
    No. 90-7469.
    Gaskins v. McKellar, Warden, et al.
   C. A. 4th Cir. Certiorari denied. Justice Blackmun would grant certiorari, vacate the judgment, and remand the case for further consideration in light of Yates v. Evatt, ante, p. 391.

Opinion of Justice Stevens respecting the denial of the petition for a writ of certiorari.

One of the questions presented in the certiorari petition is whether our per curiam decision in Cage v. Louisiana, 498 U. S. 39 (1990), announced a new rule. This question, however, would only be presented by the record if the instructions in this case contained the same flaw as the instructions in Cage. In Cage, the jury was instructed that a reasonable doubt “ ‘must be [a] doubt as would give rise to a grave uncertainty. . . .’” Id., at 40 (emphasis omitted). Because the instructions to the jury in this case did not contain this improper language, the question whether Cage announced a new rule is not actually presented here. For this reason, I think the Court has correctly decided not to grant certiorari to review that question.

Justice Marshall,

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, 231 (1976), I would grant certiorari and vacate the death sentence in this case.  