
    May 1, 1990
    No. A-760.
    Shaw v. Armontrout, Warden.
   Application for stay of execution of sentence of death, presented to Justice Blackmun, and by him referred to the Court, denied.

Justice Blackmun and Justice Stevens would grant the application.

Justice Brennan,

with whom Justice Marshall joins,

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, 227 (1976) (Brennan, J., dissenting), I would grant the application for a stay. I believe that the procedural posture of this case makes a stay particularly appropriate. The Court of Appeals for the Eighth Circuit affirmed the District Court’s denial of Robert Shaw’s first federal habeas petition on March 28, 1990, and the mandate of the court issued on April 19. The very next day, the Missouri Supreme Court ordered that Shaw be executed on May 2, well before expiration of the time period during which Shaw may file a petition for writ of certiorari in this Court. Shaw then filed with the Eighth Circuit a motion to recall issuance of mandate and application for a stay of execution; the court denied both on April 30, two days prior to his scheduled execution. I believe it inappropriate to deny Shaw’s application for a stay before he has a fair opportunity to file a petition for writ of certiorari in this Court.  