Petitioner Selvage filed a petition for a writ of certiorari to
review a Court of Appeals' decision refusing to grant a stay of
execution. This Court stayed the execution and withheld disposition
of the petition pending the decision in
Penry v. Lynaugh,
492 U. S. 302.
Following that decision, certiorari was granted to answer the
question whether, at the time of trial, there was cause for not
raising a claim based upon arguments later accepted in
Penry v.
Lynaugh, supra, and, if not, whether the application of a
procedural bar to the claim would result in a fundamental
miscarriage of justice.
Held: The case is remanded for a determination whether
Selvage's
Penry claim is presently procedurally barred
under Texas law. The Director of the Texas Department of Criminal
Justice disputes his argument that his
Penry claim would
no longer be deemed procedurally barred by the Texas Court of
Criminal Appeals. However, since
Penry was handed down
after his petition for certiorari was filed, and may have affected
the state court's view on whether the claim is presently barred,
this issue should be decided by the Court of Appeals before the
question on which certiorari was granted is addressed.
842 F.2d 89 vacated and remanded.
Page 494 U. S. 109
PER CURIAM.
In March 1988, petitioner sought certiorari to review a decision
of the United States Court of Appeals for the Fifth Circuit, 842
F.2d 89, refusing to stay the execution of his death sentence. We
granted a stay of execution, 485 U.S. 983 (1988), and withheld
disposition of the petition pending our decision in
Penry v.
Lynaugh, 492 U. S. 302
(1989). Following that decision, we granted certiorari in
petitioner's case to answer this question:
"At the time petitioner was tried, was there 'cause' for not
raising a claim based upon arguments later accepted in
Penry v.
Lynaugh, 492 U. S. 302 (1989); and if
not, would the application of a procedural bar to the claim result
in a 'fundamental miscarriage of justice,'
Smith v.
Murray, 477 U. S. 527,
477 U. S.
537-538 (1986)?"
493 U.S. 888 (1989). Petitioner contended in his brief and in
his oral argument that his claim for relief based on
Penry
would no longer be deemed procedurally barred by the Texas Court of
Criminal Appeals. The State, respondent here, disputes that
contention.
Because our decision in
Penry was handed down after
petitioner's petition for certiorari was filed, and may have
affected the view of the Texas Court of Criminal Appeals on the
issue of whether petitioner's claim is presently barred, we think
that issue should be decided before we address the
Page 494 U. S. 110
question on which we granted certiorari. The Court of Appeals
for the Fifth Circuit is more familiar with Texas law than we are,
and we therefore vacate the judgment of the Court of Appeals and
remand the case to it for determination of whether petitioner's
Penry claim is presently procedurally barred under Texas
law.
It is so ordered.
Justice BRENNAN, concurring.
I concur in the Court's disposition of the case. Even if I did
not, I would vacate petitioner's death sentence. I adhere to my
views that the death penalty is in all circumstances cruel and
unusual punishment.
See Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 227
(BRENNAN, J., dissenting).
Justice BLACKMUN, with whom Justice BRENNAN joins,
concurring.
I concur in the Court's disposition of this case. Petitioner
contends that, under the rule announced in
Ex parte
Chambers, 688
S.W.2d 483 (Tex.Crim.App.1984), the Texas courts no longer will
regard his
Penry claim as procedurally barred. It is
appropriate that this issue should be resolved as an initial
matter, since, if petitioner is correct it will be unnecessary to
decide the federal question on which we granted certiorari. I also
note that the Court of Appeals is free, if it wishes, to certify an
appropriate question to the Texas Court of Criminal Appeals.
