No. 81-6243. JONES v. LEIDINGER ET AL. C. A. 4th Cir. Certiorari denied. JUSTICE MARSHALL and JUSTICE BLACKMUN would grant certiorari. Reported below: 672 F.2d 910. No. 81-6301. BALDWIN v. BLACKBURN, WARDEN, LOUISIANA STATE PENITENTIARY, ET AL. C. A. 5th Cir.; and No. 81-6304. COLLINS v. ZANT, WARDEN. Sup. Ct. Ga. Certiorari denied. Reported below: No. 81-6301, 653 F. 2d 942. JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting. Adhering to our views 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, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases. Rehearing Denied No. 81-1239. STEPHENS ET AL. v. BLACK ET UX., 455 U. S. 1008; No. 81-1329. BOLLOTIN v. SCHWARTZ ET AL., 455 U. S. 1001; No. 81-6055. HERNANDEZ v. DEPARTMENT OF LABOR AND HUMAN RESOURCES ET AL., 455 U. S. 996; No. 81-6083. JURAS v. AMAN COLLECTION SERVICE, INC., 455 U. S. 1024; No. 81-6106. IVEY v. ALASKA, 455 U. S. 1010; No. 81-6147. HALL V. THOMAS, 455 U. S. 1026; and U. S. 1027. Petitions for rehearing denied. No. 80-1681. VILLAGE OF HOFFMAN ESTATES ET AL. v. THE FLIPSIDE, HOFFMAN ESTATES, INC., 455 U. S. 489; and No. 81-415. CASBAH, INC., ET AL. v. THONE, GOVERNOR OF NEBRASKA, ET AL., 455 U. S. 1005. Petitions for rehearing denied. JUSTICE STEVENS took no part in the consideration or decision of these petitions. 456 U. S. No. 81-1012. April 26, 28, May 3, 1982 INSURANCE COMPANY OF NORTH AMERICA v. KEENE CORP. ET AL., 455 U. S. 1007; No. 81-1197. HARTFORD ACCIDENT & INDEMNITY Co. v. KEENE CORP. ET AL., 455 U. S. 1007; No. 81-1298. AETNA CASUALTY & SURETY Co. v. KEENE CORP. ET AL., 455 U. S. 1007; and No. 81-1328. LIBERTY MUTUAL INSURANCE Co. v. KEENE CORP. ET AL., 455 U. S. 1007. Petition for rehearing denied. JUSTICE BRENNAN took no part in the consideration or decision of this petition. No. 81-1141. RIBOTSKY v. UNITED STATES, 455 U. S. 910. Motion for leave to file petition for rehearing denied. No. 81-1500. IN RE CHING YEE, 455 U. S. 1015. Petition for rehearing and all other relief denied. APRIL 28, 1982 Miscellaneous Orders. (For the Court's orders prescribing amendments to the Federal Rules of Civil Procedure, see post, p. 1015; amendments to the Federal Rules of Criminal Procedure, see post, p. 1023; and amendments to the Rules and Forms Governing Proceedings in the United States District Courts under 28 U. S. C. §§ 2254 and 2255, see post, p. 1033.) Affirmed on Appeal MAY 3, 1982 No. 80-1207. RUSK, MAYOR OF ALBUQUERQUE, ET AL. V. ESPINOSA ET AL. Affirmed on appeal from C. A. 10th Cir. JUSTICE REHNQUIST and JUSTICE O'CONNOR would note probable jurisdiction and set case for oral argument. ported below: 634 F. 2d 477. Appeals Dismissed Re No. 81-1351. SMITH v. FLORIDA. Appeal from Dist. Ct. App. Fla., 4th Dist., dismissed for want of jurisdiction. Reported below: 402 So. 2d 1360. No. 81-1259. WESTERN MARYLAND RAILWAY Co. v. ROSE, TAX COMMISSIONER OF WEST VIRGINIA; and No. 81-1267. UNION-MECHLING CORP. v. ROSE, TAX COMMISSIONER OF WEST VIRGINIA. Appeals from Sup. Ct. App. W. Va. dismissed for want of substantial federal question. JUSTICE WHITE and JUSTICE POWELL would note probable jurisdiction and set cases for oral argument. Reported below:-W. Va. —, 282 S. E. 2d 240. No. 81-1671. AU v. KELLY ET AL., TRUSTEES, DBA FINANCIAL PLAZA OF THE PACIFIC. Appeal from Int. Ct. App. Haw. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 2 Haw. App. 534, 634 P. 2d 619. No. 81-1753. BALASH v. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM ET AL. Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 54 N. Y. 2d 847, 428 N. E. 2d 393. No. 81-1681. JACOB BROTHERS, INC., ET AL. v. DELEON. Appeal from App. Sess., Super. Ct. Conn., dismissed for want of substantial federal question. Reported below: 38 Conn. Supp. 331, 446 A. 2d 831. Certiorari Granted-Vacated and Remanded No. 80-2117. LOCAL UNION No. 84, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO v. UNITED STATES ET AL. C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Pullman-Standard v. Swint, ante, p. 273. Reported below: 634 F. 2d 929. C. A. 6th No. 81-310. BERGMAN, WARDEN v. BURTON. Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Rose v. Lundy, 455 U. S. 509 (1982). Reported below: 649 F. 2d 428. JUSTICE STEVENS, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting. In Rose v. Lundy, 455 U. S. 509, the Court wrote: "There is no basis to believe that today's holdings will 'complicate and delay' the resolution of habeas petitions (STEVENS, J., post, at 550), or will serve to 'trap the unwary pro se prisoner.' (BLACKMUN, J., post, at 530.)" Id., at 520. Today, however, the Court interprets Rose as requiring further proceedings that can serve no purpose other than to "complicate and delay" the ultimate termination of this litigation. In 1975 the respondent was convicted in a Michigan state court of assault with intent to commit murder and was sentenced to life imprisonment. His conviction was affirmed by the Michigan Court of Appeals in 1977 and the Michigan Supreme Court denied leave to appeal. In 1980 the respondent sought a writ of habeas corpus in the United States District Court for the Eastern District of Michigan on two grounds: (1) that the trial court's instructions to the jury deprived him of due process of law; and (2) that he was denied the effective assistance of counsel. The District Court found no merit to the first claim and refused to consider the second because the respondent had not exhausted his state remedies as required by 28 U. S. C. § 2254(b). The Court of Appeals reversed, holding that the instructions were improper under Sandstrom v. Montana, 442 U. S. STEVENS, J., dissenting 456 U. S. 510, and that even though trial counsel had not objected to the erroneous instruction, Wainwright v. Sykes, 433 U. S. 72, did not foreclose relief because the Michigan Court of Appeals had reviewed the asserted errors in the trial court's jury charge and rejected the respondent's claims on the merits. The Sixth Circuit did not address the respondent's unexhausted claim of ineffective assistance of counsel. The Warden's petition for certiorari in this Court raises the Wainwright v. Sykes issue and three questions concerning Sandstrom v. Montana. The petition makes no reference to the unexhausted claim. Ignoring the four questions presented by the Warden, the Court grants his petition, vacates the judgment of the Court of Appeals, and remands for reconsideration in the light of Rose v. Lundy. Under Rose v. Lundy-if I read the Court's opinion correctly-after the case gets back to the District Court, that court must dismiss the habeas corpus petition that is now a part of the record. Thereafter, the respondent immediately will be entitled to resubmit a petition eliminating the unexhausted claim and confining his claim to relief to the issue 'The questions presented for review read as follows: "I. Where no timely objection was made to the state court's jury instructions as required by state law, the state appellate courts arguably relied on the failure to object in affirming the conviction and neither cause for the failure to object nor actual prejudice has been shown, is this state prison inmate barred from challenging the state court's jury instructions in federal habeas corpus proceedings under the doctrine of Wainwright v Sykes, 4[3]3 US 72 (1977)? "II. Should Sandstrom v Montana, 442 US 510 (1979) be applied retroactively to a 1975 state court conviction? "III. If Sandstrom is to be applied retroactively, do the state court's jury instructions in this case violate the Sandstrom doctrine? "IV. If the state court's jury instructions in this case violate Sandstrom, is the violation nevertheless harmless beyond a reasonable doubt under the doctrine of Chapman v California, 386 US 18 (1967)?" Pet. for Cert. i. 2 "[W]e hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Rose v. Lundy, 455 U. S., at 522. |