500 U.S. 961

111 S.Ct. 2277

114 L.Ed.2d 728

Donald H. GASKINS, petitioner,
v.
Kenneth D. McKELLAR, Warden, South Carolina Department of Corrections, et al

No. 90-7469

Supreme Court of the United States

June 3, 1991

Rehearing Denied Aug. 2, 1991.

See U.S., 112 S.ct. 14.

On petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit.

The petition for a writ of certiorari is denied.

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, — U.S. —-, 111 S.Ct. 328, 112 L.Ed.2d 339 (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 —-, 111 S.Ct., at 329. 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, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice BLACKMUN would grant the petition for a writ of certiorari, vacate the judgment and remand the case to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Yates v. Evatt, 500 U.S. —-, 111 S.Ct. 1884, — L.Ed.2d —- (1991).