The Supreme Court/The Supreme Court.iso/pc/ascii/1994/order/031494.zr

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SUPREME COURT OF THE UNITED STATES
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No. A-758
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TERRY COLLINS, WARDEN  v.
JOHN W. BYRD, Jr.
on application to vacate stay
[March 14, 1994]


  The application to vacate the stay of execution of
sentence of death presented to Justice Stevens and by
him referred to the Court is denied.
  Justice Scalia, dissenting.
  On April 17, 1983, respondent and an accomplice
entered a convenience store, emptied the cash register,
and took the clerk's wedding band and watch.  He then
stabbed the clerk, ripped the store telephone out of the
wall, and left his victim bleeding on the floor.  The clerk
died in a hospital a few hours later.  The police arrested
respondent early on the morning of April 18, after he
had committed an armed robbery at another convenience
store.  Respondent was convicted of capital murder and
sentenced to death on August 19, 1983.  The sentence
and conviction were affirmed on direct appeal by the
Ohio Court of Appeals and the Ohio Supreme Court, see
512 N.E.2d 611 (1987).  We denied certiorari.  484 U. S.
1037 (1988).  Respondent then filed a motion for state
post-conviction relief which was rejected by the trial and
appellate courts.  The Ohio Supreme Court denied
review.  573 N.E.2d 665 (1991).  Respondent next filed
a jurisdictional motion with the Ohio Supreme Court
which alleged deficiencies in the performance of his
appellate counsel on his direct appeal to the Ohio
Supreme Court.  That motion was rejected, see 596
N.E.2d 472 (1992), and we recently denied an applica-
tion to stay respondent's execution to consider a petition
for certiorari stemming from the denial of that motion.
  On March 7, 1994, only eight days before respondent's
scheduled execution and six years after we denied
certiorari on his direct appeal (almost eleven years after
the murder for which he was tried and convicted, if
anyone remembers that) respondent filed his first federal
habeas petition.  That formidable filing included 29
claims for relief and filled almost 300 pages.  The
District Court cited the substantial time gaps between
respondent's conviction, rejection of his direct appeal,
and denial of state post-conviction relief, and rejected
the habeas petition on the ground of delay.  Respondent
then sought a stay of execution from the Court of
Appeals for the Sixth Circuit.  The Sixth Circuit granted
the stay, and petitioner filed this application to vacate
the stay.
  I have considerable sympathy for the District Court's
view that respondent's habeas petition should be rejected
on the ground of inexcusable delay.  The decision
whether to assert jurisdiction over a habeas petition
calls for an exercise of the court's equitable discretion,
see Withrow v. Williams, 507 U.S. ___, ___ (1993) (slip
op., at 1-3 (Scalia, J., dissenting), and the petitioner's
delay in filing is a factor the court may consider.  Cf.
McCleskey v. Zant, 499 U.S. 467, 489 (1991) (-a peti-
tioner may abuse the writ by failing to raise a claim
through inexcusable neglect-).  We have for many
purposes, however, abandoned (or forgotten) the equita-
ble nature of habeas corpus, and under the current state
of our law I cannot say that it would have been unlaw-
ful or an abuse of discretion for the Sixth Circuit to
require District Court consideration of the habeas
petition on its merits, and to stay the execution pending
that consideration.  The Sixth Circuit's order, however,
did much more than that.
  First, the order stayed respondent's execution for -120
days to allow for further investigation and discovery of
possible habeas claims.-  The Court of Appeals evidently
ordered this suo motu, with no request for such relief
from respondent himself-and understandably not.
Respondent has had six years to -investigate and
discover possible habeas claims,- and there is no
justification for another four months' delay on that score.
The Court of Appeals' action tells counsel for death-row
inmates that they should not only wait until the
eleventh hour to file their habeas petitions, thereby
assuring a postponement of execution to enable consider-
ation of the petition, but should be sure that, even then,
their petitions are not fully researched and investigated,
so that further postponement can be obtained for that
purpose as well.  Only one bent on frustrating the death
penalty could think this right.  The Court of Appeals
can order the District Court to consider respondent's
petition in due course, but its decree of a 120-day
extension for further investigation and discovery (during
which the already leisurely course of Ohio justice must
be further delayed) seems to me a plain abuse of
discretion, if not entirely ultra vires.
  The Sixth Circuit also ordered that -[t]hese habeas
proceedings shall be held in abeyance until the Supreme
Court either grants or denies petitioner's request for
certiorari, as the Court's decision will be directly
relevant to the resolution of one of petitioner's habeas
claims.-  It seems to me that whether this Court's
decision will be relevant to the District Court's task, and
whether the possibility of relevance on one claim is
worth -holding in abeyance- the entire proceeding, are
questions initially to be decided by the District Court.
If that court goes ahead and decides the habeas petition,
the Court of Appeals has authority to delay its own
review of that decision to await our disposition of the
certiorari petition; but it has no authority to order the
district judge to delay his decision when that does not
seem to him the better course.  The same usurpation of
the District Court's function is displayed in the Court of
Appeals' granting (again, apparently, on its own motion)
of -leave . . . to amend the petition within sixty (60)
days of this order to include any newly discovered
claims.-  Whether a motion to amend should be granted
or denied is for the District Court to decide, subject to
reversal only for abuse of discretion.  See Foman v.
Davis, 371 U. S. 178, 182 (1962); Duchon v. Cajon Co.,
791 F. 2d 43, 48 (CA6 1986); 28 U. S. C. 2242 (applica-
tion for habeas corpus -may be amended or supplemented
as provided in the rules of procedure applicable to civil
actions-).  The Court of Appeals' function is to review
decisions of the District Court, not to establish district
judges' timetables or to make discretionary determina-
tions prematurely and in their stead.
  I would grant petitioner's application to vacate the
Sixth Circuit's stay.  Since, as I have said, the Sixth
Circuit could have entered a more limited stay for a
more limited purpose, I would stay the execution for so
long as is needed to permit the Sixth Circuit's reconsid-
eration.