NETHERLAND, WARDEN v. TUGGLE
No. A-209.
Decided September 1, 1995
Per Curiam.
Applicant asks that we vacate a stay of execution granted Tuggle by the Court of Appeals for the Fourth Circuit. Because we agree with applicant that the stay was improvidently entered, we grant his application to vacate, provided that the stay shall remain in effect until September 20,1995, to allow Tuggle’s counsel opportunity to seek a further stay in this Court.
On June 29, 1995, the Court of Appeals issued an opinion vacating the District Court’s grant- of habeas relief, finding all of Tuggle’s constitutional claims to be without merit. Tuggle v. Thompson, 57 F. 3d 1356. The court stayed the issuance of its mandate on August 2, however, and granted Tuggle a 30-day stay of execution pending the filing of a timely petition for certiorari in this Court; then on August 25 it extended the stay of execution for the full 90 days allowed to file a certiorari petition in this Court.
Both actions of the court were taken by summary order without opinion or discussion. Nothing indicates that the Court of Appeals even attempted to undertake the three-part inquiry required by our decision in Barefoot v. Estelle, 463 U. S. 880, 895-896 (1983). See also Maggio v. Williams, 464 U. S. 46, 48 (1983) (per curiam); Autry v. Estelle, 464 U. S. 1, 2-3 (1983) (per curiam). There is no hint that the court found that “four Members of th[is] Court would consider the underlying issue sufficiently meritorious for the grant of certiorari” or that “a significant possibility of reversal” existed. Barefoot, supra, at 895. We think the inescapable conclusion is that the Court of Appeals mistakenly believed that a capital defendant as a matter of right was entitled to a stay of execution until he has filed a petition for certiorari in due course. But this view was rejected in Autry, supra, at 2, and Maggio, supra, at 48.
Accordingly, the application to vacate the stay of execution is granted.
stay, petition, or motion granted affirmed (includes modified) reversed reversed and remanded vacated and remanded affirmed and reversed (or vacated) in part affirmed and reversed (or vacated) in part and remanded vacated petition denied or appeal dismissed certification to or from a lower court no disposition