
    TATE, SUPERINTENDENT, CHILLICOTHE CORRECTIONAL INSTITUTE v. ROSE
    No. A-935 (83-1747).
    Decided May 19, 1984
   Justice O’Connor, Circuit Justice.

The petitioner in No. 83-1747 is the Superintendent of the Chillicothe Correctional Institute at Chillicothe, Ohio. The respondent is an Ohio prisoner in petitioner’s custody. Respondent applied to the United States District Court for the Southern District of Ohio for a writ of habeas corpus. The District Court granted the writ, and the United States Court of Appeals for the Sixth Circuit affirmed. Rose v. Engle, 722 F. 2d 1277 (1983). Petitioner challenges that decision in No. 83-1747.

Respondent, who is entitled to a new trial under the Court of Appeals’ ruling, has been ordered released on May 21, 1984, pending retrial. Petitioner seeks a stay of the Court of Appeals’ judgment until this Court completes its consideration of his petition. In deciding whether to grant the requested stay, I am obliged to determine whether four Justices are likely to vote to grant certiorari, to balance the “stay equities,” and to gauge the likely outcome of this Court’s consideration of the case on the merits. See Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (REHNQUIST, J., in chambers). I conclude that the stay should be granted.

Respondent was convicted of murder in 1979. At the trial, the prosecutor introduced certain statements that respondent made, after he had invoked his right to silence and to the presence of an attorney, in response to a police officer’s renewed questioning. Petitioner concedes that these statements were elicited in violation of Edwards v. Arizona, 451 U. S. 477 (1981), decided two years after respondent’s conviction.

The Court of Appeals affirmed the District Court’s grant of habeas relief because it concluded, following the analysis of United States v. Johnson, 457 U. S. 537 (1982), that Edwards should be applied retroactively to respondent’s case. The court observed that respondent’s conviction had not become final at the time Edwards was decided, since the time for filing a petition for a writ of certiorari on direct appeal expired at the end of the very day Edwards was handed down. The issue presented in the petition is whether the Edwards decision should have been applied to respondent’s case.

In Solem v. Stumes, 465 U. S. 638 (1984), this Court recently decided that Edwards v. Arizona “is not to be applied in collateral review of final convictions.” 465 U. S., at 650. The Court expressly declined to decide whether Edwards was retroactive in collateral proceedings for any case, such as respondent’s, in which the conviction was not yet final when Edwards was decided. The petition in No. 83-1747 accordingly presents a question left open in Solem v. Stumes.

The Court’s decision in Stumes, however, sheds considerable light on the correctness of the Sixth Circuit’s decision in respondent’s case. First, the Court concluded, contrary to the Sixth Circuit’s view, that the analysis adopted in United States v. Johnson, supra, is not applicable to the decision whether Edwards is retroactive. 465 U. S., at 643, n. 3. Thus, the Court of Appeals followed an erroneous approach in considering the retroactivity of Edwards. Second, the rationale of the Court in Solem v. Stumes casts into substantial doubt the Sixth Circuit’s conclusion that Edwards presents a ground for ordering a new trial in respondent’s case. The Court reasoned that Edwards “has only a tangential relation to truthfinding at trial,” 465 U. S., at 643-644; that police cannot “be faulted if they did not anticipate [the] per se approach” of Edwards, 465 U. S., at 647; and that “retroactive application of Edwards would have a disruptive effect on the administration of justice,” id., at 650. Although new arguments, of course, might be made to blunt the force of this reasoning in cases presenting different facts from those presented in Stumes, the reasoning of Stumes strongly suggests that Edwards should not retroactively render inadmissible a statement, such as those at issue in respondent’s case, obtained by police years before Edwards was decided.

Because the petition in No. 83-1747 presents an open question and because Solem v. Stumes makes highly doubtful the correctness of the decision of the Court of Appeals, I think it likely that four Justices will vote to grant the petition. As for disposition of the case on the merits, I think it likely that the Court will either (1) give plenary consideration to the question left open in Solem v. Stumes and reverse the judgment of the Court of Appeals or (2) vacate the Court of Appeals’ judgment and remand the case for reconsideration in light of Solem v. Stumes. I further conclude that the “stay equities” balance in petitioner’s favor: granting the stay for the time necessary to consider the petition should not cause a significant incremental burden to respondent, who has been incarcerated for several years, but doing so will relieve the State of Ohio of the burden of releasing respondent or retrying him.

I therefore grant the application for a stay of the judgment of the United States Court of Appeals for the Sixth Circuit in Rose v. Engle, supra, pending disposition of the petition for a writ of certiorari in No. 83-1747.

It is so ordered.  