the Eleventh Circuit and before this Court, the United States District Court for the Northern District of Florida granted an indefinite stay of execution. The United States Court of Appeals for the Eleventh Circuit denied the State's mo-

Page 485 U.S. 945 , 946

tion to vacate the stay. The State then applied to the Circuit Justice for the Eleventh Circuit for a vacation of the stay, and the application was referred to the full Court. Johnson did not file any response, and this Court has voted to deny the application. I respectfully dissent.

The State argues that Johnson has abused the writ of habeas corpus by raising his Caldwell claim at this time. The State avers that Johnson had raised the same claim, along with others, in a previous petition for federal habeas, which was filed before this Court's decision in Caldwell. The claim was rejected on procedural grounds at that time, and it was not among the issues on which Johnson appealed to the Eleventh Circuit. Our decision in Caldwell was announced while the appeal was pending in the Eleventh Circuit, and Johnson apparently did not bring it to the attention of that court. Concluding that the claim was abandoned, the State now urges that Johnson's effort to renew the claim at this time constitutes an abuse of the writ.

In my view, the State is clearly correct to argue that the writ of habeas corpus is abused when a claim is raised in one petition, abandoned on appeal, and then raised again in a successive petition. If Johnson's Caldwell claim falls into this category, then the District Court would seem to have abused its discretion by granting an indefinite stay of execution on the ground that Caldwell issues are present in other cases pending before the Eleventh Circuit and before this Court.

Without ruling out the possibility that extraordinary circumstances might justify a stay of execution in this case, I note that no such circumstances have been called to our attention. The District Court did not address the argument that the State has made to this Court. The State explains this in the following way. In an effort to facilitate the District Court's consideration of any habeas petition that Johnson might file, it lodged an anticipatory response with that court. That response did not address Johnson's Caldwell claim because the State considered that claim abandoned. After Johnson filed his petition on March 7, the State prepared a supplemental response, which it expected to offer to the court at a hearing that was scheduled for the next morning at 10 o'clock. Counsel for the State arrived at 9:30, but "was informed that the hearing was cancelled and that the [District] Court had entered a stay without allowing the State to be heard." The State's attorney filed its written supplemental response with [485 U.S. 945 , 947]

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