Modesto v. Nelson
| Decision Date | 20 February 1969 |
| Docket Number | No. 47770.,47770. |
| Citation | 296 F. Supp. 1375 |
| Court | U.S. District Court — Northern District of California |
| Parties | Lawrence Glenn MODESTO, Petitioner, v. Louis S. NELSON, Warden, Respondent. |
Russell E. Parsons, Los Angeles, Cal., Jerome B. Falk, Jr., San Francisco, Cal., for petitioner.
Thomas C. Lynch, Atty. Gen., of the State of California, Edward P. O'Brien, George R. Nock, Deputy Attys. Gen., San Francisco, Cal., for respondent.
ORDER STAYING EXECUTION
The court has before it an application for a stay of execution filed on behalf of a prisoner at San Quentin State Prison. Execution by the administration of lethal gas is scheduled for March 5, 1969.
In his petition for a writ of habeas corpus petitioner alleges, inter alia, deprivations of constitutionally protected rights in that (1) he was sentenced to death upon a jury determination ungoverned and unguided by any legal standards, in violation of the Fourteenth Amendment to the United States Constitution; (2) the imposition of the death penalty in petitioner's case would inflict a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution; and (3) the jury that recommended or imposed the sentence of death was chosen by excluding prospective jurors for cause because they voiced conscientious objections to the death penalty.
The merits of petitioner's third claim, 3 above, which appears to come within the purview of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and In re Anderson, 69 A.C. 638, 73 Cal.Rptr. 21, 447 P. 2d 117 (1968), and as to which the petitioner admittedly has not exhausted his available state remedies, need not be and may not be reached by this court until available state remedies have been exhausted. Hence while this court is precluded from now resolving this third claim, it may and it does retain jurisdiction over this claim pending determination thereof by the court of California. Thomas v. Teets, 205 F.2d 236 (9 Cir. 1953); Duffy v. Wells, 201 F.2d 503 (9 Cir. 1952); Brent v. White, 398 F.2d 503 (5 Cir. 1968); Whitney v. Wainwright, 339 F.2d 275 (5 Cir. 1964); Crawford v. Bailey, 234 F.Supp. 700 (E.D.N.C.1964); Ralph v. Pepersack, 203 F.Supp. 752 (D.Md.1962); United States ex rel. La Marea v. Denno, 159 F.Supp. 486 (S.D.N.Y.1958). See also Hill v. Nelson, 272 F.Supp. 790 (N.D. Cal.1967) and Nelson v. Peckham, No. 21,929, 9 Cir. July 19, 1967. While the above cited authorities further establish that a district court may issue a stay of execution to preserve the life of the petitioner pending exhaustion of his existing state remedies, the court in staying execution in this case, and as provided in this order, does so for an even more formidable reason, namely, to enable it to "dispose of the matter as law and justice require," 28 U.S.C. § 2243 and render at a more appropriate time its inevitable judgment on the federal issues involved in claims 1 and 2 above.
These claims were presented to and rejected by the Supreme Court of California in In re Anderson, supra, and therefore with respect to these claims petitioner's state remedies are effectively exhausted within the meaning of 28 U.S.C. § 2254(b). E. g., Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964). Cf., Hill v. Nelson, supra 272 F.Supp. at 797. They present substantial federal questions, as evidenced by the narrow division of the Supreme Court of California in In re Anderson, supra, and the grant of certiorari by the United States Supreme Court in two cases presenting these questions with argument set for March 3, 1969. Boykin v. Alabama, O.T. 1968, 393 U.S. 931, 89 S.Ct. 304, 21 L. Ed.2d 304; Maxwell v. Bishop, 393 U.S. 997, 89 S.Ct. 488, 21 L.Ed.2d 462 (Dec. 16, 1968). Furthermore, Mr. Justice Douglas, as Circuit Justice for this Circuit, has recently granted a stay of execution in a case presenting issues 1 and 2 above, pending the filing of a petition for certiorari. Talbot v. California, unreported order dated February 4, 1969.
Unless petitioner's execution is stayed, he may be put to death before the Supreme Court of the United States reaches a decision in Boykin and Maxwell cases and before the stamp of finality has been placed on these issues raised in Talbot v. California, supra. In this regard, the court is mindful that any decision favorable to the petitioners in these causes is likely to be made retroactive by that Court. Compare Witherspoon v. Illinois, supra, ...
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Bean v. State
...infirm for lack of a prescribed standard for a jury to follow. Segura v. Patterson, supra, 402 F.2d at 254; Modesto v. Nelson, 296 F.Supp. 1375, 1376 (N.D.Cal.1969); In Re Anderson, supra. D. PENALTY. 14. Our conclusion is that the claims of error that pretrial publicity and inadequate coun......
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Neuschafer v. Whitley
...Tinder v. Paula, 725 F.2d 801, 805 (1st Cir.1984); Collins v. Lockhart, 707 F.2d 341, 342, 344 (8th Cir.1983); Modesto v. Nelson, 296 F.Supp. 1375, 1376 (N.D.Cal.1969).2 The court's written order of November 4, 1985 echoed a similar warning.3 Although courts often use the terms "abusive" an......
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Williams v. Richardson, 72-1534.
...but that the attack presented could best be handled by consolidation rather than class action. 272 F.Supp. 794-795; see Modesto v. Nelson, 296 F.Supp. 1375 (N.D.Cal.1968). In Adderly the court concluded that class relief was appropriate, and the action was ordered to proceed under the provi......
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Miller v. Lockhart, PB-C-81-152.
...the situation by staying the execution. See: Shaw v. Martin, supra; Mobley v. Dutton, 380 F.2d 14 (5th Cir. 1967); Modesto v. Nelson, 296 F.Supp. 1375 (N.D.Cal. 1969); Brown v. Brough, 248 F.Supp. 342 (D.Md.1965); Moorer v. South Carolina, 240 F.Supp. 529 Accordingly, it is hereby ordered t......