dissenting:
I am convinced that the Supreme Court’s recent action on petitions for stay of execution in cases presenting Grigsby claims gives us unmistakable direction — direction that the majority declines to recognize — in determining whether a stay is warranted in Grigsby cases. I read that direction as requiring the grant of a stay in the instant case. Accordingly, I dissent.
The panel opinion notes that the Supreme Court has recently stayed executions in a number of cases presenting Grigsby claims.* Nevertheless, the majority hews to the holding of Bowden v. Kemp, TH F.2d 1494 (11th Cir.1985), in which we observed that this Court does not know and may not infer the basis of these stays, and concludes again that we are thus bound by the law of this Circuit to affirm the district court on abuse of the writ grounds. This was true enough at the time Bowden was decided. However, what the majority does not emphasize is that two days after this Court on October 12, 1985, denied relief in the Bowden case, which presented only the Grigsby issue, the Supreme Court itself stayed Bowden’s execution.
*1013That action by the high court, coupled with the Court’s recent order denying a stay in a case raising another variation of the Grigsby claim, Harich v. Wainwright, — U.S. -, 106 S.Ct. 1392, 89 L.Ed.2d 707 (1986), should send us a clear message. Harich presented a situation in which petitioner did not allege that persons on the venire were excluded during voir dire for cause or through peremptory challenge because of any objections to capital punishment. Jones, in contrast, raises a straightforward Grigsby claim — a case in which a venireperson, Mrs. Summerall, was excused for cause on voir dire when she expressed reservations about imposing a death sentence. (Mrs. Summerall did not indicate that her views would prevent her from fairly judging guilt or innocence.) An affirmance of Grigsby by the Supreme Court in Lockhart would clearly favor petitioner’s claim.
Justice Powell’s concurrence to the Court’s denial of stay in Harich, id. (Powell, J., concurring), indicates that this distinction is a crucial one. He writes:
The other capital case in which execution is scheduled for tomorrow is No. A-710, James v. Wainwright. I voted to grant a stay of execution in that case. Both James and Harich profess to present claims similar to that pending before the Court in Lockhart v. McCree, No. 84-1865.
This case, however, presents an issue different from James and one without merit. In James, the Lockhart issue was at least arguably presented when persons on the venire who expressed reservations as to capital punishment were removed by peremptory challenges. In this case, petitioner “conced[ed] in this petition [before the Supreme Court of Florida] that at his trial ‘no veniremen were excluded’ during voir dire, either for cause or through peremptory challenge.” Opinion of Supreme Court of Florida 2. Similarly, before this Court petitioner makes no allegation that persons on the venire were excluded during voir dire because of any objections to capital punishment.
Accordingly, my vote is to deny the application for a stay of execution.
In my judgment, the Court has indicated clearly that Jones is precisely the sort of case in which a stay of execution should be forthcoming. I hold to this view not in derogation of the law of this Circuit in Bowden, but in the conviction that that law does not control in this situation. When the Supreme Court speaks, we are bound to listen.
Accordingly, I would grant a stay of execution pending the Court’s decision in Lockhart.
See, e.g., James v. Wainwright, — U.S.-, 106 S.Ct. 1393, 89 L.Ed.2d 707 (1985); Adams v. Wainwright, — U.S. -, 106 S.Ct. 1371, 89 U.Ed.2d 598 (1986); Bowden v. Kemp, — U.S. -, 106 S.Ct. 213, 88 L.Ed.2d 182 (1985); Moore v. Blackburn, 774 F.2d 97 (1985); Celestine v. Blackburn, — U.S.-, 106 S.Ct. 31, 87 L.Ed.2d 707 (1985).