MAGGIO, WARDEN v. WILLIAMS
No. A-301.
Decided November 7, 1983
Per Curiam.
On October 23, 1983, less than two days before Williams’ scheduled execution, the Court of Appeals for the Fifth Circuit stayed the execution “pending final action of the Supreme Court.” Because we agree with applicant that the stay was improvidently imposed, we grant his motion to vacate the stay and to allow the State to reschedule Williams’ execution.
H-I
Williams was sentenced to death for killing a security guard while robbing a grocery store in Baton Rouge, La. His conviction and sentence were affirmed by the Louisiana Supreme Court. State v. Williams, 383 So. 2d 369 (1980). After we denied Williams’ petition for certiorari, 449 U. S. 1103 (1981), and his request for rehearing, 450 U. S. 971 (1981), he unsuccessfully sought a writ of habeas corpus in the Louisiana state courts. He then filed his first petition for habeas corpus in the District Court for the Middle District of Louisiana, presenting the same 13 issues that had proved unavailing in the state courts. The District Court held no hearing, but issued a written opinion denying Williams’ petition. See Williams v. Blackburn, 649 F. 2d 1019, 1021-1026 (CA5 1981) (incorporating District Court’s decision). The District Court’s judgment was affirmed by a panel of the Court of Appeals for the Fifth Circuit, ibid., but an order was entered directing that the appeal be reheard en banc. On rehearing, the en banc Court of Appeals rejected each of Williams’ many objections to his conviction and sentence and affirmed the judgment of the District Court. Williams v. Maggio, 679 F. 2d 381 (1982) (en banc). On June 27, 1983, we again denied Williams’ petition for certiorari, 463 U. S. 1214, and we denied his request for rehearing on September 8, 1983, 463 U. S. 1249.
After unsuccessfully renewing his attempt to win relief in the state courts, Williams filed a second petition for habeas corpus in the District Court, raising two claims that had previously been rejected and two additional claims. The District Court issued a detailed opinion in which it refused to grant the writ or to stay Williams’ execution. Williams v. King, 573 F. Supp. 525 (1983). Because it believed Williams’ contentions to be “frivolous and without merit,” the District Court also denied his request for a certificate of probable cause, which, under 28 U. S. C. §2253, is a prerequisite to an appeal. The Fifth Circuit granted a certificate of probable cause and affirmed the judgment of the District Court, but nevertheless issued a stay. The court reviewed Williams’ claims and “expressly [found] that each is without merit.” Williams v. King, 719 F. 2d 730, 733 (1983). In light of recent actions by this Court, however, the Court of Appeals concluded with respect to Williams’ “proportionality” claim that “a complete review of the law on this matter may be anticipated. With a person’s life at stake, we must await that review or further directions from the Supreme Court.” Ibid.
II
Just last Term, we made clear that we would not automatically grant stays of execution in cases where the Court of Appeals had denied a writ of habeas corpus. Barefoot v. Estelle, 463 U. S. 880, 895 (1983). A stay application addressed to a Circuit Justice or to the Court will be granted only if there exists “ ‘a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction.’” White v. Florida, 458 U. S. 1301, 1302 (1982) (Powell, J., in chambers) (quoting Times-Picayune Publishing Corp. v. Schulingkamp, 419 U. S. 1301, 1305 (1974) (Powell, J., in chambers)). We perceive no reason to apply a different standard in determining whether a stay granted by a Court of Appeals pending disposition of a petition for certiorari to this Court should continue in effect.
The grounds on which Williams would request certiorari are amply evident from his opposition to the motion to vacate the stay, his voluminous filings in the lower courts, and the opinions and proceedings in the District Court and Court of Appeals. None of these claims warrant certiorari and plenary consideration in this case. Accordingly, we conclude that the stay, which the Court of Appeals apparently granted in view of the possibility that we would disagree with its analysis of the constitutional issues raised by Williams, should be vacated.
Williams’ claims may be summarized briefly. He argues, first, that the Louisiana Supreme Court reviewed the proportionality of his death sentence on a districtwide rather than a statewide basis, and that such review does not adequately ensure that his death sentence has been imposed in a rational and nonarbitrary manner. Second, the prosecutor’s closing argument allegedly prejudiced the jury against Williams and elicited a decision based on passion rather than reason. Third, the trial court’s instruction on lesser offenses, given despite the absence of evidence warranting such an instruction, is claimed to have violated the rule established in Hopper v. Evans, 456 U. S. 605 (1982), and to have denied Williams due process. Fourth, the exclusion for cause of three veniremen who opposed the death penalty at the guilt-innocence phase of Williams’ trial, although proper under Witherspoon v. Illinois, 391 U. S. 510 (1968), allegedly deprived Williams of a jury representative of a fair cross-section of the community.
Williams’ second, third, and fourth contentions warrant little discussion. As Williams made clear in his second petition for state habeas corpus, he challenged the prosecutor’s closing argument, either directly or indirectly, in his first state habeas proceeding. The Louisiana Supreme Court ultimately rejected his challenge, although two justices indicated that the prosecutor’s statements raised a substantial question and one concluded that the statements constituted reversible error. State ex rel. Williams v. Blackburn, 396 So. 2d 1249 (1981). Williams’ failure to raise this claim in his first federal habeas proceeding is inexcusable, but the District Court nevertheless gave it full consideration in the second federal habeas proceeding. Applying the standard established in Donnelly v. DeChristoforo, 416 U. S. 637 (1974), the District Court examined the prosecutor’s closing argument at length and concluded that it did not render Williams’ trial fundamentally unfair.
The trial court’s instruction on lesser offenses was clearly proper under state law, and the District Court’s review of the record led it to conclude that the evidence fully justified the trial court’s charge.
Williams’ challenge to the exclusion for cause of certain veniremen was previously rejected by the Fifth Circuit and was presented to this Court in his petitions for certiorari and his motion for rehearing following the denial of his second petition. He has now recast his argument as an attack on the representativeness of the jury that convicted him. In Witherspoon, we found the extant evidence insufficient to demonstrate that “the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.” 391 U. S., at 518. Williams claims that he is entitled to a hearing on the question whether the jury selection procedures followed here had these effects. But he has not alleged that veniremen were excluded for cause on any broader basis than authorized in Witherspoon. The District Court characterized the evidence proffered by Williams on the question whether the jury was less than neutral with respect to guilt as tentative and fragmentary, and we cannot conclude that it abused its discretion in refusing to hold an evidentiary hearing on this issue. Further review is not warranted.
Williams’ challenge to the Louisiana Supreme Court’s proportionality review also does not warrant the issuance of a writ of certiorari. The en banc Fifth Circuit has carefully examined the Louisiana Supreme Court’s procedure and found that it “provides adequate safeguards against freakish imposition of capital punishment.” Williams v. Maggio, 679 F. 2d, at 395. This conclusion was challenged in this Court in Williams’ petition for certiorari following the Court of Appeals’ decision and in his motion for reconsideration of our denial of that petition. We were, of course, fully aware at that time that we had agreed to decide whether some form of comparative proportionality review is constitutionally required. See Pulley v. Harris, 460 U. S. 1036 (1983).
Since agreeing to decide this issue in Pulley, the Court has consistently denied challenges to the Louisiana Supreme Court’s proportionality review scheme that were identical to that raised by Williams. See Lindsey v. Louisiana, post, p. 908; James v. Louisiana, post, p. 908; Sonnier v. Louisiana, 463 U. S. 1229, rehearing denied, 463 U. S. 1249 (1983). See also Narcisse v. Louisiana, post, p. 865. Williams asserts that his execution should be stayed because we have issued a stay in another Louisiana death case, Baldwin v. Maggio, 463 U. S. 1251 (1983). But our decision there turned not on the substantiality of applicant’s Pulley argument, but on the fact that applicant raised a substantial challenge to the effectiveness of his trial counsel, similar to those we shall resolve in two cases set for argument this Term. Strickland v. Washington, 462 U. S. 1105 (1983); United States v. Cronic, 459 U. S. 1199 (1983).
As Williams notes, Justice White recently granted a stay in a case raising a proportionality challenge to a death sentence imposed in Texas. Autry v. Estelle, post, p. 1301. Also, on October 31, the Court declined to vacate that stay. Post, p. 925. In that case, however, the Texas Court of Criminal Appeals, like the California Supreme Court in Pulley, had wholly failed to compare applicant’s case with other cases to determine whether his death sentence was disproportionate to the punishment imposed on others. Under those circumstances, it was reasonable to conclude that Autry’s execution should be stayed pending the decision in Pulley, or until further order of the Court.
That is not the case here. Our prior actions are ample evidence that we do not believe that the challenge to districtwide, rather than statewide, proportionality review is an issue warranting a grant of certiorari. Our view remains the same. Nor did Williams convince the lower courts that he might have been prejudiced by the Louisiana Supreme Court’s decision to review only cases from the judicial district in which he was convicted. Indeed, the District Court examined every published opinion of the Louisiana Supreme Court affirming a death sentence and concluded that Williams’ sentence was not disproportionate regardless of whether the review was conducted on a districtwide or statewide basis. We see no reason to disturb that judgment. Finally, Williams has not shown, nor could he, that the penalty imposed was disproportionate to the crimes he was convicted of committing.
Ill
The District Court’s careful opinion was fully reviewed by the Court of Appeals, which found no basis for upsetting the District Court’s conclusion that Williams’ contentions were meritless. The arguments that Williams raised for the first time in these proceedings are insubstantial, and the arguments that he has attempted to relitigate are no more persuasive now than they were when we first rejected them. We conclude, therefore, that the stay entered by the Court of Appeals should be vacated.
It is so ordered.
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