ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Scalia, Kennedy
The application for stay of execution of sentence of death presented to JUSTICE KENNEDY and by him referred to the Court is denied. The petition for a writ of certiorari is denied.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting from denial of certiorari.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 (1976), I would grant the motion for a stay of execution and the petition for a writ of certiorari and vacate the death sentence in this case.
Even if I did not take this view, I would grant the petition, to consider whether the sentencing procedure in this case violated the Eighth Amendment requirement that a convicted defendant have the opportunity to present any relevant mitigating evidence -- not just statutory mitigating factors -- at the sentencing hearing. Hitchcock v. Dugger, U.S. (1987). The Florida Supreme Court declined to find petitioner's Hitchcock claim procedurally barred and addressed this claim on the merits. Adams v. Florida, slip op., at 4 (May 3, 1989). Likewise, the District Court addressed the merits, determining that petitioner's "is not a proper Hitchcock issue." Adams v. Dugger, slip. op., at 5 (May 3, 1989). Moreover, since Hitchcock was not decided until after petitioner had filed his second federal habeas petition, I detect no abuse of the writ in petitioner raising this claim now for the first time.
At the time petitioner was sentenced, Florida's "standard jury instructions included a charge which had the effect of limiting the jury's consideration to the statutory aggravating and mitigating circumstances," id., at 5, reflecting what may have been the general belief in the State, based upon decisions such as Cooper v. State, 336 So. 2d 1133 (Fla. 1976), that mitigating factors not specifically itemized in the statute, Fla. Stat. § 921.141 (1975), were not to be taken into account in ...