dissenting from denial of application for stay of execution.
The State of Florida intends to execute applicant at 5:01 this afternoon. In the papers he has filed in this Court, applicant claims that the Florida death penalty statute and the cases interpreting it prior to his trial led all participants in his sentencing hearing, including the trial judge, to believe that nonstatutory mitigating circumstances could not be considered in the sentencing decision. He argues that the failure of the trial court to consider such nonstatutory factors violated the injunction of this Court in Lockett v. Ohio, 438 U. S. 586 (1978), that a death penalty scheme must not prevent the sentencer from considering “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Id., at 604; see Eddings v. Oklahoma, 455 U. S. 104 (1982).
When presented with evidence that a sentencing judge had actually believed himself precluded from considering nonstatutory mitigating circumstances, both the Florida Supreme Court and the Court of Appeals for the Eleventh Circuit have held that a defendant is constitutionally entitled to a new sentencing proceeding. See, e. g., Harvard v. State, 486 So. 2d 537 (Fla. 1986); Songer v. Wainwright, 769 F. 2d 1488 (CA11 1985). Unlike the defendants in Harvard and Songer, applicant never had the chance during postconviction proceedings to ascertain how his sentencing judge had interpreted Florida’s statutory scheme. He now seeks an evidentiary hearing where he might make such an inquiry. I believe he should be given at least the chance to do so.*
I would grant the petition for certiorari and the application for a stay of execution.
With respect to Justice Powell’s suggestion that the merits ought not to be reached here, I note only that there is no little confusion on the procedural aspects of this case. When, in his first habeas petition, applicant raised a variant of the Lockett claim he raises here, the Court of Appeals incorrectly found that claim procedurally barred even though, on state collateral review, the Florida Supreme Court had reached it on the merits, 422 So. 2d 827, 832 (1982). 772 F. 2d 674, 677-678 (1985). Had the Court of Appeals properly considered that claim, this second habeas petition might not have been necessary.