DELO, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER v. STOKES
No. A-795.
Decided May 11, 1990
Per Curiam.
The State of Missouri has issued a warrant for the execution of Winford Stokes, which expires at 11:59 p.m. CDT on May 11, 1990. Stokes was convicted of capital murder in 1979 and sentenced to death. His conviction and sentence were affirmed by the Missouri Supreme Court. State v. Stokes, 638 S. W. 2d 715 (1982) (en banc). Stokes has since filed three separate petitions for a writ of habeas corpus in the federal courts, each of which was denied. See Stokes v. Armontrout, 851 F. 2d 1085 (CA8 1988), cert. denied, 488 U. S. 1019 (1989); Stokes v. Armontrout, 893 F. 2d 152 (CA8 1989), stay of execution denied, post, p. 926; Stokes v. Armontrout, No. 89-0133C(6) (ED Mo., Mar. 16, 1990). On May 10, 1990, this Court denied a stay of execution pending the filing and disposition of a petition for certiorari relating to one of Stokes’ first three habeas petitions. Post, p. 926.
While his application for stay of execution was pending in this Court, and within a matter of days before the scheduled execution, Stokes filed in the District Court a new application for stay of execution pending consideration of a fourth federal habeas petition. On the afternoon of May 9, the District Court granted a stay of execution, stating that “the issues raised by petitioner’s claim that his right to equal protection of the laws was violated by the Missouri state courts’ selective application of the rules governing lesser included offense instructions in capital murder cases warrant the imposition of a stay of execution. See Williams v. Armontrout, 891 F. 2d 656, 658-59 (8th Cir. 1989), vacated upon grant of rehearing en banc (February 7, 1990).” No. 90-0505C(6) (ED Mo.). On the morning of May 11, a panel of the Court of Appeals for the Eighth Circuit denied the State’s motion to vacate the stay, one judge dissenting. The State then asked the en banc Court of Appeals to vacate the stay. That motion was also denied. The State has now filed with this Court an application to vacate the stay of execution.
A stay of execution pending disposition of a second or successive federal habeas petition should be granted only when there are “substantial grounds upon which relief might be granted.” Barefoot v. Estelle, 463 U. S. 880, 895 (1983). There are no “substantial grounds” present in this case, because respondent’s fourth federal habeas petition clearly constitutes an abuse of the writ. See 28 U. S. C. § 2254 Rule 9(b); 28 U. S. C. § 2244(b). Stokes’ claim that he was entitled to a lesser included offense instruction, and that the Missouri Supreme Court has selectively applied its rules relating to that claim, could have been raised in his first petition for federal habeas corpus. The equal protection principles asserted by respondent are not novel and could have been developed long before this last minute application for stay of execution. Indeed, Stokes himself cites dissenting opinions filed in the Missouri Supreme Court in 1983 to support his contention. See, e. g., State v. Holland, 653 S. W. 2d 670, 679 (en banc) (Welliver, J., dissenting).
The fourth federal habeas petition now pending in the District Court “is another example of abuse of the writ.” Woodard v. Hutchins, 464 U. S. 377, 378-380 (1984) (Powell, J., concurring, joined by four other Justices) (vacating stay of execution where claims in a successive petition could, and should, have been raised in a first petition for federal habeas corpus). The District Court abused its discretion in granting a stay of execution. The application to vacate the stay is granted.
It is so ordered.
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