The Supreme Court/The Supreme Court.iso/pc/ascii/1993/order/051493.zr

Text File | 1993-05-16 | 5.9 KB | 118 lines

SUPREME COURT OF THE UNITED STATES
--------
No. A-851
--------
JAMES BLODGETT, SUPERINTENDENT,
WASHINGTON STATE PENITENTIARY, APPLICANT
v.
CHARLES CAMPBELL
on application to vacate order
[May 14, 1993]

  Justice O'Connor, Circuit Justice.
  I have before me an application requesting that I vacate
a remand order issued by an en banc panel of the United
States Court of Appeals for the Ninth Circuit.  This is not
the first time that applicant James Blodgett, who is
Superintendent of the Washington State Penitentiary, has
sought relief here with respect to Charles Campbell's
second petition for a writ of habeas corpus.  Last Term
applicant sought a writ of mandamus to compel the
United States Court of Appeals for the Ninth Circuit to
issue a decision in Campbell's appeal from a District
Court decision denying the petition.  In re Blodgett, 502
U. S. ___ (1992).  Campbell's appeal, which had been
argued and submitted on June 27, 1989, still had not
been resolved in January 1992, a delay of well over two
years.  Id., at ___ (slip op., at 1).  Although we declined
to issue a writ of mandamus-applicant had failed to seek
appropriate relief from the Court of Appeals before
seeking extraordinary relief here, id., at 4-5-we
expressed concern about the delay and noted that
applicant was free to seek mandamus relief again if the
panel did not handle the case expeditiously.  Id., at 5.
In fact, we cautioned that -[i]n view of the delay that has
already occurred any further postponements or extensions
of time will be subject to a most rigorous scrutiny in this
Court if [applicant] files a further and meritorious petition
for relief.-  Ibid.  Approximately three months later, the
Ninth Circuit panel issued an opinion in applicant's favor.
  That, however, did not end the matter.  If applicant's
account is correct, the Ninth Circuit since then has
extended the time for filing a petition for rehearing in
Campbell's case, granted rehearing en banc, and denied
applicant's motion for expedited review.  After vacating
submission of the case so it could receive and review
supplemental briefs, the Ninth Circuit en banc panel
issued an order remanding the case to the District Court
for an evidentiary hearing on whether hanging is cruel
and unusual punishment under the Eighth Amendment.
The court, however, did not indicate that the hearings the
District Court already had held were inadequate.  Nor did
it conclude that the District Court would have erred had
it denied Campbell a hearing altogether.  Instead, the en
banc court stated that, because it had -chosen to address
whether hanging is cruel and unusual punishment,- it
would be helpful to have -the benefit of an evidentiary
hearing, with findings and conclusions by the district
court.-  Campbell v. Blodgett, No. 89-35210 (Apr. 28,
1993), p. 1.  Applicant moved for reconsideration of that
order, and the en banc court denied the motion.  Judges
O'Scannlain and Kleinfeld dissented:
      -Over a year ago, the Supreme Court reminded us
that the State of Washington has sustained `severe
prejudice' by the stay of execution in this case, which
is now over four years old.  In re Blodgett, [502 U. S.
___ (1992)].  While the further delay to be caused by
this remand order may not be egregious, it is
symptomatic of this court's handling of this case. . . .
Absent any indication by this court that the district
court erred-by holding that Campbell was [wrong-
fully] denied a hearing on this issue altogether or that
the hearing given was somehow inadequate as a
matter of law-I can see no basis to remand for a
new evidentiary hearing.-  Campbell v. Blodgett, No.
89-35210 (May 7, 1993), pp. 2-3.
  Frustrated with the slow rate of progress and the
additional delay occasioned by the en banc court's April
26 remand order, Blodgett has submitted an application
that asks me to vacate that order.  Although I am
concerned about the glacial progress in this case, I have
grave doubts about my authority to offer such relief by
way of application.  After all, most applications seek
temporary relief, such as a stay of judgment, vacation of
a stay, or a temporary injunction, and only where
necessary or appropriate in aid of this Court's jurisdiction.
See, e.g., Drummond v. Acree, 409 U. S. 1228 (1972)
(Powell, J., in chambers) (application for stay); O'Brien v.
Skinner, 409 U. S. 1240 (1972) (Marshall, J., in chambers)
(application for stay); see also Coleman v. Paccar Inc., 424
U. S. 1301 (1976) (Rehnquist, J., in chambers)
(application to vacate lower court stay); American Trucking
Assns., Inc. v. Gray, 483 U. S. 1306 (1987) (Blackmun,
J., in chambers) (application for injunction requiring that
funds be escrowed pending outcome of case).  Applicant,
however, does not seek interim relief.  Nor has he filed
with this Court a petition for either a writ of certiorari
or an extraordinary writ.  Rather, he requests that I act
alone to vacate the remand order of the en banc court,
thereby barring the case's return to district court and
prohibiting the taking of more evidence.  I have not
located a single published order in which a Circuit Justice
has vacated or reversed a court of appeals' order, other
than an order providing interim relief; indeed, it appears
that such an action would exceed my authority, which is
limited to providing or vacating stays and other temporary
relief where necessary or appropriate in aid of this Court's
jurisdiction.  See Kimble v. Swackhamer, 439 U. S. 1385,
1385 (1978) (Rehnquist, J., in chambers) (-It scarcely
requires reference to authority to conclude that a single
Circuit Justice has no authority to `summarily reverse' a
judgment of the highest court of a State; a single Justice
has authority only to grant interim relief in order to
preserve the jurisdiction of the full Court to consider an
applicant's claim on the merits-).  Because I do not believe
I have the authority to vacate the Court of Appeals'
remand order unilaterally in my capacity as Circuit
Justice, the application is dismissed without prejudice.