SULLIVAN v. WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al.
No. A-409.
Decided November 29, 1983
Per Curiam.
Applicant was sentenced to death in November 1973 for the murder of the manager of a restaurant he had robbed. His conviction and sentence were affirmed by the Florida Supreme Court and this Court denied certiorari. Sullivan v. State, 303 So. 2d 632 (Fla. 1974), cert. denied, 428 U. S. 911 (1976). After exhausting state postconviction remedies, Sullivan v. State, 372 So. 2d 938 (Fla. 1979), applicant filed his first habeas petition in 1979. The District Court held an evidentiary hearing and denied the writ. The Eleventh Circuit affirmed, and this Court denied certiorari. Sullivan v. Wainwright, 695 F. 2d 1306 (CA11 1983), cert. denied, post, p. 922. In October 1983, applicant filed his second petition for postconviction relief in state court. The denial of that relief was affirmed on appeal, Sullivan v. State, 441 So. 2d 609 (Fla. 1983), and applicant filed a second petition for writ of habeas corpus in the federal court. Following a hearing, the District Court declined to issue the writ, and refused to issue a stay of execution or a certificate of probable cause to appeal. The Eleventh Circuit affirmed, with one judge dissenting in part. That court issued a temporary stay in order to allow a vote on applicant’s suggestion for rehearing en banc. That stay was lifted when the suggestion was denied.
This application for a stay pending completion of the rehearing vote was presented to Justice Powell as Circuit Justice on November 28, 1983. Counsel requested that the papers be treated as an application for a stay pending filing of a writ of certiorari under 28 U. S. C. § 2101(f), and Justice Powell referred the application to the Court.
Applicant raises essentially five claims: (i) that he was denied the right to counsel; (ii) that he was denied effective assistance of counsel; (iii) that the jury that convicted him was biased in favor of the prosecution; (iv) that he was denied proportionality review; and (v) that the Florida death penalty statute has been applied discriminatorily against blacks.
The first three of these claims have been presented several times previously in both state and federal courts and have been found to be meritless. Applicant’s claim that he was entitled to proportionality review was addressed and found meritless by the Florida Supreme Court. Id., at 613-614. His case was one of the earliest to be decided under Florida’s current death penalty statute. The State Supreme Court has used it as a reference point, comparing all subsequent capital cases to applicant’s case to ensure proportionality. It therefore cannot be alleged that the State has failed to compare this sentence with others decided under this statute to ensure proportionality. Whatever our decision in Pulley v. Harris, No. 82-1095 (cert. granted, 460 U. S. 1036 (1983)), may be, it will not disturb the Florida Supreme Court’s ruling.
Applicant apparently first raised the issue of discriminatory application of the statute in a supplement to his most recent state habeas corpus petition, which was filed on November 15, 1983. Counsel for applicant, who is white, present voluminous statistics that they say support the claim of discriminatory application of the death sentence. Although some of the statistics are relatively new, many of the studies were conducted years ago and were available to applicant long before he filed his most recent state and federal habeas petitions. The Florida Supreme Court and both the Federal District Court and the Eleventh Circuit have considered these data and determined in written opinions that they are insufficient to show that the Florida system is unconstitutionally discriminatory. On the basis of the record before this Court, we find there is no basis for disagreeing in this case with their decisions.
This case has been in litigation for a full decade, with repetitive and careful reviews by both state and federal courts, and by this Court. There must come an end to the process of consideration and reconsideration. We recognize, of course, as do state and other federal courts, that the death sentence is qualitatively different from all other sentences, and therefore special care is exercised in judicial review.
The application for a stay of execution is denied.
It is so ordered.
Justice White and Justice Stevens concur in the denial of a stay.
In addition, applicant was a plaintiff in an action attacking the Florida executive-clemency procedure. See Sullivan v. Askew, 348 So. 2d 312 (Fla.), cert. denied, 434 U. S. 878 (1977).
Applicant’s case has been considered by at least 10 state and federal courts other than this one, and twice before by this Court.
Judge Anderson dissented in the court below on the ground that the statistics presented in this case were equal in quality to those presented with respect to Georgia’s death penalty statute in Spencer v. Zant, 715 F. 2d 1562, 1578-1583 (CA11 1983). In that case and the companion case of Ross v. Hopper, 716 F. 2d 1528, 1539 (CA11 1983), the Eleventh Circuit remanded the statistical claim to the District Court for a hearing. This case is different from those because in this case both of the lower courts, as well as this Court, have had the opportunity to consider the statistics. In Spencer, the Eleventh Circuit found it “unlikely that the district court could have adequately analyzed the [statistical] evidence insofar as it was not then available except by live testimony.” 715 F. 2d, at 1582. The court therefore remanded to the District Court to consider the evidence. Ross was treated identically because it had been consolidated with Spencer in the District Court. Ross, supra, at 1539.
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