
    December 19, 1996
    No. 96-6867 (A-424).
    O’Dell v. Netherland, Warden, et al.
   C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted limited to Questions 1 and 2 presented by the petition. Brief of petitioner is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Thursday, January 30, 1997. Brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Thursday, February 27, 1997. A reply brief, if any, may be filed with the Clerk and served upon opposing counsel on *or before 3 p.m., Wednesday, March 12, 1997. This Court’s Rule 29.2 does not apply.

Statement of Justice Scalia respecting the grant of certiorari.

My vote was to deny the petition for certiorari in this ease (and hence to deny the application for stay of execution), but I think it important to point out that the issue on which certiorari has been granted, and for which stay has been accorded, has nothing to do with O’Dell’s claimed innocence of his crime. The Court has expressly limited its grant of review to Questions 1 and 2 of the petition for certiorari, which present the legal issue of whether our decision in Simmons v. South Carolina, 512 U. S. 154 (1994)—holding that a capital sentencing jury must in certain circumstances be instructed on the possibility of life imprisonment without parole as an alternative to a death sentence—has retroactive application to persons tried before Simmons was decided.

We have not granted certiorari on Question 3, the actual-innocence claim based upon newly available DNA evidence. That claim has been rejected by every one of the 13 Court of Appeals Judges who have heard this case, as well as by the District Court that originally considered the claim. 95 F. 3d 1214, 1246-1254 (CA4 1996) (en bane); id., at 1255-1256 (Ervin, J., concurring in part and dissenting in part); id., at 1218 (describing District Court decision). The unanimity of these 14 federal judges is unsurprising when the full story of the DNA evidence is told. While the DNA tests showed that blood stains on O’Dell’s shirt did not come from the murder victim, Helen Schartner, they also showed that blood stains on his jacket did come from the victim—a conclusion consistent with the overwhelming evidence at trial that blood stains on numerous pieces of O’Dell’s clothing came from her. Id., at 1247-1248. Not one of the judges reviewing this evidence has been persuaded of O’Dell’s innocence.  