Page:United States Reports 502 OCT. TERM 1991.pdf/959

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OCTOBER TERM, 1991 January 16, 17, 1992

502 U. S.

peal, presented to Justice Scalia, and by him referred to the Court, denied. January 17, 1992 Certiorari Denied No. 91–7018 (A–506). Clark v. Collins, Director, Texas Department of Criminal Justice, Institutional Division. C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Certiorari denied. The order heretofore entered by Justice Scalia is vacated. Reported below: 953 F. 2d 642. Justice Stevens, with whom Justice Blackmun joins, dissenting. The direct review of petitioner’s conviction was not completed until November 18, 1991, when this Court denied certiorari. See ante, p. 969. Petitioner’s lawyer, a solo practitioner, was unable to represent petitioner in postconviction proceedings. Meanwhile, an execution date of January 17, 1992, had already been set by the trial court. Petitioner, who is indigent, was unable to find a lawyer to represent him until December 27, 1991. On January 3, 1992, petitioner’s new lawyer requested a modification of the execution date so that he could familiarize himself with the record; however, his request was denied. On January 15, 1992, petitioner filed an application for postconviction writ of habeas corpus in the trial court and the Texas Court of Criminal Appeals. The next day, the trial court denied a stay of execution. Within the span of a few hours, the Court of Criminal Appeals adopted the trial court’s findings and denied the application; the District Court denied petitioner’s first federal habeas petition an hour after it was filed; and the Court of Appeals for the Fifth Circuit affirmed the denial of federal habeas corpus relief by a divided court. Writing in dissent, Judge Davis explained that he would “grant the stay in this initial federal habeas petition” because he was “unable to adequately assess Clark’s claim of ineffective assistance of counsel without reviewing the pertinent portions of the trial record, which are not now available to [him].” No. 92–2036 (CA5, Jan. 16, 1992), p. 7, judgt. order reported at 953 F. 2d 642. As a matter of policy, I believe that we should routinely grant the stay application in all first federal habeas corpus cases “in order to be sure that a death row inmate may have the same