83 S.Ct. 230 (1962), 765, Mcgee v. Eyman

Docket NºNo. 765, Misc.
Citation83 S.Ct. 230, 9 L.Ed.2d 267
Party NameMcGEE v. EYMAN.
Case DateNovember 29, 1962
CourtUnited States Supreme Court

Page 230

83 S.Ct. 230 (1962)

9 L.Ed.2d 267

McGEE

v.

EYMAN.

No. 765, Misc.

United States Supreme Court.

Nov. 29, 1962

OPINION

Page 231

Mr. Justice DOUGLAS.

This is an application for a stay of execution in a capital case. On October 8, 1962, we denied certiorari when petitioner sought review of the judgment of the Arizona Supreme Court affirming his conviction. State v. McGee, 91 Ariz. 101, 370 P.2d 261.

Petitioner then sought relief by way of federal habeas corpus. The District Court appointed a lawyer to represent him and a hearing was held. Relief was denied. Petitioner made application to the Court of Appeals for a stay of execution. His petition or application was referred to Judge Pope who considered it both as an application for a stay and for a certificate of probable cause (9 Cir., 310 F.2d 230) and denied it.

Prior to the filing of a petition for certiorari from Judge Pope's action, application for a stay was presented to me which I denied on November 23, 1962, it not appearing to me that, all questions of procedure aside, [*] any substantial federal question on the merits was involved. On November 26, 1962, the petition for certiorari was filed and another application for a stay of execution was made to me November 28, 1962. Since the execution has been set for tomorrow, November 30, 1962, a day when Court convenes for Conference at 10 a.m., we could not in all probability pass on the merits of the petition for certiorari prior to the execution. All questions of procedure apart, the federal questions presented--the failure to grant a change of venue and the use of a statement to Los Angeles police as a statement against interest with attendant instructions as to its voluntary character--still seemed to me to lack substance. Yet what one person deems insubstantial another at times deems substantial. Since of life is at stake and a denial of a stay of execution would render the case moot, I have followed the practice in other cases (see, e.g., Meredith v. Fair, 83 S.Ct. 10) and submitted the petition for certiorari to each of my Brethren. I am authorized to say that each of them would vote to deny the petition for certiorari, as would I. Accordingly I deny the application for a stay.

Application denied.


Notes:

[*] Judge Pope stated in his opinion that 'no question of denial of a federal constitutional right was ever raised in the state court; that no such question was presented in the...

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