Netherland v. Tuggle, 515 U.S. 951, 2 (1995) (per curiam)

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952

NETHERLAND v. TUGGLE

Stevens, J., dissenting

25 it extended the stay of execution for the full 90 days allowed to file a certiorari petition in this Court.

Both actions of the court were taken by summary order without opinion or discussion. Nothing indicates that the Court of Appeals even attempted to undertake the three-part inquiry required by our decision in Barefoot v. Estelle, 463 U. S. 880, 895-896 (1983). See also Maggio v. Williams, 464 U. S. 46, 48 (1983) (per curiam); Autry v. Estelle, 464 U. S. 1, 2-3 (1983) (per curiam). There is no hint that the court found that "four Members of th[is] Court would consider the underlying issue sufficiently meritorious for the grant of certiorari" or that "a significant possibility of reversal" existed. Barefoot, supra, at 895. We think the inescapable conclusion is that the Court of Appeals mistakenly believed that a capital defendant as a matter of right was entitled to a stay of execution until he has filed a petition for certiorari in due course. But this view was rejected in Autry, supra, at 2, and Maggio, supra, at 48.

Accordingly, the application to vacate the stay of execution is granted.

Justice Stevens, with whom Justice Ginsburg joins, dissenting.

Because there is no support in the record for the conclusion that the Court of Appeals abused its discretion when it granted a stay of execution to enable respondent Tuggle to file a petition for certiorari, I respectfully dissent. The fact that the respondent has substantial grounds for challenging the constitutionality of his death sentence is demonstrated both by the issuance of a writ of habeas corpus by the District Court and by the 19-page opinion filed by the Court of Appeals. Tuggle v. Thompson, 57 F. 3d 1356 (CA4 1995). Promptly after that opinion was announced, respondent filed a motion for a stay of execution supported by an explanation of why "the three-part inquiry," ante this page, described in Barefoot v. Estelle, 463 U. S. 880, 895-896 (1983), warranted

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