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October 3, 1986


[ 478 U.S. Page 1050]

Application for stay of execution of sentence of death, presented to JUSTICE POWELL, and by him referred to the Court, denied.


Adhering to our views 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, 231 (1976), we would grant the application for stay in order to give applicant time to file a petition for writ of certiorari, and would grant the petition and vacate the death sentence in this case.


 Roy Allen Stewart was convicted of first-degree murder in Dade County Circuit Court and sentenced to death. The Florida Supreme Court affirmed the conviction and sentence. Stewart v. State, 420 So. 2d 862 (1982), cert. denied, 460 U.S. 1103 (1983). The Governor signed Stewart's death warrant. Stewart filed a petition for post-conviction relief under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. The court stayed the execution, held an evidentiary hearing, and denied the petition. The Florida Supreme Court affirmed. Stewart v. State, 481 So. 2d 1210 (1985).

The Governor signed a second death warrant scheduling the execution for 7 a.m. on October 7, 1986. Stewart then filed a post-trial motion and application for stay of execution in the Florida Supreme Court, arguing that the State's administration of the death penalty violates the Eighth and Fourteenth Amendments

[ 478 U.S. Page 1051]

     because capital punishment is imposed disproportionately on prisoners whose victims were members of the white race. This question is similar to those presented in McCleskey v. Kemp, No. 84-6811, and Hitchcock v. Wainwright, No. 85-6756, cases that are to be argued before this Court on October 15, 1986. The Florida Supreme Court denied Stewart's motion and application for stay, ruling that "Stewart did not raise this claim in his previous 3.850 motion, and he is procedurally barred from raising it in this petition." Stewart v. Wainwright, 494 So. 2d 489, 490 (1986). Stewart then filed a second motion for post-conviction relief and application for stay in Circuit Court, raising the McCleskey/Hitchcock claim. The Circuit Court denied the petition and stay application. State v. Stewart, No. 79-6621, slip op., at 2 (Sept. 26, 1986). The Florida Supreme Court affirmed the Circuit Court's finding of a procedural bar, reasoning that Stewart had shown no justification for his failure to raise the McCleskey/Hitchcock claim in his first motion for post-conviction relief. Stewart v. State, 495 So. 2d 164, 165 (1986).

On October 1, 1986, Stewart filed an application for stay of execution pending filing of a petition for certiorari with this Court. A majority of this Court today denies that application. Because this denial may rest, in part, on an incomplete application of the doctrine of procedural default, as recently set forth in Smith v. Murray, 477 U.S. 527 (1986), I respectfully dissent.

Smith requires that, before refusing to consider a state prisoner's constitutional challenge to his conviction and sentence on the ground of procedural default, a federal court must answer two separate questions: (1) As a matter of state law, is consideration of the claim foreclosed by a valid procedural bar? And (2) as a matter of federal law, notwithstanding the state procedural bar, would rejection of the claim result in a "fundamental miscarriage of justice?" Id., at 538.

In Smith, a state prisoner failed to raise, on direct appeal of his conviction and sentence to the Virginia Supreme Court, his constitutional challenge to the prosecution's use of the testimony of a psychiatrist, to whom the prisoner had related information about a prior incident of deviant sexual conduct on a school bus. This Court, reviewing the denial of Smith's petition for federal habeas corpus relief, held that the prisoner had failed to demonstrate cause for his noncompliance with state procedural rules. The Court then proceeded to the second inquiry of whether application

[ 478 U.S. Page 1052]

     of the doctrine of procedural bar would offend principles of justice:

"As we noted in Engle and reaffirmed in Carrier, '"[i]n appropriate cases" the principles of comity and finality that inform the concepts of cause and prejudice "must yield to the imperative of correcting a fundamentally unjust incarceration."' Murray v. Carrier, [477 U.S. 478, 495 (1986)], quoting Engle v. Isaac, 456 U.S. [107, 135 (1982)]. Accordingly, 'where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court ...

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