Stephens v. Kemp

CourtUnited States Supreme Court
Citation105 S.Ct. 530,469 U.S. 1043,83 L.Ed.2d 417
Docket NumberNo. 83-1845,83-1845
PartiesAlpha Otis O'Daniel STEPHENS v. Ralph KEMP, Superintendent, Georgia Diagnostic & Classification Center
Decision Date26 November 1984

469 U.S. 1043
105 S.Ct. 530
83 L.Ed.2d 417
Alpha Otis O'Daniel STEPHENS


Ralph KEMP, Superintendent, Georgia Diagnostic & Classification Center

No. 83-1845

Supreme Court of the United States

November 26, 1984
Rehearing Denied Dec. 11, 1984.

See 469 U.S. 1099, 105 S.Ct. 609.

On petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.

The order entered December 13, 1983 staying execution of sentence of death is vacated.

The petition for a writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

The petitioner Alpha Otis O'Daniel Stephens has been condemned to death by electrocution. In this second petition for federal habeas relief, Stephens contends, inter alia, that he received the death penalty pursuant to a pattern and practice of racial discrimination in the administration of Georgia's capital sentencing system, in violation of the Eighth and Fourteenth Amendments. Specifically, he points to recently available statistical studies allegedly demonstrating a persistent and pronounced disparity in capital sentencing in Georgia based on the race of the defendant and the race of the victim. Stephens unsuccessfully has sought an evidentiary hearing to prove the accuracy and materiality of these data.

The courts below acknowledged that the Court of Appeals for the Eleventh Circuit has recently held in several cases that the identical evidence proffered by Stephens is sufficient to require an evidentiary hearing under 28 U.S.C. § 2254. The Eleventh Circuit in fact is currently considering en banc the very issues presented in Stephens' petition—whether the newly developed studies are reliable, and whether they are material to the constitutionality of Georgia's capital sentencing scheme. Stephens' petition has not been held pending the outcome of this en banc

Page 1044

consideration, however, because the courts below have concluded that Stephens has engaged in abuse of the writ. Specifically, they have determined that (1) although the new studies constitute "newly discovered evidence" for purposes of permitting relief on a first petition for habeas review, the identical studies do not constitute "newly discovered evidence" for purposes of securing relief on a second petition; and (2) Stephens in fact received an "evidentiary hearing" at which he failed to make an adequate "proffer" of the new studies.

Just last December, this Court stayed Stephens' execution pending the Eleventh Circuit's en banc resolution of the discrimination issue "or until further order of this Court." 464 U.S. 1027, 1028, 104 S.Ct. 562, 78 L.Ed.2d 370 (1983). In today's "further order," the Court inexplicably reverses course and decides that the execution may proceed notwithstanding the continued pendency of the discrimination issue before the Eleventh Circuit. To the extent this reversal purports to rest on deference to the lower courts' abuse-of-the-writ findings, I would respectfully submit that those findings fly in the face of the Fifth Amendment, 28 U.S.C. § 2254 and its attendant Rules, and well-settled precedent. Specifically, the record before us makes clear that (1) the proffered statistical studies are "newly discovered evidence" within the meaning of § 2254; and (2) Stephens did not receive the full and fair opportunity to introduce these studies to which he was entitled by law. At the very least, this case presents substantial questions concerning the abuse-of-the-writ doctrine that will recur with ever-increasing frequency. I therefore dissent from the Court's denial of certiorari and its vacation of the stay of execution.


Stephens filed his second petition for habeas relief on November 14, 1983, two days before his scheduled execution.1 Anticipating

Page 1045

that the State of Georgia would plead abuse of the writ pursuant to 28 U.S.C. § 2254 Rule 9(b), Stephens explained that his discrimination claim was "based on factual evidence which Petitioner, as an indigent, did not have the independent means to develop and present." 1 Record 17. Stephens continued:

"In mid-1982, however, statistical evidence became available that demonstrates that racial factors play a real and persistent role in the imposition of capital punishment in the State of Georgia, even when statutory and nonstatutory aggravating and mitigating circumstances are held constant and where only those cases indicted and convicted of murder are considered. A two-week evidentiary hearing to consider this extensive new social scientific evidence began on August 8, 1983 in McCleskey v. Zant, [580 F.Supp. 338 (ND Ga.), hearing en banc granted, 729 F.2d 1293 (CA11 1984) ], before Honorable J. Owen Forester. Under these circumstances, Petitioner's assertion of this claim upon this newly available factual basis cannot be deemed an abuse of the writ." Ibid.

Stephens requested "a hearing at which proof may be offered concerning the allegations of this petition," id., at 49, indicated that the McCleskey record would form the basis of his proffer at such a hearing, and stated that he wished to call as expert witnesses the three statisticians who recently had testified in McCleskey, id., at 59-60.

Later on the afternoon of November 14, Stephens' counsel were notified by telephone that the District Court had scheduled an emergency oral argument for the next afternoon. According to an affidavit subsequently filed by one of the attorneys:

"[We] called Judge Wilbur Owens' law clerk to specifically ask what we needed to prepare for the argument. We indi-

Page 1046

cated that on only one days notice it was almost impossible to produce witnesses at that time.

". . . Judge Owen's [sic] law clerk responded that the Judge was interested in hearing argument on whether Mr. Stephens petition was an abuse of the writ. The law clerk further informed us that the Judge did not expect counsel to bring witnesses to Savannah." Affidavit of George B. Daniels, attached to Petition for Rehearing and Suggestion for Rehearing En Banc, Appeal No. 83-8844 (CA11).

The State of Georgia filed its response to Stephens' petition the next morning; as expected, the State alleged that Stephens was abusing the writ. Oral argument commenced at 3:30 that afternoon. The court announced that it had convened the session to hear argument whether "a successor petition should be entertained by this Court" and whether the execution should be stayed to permit further proceedings. 2 Record 3, 76.

Stephens' counsel described the nature and findings of the statistical studies that recently had been found sufficient to trigger an evidentiary hearing in McCleskey, and indicated that those studies would form the proffer if a hearing were granted in the instant case.2 The court responded that "I am familiar with the circumstances" of the studies and that "[t]his has been discussed in other cases with me." Id., at 33. When the court expressed skepticism that the studies could be characterized as "new" evidence,3 Stephens' counsel emphasized that the studies had become available only after Stephens' first habeas petition had been dismissed, that as an indigent Stephens could not have afforded the prohibitive cost of underwriting independent studies, and that because the studies could not reasonably have been produced in previous proceedings, they were properly characterized as "new" evidence within the meaning of Habeas Corpus Rule 9(b). Id., at 31-32. When the court asked for more specific details concerning

Page 1047

the studies, counsel responded that the methodology was "fairly complicated" and suggested that, if the court wished to review the data, counsel not later than the next morning could deliver the several file drawers of evidence adduced at the McCleskey hearing. Id., at 42.

Much of the remaining argument was devoted to a discussion whether the court should hold an evidentiary hearing to probe the issues in further detail. In response to the court's question, "What kind of evidentiary hearing am I going to hold", id., at 68-69, Stephens' counsel reviewed the evidence they proposed to introduce and emphasized that "we are prepared to proceed immediately, just as soon as the Court will give us a hearing, with the trial to put on our evidence and to hold an evidentiary hearing." Id., at 75.

In postargument motions filed shortly after the argument, Stephens again reviewed the evidence he proposed to introduce at an evidentiary hearing,4 moved for a reference of the discrimination issue to a magistrate,5 and called to the court's attention two recent cases in which the Eleventh Circuit had remanded habeas petitions for evidentiary hearings on the identical statistical evidence.6

On November 21, the District Court summarily dismissed Stephens' petition as an abuse of the writ and denied his applications for a stay of execution, for discovery, and for funds to retain experts. 578 F.Supp. 103, 108 (MD Ga.1983). The court also specifically denied Stephens' requests for an evidentiary hearing. Ibid. With respect to the merits of the discrimination claims, the court stated:

Page 1048

"[I]t is the opinion of this trial judge that petitioner's excuse is insufficient to justify a consideration of them in this successive petition. The statistical evidence which petitioner desires to present to support his claims is not 'newly discovered.' Nothing prevented the compilation of this information prior to this late date. Accordingly, petitioner having no valid excuse for failing to raise these claims in his prior habeas petition, these claims constitute an abuse of the writ and must be DISMISSED." Id., at 107.

The court endeavored in a footnote to distinguish Stephens' case from other Eleventh Circuit cases holding that the identical statistical surveys are newly discovered evidence and sufficient to trigger a right to an evidentiary hearing:

"Had petitioner raised these challenges to...

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