A question regarding whether a prior decision announced a new rule is not presented if the specific instructional error addressed in that prior decision is absent from the current record.
A petitioner seeks review of a judgment following a conviction, raising the question of whether a prior decision regarding improper jury instructions constitutes a new rule of law. The petitioner argues that the previous decision established a new rule, but the record shows that the jury instructions in the present case did not include the flawed language previously identified as improper. Because the specific error involving the requirement that a doubt must be as would give rise to a grave uncertainty is absent from the current case, the question of whether a new rule was announced is not presented. The Court declines to grant certiorari.
At page 961 “must be a doubt as would give rise to a grave uncertainty”5 citing cases
- Coral v. State, 628 So. 2d 954 (Ala. Crim. App. 1992).published (wherein, in a memorandum opinion, Justice Stevens stated that he thought that the Court correctly decided not to grant certiorari on the question of whether Cage announced a new rule, because the jury instructions to be…)
- McGee v. State, 594 So. 2d 219 (Ala. Crim. App. 1991).published (where, in a memorandum opinion, Justice Stevens stated that he thought the Court correctly decided not to grant certiorari on the question of whether Cage announced a new rule because the jury instructions to be reviewe…)
- McMillian v. State, 594 So. 2d 1253 (Ala. Crim. App. 1991).published (wherein, in a memorandum opinion, Justice Stevens stated that he thought the Court correctly decided not to grant certiorari on the question of whether Cage announced a new rule because the jury instructions to be revie…)
- Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991).published (wherein, in a memorandum opinion, Justice Stevens stated that he thought the Court correctly decided not to grant certiorari on the question of whether Cage announced a new rule, because the jury instructions to be revi…)
- Earhart v. State, 593 So. 2d 119 (Ala. Crim. App. 1991).published
111 S. Ct. at 2277 where, in a memorandum opinion, Justice Stevens stated that he thought the Court correctly decided not to grant certiorari on the question of whether Cage announced a new rule because the jury instructions to be reviewed did not contain the specific language condemned in Cage , that a reasonable do…2 citing cases
- State v. Hudson, 415 S.E.2d 732 (N.C. 1992).published Id. at____, 111 S.Ct. at 2277, 114 L.Ed.2d at 728-29 (Stevens, J., concurring). [5] Defendant also urges that this case is somehow controlled by State v. Shank, 322 N.C. 243 , 367 S.E.2d 639 (1988).
- Mack v. State, 607 So. 2d 314 (Ala. Crim. App. 1992).published (where, in a memorandum opinion, Justice Stevens stated that he thought the Court correctly decided not to grant certiorari on the question of whether Cage announced a new rule because the jury instructions to be reviewe…)
Other citing cases
- Bellamy v. Graham, No. 8:19-cv-02230 (D. Md. Feb. 16, 2022).
- Johnson v. State, 120 So. 3d 1130 (Ala. Crim. App. 2009).published
- Lawhorn v. State, 756 So. 2d 971 (Ala. Crim. App. 1999).published
- Hyde v. State, 778 So. 2d 199 (Ala. Crim. App. 1998).published
- Andrew W. Six v. Paul K. Delo, 94 F.3d 469 (8th Cir. 1996).published
- Andrew W. Six v. Paul K. Delo, No. 95-2918 (8th Cir. Aug. 27, 1996).published
- United States v. Gualberto Garcia, United States of Am. v. Jorge Morera, United States of Am. v. Marshall Allen Slater, 77 F.3d 471 (4th Cir. 1996).unpublished
- Ex Parte Taylor, 666 So. 2d 73 (Ala. 1995).published
- Slaton v. State, 680 So. 2d 879 (Ala. Crim. App. 1995).published
- Jaturun Siripongs v. Arthur Calderon, 35 F.3d 1308 (9th Cir. 1994).published
Show 16 more citing cases
- Daniels v. State, 650 So. 2d 544 (Ala. Crim. App. 1994).published
- Sockwell v. State, 675 So. 2d 4 (Ala. Crim. App. 1993).published
- State v. Williams, 434 S.E.2d 588 (N.C. 1993).published
- State v. Bryant, 432 S.E.2d 291 (N.C. 1993).published
- United States v. Gray, 37 M.J. 730 (1992).published
- Sanford A. Harris Alan M. Grochal v. Patrick Roberto, 966 F.2d 1442 (4th Cir. 1992).unpublished
- State v. Montgomery, 417 S.E.2d 742 (N.C. 1992).published
- Washington v. Murray, 952 F.2d 1472 (4th Cir. 1991).published
- Donald Henry Gaskins v. Parker D. Evatt, 943 F.2d 49 (4th Cir. 1991).unpublished
- Kermit Smith, Jr. v. Gary Dixon, Warden, Cent. Prison, Raleigh, North Carolina, Kermit Smith, Jr. v. Gary Dixon, Warden, Cent. Prison, Raleigh, North Carolina, 14 F.3d 956 (4th Cir. 1994).published
- Smith v. Dixon, 14 F.3d 956 (4th Cir. 1994).published
- Smith v. Dixon, 996 F.2d 667 (4th Cir. 1993).published
- Kermit Smith, Jr. v. Gary Dixon, Warden, Cent. Prison, Raleigh, North Carolina, Kermit Smith, Jr. v. Gary Dixon, Warden, Cent. Prison, Raleigh, North Carolina, 996 F.2d 667 (4th Cir. 1993).published
- Jenkins v. State, 627 So. 2d 1034 (Ala. Crim. App. 1992).published
- Hart v. State, 612 So. 2d 520 (Ala. Crim. App. 1992).published
- Minshew v. State, 594 So. 2d 703 (Ala. Crim. App. 1991).published
v.
Kenneth D. McKellar Warden, South Carolina Department of Corrections
Reporter's Syllabus editorial summary, not part of the Court's opinion
See U.S., 112 S.ct. 14.
On petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit.
The petition for a writ of certiorari is denied.
Opinion of Justice STEVENS, respecting the denial of the petition for a writ of certiorari.
One of the questions presented in the certiorari petition is whether our per curiam decision in Cage v. Louisiana, --- U.S. ----, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), announced a new rule. This question, however, would only be presented by the record if the instructions in this case contained the same flaw as the instructions in Cage. In Cage, the jury was instructed that a reasonable doubt "must be a doubt as would give rise to a grave uncertainty. . . ." Id., at ----, 111 S.Ct., at 329. Because the instructions to the jury in this case did not contain this improper language, the question whether Cage announced a new rule is not actually presented here. For this reason, I think the Court has correctly decided not to grant certiorari to review that question.
Justice MARSHALL, dissenting:
Lead Opinion
C. A. 4th Cir. Certiorari denied. Justice Blackmun would grant certiorari, vacate the judgment, and remand the case for further consideration in light of Yates v. Evatt, ante, p. 391.
Opinion of Justice Stevens respecting the denial of the petition for a writ of certiorari.
One of the questions presented in the certiorari petition is whether our per curiam decision in Cage v. Louisiana, 498 U. S. 39 (1990), announced a new rule. This question, however, would only be presented by the record if the instructions in this case contained the same flaw as the instructions in Cage. In Cage, the jury was instructed that a reasonable doubt “ ‘must be [a] doubt as would give rise to a grave uncertainty. . . .’” Id., at 40 (emphasis omitted). Because the instructions to the jury in this case did not contain this improper language, the question whether Cage announced a new rule is not actually presented here. For this rea[*962]son, I think the Court has correctly decided not to grant certiorari to review that question.
Dissent
dissenting.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976), I would grant certiorari and vacate the death sentence in this case.