Gray v. Kelly , 180 L. Ed. 2d 879 ( 2011 )

Cite as: 564 U. S. ____ (2011) 1
Opinion in Chambers
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SUPREME COURT OF THE UNITED STATES
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No. 11A210 (11–5545)
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RICKY JAVON GRAY v. LORETTA KELLY, WARDEN
ON APPLICATION FOR STAY
[August 25, 2011]
CHIEF JUSTICE ROBERTS, Circuit Justice.
Ricky Gray was convicted of five counts of capital mur-
der in Virginia. He was sentenced to death on two of
the counts and life imprisonment on the remaining three.
After his convictions and sentences were affirmed on di-
rect appeal, Gray filed a petition for state postconviction
relief. The Virginia Supreme Court granted the petition in
part, ordering vacatur of one of the convictions for which
Gray was sentenced to life imprisonment. Gray v. Warden
of Sussex I State Prison, 281 Va. 303, 304, 707 S. E. 2d
275, 280–281 (2011). But the court denied relief in all
other respects, ibid., and the Commonwealth of Virginia
set a date of execution of June 16, 2011.
Meanwhile, Gray applied for appointment of counsel in
the United States District Court for the Eastern District
of Virginia, where he planned to file a petition for a writ of
habeas corpus under 28 U. S. C. §2254. On June 14, 2011,
the District Court appointed counsel for Gray and stayed
the execution of his death sentence for 90 days pursuant to
§2251(a)(3). In a separate order issued the same day, the
District Court set a briefing schedule requiring Gray to
file his federal habeas petition within 45 days, no later
than July 29. In a subsequent order on June 29, the Dis-
2 GRAY v. KELLY
Opinion in Chambers
trict Court extended Gray’s deadline for filing a habeas
petition to August 29.
On July 25, Gray filed with this Court a petition for a
writ of certiorari, seeking review of the decision of the
Virginia Supreme Court. He claimed that the procedures
followed by that court in adjudicating his postconviction
claims violated his federal constitutional rights to due
process and equal protection of the laws. Gray then asked
the District Court to stay its June 29 scheduling order
pending this Court’s disposition of his petition for certio-
rari to the Virginia Supreme Court. After the District Court
denied the request, Gray did not seek a stay from the
Court of Appeals for the Fourth Circuit, but rather filed an
application for a stay with me as Circuit Justice.
Gray’s application accompanies his petition for certio-
rari to the Virginia Supreme Court, but does not seek a stay
of that court’s judgment. Nor does his application seek a
stay of his date of execution, which has not been reset.
His application instead requests only a stay of the District
Court’s order requiring him to file a federal habeas peti-
tion by August 29.*
Although Gray’s application invokes the familiar stand-
ard for securing a stay of a judgment subject to this
Court’s review, see Application for Stay 4 (citing Barefoot
v. Estelle, 463 U. S. 880, 895 (1983)), that standard is
inapplicable here because Gray does not seek a stay of
such a judgment. Gray’s request that this Court exercise
its “supervisory authority” over the District Court, Reply
——————
* Gray’s application specifically requests a stay of the District Court’s
June 29 scheduling order. Application for Stay 14. That order extended
the deadline for filing a federal habeas petition to August 29. A stay of
that order would therefore serve only to restore the original deadline
of July 29. The substance of Gray’s application makes clear, however,
that the relief he actually seeks is a stay of the District Court’s briefing
schedule in its entirety until this Court acts on his petition for a writ of
certiorari to the Virginia Supreme Court.
Cite as: 564 U. S. ____ (2011) 3
Opinion in Chambers
to Opposition to Application for Stay 2, implicates a
standard even more daunting than that applicable to
a stay of a judgment subject to this Court’s review. See
Ehrlichman v. Sirica, 419 U. S. 1310, 1311–1312 (1974)
(Burger, C. J., in chambers). Gray clearly has not estab-
lished his entitlement to relief from the District Court’s
scheduling order.
The application for a stay is denied.
It is so ordered.