AUTRY v. ESTELLE, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS
No. A-197.
Decided October 3, 1983
Per Curiam.
Applicant was sentenced to death for killing two people while robbing a convenience store. His conviction and sentence were affirmed by the Texas Court of Criminal Appeals. Autry v. State, 626 S. W. 2d 758 (1982). We denied certiorari. 459 U. S. 882 (1982). Applicant then sought habeas corpus in the state system; that request was denied. He then filed for habeas corpus in the Federal District Court, presenting some of the same claims that had been unavailing in the state courts. The District Court held a hearing and filed an opinion denying the writ. In a detailed opinion, the Court of Appeals for the Fifth Circuit affirmed the judgment of the District Court. 706 F. 2d 1394 (1983). It denied rehearing, as well as a stay pending the filing of a petition for certiorari in this Court. Applicant then sought a stay from the Circuit Justice, who referred the application to the Court. Absent a stay, applicant will be executed on October 5.
The application for stay is denied. The grounds on which applicant would request certiorari are amply evident from his application and from the opinions and the proceedings in the District Court and the Court of Appeals. Had applicant convinced four Members of the Court that certiorari would be granted on any of his claims, a stay would issue. But this is not the case; fewer than four Justices would grant certiorari. Applicant thus fails to satisfy one of the basic requirements for the issuance of a stay.
Nor are we inclined to adopt a rule calling for an automatic stay, regardless of the merits of the claims presented, where the applicant is seeking review of the denial of his first federal habeas corpus petition. Applicant has twice sought relief in the state court system. He has also presented his claims to the United States District Court and to the Court of Appeals. None of these judges found sufficient merit in any of applicant’s claims to warrant setting aside applicant’s conviction or his death sentence. Nor did any of the judges of the Court of Appeals believe that a stay pending certiorari was warranted. Those judges, stating that they were “fully sensitive to the consequence of our judgment and our oaths,” 706 F. 2d, at 1408, found each of applicant’s claims to be without merit and affirmed the dismissal of his habeas corpus petition. In these circumstances, it is quite appropriate to deny a stay of applicant’s sentence, just as we do in other criminal cases that we are convinced do not merit review in this Court. As the Court said just last Term in Barefoot v. Estelle, 463 U. S. 880, 887-888 (1983):
“[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence, and death penalty cases are no exception. When the process of direct review — which, if a federal question is involved, includes the right to petition this Court for a writ of cer-tiorari — comes to an end, a presumption of finality and legality attaches to the conviction and sentence. The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials. Even less is federal habeas a means by which a defendant is entitled to delay an execution indefinitely. The procedures adopted to facilitate the orderly consideration and disposition of ha-beas petitions are not legal entitlements that a defendant has a right to pursue irrespective of the contribution these procedures make toward uncovering constitutional error.”
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