ALABAMA v. EVANS
No. A-858.
Decided April 22, 1983
Per Curiam.
This matter was presented to Justice Powell on the morning of April 22, 1983, on an application for an order vacating a stay of execution, and by him referred to the Court. It is helpful to review briefly the sequence of events that preceded this application.
On April 8, 1983, the Alabama Supreme Court ordered that respondent John Louis Evans III be executed on April 22, 1983, at 12:01 a. m., c. s. t. On April 19, 1983, respondent filed a petition here for a writ of certiorari to the Alabama Supreme Court and an application for stay of execution addressed to Justice Powell as Circuit Justice. At approximately 5:45 p. m., e. s. t., on April 21, 1983, Justice Powell, acting in his capacity as Circuit Justice, and with the concurrence of six other Members of the Court, denied respondent’s application for a stay of execution pending disposition of his writ of certiorari to the Alabama Supreme Court. (See post, p. 1301.)
At 5:23 p. m., c. s. t., on April 21, respondent filed a petition for a writ of habeas corpus in the District Court for the Southern District of Alabama. At approximately 9:30 p. m., c. s. t., the District Court, stating that “the time available does not permit this Court to make a meaningful review or study,” temporarily stayed the execution. The State sought an order from the Court of Appeals for the Eleventh Circuit vacating the stay. At 12:25 a. m., e. s. t., the court denied the motion, stating that “[b]ased upon the telephonic oral presentation by both parties to the Court we are unable to conclude that the District Judge has abused his discretion in granting the temporary stay . . . .” Pursuant to Alabama law, the warrant to carry out the execution expires at 11:59 p. m., c. s. t., on April 22, 1983.
The State seeks an order vacating the District Court’s temporary stay. Respondent has filed a response in opposition to the State’s application.
Justice Powell’s order of April 21, 1983, denying respondent’s application for a stay of execution, described the lengthy proceedings that have followed respondent’s conviction and death sentence for first-degree murder committed during the course of a robbery in 1977. Respondent has exhausted his review by way of direct appeal and by way of the petition for a writ of habeas corpus filed in April Í979. He also has had his claims heard a second time by the Alabama Supreme Court acting on a petition for a new sentencing hearing. In sum, respondent’s “constitutional challenges to Alabama’s capital-sentencing procedures have been reviewed exhaustively and repetitively by several courts in both the state and federal systems.” Post, at 1302 (Powell, J., in chambers).
Following a brief hearing on the evening of April 21, 1983, the District Court found that “counsel for petitioner conceded that all issues raised in the petition were raised in the petition previously filed before [the United States District Court] except for the issue asserted in section 12 of the petition.” Thus, in the latest petition for habeas corpus filed in this case, all but one of the grounds presented have been presented before and rejected.
The one new issue now raised by respondent is a claim that the Alabama courts applied a statutory aggravating factor in an unconstitutionally broad manner. The trial court found that on numerous prior occasions respondent “knowingly created a great risk of death to many persons. By Mr. Evans’ testimony, he was involved in thirty armed robberies and nine kidnappings with [codefendant] Mr. Ritter, and further claims to have been involved in approximately 250 armed robberies prior to associating with Mr. Ritter.” Evans v. State, 361 So. 2d 654, 663 (Ala. Crim. App. 1977). Respondent contends that by construing this statutory aggravating factor to encompass acts not involving the offense for which he was found guilty, the trial court construed the statute in an unconstitutionally broad manner.
Respondent does not appear to have raised this challenge at any time in any of the many prior state and federal proceedings in his case. Nor was the existence of this claim made known to this Court in any of the papers filed by respondent before Justice Powell’s denial of respondent’s application for a stay of execution. The claim thus was raised for the first time in respondent’s second petition for a writ of habeas corpus, filed approximately seven hours before his scheduled execution. His only justification for raising this issue now is that, in his view, the decision in Proffitt v. Wainwright, 685 F. 2d 1227, 1265-1266 (CA11), decided in September 1982, some seven months ago, has changed the applicable law. Proffitt, however, does not address the question whether this particular aggravating factor may be applied to acts unrelated to the capital offense itself. The decision in that case only applies the principle established in Godfrey v. Georgia, 446 U. S. 420 (1980), that aggravating factors must be construed and applied in a nonarbitrary manner. On the facts of respondent’s case, there was no violation of the Godfrey principle in finding this particular aggravating circumstance. Nor is there any question that application of this aggravating factor was proper under the Alabama statute as construed by the Alabama courts. After carefully reviewing the record, the Alabama Court of Criminal Appeals, in sustaining respondent’s death sentence, stated: “The aggravating circumstances were here averred and proved at trial, and also determined by the trial judge in a public hearing, as required by law. In addition, this Court has weighed the aggravating and mitigating circumstances independently.” 361 So. 2d, at 662.
Respondent’s petition for a writ of habeas corpus filed on April 21, 1983, thus seeks to litigate several issues conclusively resolved in prior proceedings and a claim never before raised. This new claim, challenging the validity of one of the aggravating circumstances found to exist in this case, is a question of law as to which no further hearing is required. For the reasons stated above, we conclude that the claim is without merit. Accordingly, the application of the State of Alabama to dissolve and vacate the stay ordered by the United States District Court is granted.
It is so ordered.
Justice Brennan would deny the application.
In a ease of this kind, a district court normally should find and state substantive grounds for granting a stay of execution. In the circumstances of this case, however, we understand the difficult situation in which the District Court found itself. Judge Cox was not the judge who had reviewed this case on the previous habeas corpus petition. Apparently without notice, this second habeas corpus petition and application for a stay of execution, filed by the same counsel who had filed the previous application for a stay in this Court, was not filed until about seven hours prior to the scheduled execution time. No explanation has been offered by counsel for the timing of these applications.
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