Murderpedia has thousands of hours of work behind it. To keep creating
new content, we kindly appreciate any donation you can give to help
the Murderpedia project stay alive. We have many
plans and enthusiasm
to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.
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)
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
Charlie
BROOKS, Jr. v.
W.J. ESTELLE, Jr., Director,
Texas Department of
Corrections
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.
