Lenhard v. Wolff, A-172

• Decision Date: 07 September 1979
• Docket Number: No. A-172,A-172
• Citation: 443 U.S. 1306,61 L.Ed.2d 885,100 S.Ct. 3
• Parties: Kirk B. LENHARD and George E. Franzen, Clark County Deputy Public Defenders, Individually and as next friends acting on behalf of Jesse Walter Bishop, Applicants, v. Charles WOLFF, Warden, Nevada State Prison System, et al
• Court: U.S. Supreme Court

443 U.S. 1306

100 S.Ct. 3

61 L.Ed.2d 885

Kirk B. LENHARD and George E. Franzen, Clark County Deputy Public Defenders, Individually and as next friends acting on behalf of Jesse Walter Bishop, Applicants,

v Charles WOLFF, Warden, Nevada State Prison System, et al.

No. A-172.

Sept. 7, 1979.

Mr. Justice REHNQUIST, Circuit Justice.

On August 25, 1979, I temporarily enjoined respondents from executing Jesse Bishop, upon whom a death sentence was imposed by the State District Court for Clark County, Nev., and affirmed by the Supreme Court of Nevada in July 1979. I issued the injunction so that I would be able to consider the response of Nevada officials and additional information of record which I requested from each of the parties. In the exercise of what I find to be as difficult a task as must be performed by any Member of this Court the obligation to act as surrogate for the entire Court in deciding whether to grant or deny extraordinary relief pursuant to 28 U.S.C. § 1651 pending disposition of a petition for certiorari by the full Court—I have determined that it is appropriate to continue the stay of execution pending consideration by the full Court. Since the State of Nevada is entitled to have the mandates of its courts enforced unless they offend the laws or Constitution of the United States, and since Jesse Bishop has concededly disclaimed any effort either by himself or by others on his behalf to prevent his execution, I feel obliged to summarize briefly the reasons which lead me to refer the application to the full Court.

The defendant under sentence of death has wholly disclaimed any effort to seek a stay from this Court or to seek review of the decision of the Supreme Court of Nevada by means of certiorari in this Court. The only two comparable cases which have come before this Court are Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976), and Evans v. Bennett, 440 U.S. 1301, 99 S.Ct. 1481, 59 L.Ed.2d 756, in which I granted a stay of execution on April 5, 1979, in order that the case might be considered by the full Court. The full Court thereafter vacated the stay. Evans v. Bennett, 440 U.S. 987, 99 S.Ct. 1986, 60 L.Ed.2d 370 (1979). In each of these cases, the defendant under sentence of death had disassociated himself from efforts to secure review of that sentence.^* In Evans, I entered the stay of execution in recognition of the fact that four Members of the Court had dissented from the ultimate denial of the stay in Gilmore, supra. While my Brothers BRENNAN and MARSHALL'S view of the death sentence as "cruel and unusual punishment" within the prohibition of the Eighth Amendment under all circumstances might permit review of any capital case by this Court, the dissenting opinions of my Brothers WHITE and BLACKMUN seem more limited in scope. Those opinions urged plenary consideration of the application to resolve doubts about the standing of Gilmore's mother to prosecute the action without her son's consent when substantial questions regarding the constitutionality of the state statute remained unresolved. I therefore concluded in Evans that a stay until the regularly scheduled Conference of the Court the following week would be most consonant with my obligations as Circuit Justice.

In my view, the initial barrier to be overcome in the present case by applicants Lenhard and Franzen, who with commendable fidelity to their assignment by the trial court have sought this stay and petitioned for habeas relief in the federal courts, is the finding of the courts which have passed on the question that defendant Jesse Bishop is competent to waive the assertion of any constitutional infirmities in the sentence imposed upon him by the Nevada courts. A successful attack on Bishop's competency is the requisite threshold for applicants' standing. Even if standing were not a barrier, a view some Members of the Court may well subscribe to, applicants still would have the burden of demonstrating some constitutional deficiency in the proceedings, as I read the views of my Brother WHITE. For this reason, I have considered the nature of the judicial review afforded on the merits thus far, as well as the review afforded the determination of Bishop's competency.

At the trial court level, both Evans and Bishop pleaded guilty, whereas Gilmore was tried and sentenced by a jury. Gilmore declined to seek any appellate review in the Supreme Court of Utah, and was granted none. Evans' conviction and sentence were reviewed pursuant to a requirement for mandatory appeal in both the Alabama Court of Appeals and in the Supreme Court of Alabama. Bishop's case was comprehensively reviewed by the Supreme Court of Nevada. Evans additionally unsuccessfully sought a writ of certiorari from this Court to review the judgment of the Supreme Court of Alabama, which writ was denied on February 21, 1979. 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486. Thus, each of the three cases had progressed to different levels of review within the judicial system: Gilmore had neither sought nor obtained any appellate review of the death sentence imposed upon him by the trial court; Bishop has obtained full review by the Supreme Court of Nevada of the death sentence and proceedings which led up to it in the trial court; Evans not only obtained state appellate review, but also petitioned this Court unsuccessfully for a writ of certiorari challenging the affirmance of his death sentence by the Alabama courts.

In Gilmore, no state or federal court had reviewed the constitutionality of the Utah statute. The Supreme Court of Nevada in reviewing Bishop's case, however, expressly upheld the constitutionality of the Nevada capital punishment statute. The court reasoned:

"The Nevada statutes authorizing the imposition of the death penalty are similar to the Florida statutes which were found to be constitutional in Proffitt v. Florida, 428 U.S. 242 [96 S.Ct. 2960, 49 L.Ed.2d 913] (1976). The Nevada statutes provide for a consideration of any mitigating factor the defendant may want to present. NRS 200.035(7). Cf. Lockett v. Ohio, [438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)]. The imposition of the death penalty in this case offends neither the United States Constitution nor the Nevada Constitution." Bishop v. Nevada, 95 Nev. 511, 517-518, 597 P.2d 273, 276-277 (1979).

Again, in my view, the substantive constitutional arguments which might be made by defendant Bishop in this Court in support of review of the judgment of the Supreme Court of Nevada bear only tangentially on the merits of the application for stay, since the contentions are not being made by Bishop, but rather by the public defenders asserting that they act as "next friends." But since Mr. Justice WHITE, joined by Mr. Justice BRENNAN and Mr. Justice MARSHALL in Gilmore, stated that "[u]ntil the state courts have resolved the obvious serious doubts about the validity of the state statute, the imposition of the death penalty in this case should be stayed," 429 U.S., at 1018, 97 S.Ct., at 440, and Mr. Justice BLACKMUN stated that "the question of Bessie...