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Charlie BROOKS Jr.

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery - Kidnapping
Number of victims: 1
Date of murder: December 14, 1976
Date of arrest: Same day
Date of birth: September 1, 1942
Victim profile: David Gregory, 26 (mechanic)
Method of murder: Shooting
Location: Tarrant County, Texas, USA
Status: Executed by lethal injection in Texas on December 7, 1982
 
 
 
 
 
 

Charles Brooks Jr. (April 1, 1942 December 7, 1982) was a convicted murderer who was the first person executed by lethal injection in the United States. It was the first execution in Texas since 1964.

Brooks was raised in a well-off Fort Worth family and attended I.M. Terrell High School, where he played football. He had been to prison before, serving time at the United States Penitentiary, Leavenworth for illegal possession of firearms.

On 14 December 1976 Brooks went to a car yard saying he wanted to test drive a car. The mechanic, David Gregory, accompanied him in the car. After picking up Woody Loudres, the mechanic was put in the trunk of the car and they drove to a motel. There the mechanic was bound to a chair with coat hangers, gagged with tape and then shot once in the head. Neither Brooks nor Loudres would say who fired the shot. Because of legal complications, Lourdes received a 40 year sentence, while Brooks received the death sentence.

The Supreme Court of the United States had rejected 6-3 a petition to grant a stay of execution. The State Board of Pardons and Paroles recommended by 2-1 that the execution should proceed.

After a last meal consisting of a T-bone steak, french fries, catsup, Worcestershire sauce, biscuits, peach cobbler and ice tea, he was rolled into the death chamber at the Huntsville Unit in Huntsville, Texas. There he made his final statement. Brooks had converted to Islam while in prison and as such said a prayer to Allah.

The drugs were injected at 12:09 a.m. and Brooks was pronounced dead at 12:16 a.m. A photo of his deceased remains strapped to the gurney after the execution was published in Time the following week in an accompanying article mentioning the first ever judicial execution by lethal injection had occurred.

Wikipedia.org
 
 


 

Last statement

Statement to the Media:

I, at this very moment, have absolutely no fear of what may happen to this body. My fear is for Allah, God only, who has at this moment the only power to determine if I should live or die...As a devout Muslim, I am taught and believe that this material life is only for the express purpose of preparing oneself for the real life that is to come...Since becoming Muslim, I have tried to live as Allah wanted me to live.
Spoken:
Yes, I do.
I love you.
Asdadu an la ilah illa Allah,
Asdadu an la ilah illa Allah,
Asdadu anna Muhammadan Rasul Allah,
Asdadu anna Muhammadan Rasul Allah.
I bear witness that there is no God but Allah.
I bear witness that Muhammad is the messenger of Allah.
Inna li-Allah wa-inna ilayhi rajiun.
Verily unto Allah do we belong, Verily unto him do we return.
Be strong.

 




Christianity.com

Charlie Brooks was executed in December 1982, despite serious doubts about his personal involvement in the murder of which he was convicted. In fact, the prosecutor pleaded that his death sentence be commuted, because no one knew whether he or his codefendant (who was given a prison sentence in return for his testimony at trial) actually committed the murder. (Charles W. Colson, "That Execution Wasn't Painless," Washington Post, December 11, 1982)

 
 

Brooks v. State, 599 S.W.2d 312 (Tex. Cr. App. 1979) (Direct Appeal).

The record reflects that on the morning of December 14, 1976, Marlene Smith, an admitted prostitute, thief, and heroin addict, traded sexual services for the use of a car from a used car dealer. She then picked up Woody Loudres and the appellant at a liquor store on Rosedale Avenue. Smith testified that she and Loudres lived together in Room 15 of the New Lincoln Motel in Tarrant County. The record reveals Smith had been acquainted with the appellant for two weeks and that appellant had on occasion stayed with them at the motel.

Smith, Loudres and the appellant drove back to the motel, where Smith and Loudres took heroin. The three then drove to the home of appellant's mother, where they *315 drank. The trio then left, heading for the south side of Forth Worth so that Smith could go shoplifting.

In response to a question as to whether appellant and Loudres were going shoplifting with her, Smith testified without objection "they were with me" and appellant had his "booster coat on." As they were driving on East Lancaster Street, the car vapor-locked and they pushed it into a service station. They were unable to get the car started and, according to Smith, the appellant left the other two and walked to a nearby used car lot to "get a car to test drive" so that the three would have transportation to the south side.

An employee of the used car lot talked to the appellant when he walked onto the lot and asked to test drive a car. Appellant was wearing a tan topcoat at the time. Company policy required that customers who walked onto the lot and asked to test drive a car had to be accompanied by an employee. David Gregory, the deceased, was told to accompany the appellant around the block. The record reflects that Gregory was a paint and body repair man who sometimes assisted as a mechanic and also answered wrecker calls.

The deceased and the appellant drove to a location where Smith and Loudres were waiting in the vapor-locked car. Loudres got into the car with Gregory and the appellant. They drove off with Gregory, leaving Smith with the broken- down car. A car identified as the one taken on a test drive from the used car lot was driven into the New Lincoln Motel at about 6:00 p. m. The appellant and Loudres were in the car at the time. The appellant released a man from the trunk of the car and took him at gunpoint into Room 17 of the motel.

Loudres came to the office of the motel and told the manager's wife, Emma Speers, that they had a man tied up and "we are going to have to kill him." The appellant also came to the window of the motel office, pointed a large revolver at Speers' head, and told her, "You're ignorant. If you say anything, I'll blow you and your daughter's brains out."

The appellant then walked away from the motel, returned a few minutes later, and walked toward Room 17. Shots were heard soon thereafter. During this time a woman who was delivering cleaning to the motel talked to Speers. When she left the motel she noted the license number on the car in which the appellant and Loudres had arrived. After leaving the premises she notified the police. After hearing the shots, Speers also notified the police and her husband, the manager of the motel. Loudres and the appellant were seen leaving the motel by the back entrance.

Fort Worth police officers arrived at 6:24 p. m. They were advised that shots had been fired. The officers began checking the rooms for signs of foul play. They began their checking at Room 13. Room 15 was unlocked and empty. Rooms 16 and 17 were locked. When Room 17 was unlocked by the manager, Gregory's body was found bound and gagged with adhesive tape and shot in the head.

Phil Watson testified that at about 11:00 p. m. that night he met Loudres and the appellant at the Flamingo Club in south Fort Worth. Loudres asked Watson to drive them back to the New Lincoln Motel. When they arrived, the manager told Loudres to leave. When they were passed by two police cars, appellant stated that "there had been a killing." Watson, Loudres and the appellant were arrested later at Watson's home.

Appellant contends that the trial court erred in admitting into evidence certain items seized by the police as a result of an illegal search of Room 15 of the New Lincoln Motel.

The record reflects that after finding the deceased's body in Room 17 of the motel the police returned to Room 15 and recovered State's Exhibit No. 16, two spools of a Curity adhesive tape dispenser, and State's Exhibit No. 23, three hypodermic syringes. State's Exhibit No. 16 was admitted without objection and State's Exhibit No. 23 was admitted over objection that it constituted evidence of an extraneous offense.

The pertinent portion of the indictment charged that Brooks: "did then and there intentionally and knowingly cause the death of an individual, David Gregory, by shooting him with a firearm, and the said Charlie Brooks, Jr. did then and there intentionally cause the death of the said David Gregory in the course of committing the offense of kidnapping, by then and there intentionally and knowingly abducting David Gregory; ..."

Brooks was previously convicted in the State of Louisiana on September 27, 1962 and was sentenced to three years for the offense of "simple burglary" in DeSoto Parish, Louisiana. He was paroled in 1963 and his parole was revoked in 1965.

Brooks also pled guilty in the United States District Court for the Northern District of Texas in 1968 to three counts of illegal possession of firearms. Brooks was also convicted in Walker County, Texas of Theft over $50 and Burglary. (A total of four prior felony convictions introduced during penalty phase)

Almost five years after Brooks was convicted, Woody Lourdes, who had been indicted for and convicted of the same offense, and whose conviction had been reversed on appeal, made a plea bargain with the State, pleaded guilty to non-capital murder and was sentenced to forty years in prison.

 
 

697 F.2d 586

Charlie Brooks, Jr., Petitioner-Appellant,
v.
W. J. Estelle, Jr., Director, Texas Department of Corrections, Respondent- Appellee.

No. 82-1613

Federal Circuits, 5th Cir.

December 6, 1982

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

PER CURIAM:

Five years ago, on December 3, 1977, Charlie Brooks, Jr., then 34 years of age, was convicted of the murder of David Gregory. The jury found that the conduct of Brooks that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased would result, and that there was a probability that Brooks who had previously been convicted of felonies four times, would commit criminal acts of violence that would constitute a continuing threat to society. Accordingly, as required by Texas law, the Court imposed a sentence of death.

His motion for a new trial was denied. On appeal, the Court of Criminal Appeals of Texas affirmed the conviction and sentence. Brooks v. State, 599 S.W.2d 312 (Tex.Cr.App.1979). After two motions for rehearing had been denied, Brooks applied to the Supreme Court for review, and this was denied. Brooks v. Texas, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996, rehearing denied, 453 U.S. 950, 102 S.Ct. 25, 69 L.Ed.2d 1036. At his trial Brooks was represented by two court-appointed counsel, William E. Burdoch and Glen E. Eakman, Esq. During his appeal he was represented by Glen E. Eakman and Allen K. Butcher.

Brooks, represented by Danny B. Burns, Esq., then filed two petitions for habeas corpus in state court. These were denied by the trial court and the Court of Criminal Appeals affirmed the denial on December 1, 1981.

On October 16, 1981, Brooks was sentenced to be executed on December 7, 1981. On December 2, 1981, he filed an application for habeas corpus in federal court. Numerous pleadings and briefs were filed by the parties. It was contended that in at least 12 respects Brooks had been denied his federal constitutional rights during his state trial. Several time extensions were granted to Brooks by the federal court in order to enable him to obtain evidence. Four hearings were held to permit him to adduce evidence and argument in support of his contention.

On October 28, 1982, the district court issued a 26-page opinion discussing in detail each of Brooks' contentions, accompanied by one two-page chart outlining each of Brooks' arguments and the manner in which each had been raised. The federal district judge discussed each argument and found each of them to lack merit. Accordingly, he dismissed the petition. Therefore, the state trial court ordered Brooks' execution on December 7, 1982.

Brooks filed a motion for a new hearing in the federal district court, but this was denied. The federal district court issued a certificate of probable cause. Without such a certificate, Brooks would have been unable to appeal, 28 U.S.C. Sec . 2253, so his right to appeal would have been summarily ended. However, the district court denied Brooks' request for a further stay of execution.

On November 15, 1982, Brooks filed an application in this court for a stay of execution. We promptly ordered oral argument on the issuance of a stay, and heard argument on November 26, 1982. Counsel for each party was allowed the time requested for oral argument and counsel for Brooks was permitted to continue argument beyond the allotted time. The Texas Civil Liberties Union appeared as amicus curiae and its counsel was allowed oral argument. We denied the stay because there was no substantial question concerning the correctness of the district court's judgment.

On December 2, a motion for reconsideration of our order denying a stay was filed by eight new counsel, appearing for Brooks. They contended that Brooks' constitutional rights had been violated by the state court in five ways. Two of these arguments had not been raised before, either in state court, federal district court, in the application for stay to us, or in oral argument on that application. See 28 U.S.C. Sec . 2254(b); Gray v. Lucas, 677 F.2d 1086, 1099 n. 13 (5th Cir.1982); Cobb v. Wainwright, 666 F.2d 966, 968 n. 1 (5th Cir.), cert. denied, 457 U.S. 1107 , 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); Spivey v. Zant, 661 F.2d 464, 477 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982) (habeas claims must be presented first to federal trial court). Two others had been asserted in some fashion previously, but were presented in substantially different fashion. Simultaneously, we are advised by Brooks' counsel, an application for stay has been presented to the Supreme Court, --- U.S. ----, 103 S.Ct. 1490, 74 L.Ed.2d ---.

Despite the eleventh-hour presentation of new issues, we have reviewed each of the new issues carefully and again reviewed each of the issues previously presented to us. Each member of this panel is acutely aware that Brooks' life may depend on our action. Each of us is determined to fulfill our sworn obligation to uphold and defend the Constitution and laws of the United States, doing justice to the rich and to the poor alike, favoring neither the rich because he is rich, nor the poor because he is poor. We have that same duty to act impartially between the condemned and the state, favoring neither the state nor the condemned. That duty compels us to declare that we find no substantial question presented.

We review briefly the issues presented in the application for reconsideration:

  (1) Almost five years after Brooks was convicted, Woody Lourdes, who had been indicted for and convicted of the same offense, and whose conviction had been reversed on appeal, made a plea bargain with the State, pleaded guilty to non-capital murder and was sentenced to forty years in prison. The contention is that the two sentences are not proportional and that there is no rational basis for the difference in their sentences. It is well-settled that the State may favor with clemency a person who confesses his guilt. Moreover, to exact review of a prior sentence each time another person involved in the same crime or a person involved in another similar crime is sentenced would require literally endless review unless the state ceased to prosecute and obtain convictions in capital cases. The constitution does not require retrospective review of a sentence imposed four years earlier.

  (2) Counsel at the trial is asserted to have been incompetent at the sentencing stage because they failed to call witnesses who could testify favorably to Brooks in mitigation of his punishment. This issue was not raised in state court and was not pleaded in federal court although Brooks did mention it in his federal court testimony. Seven affidavits, six from members of Brooks' family and one from his pastor are now presented to us. None of these were presented prior to the petition for reconsideration; indeed they are all dated November 30, 1982. There is no claim that this is a newly discovered issue or that this is newly discovered evidence.

After examination, it appears that none of them would have been likely to have any effect on the question whether there was a probability that Brooks would commit criminal acts of violence in the future. Moreover, while we do not suggest that Brooks waived the question, we note that the state trial judge carefully raised the question of Brooks' right to present such evidence and that both Brooks and his lawyers stated that they did not wish to do so. The state trial record discloses that, after the state rested, the following occurred:

MR. EAKMAN (defense counsel): Your Honor, can we put in the record that the Defendant does not want to testify at his hearing and that decision was made by him?

THE COURT: Yes, you may.

MR. EAKMAN: After advising with us and also, (sic) he does not want to offer any witnesses in his behalf. This decision also was made by him after advising with us.

THE COURT: Mr. Brooks, you have heard the recitation of counsel, Mr. Eakman. Are those matters true and correct, that you have consulted with your attorneys and decided that you do not wish to testify at this point and you do not wish to call witnesses in your behalf at this time?

MR. BROOKS: Yes.

This was a tactical decision made by Brooks' counsel and Brooks. The failure to present the evidence was neither the result of incompetent representation nor prejudicial.

The second allegation of alleged ineffectiveness is trial counsels' failure to urge voluntary intoxication as a defense. Other than a reference in the original trial record that Brooks had been drinking on the morning the crime was committed, no evidence that Brooks was in fact intoxicated at the time of the crime has ever been proffered--at the criminal trial, in state or federal habeas corpus proceedings, or even, at this late date, by affidavit. Unless there was evidence to support such a defense, counsel could not raise it and cannot be found ineffective for failure to urge a phantom argument.

  (3) The jurors were required to take the oath required by Texas law, that "the mandatory penalty of death or imprisonment for life will not affect your deliberations on any issue of fact." The sole authority cited is Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), in which the Supreme Court held that a juror could not constitutionally be excluded for failure to take this oath. In this case, no juror objected to the oath and no juror was excluded as a result of objection to it. Therefore the Adams rule does not apply here. However, to be certain that the jury was properly instructed, we have reexamined the complete charge to the jury and find it fairly and properly imposed on the state the burden of proof beyond a reasonable doubt and to a moral certainty.

  (4) The state judge's exclusion of juror Barbolla is contended to have violated Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968). If Ms. Barbolla had been excluded only on the basis of her objection to the death penalty, this would have been error for she did not say she would automatically vote against it but, indeed, said she was willing to vote for its imposition in a proper case. She was excluded at least in equal part, because she said she could not render a verdict that a person who does not actually pull the trigger is guilty of murder and, therefore, could not follow Texas law that makes a person who participates in a crime leading to murder intending the death of the victim guilty of that offense even though he was not the direct cause of death.

The state is entitled to exclude jurors who state they cannot follow a constitutional state law. The argument is made less, rather than more, tenable by the argument that the issue was irrelevant because the state "has always taken the position in this case that Mr. Brooks did intend the death of the victim."

The state might not have been able to prove this part of its contention beyond a reasonable doubt. In addition, the state might have been able to prove that Brooks intended the victim to die but not that he pulled the trigger. In either event, it was entitled to jurors who would follow Texas law in rendering a verdict on guilt or innocence.

  (5) The fifth contention is simply that each claim of error deserves heightened scrutiny because of prosecutorial conduct condemned by one Texas judge on the Court of Criminal Appeals but not mentioned as error by any of the other members of that court. There is no claim that this conduct amounted to a denial of due process of law or otherwise violated Brooks' constitutional rights. Nonetheless, we have given each of the claims careful scrutiny.

Finally, we note that no claim has been made that the evidence did not support Brooks' conviction as well as the jury verdict that his crime and his criminal potential warranted the capital sentence.

The merits of Brooks' claims have been presented by a total of twelve lawyers, in nine separate hearings, and have by this time been reviewed by 23 judges, state and federal. Despite this, we would not hesitate to grant the stay were we aware of any argument of substance, any contention that would benefit by further briefing and oral argument.

The application for stay has received the sober, reasoned, and deliberate consideration of Brooks' claim that the irrevocable nature of the penalty demands. Our granting of yet another stay at this late hour for further review of claims so often considered and of such little merit would be abdication of our duty to face and decide the issue before us in accordance with the Constitution and laws of the United States.

For these reasons, the application for stay is DENIED.

 
 

United States Supreme Court

459 U.S. 1061

No. A-504

December 6, 1982

This matter was presented to Justice WHITE on December 2, 1982, on an application for a stay of execution, and by him referred to the Court.

When the matter came before the Court the opinion of the United States Court of Appeals for the Fifth Circuit dated December 6, 1982, was before us. That opinion after a review of the facts and procedural history concluded as follows:

"Despite the eleventh-hour presentation of new issues, we have reviewed each of the new issues carefully and again reviewed each of the issues previously presented to us. Each member of this panel is acutely aware that Brooks' life may depend on our action. Each of us is determined to fulfill our sworn obligation to uphold and defend the Constitution and Laws of the United States, doing justice to the rich and to the poor alike, favoring neither the rich because he is rich, nor the poor because he is poor. We have the same duty to act impartially between the condemned and the state, favoring neither the state nor the condemned. That duty compels us to declare that we find no substantial question presented."

* * *

"The merits of Brooks' claims have been presented by a total of twelve lawyers, in nine separate hearings, and have by this time been reviewed by 23 judges, state and federal. Despite this, we would not hesitate to grant the stay were we aware of any argument of substance, any contention that would benefit by further briefing and oral argument. The application for stay has received the sober, reasoned, and deliberate consideration of Brooks' claim that the irrevocable nature of the penalty demands. Our granting of yet another stay at this late hour for further review of claims so often considered and of such little merit would be abdication of our duty to face and decide the issue before us in accordance with the Constitution and Laws of the United States. "For these reasons, the application for stay is denied."

(1) Addressing first the application for a stay of execution, reconsideration of which was denied by the United States Court of Appeals for the Fifth Circuit, the application for a stay of execution is hereby denied.

(2) This Court denied applicant's petition for a writ of certiorari on June 29, 1981, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996, and denied rehearing on September 23, 1981, 453 U.S. 950, 102 S.Ct. 25, 69 L.Ed.2d 1036; treating the papers filed since then as a second petition for rehearing of the denial of certiorari, the same is hereby denied.

(3) Treating the papers filed since December 2, 1982, as a petition for certiorari, or alternatively as a petition for certiorari before judgment, the same is hereby denied.

*****

Justices BRENNAN, MARSHALL, and STEVENS, dissenting.

We would grant petitioner's application for a stay of execution. Our cases make it absolutely clear that where a certificate of probable cause to appeal from the denial of habeas relief has been issued, a court of appeals must consider and decide the merits of that appeal. A court of appeals cannot fulfill that obligation if a State is permitted to execute a prisoner prior to the consideration and decision of his appeal.

* On At trial the State presented evidence that Brooks went to a used car lot and asked to test-drive a car. He was permitted to drive the car accompanied by Gregory, an employee. Brooks picked up a friend, Woody Loudres, and drove to the motel where Loudres lived. Brooks and Loudres took Gregory into a motel room. A single shot was fired, killing Gregory.

The jury returned a verdict of guilty. In the penalty phase of the trial, the judge instructed the jury, pursuant to Tex.Code Crim.Proc.Ann., Art. 37.071(b)(1) and (2), to give "yes" or "no" answers to the following questions:

(1) "Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?"

(2) "Do you find from the evidence beyond a reasonable doubt that there is a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society?"

The judge told the jurors that affirmative answers to both questions would result in a death sentence. Over Brooks' objection, the judge also instructed the jurors that they could not consider or discuss the effect of their answers. The jury answered "yes" to both questions, and the court accordingly imposed the mandatory sentence of death.

Following the affirmance of his conviction and sentence on direct appeal, Brooks v. State, 599 S.W.2d 312 (Tex.Ct.Crim.App.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996 (1981), Brooks filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Texas. On October 28, 1982, the District Court denied the petition. The District Court's order was accompanied by a 26-page opinion discussing Brooks' claims.

On November 9, 1982, the District Court issued a certificate of probable cause to appeal but denied Brooks' application for a stay of execution pending appeal. Brooks immediately filed a notice of appeal to the United States Court of Appeals for the Fifth Circuit, and on November 12 he applied to that court for a stay of execution. In his application he described the constitutional claims that he planned to present on appeal if afforded the opportunity to do so.

On November 17 the State filed a brief statement opposing the application. Oral argument on the application was held before the Court of Appeals on November 26. Later that same day, the Court of Appeals denied the application in a five-sentence order that did not dispose of the still pending appeal. Although the Court of Appeals has filed an additional opinion today, it still has not acted on the merits of the appeal.

II

Petitioner is entitled to a stay of execution in order to protect his right to appeal the District Court's denial of habeas corpus relief. This conclusion follows inexorably from the District Judge's issuance of a certificate of probable cause to appeal, for "if an appellant persuades an appropriate tribunal that probable cause for an appeal exists, he must then be afforded an opportunity to address the underlying merits." Garrison v. Patterson, 391 U.S. 464, 466, 88 S.Ct. 1687, 1688, 20 L.Ed.2d 744 (1968) (per curiam) (emphasis added).

A district judge's order denying an application for habeas corpus "shall be subject to review, on appeal," so long as a judge or circuit justice issues a certificate of probable cause. 28 U.S.C. 2253. In order for the District Court to issue a certificate of probable cause, a petitioner must make a "substantial showing of the denial of [a] federal right." Stewart v. Beto, 454 F.2d 268, 270, n. 2 (CA5 1971) cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972); Harris v. Ellis, 204 F.2d 685, 686 (CA5 1953). Once the certificate has been issued, the habeas petitioner is entitled to a review and decision on the merits of his appeal, according to the decisions of this Court.

In Nowakowski v. Maroney, 386 U.S. 542, 87 S.Ct. 1197, 18 L.Ed.2d 282 (1967) (per curiam), we reviewed a court of appeals' summary denial of a habeas petition after the district judge had issued a certificate of probable cause under 28 U.S.C. 2253. We unanimously concluded that the court of appeals had erred in denying the right to appeal and held that "when a district judge grants such a certificate, the court of appeals must . . . proceed to a disposition of the appeal in accord with its ordinary procedure." Id., at 543, 87 S.Ct., at 1198 (emphasis added). See Carafas v. LaVallee, 391 U.S. 234, 242, 88 S.Ct. 1556, 1561, 20 L.Ed.2d 554 (1968) (Nowakowski requires that appeal be duly considered on its merits where a certificate of probable cause has been issued).

Our decision in Garrison v. Patterson, supra, is particularly relevant. There, a habeas petitioner was under sentence of death for murder. The district court had denied a certificate of probable cause but had granted a stay of execution to allow time to appeal from that denial. The petitioner then requested that the court of appeals issue the certificate and also requested from that court a further stay of execution. After a hearing, the court of appeals issued an order granting the certificate of probable cause.

At the same time, however, the court simply affirmed the district court's denial of habeas corpus without receiving further submissions on the merits. Justice WHITE, sitting as Circuit Justice, granted a stay of execution pending review by this Court. Relying on Nowakowski, the full Court reversed the judgment of the court of appeals and remanded for further consideration of Garrison's appeal on the merits. Moreover, the Court continued the stay of execution pending the disposition of the appeal. 391 U.S., at 464, 87 S.Ct., at 1687.

The courts of appeals have consistently followed the mandate of Nowakowski that a court of appeals must review the merits of an appeal when a certificate of probable cause has been issued. See, e.g., Dobbert v. Strickland, 670 F.2d 938, 939 (CA11 1982) (upon issuance of the certificate "[a] review on the merits is required"); Gross v. Bishop, 377 F.2d 492, 492 (CA8 1967) (when certificate is issued, the court of appeals "must review"). As then-Judge Blackmun stated, Nowakowski requires that "when the district court issue[s] the certificate the appellate court must indulge in a full review." Allowance of In Forma Pauperis Appeals in 2255 and Habeas Corpus Cases, 43 F.R.D. 343, 351 (1968) (emphasis added).

In this case the District Court granted a certificate of probable cause to appeal on November 9, 1982. On November 12 petitioner applied to the Fifth Circuit for a stay of execution pending his appeal to that court. On November 17 the state opposed the stay of execution. The State also requested that the court require an expedited briefing schedule and determine the merits of the appeal as soon as possible, but the Court of Appeals did not grant the request. Instead, after hearing oral argument on the application for stay on November 26, the court that same day simply denied the stay in a one-paragraph order.

On this record it is manifest that the Court of Appeals did not "proceed to a disposition of the appeal," Nowakowski, 386 U.S., at 543, 87 S.Ct., at 1198, and that it clearly failed to afford petitioner an opportunity "to make his argument on the underlying issues in full." Garrison, 391 U.S., at 467, n. 2, 87 S.Ct., at 1688, n. 2. Indeed, the lower court did not even order briefing on the merits under an expedited schedule as permitted by its own rules. In the absence of the appellate review that must follow from the grant of a certificate of probable cause, a stay of execution is required. Any other conclusion would eviscerate the prior holdings of this Court as to the significance of the issuance of a certificate of probable cause. "[I]f there is probable cause to appeal it would be a mockery of federal justice to execute [petitioner] pending its consideration." Fouquette v. Bernard, 198 F.2d 96, 97 (CA9 1952) (Denman, C.J.).

III

For the foregoing reasons, we would grant the application for a stay of execution.

 

 

 
 
 
 
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