
    March 21, 1989
    No. 88-6857 (A-746).
    No. A-758 (88-6861).
    King v. Lynaugh, Director, Texas Department of Corrections. King v. Lynaugh, Director, Texas Department of Corrections.
   Ct. Crim. App. Tex.; and

C. A. 5th Cir. Applications for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied. Certiorari denied in No. 88-6857.

Justice Blackmun and Justice Stevens would grant the application for stay in No. A-758.

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 stay of execution.

Even if I were not of the foregoing view, I would grant Leon King’s applications for a stay pending our decision in Penry v. Lynaugh, 832 F. 2d 915 (CA5 1987), cert. granted, 487 U. S. 1233 (1988). King’s claim to a stay is at least as meritorious as that presented by at least four other petitioners whose executions we have stayed. See Williams v. Lynaugh, 837 F. 2d 1294 (CA5), stay granted, 484 U. S. 1051 (1988); Selvage v. Lynaugh, 842 F. 2d 89 (CA5), stay granted, 485 U. S. 983 (1988); Bridge v. Lynaugh, 856 F. 2d 712 (CA5), stay granted, 487 U. S. 1260 (1988); Bell v. Lynaugh, 858 F. 2d 978 (CA5), stay granted, 488 U. S. 905 (1988). In none of those cases did we deny a stay on the ground that the petitioner was procedurally barred from challenging the State’s capital sentencing scheme, despite the apparent failure of each of those petitioners to object at sentencing to the statutory requirement that the jury limit its consideration of mitigating evidence to its determination whether or not the defendant acted deliberately and whether he would pose a danger to society in the future. It seems to me unconscionable to deny King’s application for a stay after having granted stays in Williams, Selvage, Bridge, and Bell.  