Delo v. Blair, 509 U.S. 823 (1993)

Author: Justice Blackmun

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Delo v. Blair, 509 U.S. 823 (1993)

JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins, dissenting.

The Court errs twice in granting the State’s application to vacate the Court of Appeals’ stay of execution. First, it errs by affording insufficient deference to the Court of Appeals’ decision. Second, it errs by letting stand the District Court’s decision, which was itself erroneous.


The standard under which we consider motions to vacate stays of execution is deferential, and properly so. Only when the lower courts have clearly abused their discretion in granting a stay should we take the extraordinary step of overturning such a decision.

Dugger v. Johnson, 485 U.S. 945, 947 (1988) (O’CONNOR, J., joined by REHNQUIST, C.J., dissenting). Accord, Barefoot v. Estelle, 463 U.S. 880, 896 (1983); Wainwright v. Spenkelink, 442 U.S. 901, 905 (1979) (REHNQUIST, J., dissenting). In this case, the Court of Appeals granted a temporary stay of execution to allow it time properly to consider Blair’s appeal. In my view, its decision to do so does not constitute an abuse of discretion.

The State likens this case to Delo v. Stokes, 495 U.S. 320 (1990), in which this Court vacated a stay of execution because the prisoner’s habeas petition "clearly constitute[d] an abuse of the writ." Id. at 321. Although the habeas petition currently before the Court of Appeals is Blair’s third, the abuse of the writ doctrine cannot serve as the basis for vacating this stay. Blair’s principal contention in his federal habeas petition is that he is actually innocent, and this Court has recognized an exception to the abuse of the writ doctrine where a habeas petitioner can show that he probably is innocent. See McCleskey v. Zant, 499 U.S. 467, 495 (1991).


The Court’s second error is that it lets stand the District Court’s decision denying Blair’s claim without an evidentiary hearing. In Herrera v. Collins, 506 U.S. 390 (1993), this Court assumed

that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.

Id. at 417. The Court provided little guidance about what sort of showing would be "truly persuasive." Yet despite the uncertain contours of this constitutional right, federal courts have an obligation to treat actual-innocence claims just as they would any other constitutional claim brought pursuant to 28 U.S.C. § 2254. The rules governing federal habeas, not addressed by the Herrera majority, provide that

[a] district court may summarily dismiss a habeas petition only if "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief." 28 U.S.C. § 2254 Rule 4.

506 U.S. at 445 (dissenting opinion).

If . . . the petition raises factual questions and the State has failed to provide a full and fair hearing, the district court is required to hold an evidentiary hearing.

Id. at 441 (emphasis added), citing Townsend v. Sain, 372 U.S. 293, 313 (1963).

In this case, Blair has submitted seven affidavits tending to show that he is innocent of the crime for which he has been sentenced to death. The State does not dispute that no state court remains open to hear Blair’s claim. Because Blair’s affidavits raise factual questions that cannot be dismissed summarily, the District Court erred in denying petitioner’s claim without an evidentiary hearing.

JUSTICE SOUTER would deny the application to vacate the stay.


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Chicago: Blackmun, "Blackmun, J., Dissenting," Delo v. Blair, 509 U.S. 823 (1993) in 509 U.S. 823 509 U.S. 825. Original Sources, accessed September 30, 2023,

MLA: Blackmun. "Blackmun, J., Dissenting." Delo v. Blair, 509 U.S. 823 (1993), in 509 U.S. 823, page 509 U.S. 825. Original Sources. 30 Sep. 2023.

Harvard: Blackmun, 'Blackmun, J., Dissenting' in Delo v. Blair, 509 U.S. 823 (1993). cited in 1993, 509 U.S. 823, pp.509 U.S. 825. Original Sources, retrieved 30 September 2023, from