ON APPLICATION TO VACATE STAY OF EXECUTION.
This matter was presented to JUSTICE POWELL on the morning of April 22, 1983, on an application for an order vacating a stay of execution, and by him referred to the Court. It is helpful to review briefly the sequence of events that preceded this application.
On April 8, 1983, the Alabama Supreme Court ordered that respondent John Louis Evans III be executed on April 22, 1983, at 12:01 a.m., c. s. t. On April 19, 1983, respondent filed a petition here for a writ of certiorari to the Alabama Supreme Court and an application for stay of execution addressed to JUSTICE POWELL as Circuit Justice. At approximately 5:45 p.m., e. s. t., on April 21, 1983, JUSTICE
POWELL, acting in his capacity as Circuit Justice, and with the concurrence of six other Members of the Court, denied respondent's application for a stay of execution pending disposition of his writ of certiorari to the Alabama Supreme Court. (See post, p. 1301.)
At 5:23 p. m., c. s. t., on April 21, respondent filed a petition for a writ of habeas corpus in the District Court for the Southern District of Alabama. At approximately 9:30 p. m., c. s. t., the District Court, stating that "the time available does not permit this Court to make a meaningful review or study," temporarily stayed the execution. The State sought an order from the Court of Appeals for the Eleventh Circuit vacating the stay. At 12:25 a. m., e. s. t., the court denied the motion, stating that "[based] upon the telephonic oral presentation by both parties to the Court we are unable to conclude that the District Judge has abused his discretion in granting the temporary stay . . . ." Pursuant to Alabama law, the warrant to carry out the execution expires at 11:59 p. m., c. s. t., on April 22, 1983.
The State seeks an order vacating the District Court's temporary stay. Respondent has filed a response in opposition to the State's application.
JUSTICE POWELL's order of April 21, 1983, denying respondent's application for a stay of execution, described the lengthy proceedings that have followed respondent's conviction and death sentence for first-degree murder committed during the course of a robbery in 1977. Respondent has exhausted his review by way of direct appeal and by way of the petition for a writ of habeas corpus filed in April 1979. He also has had his claims heard a second time by the Alabama Supreme Court acting on a petition for a new sentencing hearing. In sum, respondent's "constitutional challenges to Alabama's capital-sentencing procedures have been reviewed exhaustively and repetitively by several courts in both the state and federal systems." Post, at 1302 (POWELL, J., in chambers).
Following a brief hearing on the evening of April 21, 1983, the District Court found that "counsel for petitioner conceded that all issues raised in the petition were raised in the petition previously filed before [the United States District Court] except for the issue asserted in section 12 of the petition." Thus, in the latest petition for habeas corpus filed in this case, all but one of the grounds presented have been presented before and rejected.
The one new issue now raised by respondent is a claim that the Alabama courts applied a statutory aggravating factor in an unconstitutionally broad manner. The trial court found that on numerous prior occasions respondent "knowingly created a great risk of death to many persons. By Mr. Evans' testimony, he was involved in thirty armed robberies and nine kidnappings with [co-defendant] Mr. Ritter, and further claims to have been involved in approximately 250 armed robberies prior to associating with Mr. Ritter." Evans v. State, 361 So. 2d 654, 663 (Ala. Crim. App. 1977). Respondent contends that by construing this statutory aggravating factor to encompass acts not involving the offense for which he was found guilty, the trial court construed the statute in an unconstitutionally broad manner.
Respondent does not appear to have raised this challenge at any time in any of the many prior state and federal proceedings in his case. Nor was the existence of this claim made known to this Court in any of the papers filed by respondent before JUSTICE POWELL's denial of respondent's application for a stay of execution. The claim thus was raised for the first time in respondent's second petition for a writ of habeas corpus, filed approximately seven hours before his scheduled execution. His only justification for raising this issue now is that, in his view, the decision in Proffitt v. Wainwright, 685 ...