# Petition — Williams v. King

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 1027

## Text

wo. x 3-579 Om

In THE
SUPREME COURT OF THE UNITED STATES
October Term 1983

ROBERT WAYNE WILLIAMS,
Petitioner,
vs.
JOGN T. KING, Secretary,
Louisiana Department of Corrections, and
ROSS Cc. MAGGIO, JR., Warden,

Louisiana State Penitentiary, Angola,
Louisiana,

Respondents.

PETITION POR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE FIFTH CiRcuIt

SAMUEL S$. DALTON, Esq.
2001 Jefferson Highway -
Jefferson, Louisiana 70121
($04) 835-4289

ATTORNEY OF RECORD

It.

Itt.

Iv.

QUESTIONS PRESENTED

What is the standard of review of constitutional issues
raised in second and successive habeas corpus petitions
under Rule 9 of the Rules Governing Section 2254 Cases?

Can the defense of “abuse of the writ" properly be held
to bar consideration of the serits of constitutionai
ismues on a habeas corpus appeal without giving the peti-
tioner an opportunity to contest that defense on the
facts in the district court?

Is it an “abuse of the writ” for a death-sentenced inmate
to renew in a second habeas corpus petition a clais

of prosecutorial misconduct in closi argument which

is indistinguishable from claims susta ned by supervening
decisions of a court of appeals of another circuit?

Does the inconsistent practice of the Louisiana Supreme

Court in conducting proportionality review of ‘capital
sentences violate the eighth and fourteenth amendments?

- i —

—_

————— —

i

——

JULTiISGICtiION 2... cccccceccessecscsssesserossssesees® oo =
Constitutional Provisions Involved ....-eeeeecereeeeee 2
Statement of the CaSO ..---seeeccrreerrrerrrecrrereee® 3

A. Course of the Proceedings «..---++serrrrrerrrs 3

B. Statement of the Relevant Facts ...«-+«++++-. wes Lae

I. THE COURT SHOULD GRANT CERTIORARI

OF THE WRIT MAY PROPERLY BE INVOKED
TO BAR APPELLATE CONSIDERATION OF THE

DISTRICT COURT ...-ceeececeeeeres ae cseeu ae

III. THE COURT SHOULD GRANT CERTIORARI TO

SENTENCING HEARING ...-++++++5> eceses coe AZ
Iv. THE COURT SHOULD GRANT CERTIORARI TO

REQUIRES A CONSISTENT APPROACH TO
COMPARATIVE REVIEW OF DEATH SENTENCES... 15

CONCLUSION ...--ccercceecsreererssseseeeresesee® Seer a

~—

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;
"i

\

is —_-——-

iH TABLE OF AUTHORITIES

i]

| cases

I

Adams v. Texas, 448 U.S. 38 (1989) ...---eeneenns 000s 66 2

|| Barclay v. Plorida, __ U.S. __» $1 U.S.L.W. 5206 (Jul.

j 6, 1983) “eeeeveneneveve “ee eevee enenwenenenee “eee eneve “*eeevenve ** 13

| Berger v. United States, 295 0.S. 78 (1938S) ...seees coce
Brooks v. Prancis, Mo. 83-8028 (llth Cir. 1963) wcccoss o

not *final* may incline them to approach

their sentencing decision with less appreciation

for the gravity of their choice and for the

moral responsibility reposed in them as
sentencers.

California v. Ramos, 0.s. , Sl U.S.L.W. $220, $226 (July
6, 1983). By depreciating the gravity of the jury's roles, such

advice destroys the special “need for reliability in the deter-

mination that death is the appropriate punisment in a specific

case.* Zant v. Stephens, ‘U.S. , $1 0.S.L.W. 4891, 4897
(June 28, 1983) (quoting Woodson v. North Carolina, 428 U.S. 280,
305 (1376)). Sere, the prosecutor's obvious purpose was no less

than to relieve the jury of its awesome sentencing responsibility

Cf. Maggio v. Williams, slip op. at 3 (Stevens, J., concurring).
Second, the prosecutor's remarks regarding the general
crime problem during the sentencing phase were plainly intended

“o stir moral outrage in the jury and distract them from the
“individualized determination on the basis of the character of
the individual and the circumstances of the crime." Zant v.
Stephens 51 U.S.L.W. at 4895 (emphasis in original). Although
these comments clearly encouraged the jury to focus on matters
well beyond the individual under consideration, the district
court held that these remarks were not “fundamentally unfair.*

Widliams v. King, No. 83-1120B, slip op. at ll. On identical

= 13

fa
S “Ge,
UNITED STATES DISTRICT COURT -. @,
fy-é 9
MIDDLE DISTRICT oF Loutsiama “Loe
ROBERT WAYNE WILLIAMS -. . CIVIL ACTION
vERSUS* “A .- UMBEK 83-1120-8
* JOHN T. KING, SECRETARY OF THE .
DEPARTMENT OF CORRECTIONS,
STATE OF LOUISIANA, AND
ROSS MAGGIO, WARDEN, STATE “
PENT , . LOUISIANA
: ad ’ ee J ‘-! .
ot ee ye. **Ma ee * -
; ; “hue eee
‘4 ’ : 7 we *
~ FRANK J, POLOZOLA, District Judge:
eo Bia _ Robert, Wayne wifliene has. filed an application for stay -~°
: 2. = ~ a ®
: of hi's eracetion which | is scheduled “for October 25, 1983,
+o ~ - .
Eee an applicatioa for a writ of habeas corpus. For reasons
a ws aoe
a =: which follow, the Court hereby denies petitioner's application
Lee - hens a stay b of mah execution and further denies petitioner's
ere ' application for a writ “of habeas corpus. The Court also
oes finds that petitioner’ ‘ application is frivolous and without
ay x merit, and, therefore, ‘refuses to issue a certificate of
Se ‘probable cause. =
eee I. PROCEDURAL HISTORY OF THE CASE
ew, This is the second time Robert Wayne Williams has filed

an application for a stay of execution and

-

~

habeas corpus with this Court The procedural history of

this case is for the most pert set forth in the prior opinions

rertered by this Court and by the Fifth Circuit Court of

Appeals. _.. F.Supp. (M.D.La.
1981), aff. Williams v. Blackburn, 649 F.2d 1019 (Sth Cir.

Williams v. Blackburn,

1981), affirmed, rehearing en banc, Williams v. Maggio, 679
P. 24 381 (Sth Cir. 1982). Thereafter, the United States

Supreme Court de ied petitioner's application for a writ of
cértiorari. Williams v. Maggio, __ U.S. , 103 $.Ct. 3553,
77 L.Ed.24 __— (1983). Oa July 14, 1983, Justice Brennan

stayed the effect of the denial of cartiorert. On September
8, 1983, the United States Supreme Court denied petitioner's

application for a

~~,

application for a writ = cortiorart. williams v. Maggio; =..."
“U.s. *__» 103 $.Ct.. T7 b.ké. >">:

in , 33 Crt 4163 (1983).
© “thereafter, Judge Frank Foil of the ‘Nineteenth Judicial -

District Court for the Parish of East Baton Rouge issued :

Warrant of Execution of Person Condemned on September 20,

: 1983, Diane taal petitioner be executed on October 25,
1983, between the hours of 12:00 °' ‘clock midnight and 3:90
a.m. Petitioner then filed an application. for a writ of

habeas corpus with the Nineteenth ) Judicial District Court

raising the very same issues he now urges in the federal

application for writ of

xs

rehearing of the Court's denial of petitioner” Sag =

of >

2 =

a= © ©

habeas corpus now pending before this Court. On October 4,
1983, Judge Frank Foil denied petitioner's state court ap-
plication for writ of habeas corpus. On October 14, 1983,
petitioner filed an application for a writ of habeas corpus
3 te with the Louisiana Supreme Court together with a request for

PF
“+

@ stay of execution. The Louisiana Supreme Court unanimously
denied petitioner's application for a stay of execution and
also rer denied petitioner's application for a writ

si -y, of habeas corpus. _ Petitioner then filed the pending application

- and

: sues 2. weit of habeas corpus with the United States District

o~ es ek Il. ISSUES RAISED BY PETITIONER

- ° aA; = ao ws ;
= Petitioner, x raises four. grounds for review in this
%e *. a = latest application ‘foe a stay ‘of execution and writ of |

s 2a ?; «..*% %
rhebese Carpes _ Petitioner contends that his federally protected

=
ae » Fas

~¥ rs » Fights were violated in the following manner:

BS “a The Louisiana Proportionality Review in
—-- ‘\@ *» deat penalty cases does not meet consti-

PR, tutional standards, and the review made

by the Louisiana Supreme Court is in-

~_ Ss. & «consistent and disproportionate under the ee
, 3° o facts and circumstances of petitioner's ~
case.

@. The death sentence was imposed as a result
. of the prosecutor's improper closing

“= argument during the sentencing phase of
{ the trial.

Ss © © )

(3) Petitioner's death sentence was ae
because the jury was instructed on al
responsive verdicts to first degree surder
even though there was no evidentiary sup-
port for a manslaughter verdict.

(4) Petitioner was deprived of an impartial
jury composed of a fair cross section of
the community insofar as the guilt or in- |
aoene ee of the trial because of the |
manner jurors were selected and impanelled.
III. STANDARD OF REVIEW IN A HABEAS CORPUS ACTION
As is previously set forth in this opinion, this is the
second application for a writ of habeas corpus filed with
this Court. Some thirteen issues were raised in petitioner's
first application. An additional four issues are raised in
= the current application. Without deciding the issue of
| whether petitioner is guilty of “abuse of the writ” insofar

7

as t_»: filing of successive applications for a writ of

: in rE abuse of the writ.* * * * Rule
9(b) of the Rules Governing §2254 Cases states
that ‘a second or successive petition be
dismissed if che — finds that it fails to

allege new or dif — for relief. .

{or ] the failure of the petitioner to assert

"Gg, habeas corpus is concerned, the Court shall follow the = - Ae
re See 3 "
“~ "ss" SG = guidelines set forth by the United States Supreme Court in . rie

“i Barefoot v, Estelle, _~ U.S. __, 103 8.ct. 3383, 77 L.€4.28 "S255
, 2 983) in resolving the issues raised in this latest . *
= is. application. In Barefoot, the Court stated: oe
"Second and successive federal habeas corvus . Ke
pie 54,75 petitions present a different issue. ‘To » tei
« er the extent that these involve the danger that Fe a
Su Piers _ @ condemned inmate might attempt to use repeat~- . on
ed petitions arzd eals as a mere delaying e
tactic, the State a quite legitimate interest Pe
. et

© ©

those grounds in a prior petition constituted
an abuse of the writ.’ * * * Even where it can-
not be concluded that a petition should be dis-
missed under Rule 9(b), it would be proper for
the district court to expedite consideration of
the petition. The —s of a stay should
reflect the presence of omegrtes grounds 3.
which relief might be grented.” _ 103 s. Cc. 33

r

It is clear that “direct ‘appeal is the prieary avenue for
review of a conviction or sentence, and death penalty cases

are 20 exception.” Id. ,103 S. Cr. at 339%. Barefoot emphasizes

that when « petitioner under. ‘teminent | threat of execution

a eal ° age

has alleged « substantial “denialiof 0.1 a. ‘federal. Fight, he must
. am _ ~~ €~ 2
be “afforded an aéeqeate opportunity to Present | the merits of

= ~ ot stay

bis argusent, and he must redety: ‘. considered ‘decision on

>

tk ‘Tist CGE a Ui temaiee who have
va 6 seFS, Pa we As ‘ :
‘been sentenced to death and are currently hoysed on Death

Row at the Louisiana ser "Penk tentiary | at ‘Angola has been

‘ obtatned by the- Court “and has been ‘filed in the record,

together with the ettation of each of ‘the 25 cases for which

i otge — t=. ”

- there is a reported decision by. the: Loufsiana Supreme Court.

The Court has also required the ‘State ‘of Louisiana to file a
response to petitioner’ $ application which has also been
considered by the Court. The Court has had adequate time
and means for rendition of a considered judgment on the

‘*

' ABE: oe wee t
“petitioner's s "allegations 1 aes artis otek ‘court. record bas io
“, Coben filed with this

;

© 6

merits prior to the scheduled execution date. Id., 193

S.Ct. at 3394. It is clear that whether a stay is granted

depends “on the probability of success on the merits, " Id.,

103 $.Cc. at 3392 and stays of execution are not automatic

pending the filing and consideration of |. an appeal to the

appellate court or @ petition bon 7 Et of conttanent to

the Supreme Court. "When the 7 sey of direct review - which,

if a federal question is iuvolved, includes the right to
pétition [the Peprenes | Court for. rn weit of ee apean - comes

to. an end, a presumption of. ‘finality and ‘Legality attaches to

the conviction and sentence. ; The, role of, federal habeas

proceedings, while important is assuring that constitutional

> rights are observed, is secondary and limited. " Id. 103 $.Ce.

— ss

cy eat 3391. ; Petitioner’ & case has twice been reviewed by the
ee a

be “Daited States Suprene Courts vith the latest. teview having
Seeoursdd ‘on “September s, 1983. “Thus the Court shall review
the merits of each of petitioner’ 74 ecntaaticas’

: IV. PETITIONER'S CONTENTIONS rS =

‘A. Proportionality Review of Death Sentence

Petitioner first contends t that the proportionality review

_ of his “death sentence has been c conducted in an arbitrary and

> © apeialoen manner in violation of the Eighth and Fourteenth
Amendments to the United States Constitution. Fore specifically,
petitioner contends the Louisiana Supreme Court conducted

ve

© ©

the proportionality review in his case on a district wide

basis, State v. Williams, supr4, 383 So.2d at 374-375, while

in two other cases, State v. Narcisse, 426 So.2¢ 118 (La.
1983) and State v. Moore, 432 So.2d 209 (La. 1983),
is Louisiana Supreme Court conducted proportionality reviews on

a ste wide basis. Petitioner contends . thet the issue of
the nature and scope of proportionality review is presently
+ before the United States ne Court. _ See Pulley v.
>! Harris, 692 F.2d 1189 (9th. b Cir, 1982), cert. rented, 103 $.Ct.

> ae eta

Fa rages, 2 F “Us. 3 “S ea9e3} as 4é* Retsile. 72° U.S-__
~ ‘astry "ve Estelle.’ ——

- =

- (1383). Thus, “petitioner” “argues that « ‘stay of execution
be caited. pending a decision, we “the ‘United Stetes Supreme

3 ; Court in che Pulley eae slee, seeks te to have
os oo pew sentenging hearing 6 vais seeks ‘to have che . hae
r : *Sonirt review Petitioner D exe sent erate ‘¢ ‘state wide tas
= : basis. ~ The Court does ‘pot b e patievs the Court * is required to
. | stay a proceedings bce F pending & a decteton by the United
. Seeeee Supreme Court in che Pulley | case. On Gctober 11,
1983, the United States Supreae Court dented petitions for
_writs of gertiorart in eigen Louisiana which raised
the proportionality issue. it sey Vv _ Loutstana, 428 So.2d

420 (La. 1982), writ denied, : "0; s. — o. $s. $.Ce.
Docket No. 82- 6973); Janes Vv. / Loutsiana, 431 So. 2d 399 (La.
1983), writ denied, ___ U.S. =. $. S. Ct. Docket No. 83-

$366). Furthermore, @ new sentence : oa
- - : -_ ~ - 7

—aee S
Fa.

po written decision —_ be found on sce cases. Two" t
“> other written opinions Sqvplvans death | sentences imposed on. A BS so

that whether the standard of review is on a district-by-

© ©

hearing is not required under the facts of this case. While
the Court believes that the district-by-district proportionality
review approved and found constitutionally sound by the
Louisiana Supreme Court, by an en banc panel of the Fifth
Circuit Court of Appeals and by this Court is still constitutionally
acceptable, the Court shall grant petitioner's alternative
request to review petitioner’s death sentence on a state
wide basis. J

There are currently twenty-seven inmates on death row
at the Louisiana State Penitentiary at Angola. Of these :
twenty-seven inmates, twenty-three inmates, including the - ge of.
petitioner, have appealed their cases to the Louisiana va
Supreme Court which has written and published formal a =
Four inmates on death row are apparently still on Al * a e

s

: : Taease
defendants from East Baten Rouge Parish have also been PALS tae
reviewed by the Court. The Court has carefully reviewed the *~ $8
facts of each of these twenty-five published opinions in i ee
which the death penalty vas imposed. After reviewing each of eS
these 25 cases and comparing the facts set forth in these ake
cases to petitioner’s case, the Court gust and does conclude . ee

district standard or on a state wide standard, the death

penalty imposed in petitioner's case is not disproportionate
to the death penalty imposed in similar cases wherein the jury ~ BS
. . pa =F " y

found armed robbery, offenses committed in an esoecially
heinous, atrocious or cruel manner, and knowingly creating a
risk of death or great bodily harm as aggravating circumstances
as required by Article 905.4 of the Louisiana Code of Criminal
Procedure. The Court further finds and concludes that the

jury in petitioner’ s case did not act arbitrarily in comparision
with the verdicts returned by other juries in similar cases 6
in Louisiana which recommended the death penalty. In seventeen
of the twenty-five reported cases involving the death penalty

in Louisiana, the jury which recommended the death penalty

found armed robbery as one if not the only statutory aggravating
circumstance. These eaventeen death sentences were returned
in ten of the thirteer parishes wherein death sentences have
been ‘recomended by Juries. A review of the reported cases
also. ‘reveals that the two ‘other aggravating circumstances
sound by the jury to exist in petitioner’ s case were also
found to “exist by other hacen which recommended death

sentences.
—

‘The circumstances surrounding the murder committed by
the petitioner reveal a reckless disregard for the life of
other human beings. As the reported facts of this case
reveal, petitioner shot Willie Kelly, a 67-year old black
security guard, with a 12-gauge sawed-off shotgun in the
face at point blank range. After killing Mr. Kelly and
committing the arned robbery, petitioner shot two other

people in the feet.

The Court finds that the death renzity imposed in
petitioner's case is not disproportionate to the death
penalty imposed in the other sixteen cases wherein arned
robbery was found to be an aggravating circumstance considering

* the circumstances involved in petitioner’ s case.

= Therefore, the Court concludes that petitioner’ s first
~ "contention challenging the manner in which his death sentence
“weg revtewed to be without ‘merit. %

am GP : oe ~
“S°*"s>-y was the Prosecutor’ Guilty of Misconduct. During
a ae oN Closing Arguments? ..-- > Sayre; one

ae a) ogg met a ee tended to ‘lessen

4 Tipe a“ | a eX “"
Suge o, SUTy" 9 ResrenatiLt Gy; Rae

i. - (2) contained misstatements and _ Slaxsprésentations of

eR co the law ‘oti review of aE Goa te rtd

Be av ed ek appellace, Rate a ta

Me at * ae ae ro oe

a . - (3). contained inflammatory statements to “the jury;

+ (4) eded the” “sco of Article “176
a. s ae of ¢ e Louisiana Code of Criminal Procedure: and

@t«

. J

(5) was fundamentally ‘unfatr. Pe
The standard for reviewing Prosecttorial » Siidatnbest in a
habeas corpus case is whether t “the prosecutor’ s actions are
of such a nature ar! to. render, che © trial “fundamentally unfair.
Donnelly v. Dechristoforo, 616 U.S. 637, 94 S.Ct. 1868, 40
L.Ed.2d 431 (1974). | "Donnelly teaches that in a
Section 2254 ARE E : more than undesirability or even

~~
:
‘ -

‘univ ersal_ — 5°

en

‘-

&

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condemnation’ must be shown unless a specific guarantee of
the Bill of Rights is involved, it must be shown that the
remarks were so prejudicial that they rendered che trial in

question fundamentally unfair." Cobb v. Wainwright, 609

F.2d 754,755 (Sth Cir. 1980). Determining whether the chal-

lenged remarks had this effect turns on an assessment of the

rem ~ks within the context of the particular trial. Jones v. Estelle,

622 F.24 124 (Sch Cir. 1980).

It must be noted that at no time did defense counsel

"lodge an cbjection to the content of the closing argument.

In most cases the Court would find that a failure to object
would constitute a waiver. See C.Cr.P. Art. 841. However,

since this is a capital case, the obligation to examine the

““ gecord for passion, prejudice or arbitrary factors wiich
2 ywould — made the sentencing hearing | _ paeneene unfair”.

e . Tv Was = = ‘ =
is proper. Ps Seek St ~

- _ . : . ?
——

LZ Applying the “fundiniamtatiy’ unfair” standard set forth
_above, the Court finds that in light of the considerable
strength of the case against Williams, the prosecutor's

comments did not reach the level which made the trial fundamentally

unfair in’ the sentepesng phase. .
Article 774 of the Loufetame Code of Criminal Procedure

mg _ provides that closing argument shali be confined to "evidence

admitted, to the lack of evidence, to conclusions of fact
that the state or defendant may draw therefrom and to the

law applicable to the case. The argument shall not appeal

ollie

~~ .

to prejudice. The state's rebuttal shall de confined to
answering the argument of the defendant.” Petitioner now
argues that the cumulative effect of the prosecutor's argument

inflicted the penalty verdict with arbitrariness, prejudice

‘+ and passion. This et gument. fs without substance or merit

and is s0t supported by the. record. An intelligent jury
could not have, reasonably believed the prosecutor was urging
thes to ignore the law and base their decision simply on

=>

thelr emotional response t0. the’ ‘crime. The prosecutor

ae ae J *

SpE argued that ér: é addict{oo should not be considered as «

ne ie = mitigeting factor in the Sime, 2 "tha death penalty was justified
SAR Sei beenase « of its deterrent’ effect; the responsibility of the

A =p ury was serious; = chat sents particular crime justified
at Pee ¢ tmpositign ‘of the wages. eb renal gy The argument did not

we sh ~ peal te prejudice or to a Passion, ‘There was no introduction
3-2 eee arbitrary factors prc} "might Rave. tainted the verdict.

~

iAy-.¢ -

giving or failure to give a jury charge or any portion p> gia es

thereof unless an objection thereto {s made” However, the.

Court will consider petitioner's argument despite his failure he

to object.

Article 803 of the Louisiana Code of Criminal Procedure —
provides that when "a count in an indictment sets out an
offense which includes other offenses of which the accused
could be found guilty under the provisions of Article 814 or
815. the Court shall charge the jury as to the law applicable
to each offense.” When “there are several grades of an
offense contained in a single count, the Court shall charge

the

-13-

© =)

jury as to each grade of which the defendant could be found
guilty.” C.Cr.P. art. 804(B). Under Article 809, “the
judge shall give the jury a written list of the verdicts
responsive to each offense charged, wich each separately
/ stated.” Article 814(A) (1) provides that the “only responsive
verdicts which may be rendered where the indictment charges
the following offenses are: l. First Degree Murder:
Guilty. Guilty of Second Degree Murder. Cuilty of Manslaughter.
Not Guilty.” Finally, Article 814(C) provides that upon the
“potion of the state or the defense, the Court may, in its
discretion, exclude a responsive verdict listed in Subarticle
A if after all the evidence has been submitted there is no
evidence to establish that responsive verdict.” Neither the

_ state nor the petitioner requested the Court to exclude 2 "ee
stn mans Laughter as a responsive werdict. Furthermore, a review Re
e of the record fails to reveal that there was “no evidence to Fear

-

establish” the responsive verdict of manslaughter. The

"xt ae judge complied with the mandate set forth in Hopper v- Evans,

4 a

supra, and with Louisiana law. Thus, petitioner's argument

- .

on this issue is hereby denied.

D. | The Need for an Evidentiary Hearing to Determine o£
Whether the Jury Selected was ction Prone ae
Petitioner contends that the manner in which juries are fo

. on S|

empanelled in Louisiana makes the juries “death qualified” Coes

and conviction prone. Petitioner seeks to have an evidentiary

-14-

.

4 eS S the Prosecution in the “determination” ok patie,” Id., 88

: © ©

hearing to support this argument. In support of his argument,

petitioner relies on Grigsby v. Mabry, 637 F.2d 525 (8th

Cir. 1980) and the memorandum opinion in the same case

rendered by a district judge on August 5, 1983. The Court
+ finds the Grigsby case is not applicable herein, and thus,
no evidentiary hearing ts ‘required. or

; Petitioner's argument that the manner in which Louisiana
juries are empanelied makes the jury “death qualified” and

. te
“e more prone to convict was rejected by the. United States
f - “> ~Ns - to be constitutionally proper. The Court believes the jury

in this case was properly and constitutionally empane led.

= -. Therefore, ‘petitioner’ s challenge to the Jury is without

merit. . Ay.

ax

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VY SUMMARY AND CONCLUSION

The Court has very carefully and meticulously reviewed
each of the arguments urged by petitioner in this latest
application for a writ of habeas corpus. In so doing, the
Court has again reviewed the entire record, including the
state court record. The Court sust and dos: conclude that
it can find no error of any kind which would in any way cause
this Court to stay the execution of petitioner which is set
’ €or October 25, 1983, or to grant petitioner's application
for a writ of habeas corpus. This Court is totally and
completely satisfied that petitioner has been accorded all
of the constitutional rights ‘to which he is entitled under
our system of justice. Petitioner's case has been reviewed
= many occasions by any courts, judges and justices. The
ovate trial judge has reviewed the case on « motion for °
' new trial and on two seperate post-conviction applications. |.
The Louisiana Supreme Court has reviewed petitioner's application
on three separate occasions, once on direct appeal and twice
' on sptaieciens’ ter a writ of habeas corpus. This Court has
now reviewed petitioner's case on two occasions. The Fifth
Circuit Court of Appeals has ‘reviewed petitioner's case on
one occasion, which also included an en banc review by the ~
Circuit Court. The United States Supreme court has reviewed
petitioner's case on two occasions, with the last review
coming shortly over one month ago on September 8, 1983. In
fact, an application for rehearing was ates considered by

the United States Supreme Court before it rendered its

, ner,
vs.
NT. KING, Secretary,
ina Department of orrections, and
> C. MAGGIO, JR., Warden,
isiana State Penitentiary, Afigola,
slana,
R lents
ATION FOR A AY OF EXECUTION

a)

To tt rable Byron R. White, Associate Justice of
the Supreme rt of the United States and Circuit Justice
for the Fifth Circuit:

| Petitioner Robert Wayne Williams prays that an order

be entered staying the execution of his death sentence presently

1983, between

This stay
$$ 2101(f)

and 2251, pending

final disposition of his petition for a writ of certiorari,

In support of this application,

petitioner respectfully notes as follows:

aw aches me Lipthineaul Gyltne
ew, oe us ubbeler Mtr

th bee GHA. tenes Mtoe”

wr

Ayr! 0 wk Ac.

iefe lez

ee ee ee

7 hy

1. At a jury trial on April 18, 1979, in the Nineteenth
Judicial District Court for the Parish of East Baton Rouge,
Louisiana, petitioner was convicted of capital murder. Judg-
ment was entered fixing his punishment at death.

2. On April 17, 1980, the Supreme Court of Louisiana
affirmed petitioner's conviction and sentence on direct
appeal. State v. Williams, 383 So.2d 369 (La. 1980). His
petition for rehearing was denied on May 19, 1980, and this

,

Court @enied certiorari on inuary 12, 1981. Williams v.

Louisiana, 449 U.S. 1103, reh. denied, 450 U.S. 971 (1981).
3. On March 20, 1981, petitioner returned to the state

trial court and filed an Application for Post-Conviction

Relief. Without ynducting an evidentiary hearing, the court

dismissed his application in an unpublished order on March 24,

1981 Two days later, with two justices acknow.edging that
e_ a —,
his claims were substantial apd one other concluding that his
: caus
case involved constitutional error, the Louisiana Supreme

Court affirmed. State ex rel. Williams v. Blackburn, 396 So.
2d 1249 (1981).

4. The next day, petitioner filed a petition for writ of
habeas corpus in the United States District Court for the
Middle District of Louisiana. On the same day, without con-
ducting an evidentiary hear.ng, in an unreported order and
judgment, the district judge denied his petition. A panel of
the United States Court of Appeals for the Fifth Circuit
agreed, Williams v. Blackburn, 649 F.2d 1019 (Sth Cir. 19861).
By a divided vote, the en banc court affirmed, Williams v.

Blackburn, 679 F.2d 381 (Sth Cir. 1982)(en banc), and this

Court again denied review. Williams v. Blackburn, U.S.
{June 27, 1983), reh. denied, _vU.s. _ (Sept. 8, 1983).
- Be

eee

At that point, the state trial judge ordered petitioner's
executicn to take place in the early morning hours of October
25, 1983.

5. Between the commencement of petitioner's first habeas
proceedings and the actions of this Court on September 8,
1983, significant changes in the relevant law caused peti-
tioner to return to the courts for a second time to pursue
post-conviction relief. The entire history of his successive

petition spans little more than two months.

6. Petitioner filed his new Application in the state
trial court on October 4, 1983. On the same day, it was
summarily denied. The Louisiana Supreme Court affirmed on

October 18, 1983, and refused to stay the impending execution.

7. Petitioner then filed a new writ of habeas corpus in
the United States District Court for the Middle District of
Louisiana. On October 21, 1983, the district judge entered an
order dismissing the petition, denying a certificate of
probable cause, and refusing to stay the execution. Williams
v. King, No. 83-1120-B (M.D. La. Oct. 21, 1983)(Appendix A).

8. On appeal, with less than two days remaining before
petitioner's scheduled execution, te Pifth Circuit granted
the certificate of probable cause and affirmed the district
court judgment, but stayed the execution pending certiorari in
this Court. Williams v. Maggio, No. 83-3647 (Sth Cir. Oct.
23, 1983) (Appendix 4%).

9. The state moved in this Court on October 24 to vacate
the circuit court's stay. While petitioner's suggestions ‘or
rehearing and rehearing en banc on the merits were still
pending in the Fifth Circuit, this Court granted the state's
application, over three dissents. Maggio v. Williams, No. A-

301 (U.S. Nov. 7, 1983) (Appendix C).

10. The state immediately obtained an order setting

petitioner's execution for December 14, 1983.

ll. The Pifth Circuit denied rehearing and rehearing en
banc on Novesber 29, 1983, without opinion.

12. The conviction and sentence of petitioner -- indeed,
the entire course of the proceedings to date -- raise serious
and substantial federal constitutiona! questions of which

review has been sought in this Court. Among these are the

a. In a separate opinion ncurring in the

ma jority’s decision to vacate the Fifth
ircuit's stay, Justice Stevens charac-

terized the majority as “applying a strict
standard of review.* Maggio v. Williams,
No. A-301, slip op. at 4 (U.S. Nov. 7,
1983)(Stevens, J., concurring). Although
he agreed that petitioner had raised a
serious constitutional question and had
actually suffered prejudice of constitutional
limension, Justice Stevens concluded that a
“strict standard" was justified because the
“essence” of the question had appeared and
ceen rejected in prior proceedings. Id. at
4-5. This appears to be an accurate account
of the majority view. See id. at 4-5 (majority
opinion). Thus, botn the majority and Justice
Stevens imply that a lesser degree of care is
warranted where a -laim, tangentially related
to one already litigated or arising out of
the same facts, is renewed because of inter-
vening changes in the l.w.

Thi- view contradicts Sanders v. United States,
373 J.S. 1 (1963), ard Rule 9 of the Rules
Governing §2254 Cases, both of which authorities
contemplate the legitimacy of successive peti-
tions. See Autry v. Estelle, A-242, slip op.

at 2 (U.S. Oct. fy: 1983)(White, circuit
Justice). Petitioner seeks a stay until the
Court can clarify on certiorari the proper
standard of review of successive petitions.

b. Although the sta‘«+ pleaded abuse of the writ
(albeit only generally) in its opposition to
petitioner's habeas petition in the district
court, the court held no evidentiary hearing
and made no such finding. See Rule 9 advisory

a

ee ee ree 6

— Owe eee

ee oe

Cc ittee note. Instead, the court reached

the merits of each claim. Nevertheless, when
the atate revived its defense before this Court,
in its motion to vacate the stay, the majority
concluded that petitioner's failure to raise
certain of his claims in the earlier petition
was “inexcusable.” Maggio v. Williams, slip

op. at 4. Justice Stevens made a similar
“finding.” Id. at 4 (concurring opinion).

Such findings disregard the apparent require~
ment of Rule 9 that abuse of the writ not be

found without the petitioner being given an
pportunity in the district court to show
that in fact the writ was not abused. See Sanders

United States, 373 U.S. at 10-11; Price v.
ston, 334 U.S. 266, 291-92 (1948). Peti-
ner therefore requests a stay of execution
pending the consideration on certiorari of
the question whether an appeilate finding
that the writ was abused may properly be made
without a record from the district court on

that question.

At the close of petitioner's sentencing hearing,
the prosecutor encouraged the jury to discount
the significance of its decision to impose

death by assuring them that any mistakes would

be corrected on appeal. He also exhorted the
jury to impose death to strike a blow in the
general war on crime. As Justice Stevens ob-

served, by any measure of common sense, petitioner
was substantially prejudiced.

Nevertheless, both Justice Stevens and the
majority concluded that close scrutiny of
petitioner's constitutional objection to the
prosecutor's argument was not warranted here
because a related contention had been raised
in the earlier petition. The majority concluded
that, even though the failure to raise the
instant claim in the first petition was “in-
excusable,” the district court had done all
the Constitution required of it by con-
sidering the argument in light of Donnelly v.
De Christoforo, 416 U.S. 637 (1974). Maggio
v. Williams, slip op. at 4. Justice Stevens
thought the question “serious,” "especially

when the death penalty is at stake,” but
somehow of diminished significance in a suc-
cessive petition. Id. at 4 (concurring
opinion).

However, in the period intervening between

the first and second petitions, the Eleventh
Circuit twice found virtually identical jury
arguments unconstitutional under Donnelly.

See Brooks v. Francis, No. 83-8028, slip op.
at 12 (lith Cir. Sept. 15, 1983); Hance v.
Zant, 696 F.2d 950 (llth Cir. 1983). The
decision of the Fifth Circuit to find no error
on such closely similar facts reflects the
absence of any consistent construction of

Donnelly between the Circuits. The discrepancy
means ee difference between life and death.

:
.
. =...

|
|
}
'

Petitioner maintains that a change in the

law of another circuit ich raises serious
questions about the congisten’, rational
imposition of the death penalty is an appro-
priate new circumstance under Sanders to
sustain the renewal of an earlier claim.
Petitioner seeks a stay until the Court can
consider whether certiorari should be granted
to examine the circuits’ conflicting standards
for determining the constitutional limits of
prosecutorial jury argument in a capital case.

a. Petitioner has challenged the manner by which
the Louisiana Supreme Court conducts propor-
tionality review. In his earlier petition,
he objected to the failure of that court to
conduct state-wide comparative review of his
sentence. In his second petition, he expanded
the claim to include the question whether the
Louisiana high court has acted with constitu-
tionally required consistency in conducting
proportionality review, in light of intervening
decisions in which it has, without explanation,
varied the restricted scope of comparison em-
ployed in petitioner's case. See State v. Moore,
432 So. 24 209, 226-27 (La. 1983)(random com-
parison of first-degree murder cases state-wide);
State v. Narcisse, 426 So.2d 118, 138-39 (La.
i983)(comparison of first-degree murder cases
in two judicial districts rather than the customary
one). Petitioner seeks a stay until this Court
can consider whether the Constitution requires
at the least some consistent application of whatever
form of proportionality review the state selects.

13. Petitioner is presently in the custody of the Warden
of the Louisiana State Penitentiary in Angola, Louisiana. His
execution is imminent. A stay of execution would neither
prejudice the State of Louisiana nor interfere with petitioner's
custodial status. Rather, it would mereiy assure that petitioner
is not killed before the issues raised in his petition for

certiorari can be heard and determined by this Court.

‘spectfully requests an order

the disposition of his petition

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RECEIVED

IN THE OF CE OF THE CLERK

SUPREME COURT OF THE UNITED STAT _ SuPRe
October Trem 1983

ROBERT WAYNE WILLIAMS,
Petitioner,
vs.

JOHN T. KING, Secretary,

Louisiana Department of Corrections, and
ROSS C. MAGGIO, JR., Warden,

Louisiana State Penitentiary, Angola,
Louisiana,

Respondent Ss.

CERTIFICATE OF SERVICE

I hereby certify that I have served the petitioner's
Petition for A Writ of Certiorari and Application for a Stay
ef Execution upon the respondent by placing a copy in the
United States Mail, first class, postage prepaid, addressed

as fcllows:

Kay Kirkpatrick, Esq.
Assistant Attorney General
222 St. Louis Street

Suite 529

Baton Rouge, Louisiana 70801

All parties required to he served have been served,
Done this 9th day of December, 1983.
Deval L. Patrick

on behalf of
Samuel S. Dalton, Esq.

3 couRT, US.

I A AE

—_——-*

IN 7 *\ UNITED STATES COURT OF APPEALS
POR THE FIFTH CIacuit

No. 83-3647

ROBERT WAYNE WILLIAMS, U.S. COURT OF ap
Petitioner-Appellant, FI LE - - din oe je
- 4 .
2te Before. BROWN, “REAVLEY. and” Biccrnporaan, Circuit Judges.
ae “Seen conta: 625 SS aR. ei? | cS
* es > Pe 1th ae : .¢. -%

5

28 ) The Petition for nt ‘3 ‘DENIED and no member of this

1 nor Judge in regular active service on the Court having

fe. : requested that the Court be polled on rehearing en banc, (Federal

Rules of Appellate Procedure and tocal Rule 35) the Suggestion
= oe En Banc is DENIED. :

( ‘4 The Petition ot Rehearing is DENIED and the Court having
been polled at the request of one of the members of the Court

s ,-a@nd a majority of the Circuit Judges who are in regular active
service not having voted in favor of it, (Federal Rules of

7. _

= . Appellate Procedure and Local Rule 35) the Suggestion for Re-

_ hearing En Banc is also DENIED.

( ) A member of the Court in active service having requested
@ poll on the reconsideration of this cause en banc, and a
majority of the judges in active service not having voted in az
favor of it, rehearing en banc is penfes2k'$ NOTE

SEE FRAP AND LOCAL
RULES 41 FOR STAY OF THE

PSE ae MANDATE.
JOHN R. BROWN '
nite tates Circuit Judge REEG-6

ENTERED FOR THE COURT:

Wiel.

~ plates

~. TO ALL PARTIES LISTED BELOW

sat “~ Mo. 83-3647 - Pobert Wayne Williams -vs-
SF yes + _. John ?P. ng, Etc.

3 ZK “3 (~ospe wo. CA-83-1120-B) ‘

Enclosed is a revised copy of the Court's order entered
> .. in the above cause on October 23, 1983. The revision in
>: the order appears in the first sentence of the last para-
+ ~."* © graph on page eight. - eo. & Sw ‘ r ‘“

Z ° Se ,

art [= Very truly yours,

> : >,

‘ is A. 08 ‘ ,

- “he o*. « — af” . o

So Serine YT; DAO. ae

rp eR ee S ~ ree . u- s = *

ry et et a m ty a —

o.-" 2 t: 2- a st, ‘i -

Fey Feroyan

GS Salar alpen RE

as >= c=. Enclosures

=. -.s, * Honorable Frank J. Polozola’ ba oS ne
SA ATO ME. C. -Lee DuPufs, Clopk Me ate tes’ %

“~= =, Mr. Samuel S. Dalton

““s. * Mr. William J. Guste, Jr.. ra
_.. Ms. Kay Kirkpatrick F .

. bh Mr, Ross Maggio, Warden ~~ Se
at .. “Governor David C. Treen

. “_.* «Mgr. Alexander L. Stevas, Clerk .. .
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REVISED ~- October 24.963 2)
IN THZ UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT LL S. COURT DE
: FILED
Ho. 83-3647 OCT 33 £93
. ay Robert. Wayne Willians, GILBERT E GANUCHEArr
GUE SBS Petitioner- “Appellant, a
- yet ee F Sar, Ce
Ross s Masatoy Warden of the State Penitentiary,
SEES pAS: manpondent-Appelion
: led jae re ‘ ,
‘si ORE T Atte! ‘Appeal frou, the United States District Court
me cre z f Sos the Middle District of Louisiana
- : : : on :
-7"* Before, Bao, "REAVLEY, ‘and SIOCINBOTEAN, Circuit Judges

“4; = = Zs, Tae Fr,

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. [ ak As 4 7

:~. ws oA- 4% s
. . . wore “9
7 ae ay z go Robert Wayne Willians seeks a certificate of probable
‘a 4. ‘cause ‘ona stay ‘of his execution now set for Tuesday, October 25,
a 1983 Deryeen the. Bours of midnight and three a.s.

a . ee $ ox ie

. ra: Serres ae Bot 085 :
ced woe ® ew, bok 4 ‘. > , v s It.

wk are WE 2? Robert Wayne willians was convicted in the state courts

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sentenced to death by a jury. His conviction and sentence were
affficmed on direct appeal by the Louisiana Supreze Court, State
v. Williams, 383 So. 24 369 (La. 1980), and cectiocari was denied
by the United States Supreme Court, Williams v. Louisiana, 101 S.
Ct. 899 (1981),

Subsequently, petitioner filed a writ of habeas corpus
in the Louisiana state court for the Nineteenth Judicial District
on March 20, 1981. Denial of that writ was affirmed by the
Eosisioens Supreme Court on March 26, 1981. See State ex rel
willilass v. Blackburn, 369 So. 2d 1249. :

“petitioner then filed for federal habeas dorpus ‘gelief
in the District Court for the Middle District of Louisiana.
Judge Polozola denied his writ on March 27, 1981, ‘and petitioner
appealed to the United States Court of Appeals. for the Fifth

y oma

*.

Circuit. The. original panel in the Fifth Circuit upheld, the lower
-

court decision, Williams v. Blackburn, 649 P22. 1019 (Sth care
1981). After | “a rehearing en banc with oral argument, the petition
was again denied in June, 1982. See Williams v. Maggio, 679 P.24
381 (5th. Cir. 1962). A petition for rehearing of the. en banc
decision was denied on August 12, 1982. Id.

_ Petitioner applied for. « : weit of certiorari in
December of 1982. That petition was! denied June : 27, 1983,
and his application for rehearing was denied on September §,
1983 (after a stay granted by Justice Brennan on July 14, 1983).
Williams v. Maggio, U.S-___, 103 S.Ct. 3553. Judge Foil, the

State Trial Judge, issued a warrant for Petitioner's execution
- r ‘

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- _
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at ) =)

to take place on October 25, 1983 between the hours of twelve
midnight and three 4&.m.
= On October 4, 1983 the Petitioner filed a secone
petition for a writ of habeas corpus in the Nineteenth Judicial
District Court. That petition was denied by Judge Foil on that
&e same day.

-

. On October 14, 1983, the Petitioner filed a subsequent
petition for writ of habeas corpus with the Louisiana Supreme
“Court: That petition was denied on October 18, 1983.

ee at Pay On October 20, 1983, the petitioner filed this second
be-p 3 “petition for writ of habeas corpus with the United States
eis J District Court for the Middle District of Louisiana. This
2; 4 — 7
Be “.petition was denied on October 21, 1983 by Judge Polozola
i ete Ve . ~~"
eiee ina written order.
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“Oe ee williass now makes four arguments: _—
fae af, 4, The Louisiana Supreme Court's practice of conducting
ee aM Airs a only district-wide, rather than state-wide,
hy proportionality review of death sentences is
- . ] -~
: a we > 2

~~

ye" whereby trial court and_ jury “impose death sentence,

: 3) GO

unconstitutional.

2. The prosecutoc’s inflammatory remark at the close of
the sentencing phase elicited a decision based on
passion, not reason.

3. The trial judge incorrectly instructed the jury on
the ‘Lesser included offense of manslaughter, on on which
there was fo evidence. | i

4. Petitioner's jury was neither impartial, nor a

tepresentative croés-section of the eummanieg ein

violation of his sixth anendaent vights. 4 e F

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1. we agree with the District court with poten to claims 2, 3,

7 pitas ee
; and ‘ar and turn to claim fuaber 1. i Bae A. ntth aeoe 2
(2. In December 1982, the. Winth Ciccatt overturned, the ~. ie ieige~ 2s
cast ts a, fie, Ss ee oe ee tle tS pent Re
death sentence for lack’ of 2 proportionality Eeview.. Marris eae me ig
° 2ST oe “i

v. Pulley” 692 ¥.24 pers (ou clés 1982). ‘On March a, 1983, the =

» — +.

Supreme Court Smet certiorari to consider” two points regarding

-

2

= Cana Beare. a

“q) Does Constitution, in addition ‘to siheetees :

require any ‘specific: form of _“proportionality review”
i ae

by cour t of statewide jurfsdiction peice to execution

of state death judgment? @) “16 so, what is the

constitutionally required focus, scope, and procedural

oy © ©

structure of such review?

Pulley v. Harris, $1 0.S.L.W. 3590 (Pebruary 15, 1983, No. 82-
1095). ;

On April 22, 1983, Alabama petitioned the
Supreme Court to vacate a stay of execution granted to @
prisoner, Evans, who argued the absence of a proportionality
review of his sentencing by the Alabama courts. Over Justice
Marshall's dissent that the Court had granted plenary review of
the proportionality {issue in Barccis v. Pulley, Evans’ stay was

ty el vacated, Alabema v. Evans, 0.s. » 103 S.Ct. 1736 (1983), and
* he"was executed. ~ : ; ( Larys ote

In July , 1983, Jimmy Lee Gray appealed to this Court

. to stay bis execution, arguing, among other grounds, that:

_.s2 W:hb? S512] a light of the Supreme Court's recent grant of

vy eS) certiorari on the issue of what form of Seg gee |

* hee ® 5 ~~ seview, if any, is constitutionally r £ in capit “2

cS cases, this Court should grant the app ication ta order

~ So Ratt te withhold judgment on this issue until such time as ee
“ft can determined whether the narrow method used by the . - -—~

>, Mississippi Supreme Court to review petitioner's case _ ‘

“.
” --
>

.

_-

- ;
__*
“*.s

“-.. Gray wv. Lucas, 710 F.2d 1048, 1057 (Sth Cir. 1983). We rejected
2 _- S sa. a a “ = >% 3 - fe j - -
‘= ore that argdment, holding:

:,.- 2 | -Gray urges that we should withhold decision pending the :
i’ @eciston of the Supreme Court in Pulley v. Harris where °° ." constitutionally required and if so “what is the te * ae
LE, -. constitutionally required focus, scope and procedural ae

es: _—* structure of such review.* See Pulley v Barris, cert. ~
digs ‘nf ghey Qeanted U.S. 103 S.Ct. 1425, 75 L.2d.2d 787

_~ = soa" “s) (i983). See Sl 0.S.Law Week 3590. We note that a
os Set similac claim was reised in opposition to dissolve a

_ o- stay in Alabama vy. Evans, U.S. _,103 $.Ct. 173€, 75

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L.£d.24 806 (1983), but the court declined to halt the
execution.

Gray v. Lucas, 710 F.2d at 1057. On Septeader 10, 1983, the
Supreme Court denied certiorari, $2 0.S.L.W. 3169 (September 13,
1983), and Gray was snenduels

xs On Septenber 1, 1983, we refused in a divided panel to
stay the ‘execution of Balavine ‘a Loulstana prisoner, rejecting
his proportionality argument: md

-. The question Butdwin presents is whether the Louisiana
i ¥7 Supreme Court, which under the Louisiana capital

sa hishment statute réviews death sentences meted out by
cE pce juries, wiolates the federal Constitution by reviewing
_ St peers e sentences on a district-by-district rather than @
Sade S “etatewide basis. Even if the Court in Pulley decides
aes tid that proportionality ceview is constitut wo |
ae > Fequired, we find no reasonable basis for conc uding
ahr: = that the Court will require the state-wide review that

we declined to require in Williams. This conclusion is

ore. & Fas celetecces by the ental of teview, albeit now stayed,
“> SoS in Williams. a 385 oe i :
a ee ~*~ 2S ar ~_ a or RE sf
= Baldwin_yv. Maggio, - 715 F.2d 82, 155 {sth Cir. 1983) (footnote
SAP eA o 2. 2} Eats ay, —
ate tes ‘ September 27, 19834. the Suprene Court ates a

}
PR ARRAS ns Sess
2.0.8.L.W.- 3259 “(October a 1983).

™ a

; Ak NY oat On October ‘s. 1983, we we rejected the last minute plea of

"David Autzy hat Texas failed to review his death sentence for
"proportionality; noting that a sisilar claim was raised in

-‘Alabana ¥. Evans, bat that the Suprene Court had declined to halt

~ a Ome

that execution. Minutes, ‘before the ‘scheduled execution, Justice

white ‘granted. a stay, noting that, “ein view of our decision to

35 give (Barris: ve ‘Pully) ‘plenary consideration, I cannct say that
"" the [proportionality] issue lacks substance." $2 0.S.L.W. 3293

REGS Be

P © Oo

(October il, 1983).

Tc these recitations of developsents in other cases,
including actions and inactions in the Supreme Court, we woulé
ata the developeents in williams’ own case, because of a unique
fact. That fact is that the Supreme Court may well conclude the
it bas already determined that Williams’ clais No. 1 on
proportionality its without merit. In the decision of the panel
649 F.2d at 1021, we rejected Williams’ claia of inadequate
proportionality review. This was afficaed by the en banc court
where we stated:

Although the Supreme Court bas referred to statewide

reviews as commendable in the effort to insure again:

an arbitrary ingeaticen: the death penalty, it has

never implied t such review is a constitutional
requirement. Gr id

Flocida, supra; Jorek wv. Texas, 4 ° ’ s.c.
‘gh 5G, 49 L.8d. ( }). The review quoted above
yee} 22 ees yt | te safeguards against freakish
= aS mposition of capital punishment. Just as & venire
~" *2" = chosen froma cr s-section of the community in whic:
es the crime is committed {g an adequate constitutio
-_ = A « gafeguard against arbitrary imposition of verdicts &

sentences, so 2 review of the murder convictions
‘{mposed within that venire comajunity is sufficient %

ensure against arbitrary imposition of the ceath

penalty. We concur with the statement in the 1

decision vf this case that “we have beard nothing th:
«would even hint at unconstitutionality, and wholly

reject the argument.* 649 F.2d at 1021.

, Williams v. Maggio, 679 F.2d 381, 395 (Sth Cir. 1982) (en danc
On June 27, 1983, the Supreme Court denied certiorari, __0.8-_
103 $.ct. 3553 (1983). . But that was not the end of it. A ste
of the effect of the denial of certiorari was granted by Justi:
Brennan on July 14, 1983, pending determination of Williams’

r

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petition for rehearing, which specifically requested that Court
to delay its decision on the petition until it Gecided Barris v.
Pulley. In the face of this and the described other developments,
the Suprese Court on Septenber 8, 1983 denied the petition for
rehearing. ;

we must issue a eartiticate of probable cause and @
stay pending full review uniess we find that reasonable jurists

could not disagree on the claims raised by the Petitioner. See

Barefoot v. Estelle, _U. Ss. Sg © 2» BS 103 s.ct. 3383,

“Bs 4, 7 L.Ed. 24 1090, 1104 n. 4 (1983).

* es we are not perecatel: that “Williams has been denied any

2 , 2Y

constitutional right to a proportionality review of his sentence.

~_ We have explicitly so held, “and as noted, the Supreme Court has
; ' not chosen to. review that Fuliag, despite Williams’ request that

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eae ~ it go 9038 Nevertheless, = eee recent actions cf the Court suggest

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the possibility. that a coaplete ten ef the law on this matter

1 ;

omy, be ancicipated. with a person’ s life at stake, we must await
that review or further Sirections from the Supreme Court. For
that reason, ‘the requests for wongySsecte of probable cause and

stay of te GK, pending review, are granted.

* ae: “As to all claims” ve have carefully considered each

—_ -

of thea, and we expressly find ‘that each is without merit. We
AFFIRM the District Court's 2 Judgment as to each.

‘ -

-

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A Certificate of Probable Cause and Stay of Execution

are hereby GRANTED, and the judgment of the District Court is
AFFIRMED.

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Dear Ms. Kirkpatrick: oe = “| “~ ‘ Fetes
The Court today granted the apptication to vacate the stay iad eat
of execution of sentence of death entered by the United States ta “as ae
Court of Appeals for the Fifth Circuit in order te allow the State “gts ae ae
to reschedule Williams” execution. See the attached per curian eee 1 2
opinion together with the opinion of Justice Stevens concurring . ese
in the judgrent; the opinion of Justice Brennan, with whoa Pin 2 teens»
Justice Marshall jotns, dissenting; and the dissenting opinion of 8 eS
Justice Blackaun. ~e5 PON oon, gas cet 83 +, Pe SS a aang J
; . +" PS aS = _é one « ! > RS
or ALEXANDER L. STEYAS, Clerk et Sle
4 b: - : wt “ .
aoe + By wv Pee . Se
4 We te. FTF ae Nee a orate
be j Francis J. Lorsoa
Chief Deputy Clerk
Enc. 1. 5°

cc:

Samuel S. Dalton, Esq.
tun. David C. Treen ~~ ‘
Hon. Willfaw J. Guste, Jr. © >
Gilbert F. Ganucheau, Esq.
Clerk, U. S$. Court of Appéals
for the Fifth Circyvit
(your No. 83-3547)

Barbera A@uttiedge, Esq. ‘

Clerk, Suprece Court of Louistana

Loufsfana

Clerk, Distrfct Court for the Parish
of East Baton Rouse, LA

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SUPREME COURT OF THE UNITED STATES

Ne AD

—_—- - ——_ ——

ROSS MAGGIO, WARDEN »v. ROBERT
WAYNE WILLIAMS

ON APPLICATION TO VACATE STAY
~ « Qhewember 7, 1983)

Per Curia. S. wets ~

On October 23, 1983, less than two days be

cuit stayed the execution “pending final the Su-
preme Court” Because we agree with applicant that the
stay was improvidently imposed, we grant bis motion to va-
cate the stay and to allow the State to reschedule Williams’
execution. J. Pe yt:

Wiliams was sentenced to death for killing a security
guard while rot bing a grocery store in Baton Rouge, Louisi-
ana. His conviction and sentence were affirmed by the Lou!-

3

W Diam’

proved unavailing im the state courts. The Dutrict Court
held no hearing, but issued a written opinion denying Wil-
Hams’ petition. Williams v. Blackburn, 639 F. 2d 1019,
1021-1026 (CAS 1991) (Lxcorporating District Court's deci-
sion). The District Court’s judgment was affirmed by 3
panel of the Couct of Appeals for the Fifth Circus, dut an
order was entered directing thit the appeal be reheard en

"4 3 sth

ay. fs te

AW01— APPLICATION
2 MACCIC « WILLIAMS

bane. On rehearing, the en banc Court of Appeals rejected

each of Williams’ many objections to his conviction and sea-

“as tence and affirwed the judgment of the District Court. Wil-
liams ¥. Maggio, 679 F. 2d 381 (1982) (en banc). On June

27, 1983, we again desled Williams’ petition for certiorari,

— U. 8. ——-, and we denied his request for rehearing oa

+ September 8, 193, —— U. S. ——.
“4 After unsuccessfully renewing his attempt to win relief in
the state courts, Williams filed a second petition for habeas

|

_ viewed Wiliams’ claims and “expressly [found] that each is =
‘ " without merit.® Williams v. Magzio, No. &-3647, slip op., ) te
28S at 8 Oct 12, 1983). In light of recent actions by this Court, ~ Te >
fer ,° Appeals concluded with respect to = 24" eS
>. | Williams’ “proportionality” claim that “a complete reviewof- 9. 9 5s - GS >
_ TL ~ the law on this matter may be anticipated. Withaperson’s” = ‘
-. ° Wife at stake, we must await that review or further action
from the Supreme Court.” Jd: -
‘ ‘ ..*
a a ei ~ ie
; ——™-- Just last Term, we made clear that we would not automati-
‘ _ cally grant stays of execution in cases where the Court of Ap
we * peals hot denied a writ of habeas corpus. Barefoot v. Es-

;

“a>, "== * only if there exists “‘a reasonable probability that four mem-
a. : bers of the Court would consider the under!,ing issue sufS-

A201 APPLICATION

MACGNO « WILLIAMS 5

The grounds on which Williams would request certiorari

and
Appeals. None of these claims warrant certiorari and ple-
nary consideration in this case. Accorfingly, we
that the stay, which the Court of Appeals apparently granted
in view of the possibility that we would disagree with its anal-
ysis of the constitutional issues ralsed by Wiliams, ahoald be

claims may be summarized briefly. He argues,
that the Louisiana Supreme Court reviewed the
of his death sentence on a district-wide rather a

.
“.
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=

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“© om@e@e@ece

A-31-- APPLICATION

s
»* ae
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SS aie Can Mh Oa | “ >) ee A teen |
. “we Se tere ak oy Ty ae
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e law, and the District Court’s review of the

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under stat
led &

A&-— APPLICATION
MAGOIO « WILLIAMS 5

characterized the evidence proffered by Williams or the
question whether the jury was less than neutral with respect
to guilt as tentative and framen and we cannot com |

‘ cute that abused Es discretion In refusing to hold an
. evidentiary bearing on this issue. Further review is not
warranted. al

Williams’ challenge to the Louisiana Supreme Court's pro-

portionality review also does not warrant the issuance of a

writ of certiorarL The en bane Fifth Circuit has carefully

examined the Louisiana Supreme Court's procedure and

S found that it “provides adequate safeguards against freakish

: imposition of capital punishment." Wiliams v. Magjo, 6:

re F. 2d, at 396. This conclusion was challenged in this Coart

in Williams’ petition for certiorari following the Court of Ap-

peals’ decision and {fn his motion for recons:deratice of our de-

nia! of that petition. We were, of course, fully aware af that

time that we had agreed to decide whether some form of com-

parative proportionality review is constitutionally required.
. See Pulley v. Harris, 460 U. 8. —— (1983).

= ee Since agreeing to decide this issve in Pulley, the Court has

ee Foes tae : consistently denied challenges to the Louisiara Supreme

*

ah Fae ~.,, - Court's proportionality review scheme that were identical to
pet = 5: ss | that raised by Williams. See Lindsey v. Lowisicna, 464
a U. S. —— (1883); James ¥. Louisiana, 464 U. S. — (1983);

Bee ton, % - Sonnier v. Louisiana, 463 U. S. ——, rehearing denied, 464
&,?:.)- ' U.S —— GSS. See also Narcisse v. Lowisicns, 4
t See ae U.S. —— (1983). Applicant asserts that his execution
(SE ‘ should be stayed because we have issued a stay in another
— ER a Louisiana death case, Baldwin v. Maggio, 464 U. S. ——
Ree Se ” « (1983). But’dar decision there turned not on the substantial-

f “ ity of appticant’s Pulley argument, but on the fact that appli-
° p-e~oF - cant raised 2 substantial challenge to the effectiveness of his
ee SE - trial counsel, similar to those we shall resolve in two cases set
oss f° 9) for argument this Term. Strickland v. Washington, 462
e UL S —— (1983 United States ¥, Conic, 459 U.S —
~ 00D... 5 0 SAN eet 7 LSS
ol 6 ey tee ee

; oS. ‘ . .
a.
fo :
ers eon ee Fe 25 Bees basis, We sed io reason to disturb that Jodgment. 9
rs "oe Williams has not shown, nor could he, that the penalty im.
ake posed was disproportionate to the crimes be was convicted of
«committing: |
se ® a ul
“ ™ The District Court’s careful opinion was fully reviewed by
the Court of Appeals, which found no bas!s for upsetting the
= - District Court’s conchusion that Williams’ contentions were
i meritless. The arguments that Williams raised for the first
~ time in these are insubstantial, and the argu-
:* x ments that be has attempted to relitigate are no more

: . sive now than they were when we frst rejected them We

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»

MACGGIO « WILLIAMS 7

conclude, therefore, that the stay entered by the Court of
Appeals should be vacated.

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SUPREME COURT OF THE UNITED STATES

Ne AW

ROSS MAGGIO, WARDEN v. ROBERT
WAYNE WILLIAMS

OM APPLICATION TO VACATE STAY
_« (Newenber 7, 1983)
Justice STEVENS, concurring in the Judgment.

“I wont to read you some laws because something they
[the defense] said, dont sentence Uris man to death,
don’t kill this man. You see, you have the lest word on
the verdict, and it but, by far you don't have the last
word’on it f you return & The Louisiana Supreme
Court has enacted a series of statutes that I want to read
to you. What happens if you return a death penalty in
this case. Because the law that’s set up is very exact-
ing, detaited and complicated procedure for a review of
this court, the Losisians Sepreme Court, and other
courts before any death penalty can be i=posed. The
law states, 905.9, Review on Appeal, The Supreme
Court of Louisiana shall review of every sentence of
death to determine if it is excessive. The Court, by
rule, shall establish such procedures as necessary to sat-
isfy constitutional criteria for review. And, then the

¢ -

A-11--APPLICATION

2 MAGGIO » WILLIAMS

statute, they enact it. See, not necessarily, its’s manda-
tory that the Supreme Court review it. There's seven
judges on the Supreme Court, The highest Judges in
% this state. For it to be upheld, four of them will have to

the influence of passion, prejudice or any other arbitrary
: factors. If they decide it was, they can reverse and

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ing both the erime and the defendant. If they dont

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wr MACGIO ». WILLLAMS 3
Cs" a the Suprema Court will review, and determine their deci-
epi S mon whether or not f you decide to give him the death
a penalty, whether or not you were correct or not, but you
rag ’ see,—it use to be one.” Tr. 20-292, 296 (emphasis
5° supplied).
ee In my view, this argument the jury to err on
ce , the side of imposing the death sentence in order to “send a
reat message” since such an error would be corrected on appeal
ae (while a Efe sentence could not). I do not believe that argu-
ment accurately described the function of appellate review in
Se : ' Leuisiana The Supreme Court does not review
ye ve" + “everything” that occurred during the trial. If it finds that
sae : a5. fn ne rrbeless, because the essence of this issue was raised y
a td prior proceedings questioning the competency of trial
=: counsel—who failed to object to the argument when it was
ae
o

A-311— APPLICATION

Tae ed ey

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A 301 —AFFLIC ATION

-

MACGIO s WILLIAMS

made the Court is justified in applying a strict standard of
review to this second federal habeas corpus application. See
Sanders ¢. United States, 373 U. S. 1, 15-17 (198). Ido not
find an adequate justification for petitioner's Galure to raise
this argument in his earlier federal habeas action. Since pe-
titioner did raise the related argument of ineffectiveness of
counsel, he was no doubt aware of this argument and may
have deliberately chosen not to raise it in the first habeas cor-
pus petition See Barefoot v. Estelle, —— U. S$. ——, ——
(1983); Rove v. Lundy, 455 U. S. 509, 520-S21 (1982) (piural-
ity opinion); Fay . Noia, 372 U.S. 391, 3-40 (1953),
Townsend v. Sain, 372 U.S. 293, 317 (1963). Moreover,

n. 8 (STEVENS, J., dissenting).
without misgivings, I concur in the Court's decision to deny
the stay application. .

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SUPREME COURT OF THE UNITED STATES
: aaon ee Ne A201

ROSS MAGGIO, WARDEN v. ROBERT

- | : : WAYNE WILLIAMS

ON APPLICATION TO VACATE STAY
: - S| Pheowenber 7, 1980)
> Jusnice BRENNAN, with whom Justice MAssHALt joins,

i
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of execution granted by the Court of Appeals.
wo / Pas ca a 3

-* Bien if I accepted the prevailing view that the death pen-
alty may constitutionally be imposed ander certain circum

” \See Williams « Maggio. Ne S2-26s7 (CAS Oct. 23, 198. Prior to
the action of the Court of Appeals, the execution of Wiliars had Seen set
for berwces L200 a m and 3:00 a mm on Tutsday, October 75, 1953

as Suse A201 APPLICATION
. *-
> Se 2 MACCIO s WILLIAMS

condios stances, I would deny Louisiana's applicatic: in this case be
a cause Williams has raised a substantial constitutional claim
hn th, concerning the disproportionate nature of his sentence.
eae On Novernber 7, 1983, the Court will bear oral argument in

ss ie Pulley v. Harris, No. 2-106, to consider whether the Coa-
Nese c scItution requires, prior te the execution of any death sen-
ri 9 - * tence, that a court of state-wide jurisdiction determine

os” 3 = whether a death sectence is proportional to the crime com
ae Soe mitted in tight of the sentences received by similarly chai ged
ee Fs and convicted defendants in the state. Specifically, the

ae “= questions presented to the Court for review are (1) whether

ic the Constitution requires any proportionality review by a
a court of state-wide jurisdiction pr‘or to the execution of
Sega > - state death sentence and (2) if so, whether the Constitution
ngs , . requires that such review assume any particular focus, scope,
. Ss. or procedural structure. Williams maintains that the order
* Urs of the Court of Appeals staying his execution should be al-

-.*2," lowed to stand pending this Court's plenary consideration
* om bagh and disposition of the issues raised in Pulley. There is sim-
SR _-\. His commonsense position rests on several related argu- .
VERY. 42> mente. Initially, 8t is beyond dispute that the constitutional
~# =" Tip *", status of proportionality review is currently unclear. That is
aS? 5. * ~~~ undoubtedly why the Court granted the petition for a writ of
a ot certiorari in Pulley. See 460 U. S. —— (1983). It is also

why Justice Wurre, just last month, stayed the execution

aes .4 of James Darid Actry pending our decision in Pulley. See
Az... A Autry v. Estelle, 464 U.S. —— (1983) (Wurrt, J., in cham-
— bers). See also infra, at ——~ Given this uncertainty, it
fy: _ seems grossly inappropriate to allow an execution to take |
eo " place at this time if the condemned prisoner raises a non-
¥ ‘
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A simple examination of the proportionality review that

es Rae

‘fesce warranting 0 grant of certerarL” See onte, af ——." But as noted

the
r . Therefore, the Court's conclusion thst cai
raised by Wiha-s |s sot “certworthy” is directly contradicced by the
Court’s actions in Pulley. See also Baldwin « Maggio, 104 F. 2d

* Article 906.9 of the Louisiana Code of Criminal Procedure requires

. that the Supreme Court of Louisiana “reciew every sstence of death to

~ a determine f 2 is excessivy” and Erects the court to “establish such proce-
Piveg ? if FS that rection, the court has adopted Ra ows Rale 28, which provides in
te he see eye relevast part thet “Tin determining stether the sentence is et-rssive te
cS oe “2. qqurt shall determine . .. whethar the sentence ts Gsproportionate to the
~ ed . . ” .

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© &

A-201—APPLICATION
MAGGIO « WILLIAMS B)

The review was undertaken in April 1980, when Wibams’
case was on direct appeal before the Supreme Court of Loui
siana. The court compared the circumstances of WLiams’
crime with the crimes of other capital defendants in the Nine-
teenth Judicial District for the Parish of East Baton Rouge,
Louisiana, the d'strict or parish in which Williams was tried
and convicted. At that time, only 28 murder prosecutions
had taken place in the district since January 1. 1976, the rele-
vant date under state rules on which to begin the comparison.
Of those 28 prosecutions, only 11 resulted in convictions for
first-degree murder. And of those II, only 3 defendants

. were sentenced to death. Like Williams, all three were the

actual killers in a murder taking place during the perpetra-
tion of an armed robbery. And the court conclusorily nuted
that the crimes cocumitted by the 8 defendants receiving life
imprisonment had no aggravating circumstances or some
miligating circumstances and therefore were distinguishable
from Williams’ case. But, as the state court also admitted,
Williams had no significant prior criminal record and may
have been affected by a drug-induced mental disturbance.
Therefore, the proportionality review undertaken in this
case, imited as it was to a few cases arling in a single judi-
dal district, could not ensure that simTarly situated defend-
ants throughout the state of Louisiana also had received a
death sentence.

Louisiana has a total of 40 judicial districts in which a death
sentence may be imposed. They apparently range from dis-
tricts that cover primarily rural areas to a district that covers
penatty imposed im simDar cases, considering both the crime ard the de
fendant.* Loulslara Supreme Court Rule 28, § Ke).

Moreover, the system for apceTate review in Louisiana vas nt eatonally
pecterned after the prwedure for review autSorzed by the Georg s teath-
pe-atty statute and approved by this Court in Gregg © Ceorpa, 8 U.S
153 (1978). See State v. Sounier, 379 So. 24 15H, 13 (La 19H. The
Georgia proceturt, of course, inchades a propordoeality revies ‘hat com-
pares a death sentence to other sentences imposed ‘Rroughout ‘he stole
Gregg «. Georgia, rupra, at 204-204, ee rupra, 2. -——.

& ©

A OL APPLICATION
4 MAGGIO » WILLIAMS

the urban center of New Orleans. Yet by allowing the Sa-
preme Court of Louisiana to limit its proportionali’y review
to a particular district, the Cou: today sanctions a practice
that undoubtedly results in different sentences for similarly
situated defendants, dependent solely upon the judicial dis-
trict in which the defesdant wastried. Thisiathe essence of
arbitrary and capricious imposition of the death penalty that
the Court has cocsistently denounced. “A constant theme of
our cases... has been emphasis on procedural protections
that are intended to ensure that the death penalty will be im-

. posed in a consistent, rational manner.* Barclay v. Florida,

43 U. S ——, —- (1993) (Stevens, J., concurring). Cen-
tral to these protections is a system that includes meaningful
appellate review for every death sentence. See, ¢.g., Zant
v. Stephens, 462 U. S. ——, —— (1983); Gregg ¥. Georzia,
gupra, at 195, 204-206 Given the existence of only one
statewide death pecalty statute approved by "ts Louisiana
state legislature, requiring that all courts and juries across
the sta'e apply uniform legal standards before imposing a
death sentence, there can be no doubt of the substantiality of
the constitutional question whether the state supreme court
may apply different standards of appellate review depending
on the judicial district involved.

In sum, Williarss has raised a substantial claim challenging
the constitutionality of his death sertence which is encom-
passed within the questions presented to the Court in Pulley
v. Herris. Given the severity and irrevocability of the death
sentence, it is shocking that the Court does not follow its nor-
mal procedures in this case. Under these procedures, the
stay of execution should be left in force pending the timely
filing of a petition for certiorari, and the final disposition in
Pulley. In

The Court offers no defensible rationale for depar*ing from
this sensible practice.’ Its action in this case is especially

—

*On several occasions, I and other members of the Court have ex-
pressed Esapproval for the * ‘growing and inexplicable readiness . . . to.

A-3OL—APPLICATION
MACCIO «. WILLIAMS 7

troubling because (1) it is based on the minimal fllirgs ass> & TOUMG
GAWYEMs ahd Mad AL nca0T BcEN IMNVULVEU Ia THE DEFERSe IN

| Ssvinas mugoeR CASES. & FIRMA LT 3Peend wELL OF QUA SYTSTER
Teal LaereaS a@c APPOINTED and PALO TO REPRESENT THIS
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The OMY Ofnek CumaenTs 1 Gucads & COUPLE UF THE4e Me STATEDe 1

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sir amo LISTEN (G THE TOTALITY OF THe EVIDERCE AMO NOT MAKE

| Tat weCiStOn. iF YOU maves LF TOU wave oec1oveo wor TS nenoer
ia Death aeatences L Aah yOu TO RECONSIUER AT THiS TAME NO

| tuncesTaate Qu ifs TOU Save ether wets wHaT’S Tre OLFFemenCE
Ts aute & aan ve FOR LIFE ei TROUT SUSPENS LOMe PxOGat ida, IR

| Padua um Give mia The O€aTM SENTENCES | Tnina ATS wear
ApUaTAnT. =n t want To otSCuSS THAT with Yuu im GETAILe

| chun t We 1 saat TO 4640 VOU SOME LawS SECAUSE SuUnETaING
|rmey Salve voneT SenTEncé THAS Man TO DEATHS QOM'r KILL THLD

:
| Rane f0u Scée YOu Mave Tee LaST «080 OM THE VEROICTs and as

aa ae

7

STaNOd. Gules LT cOESH'T» ASSUMING YOU RETUAN THe Geath
PENALTY, AND YOU SmLULO ASSUME» AND L'A KOT THYI AS TO PLAY
THIS Coots out YOU SmOULO assune FOR THE PLRPOSe OF
GeLiSExal lon Teal SOMETIME Im THE FUTURE THE DEFcNOANT COULD
$& PUT [2 veaTm LF YOU KETURM SUCH A PENALTY. gules &8Y Fan YOU
Qun'T Have Ime VaST wOdu OM IT LF YOU RETUAN IT. Tné
LuulslaAtA SUPREME COLAT mad EmACTED & SERIES UF STaTtuTes Tat
i wANT TO @eAO TO YCUs wHaT MAPPENS IF TOU ReTuURN A Goan
PemacTY In (HIS CaSte BECAUSE THE LAw THATS StT uP iS vear
EXACTING» DETALLEO AND COMPLICATED PROCEQURE FOR & Aeviéw OF

LLL LL LE LS

Turs Coats TmE LOUISIANA SUPREME COURT, AMO OTHER COURTS
GEFORE AMT OEATH PENALTY Cam BE LAPOSED. THE Lad STATES»

| 905.9 me View OM APPEAL» THE SUPRERE COvaT OF LOUISIANA SHALL
| meVigw OF EVERY SENTENCE OF DEATH TO DETERMINE LF AT IS
EACESSive. Tre eduels OY RULE Smack ESTABLLON suCn

PaOCkuuecS a3 SeCessaat 19 TaTISFY COmSTiTUrlOmal Calredia FoR

—_ — ~

| REVLES. Onde fren Tre Statute» TH€Y EmacT IT. Séee “OT

meCESSARLL TY, (T'S SamQataay Thal Tre SuP@Ent cOuRT weview iT.

“THERES SEVER SLOGES Om Tre SuPrEeREe COuaT. THE HIGHEST JU0GES
Im fRiS states Fla LT Tu BE UPMELDs rows OF Trem wick “AVE TO

APPROVE LT. wELiv ehatT OO THEY Review? Trey STATE That every
, SEMTENCE ut veaTm Smack BE REVIEwEY BY Tala CouaT Tu LETeRAiNE
AE LE GS EXCESSIVEs AMO IM DETEMAINING emETMER ThE SENTENCE IS
EACESSAWEs THE COUMT Smaik DETERAINES Ae enéiHeR Trt SENTENCE

waS IMPOSED UNDER THE INFLUENCE OF PASSION, PREJVUOICE OR ant

——_ me ae

| OTHER a@elTaany €aCTORS. IF THEY DECIOE AT wade THeY can
@eWedSe LT anu UaDER A LIFE SENTENCE TO GE IMPOSED. wHETHER

:

TRE EVLOENCE SUPPORTS THe JuaT’S FINDINGS OF a afatytToar

| meee AwaTinG CiRCUASTANCE. AF THEY Find LT Olon'Ts TréY Can

MEVERSE LT anO GRUER & LIFE SENTENCE. GHEAE [re SenTENCe IS

eg TO Ta€ PEMALTY LAPOSEO LM SIMILAR VASES
’
:
:

-

’
won

ose

:

T consi ceaine g0Tm The Calne aad THE DEFENDANT. LF [met ont

| tains Tre CaLME WAS HELSOUS ENOUOMs TwEY CAM aéveaSé AT ane
;oaceR a LIFE SEmTENCE. LF THEY DON'T THinA Trad OefchOanT --
| ie Trev [rina Ime CkiMc waa MELMOUS EmOUGH Amo THE statstoar

| CIRCUMSTANCES ecxc PaOveu sut Teer DON'T Trina iT QuenT fe aé
apeLitey Tu (mis ver EROaaTe Ter Cam REVEXSE AT An0 QRoea &

LIFE Semi ence. enthc¥ce THE OEATR PEmALTY IS IMPOSED» &

-—2 ei

veaeaTiun TaansCcalet OF THE SENTENCE HEARING ALOne® with THE
ReCOnd BE QUIRED ON APPEAL SMALL BE TRAMSPERRED TO ThE court.

| THer RcViéw EVERYTHING THAT eENT Om Im THIS THLAL- unlFORn

| CapitTas SENTENCE aerort. WHEN THE O€ATH PENALTY LS IMPOSEDs

| we Tala, suOGe Smace EXPEOILOUSLY CORPLETE Ano FILE OF RECORD
Tee UNIFORM CaPiTal SENTENCE REPORT. THEY CALL ON Tre
DiSTaRict alfOaneye THE OEFEMSE ATTORNEY, THE OEP ARTRENT OF
,coaenre ga PAROLE, Tre OcPaaTaeat OF CORRECTIONS TO PROVIOE
| amy LePGa MATION MEEQEO. ME waS TO CAUSE A SENTENCE

tmves ties LOn [0 e€ COMOUCTEO AND THE aePort TO 8€ ATTACHES Ln)
Tré UNIFURA CAPITAL SENTENCE REPORT, & SePARATE OGCURENT. Two
JOC URENTS af That POINT wILl BE AEVIEWEO. That aerpoat SOES
UnTG Ime OeFenOanT’S Paton CALAINAL aCTivitYs Fani.Y
SITUATION» BACKGROUND EQUCATION, ECONORICs EAPLUYRENT STATUSs
any OTwed xckewaal Factors CONCERNING THE DEFEROANT. THE

a ne ee

acPORT Smal S& SEALED EXCEPT aS PROVIDED BeiOue OEFENSE

COUNSEL ANO The OLSTRICT ATTGANEY SMALL BE FURNISHED & COPY
'

—— Steves OaYS TO FALE & eRITTEN OPPOSITION TO Tre FaCTUAL
‘paren ELTHER SLOEs ANOTHER REPORT. IN ADOLTAION, THiS 15

SeCT LON FUUEe ScmTENCE KEVIE®W MEAQRANOUM, ANOTHER scpararte
aid In AVOLTAON TO THE OaleF REGUIRED ON APPEAL FOR evil

j :
| OE TERRI MalLON al Talats Ta€ OLSTRICT aTTGameY and O&FEnuaNT

$aauw Face & SENTENCE atVicw MEMURAROUA AQOKESSED IG Tre
’
‘ paurnietr 36 Tee SENTENCE BOTH $1065. Tee FOAR Sait COMFORA

Ee —_——

oe

In 30 Faw aS aPPLiCaBie mm AEQuIAEO FOR oRLEF. THE OLSTRICT

\ arrommer in THES CASE» TYR Oe ASSESTANT DISTRICT aTtuRney, |

st foe THe OLSTRICT atTToaméeY. Tet DISTRICT aTTOaneyY Smace
FILE & Ae uaanOuF OF ena.’ OF The aTaTe in Tee TIME PROVIDED.
[He RERUEARUUR ShOek iwetuoe o— LASTER TC THiS. YOu SEE
Dueti tesee: @euuT Teese ofeee DOCURERTS. i Trina Teeae’s

sour Su Face OUT ELSTER TO Tris. &@ &AST OF EACr Frast véenet
—MUROEM Care im Tre OLSTAICT wniCr Sentence was invosed after

j sanuaat Le L97e. Tre List SHOULD [mCLUDE Tmt OOCAcT RUBEN,

| CAPT Lone cine CUMVICTEde SENTENCE aCTuacit LAPOSEOs &

;SYNOPSLa Or (HE FACTS ANe RECORD CONCERNING Trt CALME OF THE

| Der eNDART a aYnuPSIS OF THE FaCTS anO RECORD CONCERNING ThE

CALE Ur Tm€ OEFENOANT Lm THE IMSTAMT Cad€» AMO ANT OTHER

mATTER RcLaTinG Tu The GuidE LINES Im SECTION le OEFENSE

j Cuunsel 1S a€Quinev TO FILE & AERORANOUR Om SEMALF UF THE

| OEFENDAAT. Tre PERUKRANOUM SHALL AbuAESS ITSELF TO Tre Tate's

MERUKRAROLA AND AMY OTHER maATTER RELATIVE TO Tre SULOE LINES~

Tue sum TOTaLiTY IS teat THERE WAS TO BE & TOTAL PRESENTENCE

QcPual. THe OLSTRICT arTaanecy aS TO FILE eaiers AND
RERORANUUMS Lh ADDITIONe TWERE IS & TOTAL REVIEW uF cweRr’

BLAST VEGREE PURvER Case La THIS PaRISH SINCE Janvaat le 1976

i LLL LS

LOOKING aT TRE FACTS~ ano Teéme LS 4 TOTAL ano COMPLETE
| InveSTiGaTLUN Qume ON THE OEFENOANT TO DETERLNE wmeTHER UR aot
| rney wILL cet TroUm OFCISLON TO [mPOSE THE DEATH PENALTY STAAO~
Sone GALT Tren OGES AT MAKE (T TraguGnm THE LOUISIANA sTaTeé

SuPREne COURT. and Tré OEFEROANT HAS A RlGut, If mé wiSHEs -~
jan mOT SAYING THaT If*s GRANTED IN every Case. IT CuULo S8€
DentEG. IF COULD e€ aPPEALEO ALL THE wat THROUGH Tre UNITED
STATES duPachE Cuvat. You COvLo EASILY SAY wells MK-
SINGUEF EL Os LF AT*S GOT TO GO THAOUGH ALL UF THaTs whY ARE

1Oy waSTinG aba JF THES TROVOLE. IT SOUNDS LIKE if wOULO sé

ET «-

an

MLL LLL OO

-_

Easice #Je Yuu TO UST Sat GIVE WIA THE LIFE Sentence a49 YOU
Can avOl0 a60uT 314 SONTHS OF euta, If vVOLusTece FUR tral
| wOnK, dae DUNT Somat abGuT AE. Itkk OC LT AMD LPEL See teat
tres Dowe. [fck Ste Taal IT*s oOmwe Ta THE LETTER oF Lae
(geCauSe i THIWa Tels Case OESEaVES iT. 30 OOn'T soaar atuuT
teat. tcc VueunTeta FUR THE STATE'S PART GF THide and iter
; 90 ifs anu ffee See Twat [T*S COME. I PROMISE TOU. SECAUSe I
| twine [mide OUGHT TO BE TwRee THINGS TOU CONSIOeM in Tris
‘case. CeaTaLalLY, Tre OEFENOANT wismeS TOU TO COme Baca )
Sue AEQCTs SmGe feat Trete’S a SITIGATING CARCUMSTANCE wrERE
[4 OOR*T Trina THERE [Se AmO GIVE HIM A LIFE SENTERCE wrheREln I
| oan't Teiwa YOU'LL FIMO a CRIME SORE AICHLY ObscavinG uF THE
| earn PemalTY, amO EVEN UF ITS ULTIMATE ENFORCEMENT, 1F IT
, Even REACHES THAT STAGE iM THIS CASE TOU SMOULD CONSIDER
THREE THINGS IN YOUR DELISERATILONS. AND AGAIN, 1 ASK TOve tF
TOUf ve Made UP YOUR AINUs I “Sa YOU TO RECONSIDER. ano i KNOW
Teal AT'S & OLFF.CULT THING Thar I aSK YOU TG 00. NOW AUCH
EASIER if LSe we ARE ATTUNED TO IT. WE ARE ATTUNED TO SHOW
MERCY LN TRIS COUNTRY, BUT THERE COMES & TIRE AMO [HERE CURES

/4 GCuIME, an I Sav THAT THIS iS IT» Treat Soneacor’s GOT Tu PUT
TwELa SuOT OO wn ANO SAY WE'RE BOT GOING TO GO AAMT FURTHER. IF
YOU OO THIS», YOU'RE NOT GOING TO COME GUT» wE'RE NOT GOinG TC
SWUe YUU MEKCTs e€*KE BOT GOING TO REDUCE ANYTHING. we kE
GOING TU OERANO THE ULTIMATE, THE MIGHEST PENALTY [mar

‘yapereag Law amO OUR LEGISLATURE WILL PERALT>» WITHIN THE
co LimeS FOR REVIEW OF THAT SENTENCE. THAT we'Ké MOT GOING
TO meuuce [T. AawO I Sav THIS IS TmE TIME TO LOOK aT Tris
CRIME. LOOK AT THREE THINGS. O10 I PROWE THE AGGRAVATING
CIRCURSTANCES. ME ARGUED THAT AATSE & OLON'T PROVE ONE OR
TwO. & OOM'T THINK AMYBOOY ARGUES THaT IT waS AN ARMED
a0eecnT. { OMY Have TO PROVE OME SO THAT STaTUTE IS TOTALLY

—

ee =

— re

:
:

j

TSATISFLED. AN 1 QOM'T THINK THERES amy EVIDENCE UTHER THan

| Reauitine SPECULATION» THAT ANT AITIGATING CARCURSTANCES WERE

| PROVED WHATSOEVER, BUT TaaT’S OMT 4 POINT. THaT?S THE
TEGHMLCALITY TraT 4.005 oS TO GET THIS FAR BEFORE THE JURY.

/ 4 Thine | PROWED #E waS im Twé maTUAE OF & PEACE OFFICER. IF

|

/¥Ou wOm'l Taiwe {| Olée TemGw THaT GmE GuT. THERE'S THREE more
Tat L GEFIMITERY PeuveO. COMNSIOER Taal FIAST, ano i Oanrt
TaINA imeae*S ANT QueSTiGms YOU Cam SAY TmaT i AMET THE

SlaTuluar STILA muman SELNGS 4NQ CITIZENS. ASSUMING Tre

-

TECHAICAL acPeCTS uF Tee Law AME PROVENs emiCn I OuUm'T Taina

YUU MAVE anf OCUd~» THEN YOU mAVE TG LOUKs I THINKs aT Tre

TOracify UF Tne evi Sence AMO CIRCUMSTANCES AMO SAY TO
VUwadecFs Used mE DESERVE THIS PENALTY. DOES ME CestKvE
McRae uOes mt OcdeRvEe TmaS duar TO COMe GUT ANY LESSEN entaT
hE Wade TO dat Teal TrEme AME MITIGATING CiRcuNaTAncES» Tal

There IS >umt REASON. AO I OON'T THINK Treke SmOULD Be FO

| $nOwe GiVE HIM Sume —— (> (meme? Cam YOU CONCEIVE OF = if

was a Calne TraT 45 PREMEOITATEUs COMCELWED, LT waS PLANNED.

we

TheYs [T wan't am LAPULSe. THEY WENT OND SOdKuUwED A GUN
TREE Ok FOUR MULAS SEFORE THEY O10 Ite THEY CSTAINED Sat

MASKS» TrcY CASED TmE STORE. THEY MADE EFFURTS TU CONCEAL

| THETASELWES. ImELR OSGECTIVE wAS GAEEO, FOR BONeY WITHOUT

| WORKING FOR LT. THEY WENT Imes THEY MEANT BUSINESS» Trey Had
| ARMED, LA0€D GUNS. THE FIAST THING THEY STRUCK OM, MATSE

| tucte KELLY WASN'T & PEACE OFFICER, suTt SOMETHING ABOUT HIM

| ORew THER DIRECTLY TO MAM. AND THAT#S BECAUSE HE HAO A

| unt FoRA AMy.& GUN. CERTAINLY | [Hink We*'S im Tre SATURE OF &
tan OFFICER. Trey went TO HIN 460 ehEN HE SADE & MUVEs BARe

Trey ALLLEO MIM. TREY O1ON'T SUPPER amt SERGaSE. TheY OlOntT

!
i
7

i

TGUlT THERE AMD SAY Oiry MUr GE KALLED & Ramey LETIS JusT FORGET
TeES anO GET GUT UF RERES NOs Uneuns susT COML 45 Can SE,
twer Fieslenmé0 Treat 8088687. Sutt THIS @aM%> 1 OLOn'T Sar THIS
‘man Gea! Ime OTREA MON TO The GaGUND, GUT WETS CERTAINLY 4
PuimCiPar TO if. w8°S SCTinG Im COmCeal weiter Tre ?caSOn That

DIG. Ceetainits . trian ne SHOW OE WELD SeSPONSIOLE. E'S

-_ =

Tee ONE WHO SHOT THE SHOT Gum 4nd WIT THOSE Ofmea PEOPLE.
| ate i> The #éaS0N wHY THERET mE'S & STRANGER, & STaamGer 19
Caimi mt OLUR'T ANOw WILLIE KELL Ys OLON'T nave AATTHIine
ASAIMST eALLAE KELLY. GOGK AT GILLIE KELLY. I°A mOT, ano t
STILb» £ ARGUED TmiS BEFORE aa0 T*LL TELL YOU THIS mOws I°R
wUT PREPARED TO BELIEVE THAT WILLIE KECLY 045 UNSMAPPING 15
| STRAP. If YOU wOOK at Tre waTuRe OF THE RAN ANDO whal me GOT
| mbaseur baTG ANy He waS SURPRISED ANDO THERE BAD & RAN wifm 4
SHOT GUA LEVELEO af WIAs AMO ANOTHER UNE TKYANG IU OeT 415
sum. LF YUu LGGA at Tmé ChaaaCTén OF WILLIE KELLY? wlitleé
SELLY AaY HAVE JUST SAL0e TO MECK wlTn TrlS. L*m wOT FIitL%e
TO STANG WERE ANO JUST LET THER Gum AE OUWN OF mck Ae BACK
AMO SHOOT Ae LATER Gk WHATEVER THEY'RE FIxInG TO 00. I°F
BLXING TO Have [T UUT WITH THESE GuYS. WHATEVER HAPPENS NOee
I VON'T Came what THE CONSEQUENCES AAY BE. maYSE HE was JudsT
HELPING THER. { OON'T KNQw. YOU'LL AVE TO SEARCH THAT IN
yOUK MINO. L*vE GOT AY OPINION. AFTER THAT The TOOK Tre

anes

mOncT,s THEY SPENT ITs ECTe I nave SEEN MO REMORSE,» NO REASON

—

/$QOR ANYTHING, FOR MERCY. SOs I TRINKs It OON'T THINK YOU CAN

~—

say O8 aT ANY EXTENT SAY TmaT UNOER THESE CIRCUMSTANCES THAT
Toe STATE WAS SATISFLED THE LEGAL REQUIREMENTS PLUS NE

DESERVES LT. I°LL SAY That THE CAINE SPEARS OF PUNISHMENT. 4
one Ram, AN INTELLEGENT MOMs 27 YEARS Olds FOOK THE ACT ON
| MESSELF. THE CRANE FETS THE PUNLSAAERT, amO Peanars THe *OST

| impOaTanTs I OON*T THINK AN TSCOY SILL HAVE Ant TaQuBic OF

tia an

Fo Yj oe SS Oo y bs eget ee ieee —er =

_ 4 4 . . . .

: ea . ~ - ~

: : = es oe a ae © c ver 8
» : . me a 2, a , ‘ ,
5 . 4 ¢ c’ a >

j OLSaPPoinTnEnT VITM WMAT { WAVE SalOe SUT ACRE LAPORTAAT,

ib wMaT 1S THES VERDICT GOLNS TO REAM? YOU SEE» YOU REPRESENT A
CERTAIN SEGMENT CF OUR SOCTETY» Law ASIOLNG PEGPLE, RAISING

| FARMLLIED» WORKING FOX A LIVINGs NOT ROBBING STOKES. YOU'RE

TH€ PeGPLe THAT Set THE STANOAROS IM THES COMAUNITY. THE

JUSTICES On The SUPREME COURT WILL REVIEW, AMO DETERMINE THEIA

DECISION whETHER OR NOT LF YOU DECIOE TO GIVE MIA THE DEATH

PENALTY» WHETHER OR MOT YOU wekE CORRECT OR NOT, BUT YOu SEE»

ag LT USE TO 66 OME I UON*T THING amY OF THem LIVE Im EAST

| BaTOR RUUGE PARISH. WE WAVE GOT ONE Twat REPRESENTS EAST

SaTOm KOUGE PARLSms AMO L'R SURE HE MAINTAINS A&A OOMICILE, SUT

i we ROVeu TO STo CHARLES AVENUE. YOU'RE THE PEQPLE THAT SET

THe STANOAKOS IA THIS CORAUNITY. AMD I SAY THIS» 4nd THIS iS

ba CRIme THal IF YOU wILL» QuTRaGGeO THIS COMMUNITY. IT

one LT. ANG THe RESULTS OF THIS VERDICT wiLl GO OUTSIDE
Je This CUual KuOA. And YOU REPRESENT wHAT Tre >TanOakds in

cestuen aGue— 1S GOInG TO SE AMONGST TE ide AGIOING PEGPLE.

| ade ot GOING TO ST THE STAMDARO OR 1S 298EAT wiLLL AMS 6OiNS

ltu set Ime STamvakot 1 SaY TwaT YOu OUGHT TO Sef IT. Ano I

| trEnK TOu OUGHT Iu suST PUT YOUM FOOT OOem and sav IW THIS
CAMCUMDTANCES»s UNDER Tr.Se wETKE GOING TO SET THE STANOARD ANO
PaOmen THe STANLARD'S GOING TO SEs BHEN TOs GO UUT THERE ANO

| vou wus A MAN OOen Im & GROCERY STORE, & Law ABLOING CITIZEN»
QUT TRERE TYING TO AAKE HIS LIVING, AND YOu TERKORIZE Act

| TESE PEOPLES WE NOT GOING TO FINO MERCY» WE NOT GJING TO SOs

‘er ARYTHINGs WE ARE GOLNG TO OEAANO THAT THIy STANOAKO BE
Set» That [me RAXCAUN THe Law Can GIVE YOUs wnitn IN Tris Cade

a The OG ATH PENALTY, YOU Aft GOlne TO Face IT. anv YOU ARE

| corns TO vO ThROUGH THESE REVIEWS AND YOU ARE GOING TO THINK

| aeout It. AMO L ASK» ANO £ ASK That IF THERE'S One PERSON ON

Dtwis vue, LF THE JURY CAN¢T MAKE UP LTS AMO On THIS PART OF

‘

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53-590.

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————_

RECEIVED |
DEC 10 1983

OFFICE OF Tus CLERK
SUPREME COURT, US.

EE

:
. = — — : —— .
IN THE PREME NITED STATES
NO
Se wee 4 aay aye
ROBERT WAYNE WILLIAMS, PETITIONER
an
YwX~«
~ Mp IO, WARDEN, RI NDENT
eer ereeeeeeeeeeeeeeeeeeeeeeeveeeeeeeneeer eee eee
. . — > 2 : ;
I ;
e ie F ” DF
> . ‘ > : _
; , . bed , : _
" > > > , > > . . >
» > o . »-* ‘ ’
for Writ ‘ . . the tar —s ‘ € Rone ’ :
the F feh > * > > ’ . : > . Z P : e ‘ ] é ant > e , ’ "re Ss
Ss we Wy ; sr * hy y > »® Y haws in * the
: :
Tué — ana ‘ 7 bo ‘Ww ré ,? a may bi ey + pay
the t f ting the said Writ f Cert rari are true.
l. Are ir ft tly employed? NO I have been incarcerated
. yo = = = = " 5 , i.
} sisiana Pri ns since January 12, 1979 anc prior
theret worked t various menial jobs for inimum waces
.
4 e Ss.
= uw - _A . ~ ,
2. Have } ived within the past twelve months any
>
° - y ~ + - ~ - =
e f 18iness, pr ession or other form of
— | oo e ~ ‘ ‘“~
elf-emp | ent, Or in the form of rent payments,
> a " ‘ * =
y a4 . ° 4 - . :
int est, } ends, or other source? NO.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1712%3A1. Public record. Not legal advice.