Duffey v. Lehman ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
1-16-1996
Duffey v. Lehman
Precedential or Non-Precedential:
Docket 94-9003
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-9003
___________
STEVEN DUFFEY,
Appellant
vs.
JOSEPH D. LEHMAN, Commissioner of the
PA Department of Corrections;
WILLIAM J. LOVE, Superintendent of the
State Correctional Institution at Huntingdon;
JOSEPH P. MAZURKIEWICZ, Superintendent of
the State Correctional Institution at Rockview
___________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 94-cv-01947)
___________
Argued
October 26, 1995
Before: MANSMANN, COWEN and LEWIS, Circuit Judges.
(Filed January 16, 1996)
___________
Billy H. Nolas, Esquire
Robert B. Dunham, Esquire (ARGUED)
Pennsylvania Post-Conviction
Defender Organization
437 Chestnut Street
Suite 501
Philadelphia, PA 19106
COUNSEL FOR APPELLANT
Michael J. Barrasse, Esquire
William P. O'Malley, Esquire (ARGUED)
Office of the District Attorney
200 North Washington Avenue
Lackawana County Courthouse
Scranton, PA 18503
COUNSEL FOR APPELLEE
1
___________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
In this case of first impression, we are called upon to
interpret and apply the United States Supreme Court's admonition
in McFarland v. Scott, ___ U.S. ___, 114 S. Ct. 2568 (1994), that
a district court would not abuse its discretion in denying a stay
of execution pending the presentation of a federal habeas
petition to a "dilatory" defendant who "inexcusably ignores [the]
opportunity [for counsel and for that counsel meaningfully to
research and present a defendant's habeas claims] and flouts the
available processes . . . ." Id. at 2573. We hold that under
McFarland, a district court may properly refuse a stay to a
dilatory defendant who has waived his right to counseled and
meaningful habeas review and his state court remedies. Since
here, however, the defendant, even though dilatory, did not waive
his rights or remedies, we hold that the district court's
decision to deny him a stay of execution was not consistent with
a sound exercise of discretion.
I.
In the afternoon of February 19, 1984, Kathy Kurmchack,
then 19 years of age, was found stabbed to death in a restroom in
the restaurant where she worked. Steven Duffey was charged with
the killing.
2
On February 6, 1985, a jury found Duffey guilty of
first degree murder. Following the denial of post-verdict
motions, Duffey was formally sentenced, on August 4, 1986, to
death. The Pennsylvania Supreme Court affirmed Duffey's
conviction and sentence on October 14, 1988. Commonwealth v.
Duffey, 519 Pa. 353, 548 A.2d 1178 (1988).
On September 22, 1994, Governor Robert P. Casey signed
a death warrant scheduling Duffey's execution for the week of
December 4, 1994. On October 12, 1994, Duffey met with attorneys
from the Pennsylvania Capital Case Resource Center (the "Resource
Center") and signed an unsworn declaration of indigency and a
request that the Resource Center seek a stay of execution and the
recruitment of competent counsel to commence state post-
conviction proceedings on his behalf.
Unable to recruit counsel, on November 16, 1994, the
Resource Center filed in the trial court a pro se motion for a
stay of execution to identify and appoint counsel for Duffey. The
motion was denied on November 18, 1994; a motion for
reconsideration was denied on November 22, 1994.
Believing that the trial court's denials were
predicated on its view that it lacked jurisdiction to stay
Duffey's execution in the absence of a petition filed under
Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.
Stat. Ann. § 9541 et seq., the Resource Center then filed a
"Renewed Pro Se Motion for Stay of Execution to Permit Counsel
Time to Prepare PCRA Petition", to which a "form" PCRA petition
raising the issue of ineffective assistance of counsel was
3
attached. On or about November 22, 1994, the trial court denied
the motion for stay based on the "frivolous" nature of the PCRA
petition and Duffey's delay in asserting the ineffectiveness of
counsel claim. An appeal of the trial court's order was taken to
the Pennsylvania Supreme Court on November 28, 1994.
That same day, Duffey filed a "Motion to Proceed In
Forma Pauperis, for a Stay of Execution, and for Appointment of
Federal Habeas Corpus Counsel under 28 U.S.C. § 2251 and 21
U.S.C. § 848(q) -- and -- Complaint for Injunctive Relief under
42 U.S.C. § 1983"0 in the United States District Court for the
Middle District of Pennsylvania, naming as respondents several
officials with the Pennsylvania Department of Corrections.0
Expressing its strong hesitation to take any action while
Duffey's request for a stay to pursue his state remedies was
pending before the Pennsylvania Supreme Court, the district court
reserved ruling on the motion.
After the Pennsylvania Supreme Court denied Duffey's
request for a stay on December 5, 1994, the district court issued
a memorandum opinion and order, permitting Duffey to proceed in
forma pauperis and granting Duffey's request for the appointment
of federal habeas corpus counsel.0 With regard to Duffey's
0
Duffy's claim under 42 U.S.C. § 1983 was dismissed
without prejudice on December 22, 1994.
0
The respondents, the appellees here, refer to
themselves in their brief as the "Commonwealth [of
Pennsylvania]." We will adopt that designation.
0
We understand that Duffey is presently represented by
legal counsel. We also understand that on or about April 27,
1995, counsel filed an "Amended Petition for Post-Conviction
Collateral Relief" in the Court of Common Pleas of Lackawana
4
request for a stay of execution, the court interpreted the United
States Supreme Court's decision in McFarland v. Scott, ___ U.S.
___, 114 S. Ct. 2568 (1994), as holding that a stay was required
unless Duffey "inexcusably ignored post-conviction remedies for
the purpose of delaying his execution." Finding the record
undeveloped in this regard, the court issued a temporary stay
until December 23, 1994, to allow the parties the opportunity to
submit evidence as to whether Duffey's six-year "delay" in
invoking post-conviction review was justifiable.
After a hearing, the court held that Duffey was not
entitled to a stay of execution pending habeas review. The court
found that Duffey was aware that state and federal collateral
review procedures are available to capital defendants; that
Duffey knew that he no longer had legal representation and that a
collateral challenge to his conviction and sentence was not being
mounted on his behalf following the Pennsylvania Supreme Court's
affirmance of his conviction and sentence; that Duffey was
capable of deciding and had decided to delay the invocation of
the post-conviction process in order to forestall the imposition
of his sentence; and that the Resource Center had proceeded in
this matter in good faith. Seeing no evidence in the record to
support a finding that the Commonwealth had interfered with
Duffey's rights or that Duffey was incompetent, the court further
found that Duffey had not shown "cause" either for his
"deliberate decision" not to challenge his conviction and
County, Pennsylvania. The status of this petition is not before
us, nor is it relevant to the issues raised in this appeal.
5
sentence until a death warrant had issued or for "ignoring" post-
conviction remedies. The court, therefore, concluded that under
McFarland v. Scott, ___ U.S. ___, 114 S. Ct. at 2573, Duffey's
inaction was "inexcusable" and constituted a "flouting of the
available processes". Accordingly, the court denied Duffey's
request for a stay pending preparation of a petition for a writ
of habeas corpus and vacated the temporary stay it had granted on
December 5, 1994. Duffey's appeal followed.0
II.
In McFarland v. Scott, ___ U.S. ___, 114 S. Ct. 2568
(1994),0 the Supreme Court was presented with a two-pronged
0
We granted a temporary stay of execution pending this
appeal.
0
Frank Basil McFarland was convicted of murder in the
State of Texas and sentenced to death. Two months after the
final resolution of McFarland's direct appeal, the Texas trial
court scheduled his execution. Unable to secure either the
appointment of counsel or a modification of his execution date in
the trial court for state habeas corpus proceedings, McFarland
filed a pro se motion in a federal district court, alleging that
he "wish[ed]" to challenge his conviction and sentence under the
federal habeas corpus statute. McFarland v. Scott, ___ U.S. ___,
114 S. Ct. 2568, 2570 (1995). McFarland also asked for the
appointment of counsel under 21 U.S.C. § 848(q)(4)(B), and a stay
of execution to enable counsel to prepare and file a habeas
corpus petition. Id. Of the view that a "post conviction
proceeding" had not been initiated under 28 U.S.C. § 2254 or
§2255, the district court denied McFarland's motion on the
grounds that McFarland was not entitled to the appointment of
counsel and that it lacked jurisdiction to enter a stay of
execution. Id. at 2571. Affirming, the United States Court of
Appeals for the Fifth Circuit noted that under 28 U.S.C. § 2251,
a federal court may stay state proceedings while a federal habeas
corpus proceeding is pending, but held that no such proceeding
was pending because a "`motion for a stay and for appointment of
counsel [is not] the equivalent of an application for habeas
relief.'" Id. (citation omitted).
6
inquiry of statutory construction: whether a capital defendant's
right under 21 U.S.C. § 848(q)(4)(B) to qualified counsel in "any
post-conviction proceeding under sections 2254 or 2255 of Title
28" and a district court's jurisdiction under 28 U.S.C. § 2251 to
enter a stay of execution "in a habeas corpus proceeding" adhere
prior to the filing of a legally sufficient habeas corpus
petition.0 The Court determined that they did.
The Supreme Court reversed.
0
The Supreme Court was required to construe the meaning
of and interplay among 21 U.S.C. § 848(q)(4)(B) and 28 U.S.C.
§§2251, 2254, 2255.
Section 848(q)(4)(B) states:
§ 848. Continuing criminal enterprise
Appeal in capital cases; counsel for
financially unable defendants
(B) In any post conviction proceeding
under section 2254 or 2255 of Title 28,
seeking to vacate or set aside a death
sentence, any defendant who is or becomes
financially unable to obtain adequate
representation or investigative, expert, or
other reasonably necessary services shall be
entitled to appointment of one or more
attorneys and the furnishing of such other
services in accordance with paragraphs (5),
(6), (7), (8), and (9).
21 U.S.C. § 848(q)(4)(B).
Sections 2254 and 2255 provide in pertinent part:
§ 2254. State custody; remedies in Federal
courts.
(a) The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall
entertain an application for a writ of habeas
corpus in behalf of a person in custody
pursuant to the judgment of a State court
only on the ground that he is in custody in
7
The Court held first that "[t]he language and purposes
of § 848(q)(4)(B) and its related provisions establish that a
right to appointed counsel includes a right to legal assistance
in the preparation of a habeas corpus application[,] . . . [such]
that a `post conviction proceeding' within the meaning of
§848(q)(4)(B) is commenced by the filing of a death row
violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2254(a).
§ 2255. Federal Custody; remedies on motion
attacking sentence
A prisoner in custody under sentence of a
court established by Act of Congress claiming
the right to be released upon the ground that
the sentence was imposed in violation of the
Constitution or laws of the United States, or
that the court was without jurisdiction to
impose such sentence, or that the sentence
was in excess of the maximum authorized by
law, or is otherwise subject to collateral
attack, may move the court which imposed the
sentence to vacate, set aside or correct the
sentence.
Id. § 2255.
Section 2251 states:
§ 2251. Stay of State court proceedings
A justice or judge of the United States
before whom a habeas corpus proceeding is
pending, may, before final judgment or after
final judgment of discharge, or pending
appeal, stay any proceeding against the
person detained in any State court or by or
under the authority of any State for any
matter involved in the habeas corpus
proceeding.
Id. § 2251.
8
defendant's motion requesting the appointment of counsel for his
federal habeas corpus proceeding." Id. at 2572-73 (footnote
omitted). The Court further held that once a capital defendant
invokes his right to appointed counsel, a federal court also has
jurisdiction under 28 U.S.C. § 2251 to enter a stay of execution
because the language in 21 U.S.C. § 848(q)(4)(B), i.e., "any post
conviction proceeding under sections 2254 or 2255 of Title 28",
and the language in 28 U.S.C. § 2251, i.e., "habeas corpus
proceeding", refer to the same process. Id. at 2573.
The Court made clear, however, that its holding did not
grant defendants a right to an automatic stay of execution; that
the decision to grant or deny a motion for stay is committed to
the district court's sound discretion; and that a "dilatory"
defendant's request for a stay may be denied under the
appropriate circumstances:
This conclusion by no means grants
capital defendants a right to an automatic
stay of execution. Section 2251 does not
mandate the entry of a stay, but dedicates
the exercise of stay jurisdiction to the
sound discretion of a federal court. Under
ordinary circumstances, a capital defendant
presumably will have sufficient time to
request the appointment of counsel and file a
formal habeas petition prior to his scheduled
execution. But the right to counsel
necessarily includes a right for that counsel
meaningfully to research and present a
defendant's habeas claims. Where this
opportunity is not afforded, "[a]pproving the
execution of a defendant before his
[petition] is decided on the merits would
clearly be improper." On the other hand, if
a dilatory capital defendant inexcusably
ignores this opportunity and flouts the
available processes, a federal court
9
presumably would not abuse its discretion in
denying a stay of execution.
Id. at 2573 (emphasis added) (citation omitted).
III.
Before we consider the merits of the district court's
decision to deny Duffey a stay of execution, we must confirm that
the court's jurisdiction was properly invoked, for we agree with
the Court of Appeals for the Sixth Circuit that "[w]hat can best
be called a `McFarland stay' is not available for every death row
prisoner, but only for those in McFarland's circumstances". In
Re Parker, 49 F.3d 204, 213 (6th Cir. 1995).0 Like the defendant
in McFarland, however, Duffey was an uncounseled, pro se prisoner
who commenced an action in federal court seeking an attorney and
a stay of execution in order to file a legally competent petition
for a writ of habeas corpus. Because Duffey was unrepresented,
he properly exercised his statutory right to appointed counsel
under 21 U.S.C. § 848(q)(4)(B) which, in turn, invoked the stay
jurisdiction of the district court under 28 U.S.C. § 2251.
0
There the court of appeals held that the district court
was without jurisdiction to issue a "McFarland" stay where the
defendant asked the district court to appoint the attorney who
already represented him and to issue an indefinite stay of
execution to give counsel more time to file a habeas corpus
petition. In Re Parker, 49 F.3d 204 (6th Cir. 1995). In Steffen
v. Tate, 39 F.3d 622 (6th Cir. 1994), the defendant sought a
federal court stay of execution to enable his counsel to pursue
additional state remedies on his behalf.
In both of these cases, the court of appeals reasoned
that the district court's jurisdiction was not necessary to give
effect to the statutory right to counseled federal habeas review.
In Re Parker, 49 F.3d at 210-11; Steffen v. Tate, 39 F.3d at 624-
25.
10
We thus conclude that the court had jurisdiction in
this case. We turn now to the district court's decision that
Duffey was not entitled to a stay of execution.
IV.
We first consider the district court's findings of
fact. Our standard of review is quite high; we may set aside the
court's findings only for clear error.0 Sullivan v. Cuyler, 723
F.2d 1077, 1082 (3d Cir. 1983).
Duffy argues that the evidence conclusively establishes
that he was ignorant of post-conviction processes; that during
the entire period between the Pennsylvania Supreme Court's
affirmance of his conviction and sentence in 1988 and until just
before the warrant was signed in 1994, he mistakenly believed
that he was represented by counsel who was handling his
"appeals"; and that he was intellectually incapable of the
thought and planning that necessarily underlie a deliberate
decision to delay the pursuit of one's rights.
Based on our careful review of the record, however, we
conclude that the district court's factual determinations to the
contrary are amply supported by the record. Several items of
proof sustain the court's finding that Duffey was aware of the
0
A finding of fact is clearly erroneous "when although
there is evidence to support it, the reviewing court is left with
a definite and firm conviction that a mistake has been
committed". United States v. United States Gypsum Co., 333 U.S.
364, 394-95 (1948). Further, we will not disturb the district
court's findings simply because we are convinced that we would
have decided the case differently. Anderson v. Bessemer City,
N.C., 470 U.S. 564, 574 (1985).
11
existence of federal and state procedures for post-conviction
review. In correspondence to his mother, Duffey repeatedly
requested that she send him a copy of another prisoner's habeas
corpus petition; a fellow death row prisoner whom Duffey
described as a "big brother" was well-versed in post-conviction
process; information about collateral challenges to convictions
and sentences was ever-present in the environment in which Duffey
had resided for almost ten years. In addition, Duffey referred
to the case of Griffin v. Illinois, 351 U.S. 12 (1956),0 in a
knowledgeable way in a letter he wrote to his mother and in a
motion he filed in the state court requesting a copy of his trial
transcript; and during his years on death row, Duffey was in
contact with Pamela Tucker, a one-time member of the Western
Pennsylvania Coalition against the Death Penalty and the Project
Director of the Pennsylvania Capital Case Monitoring Project who
sent prisoners, including Duffey, at least one update regarding
developments in Pennsylvania death penalty cases which mentioned
the "[Post Conviction Relief Act]".
0
In Griffin, the defendants filed a petition under the
Illinois Post-Conviction Hearing Act, alleging, inter alia, that
the only impediment to full appellate review of their respective
convictions was a lack of funds to buy a trial transcript and
that the State's refusal to afford full appellate review solely
because of their poverty was a denial of due process and equal
protection. The defendants' petition was dismissed and the
Illinois Supreme Court affirmed, solely on the ground that the
petition did not raise a substantial state or federal
constitutional question. Holding that the defendants'
constitutional rights had been violated, the Court remanded and
instructed the Illinois Supreme Court to provide the defendants
with adequate and effective appellate review. Griffin v.
Illinois, 351 U.S. 12, 13-26 (1956).
12
We also find that the evidence relating to Duffey's and
his mother's conduct both before and after the Pennsylvania
Supreme Court's October, 1988 affirmance of Duffey's conviction
and sentence supports the court's finding that Duffey knew that
he did not have legal counsel and that post-conviction remedies
were not being pursued following the affirmance. The record
reveals that during the time that Duffey's case was in trial and
on direct appeal, he and his mother communicated by letter or
telephone with his attorneys on a variety of matters; once Duffey
received word of the affirmance, however, neither he nor his
mother had contact with any lawyer about the status of his case.
Moreover, a statement by Duffey in a 1991 letter to Pamela Tucker
that he would know "something" about his case "once [he] [got] a
[w]arrant signed" also supports the district court's factual
finding that Duffey was aware that post-conviction challenges
were not pending from October of 1988 to September of 1994.
With regard to Duffey's deliberative capacities, the
Resource Center introduced expert testimony to establish that
Duffey could not reason abstractly due to his intellectual and
emotional deficiencies and the medication he was taking. The
Commonwealth countered with expert testimony to show that Duffey
was capable of assimilating information, implementing plans and
appreciating the consequences of his actions. Thus the hearing
on this issue was a dispute among experts, offering the district
court two conflicting perspectives of Duffey's abilities.
Crediting the Commonwealth's view, the court found that Duffey
was competent and capable of deliberately deciding not to
13
challenge his conviction and sentence until a warrant was signed.
We will not disturb this finding because it is "well-established
that `[w]here there are two permissible views of the evidence,
the factfinder's choice between them cannot be clearly
erroneous'", and in a battle of experts, the factfinder
"'decide[s] the victor'". Lansford-Coaldale Joint Water Auth. v.
Tonolli Corp., 4 F.3d 1209, 1216 (3d Cir. 1993) (quoting Anderson
v. Bessemer City, N.C., 470 U.S. 564, 574 (1985) and citing
Mendes-Silva v. United States, 980 F.2d 1482, 1487 (D.C. Cir.
1993)).
As to Duffy's decision to delay, the comments Duffey
and his mother made in correspondence to the effect that "no news
was good news" and that it would be unwise to call attention to
his circumstances support the court's finding that Duffey did
indeed decide to wait for a death warrant to issue before
pursuing post-conviction process and that he understood that, by
putting off the invocation of post-conviction processes until
then, he could postpone his sentence. Moreover, the court
correctly found that the record did not contain any proof that
the Commonwealth prevented Duffey from pursuing his rights.
Finally, given the undisputed evidence the Resource
Center submitted showing how severely limited its means are, the
court's finding that the Center pursued this matter in good faith
will not be set aside.
Accordingly, we conclude that the district court's
findings of fact are not clearly erroneous.
14
V.
We next address the district court's interpretation of
the instruction in McFarland concerning the denial of a stay to a
dilatory defendant who "inexcusably ignores" certain rights
relating to habeas review and "flouts the available processes".
Since we view the Court's instruction as a legal standard to be
applied to the facts, our review is plenary. Sullivan v. Cuyler,
723 F.2d 1077, 1082 (3d Cir. 1983).
15
A.
We begin by stating explicitly what was implicit in the
district court's decision: that the opportunity and processes of
which the Supreme Court spoke in the passage at issue, supra pp.
9-10, include the right to federal habeas counsel, time for that
counsel to prepare a habeas petition, and available state
remedies. We believe that the Court's antecedent reference in
that passage to a capital defendant's "right to counsel" and
counsel's right "meaningfully to research and present a
defendant's habeas claims", McFarland v. Scott, ___U.S.___, 114
S. Ct. at 2573, as well as the long-held principle, now codified
in 28 U.S.C. § 2254(b),0 that a state defendant must exhaust
state remedies in order to receive federal habeas review, compel
this result. See Ex Parte Royall, 117 U.S. 241 (1886) (holding
that as a matter of comity, federal courts should not consider a
claim in a habeas corpus petition until after the state courts
have had an opportunity to act). Moreover, the exhaustion of
0
Section 2254(b) provides:
§ 2254. State custody; remedies in Federal
courts.
(b) An application for a writ of habeas
corpus in behalf of a person in custody
pursuant to the judgment of a State curt
shall not be granted unless it appears that
the applicant has exhausted the remedies
available in the courts of the State, or that
there is either an absence of available State
corrective process or the existence of
circumstances rendering such process
ineffective to protect the rights of the
prisoner.
28 U.S.C. § 2254(b).
16
state remedies doctrine leads us to conclude that the district
court was correct to consider the question of Duffey's delay in
asking for federal habeas relief, not from the date that the
death warrant issued on September 22, 1994, as Duffey urges, but
from the date that Duffey could have initiated state post-
conviction process, which was some six years earlier upon
resolution of his direct appeal on October 14, 1988. In this
regard, we also point out that delay in this context does not
refer to the mere passage of time, but to a defendant's
postponing the initiation of any of the steps that lead to habeas
review.
B.
Turning to the standard the district court used to
determine whether, under McFarland, Duffey should be granted a
stay of execution despite his delay, we note that the court
required Duffey to establish "cause" to excuse his failure to
pursue available post-conviction processes in an expeditious
fashion. By doing so, the court borrowed directly from the
"cause and prejudice" or "independent state ground" test of
Wainwright v. Sykes, 433 U.S. 72 (1977), which bars federal
habeas review where a defendant has failed to comply with a state
procedural rule unless the defendant shows "cause" for his
failure to comply with a state procedural requirement and actual
"prejudice" as a result of the constitutional violations he
presents in federal court.
We disagree with the district court's analogy to Sykes
for two reasons. First, we do not see, nor has the Commonwealth
17
of Pennsylvania shown us, that the basis for the standard -- a
state procedural requirement -- is present here. The
Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.
Stat. Ann. § 9541 et seq., does not impose a time period within
which a defendant must file a petition for collateral review.
Moreover, it is standard practice in Pennsylvania for defendants
to pursue an initial, counseled PCRA petition only after a death
warrant has issued and for the Pennsylvania courts to grant stays
of execution to defendants in these circumstances. See, e.g.,
Commonwealth v. Henry, No. 849-1986 (C.P. Northampton Cty. March,
1995, and cases cited therein). Second and more importantly, we
cannot discern any basis in McFarland for the district court's
approach. Had the Supreme Court intended the courts to apply the
standard enunciated in Sykes when deciding whether a dilatory
defendant may receive a stay, we believe the Court would have
said so. Thus, even assuming the presence of a state procedural
default, we conclude that Sykes does not control.
It remains for us, therefore, to determine what
standard regarding the denial of a stay was announced by the
Court in McFarland. We think the best source for the standard
lies in the language the Court used to render its decision.
Accordingly, we turn directly to McFarland's critical passage,
supra pp. 9-10, and we first observe that delay alone is not
dispositive; the Court referred to denying a stay not just to a
"dilatory" defendant, but to a defendant who has also behaved in
a particular manner and displayed a certain attitude with regard
to the opportunity for counseled habeas review and available
18
processes. The words the Court chose to describe the conduct it
denounced -- "inexcusably ignore" and "flout" -- connote a
knowing disregard, which borders on contempt for and a turning
away from, one's federal and state rights. In our view, these
words are tantamount to the definition of waiver enunciated in
Johnson v. Zerbst, 304 U.S. 458, 464 (1938): "an intentional
relinquishment or abandonment of a known right or privilege". We,
therefore, believe that the Court instructed in McFarland that a
district court would not abuse its discretion in denying a stay
to a defendant who delayed pursuit of habeas relief and whose
actions constitute a waiver of the right to counseled and
meaningful habeas review and available state processes. In this
regard, we adopt the definition of waiver from Johnson v. Zerbst
as the guiding standard.0
0
In Johnson v. Zerbst, 304 U.S. 458 (1938), the Court
addressed a defendant's waiver of the Sixth Amendment right to
the assistance of counsel.
The dissent's characterization of our analysis
notwithstanding, we do not "import Johnson v. Zerbst's `waiver'
requirement into McFarland" because we believe that the "right to
appointed counsel in § 848(q)(4)(B) occupies the same venerated
status as the Sixth Amendment right to counsel." (Dissent
Typescript at 11-12). Our holding is premised, as we stated, on
our interpretation of the language the Supreme Court used in the
McFarland opinion.
In our view, the disagreement between the majority and
the dissent in this case is straightforward; it is a disagreement
over what the Supreme Court meant in McFarland when it stated
that a "dilatory capital defendant" who "inexcusably ignores this
opportunity and flouts the available processes" may be denied a
stay of execution. McFarland v. Scott, ___ U.S. ___, 114 S.Ct.
at 2573. As we understand it, the dissent's position is that
with these words the Supreme Court invoked the equitable doctrine
of unclean hands, inviting a district court to deny a McFarland
stay to a defendant who engaged in inequitable conduct. Applying
19
We further hold that a defendant's delay and waiver,
which are in the nature of a defense to the stay to which a
defendant would otherwise be entitled, is for the State to prove.
This allocation of the burden of proof is consistent with the
manner by which defenses are typically proven, Metzel v.
this general principle to the facts at hand, the dissent would
hold that an uncounseled defendant who created exigent
circumstances by purposefully delaying the pursuit of post-
conviction processes until a death warrant issued, is guilty of
unclean hands, and, thus, may be denied a stay of execution
pending the preparation and disposition of a first habeas corpus
petition. Again, focusing on the Supreme Court's words in
McFarland, our difficulty with the dissent's position is two-
fold. First, we believe that they demand a more exacting
standard than the dissent's unclean hands principle. Second, we
believe that they require something more than mere delay, even if
deliberate, on a defendant's part to disentitle him to a stay.
To be sure, "`habeas corpus has traditionally been
regarded as governed by equitable principles'". Sanders v.
United States, 373 U.S. 1, 17 (1963) (quoting Fay v. Noia, 372
U.S. 391, 438 (1963)). We do not, however, agree with the
dissent's view that "abuse-of-the writ" or "misuse-of-the-writ"
jurisprudence supports the application in a McFarland situation
of an unclean hands doctrine under which delay alone is
sufficient to deny a stay of execution. (Dissent Typescript at
6-7). See, e.g., Gomez v. United States Dist. Court, 503 U.S.
653, 654 (1992) (per curiam) (vacating a stay of execution where
petitioner failed to show cause for not raising the claim that
his execution by lethal injection would violate the Eighth
Amendment in four prior federal habeas petitions and where
"[t]here [was] no good reason for this abusive delay, which [was]
compounded by last-minute attempts to manipulate the judicial
process."); McClesky v. Zant, 499 U.S. 467 (1991) (holding that
the cause and prejudice standard enunciated in Wainwright v.
Sykes applies to determine whether the failure to raise a claim
in the first round of habeas review should be excused in a
subsequent petition); Lonchar v. Thomas, 58 F.3d 590 (11th Cir.)
(vacating a stay of execution where petitioner expressly refused
to pursue state collateral remedies, consistently waited until
the day of execution to seek relief, and openly sought federal
habeas relief, not to vindicate his constitutional rights, but to
delay his execution so that the method of execution may be
changed to allow him to donate his organs), cert.granted, ___
U.S. ___, 115 S. Ct. 2640 (1995).
20
Leininger, 57 F.3d 618, 622 (7th Cir. 1995), and is, moreover, in
keeping with the traditional application of the Johnson v. Zerbst
waiver standard. See Brewer v. Williams, 430 U.S. 387, 404
(1977) ("[A]s a matter of federal constitutional law . . . it was
incumbent upon the State to prove `an intentional relinquishment
or abandonment of a known right or privilege.'")(quoting Johnson
v. Zerbst, 304 U.S. at 464).0
VI.
The application of the standard we have enunciated to
the evidence in this case is not difficult. Although we do not
quarrel with the district court's ultimate finding that Duffey
deliberately decided to postpone the pursuit of collateral
challenges to his conviction and sentence until after a death
warrant issued, it alone cannot sustain the court's conclusion
that Duffey inexcusably ignored and flouted relevant rights and
processes under our waiver standard. Indeed, we find the record
devoid of any proof whatsoever that Duffey intentionally
relinquished or abandoned his rights to counseled and meaningful
habeas review or to available state remedies.0 Thus, we conclude
0
Although that traditional application of the Johnson v.
Zerbst standard of which the Court spoke in Brewer v. Williams,
430 U.S. 387, 404 (1977), involved the waiver of the
constitutional right to the assistance of counsel, we do not see
any reason for not requiring the State to bear the same burden of
proof when the waiver involves the statutory right to counseled
federal habeas review under 21 U.S.C. § 848(q)(4)(B) and the
right to state post-conviction remedies.
0
We contemplate that proof of a defendant's waiver will
frequently be "verbal"; that is, comprised of the words that a
defendant has spoken or written which show that he or she has
intentionally relinquished or abandoned his or her federal right
21
that under McFarland the district court's decision to deny Duffey
a stay was not consistent with a sound exercise of discretion.
We do not reach this decision lightly and we are, of
course, mindful of the Commonwealth's interest in seeing that
criminal judgments and sentences are carried out in a orderly
fashion. We are also, however, aware of the Commonwealth's
desire to ensure that capital punishment comports with the
Constitution. Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174
(1978). We believe that the entry of a stay in this particular
case does not upset the Commonwealth's capital punishment process
but, rather, guarantees that the death penalty will not be
carried out unless the habeas review to which this defendant
remains entitled demonstrates that his execution would be lawful.
VII.
For the foregoing reasons, we will reverse the district
court's order denying Duffy a stay and remand to the court for
entry of an order granting Duffey a stay of execution pending the
presentation of a petition for a writ of habeas corpus0 once the
state courts have ruled on his post-conviction petition.
to counseled habeas review and applicable state remedies. We
further contemplate that evidence of waiver will also involve a
defendant's actions. We do not, as the dissent suggests, require
that the Commonwealth prove waiver by showing that a defendant
knew specifically of the existence of 21 U.S.C. § 848(q)(4)(B)
and engaged in what amounts to a colloquy forgoing his or her
right to a government-supplied attorney under the statute.
(Dissent Typescript at 10, 15-16).
0
During the December, 1994 hearing, the Resource Center
clarified that Duffey was asking for a stay pending the
presentation of a petition for a writ of habeas corpus and would
22
Duffey v. Lehman, No. 94-9003
COWEN, Circuit Judge, dissenting.
The district court found as a matter of fact that
Steven Duffey sat on death row for six and one-half years after
his conviction had been affirmed and, despite being aware of the
existence of both state and federal post-conviction remedies,
intentionally declined to invoke them for the specific purpose of
delay. Based on these findings the district court concluded that
Duffey had "inexcusably ignore[d] [post-conviction remedies] and
flout[ed] the available processes." McFarland v. Scott, ___ U.S.
___, ___, 114 S. Ct. 2568, 2573 (1994). The court, therefore,
denied Duffey's request for a stay of execution under 28 U.S.C.
§2251 while counsel appointed under 21 U.S.C. § 848(q)(4)(B)
prepared and filed a first petition for habeas corpus.
The Majority concludes, as do I, that the district
court's factual findings are not clearly erroneous. Indeed, they
are amply supported by record evidence. The Majority, however,
has discovered a "waiver" requirement in McFarland's "inexcusably
ignores" language. Applying it to the district court's factual
findings, the Majority holds that the district court abused its
discretion in denying a stay under McFarland because the record
leave it to appointed counsel to ask for a stay beyond that point
for the duration of habeas review.
23
contains no evidence that Duffey affirmatively "waived" his right
to appointed habeas counsel.
I find no such waiver requirement in McFarland. In my
view, an inmate who purposely declines to pursue known post-
conviction remedies for the specific purpose of delaying
execution presents the quintessential case of "inexcusably
ignor[ing] . . . and
24
flout[ing]." Such an inmate comes into court with "unclean hands" and, thus, forfe
right to have a federal court invoke its equity jurisdiction under § 2251 to inter
state proceedings. Because that is just what Duffey did, the district court's deci
deny a stay of execution was consistent with a sound exercise of discretion. I th
must respectfully dissent. I am, however, in substantial agreement with Parts I-IV
Majority Opinion.
I.
A.
In 1988 Congress amended federal law to provide indigent death-row
wishing to pursue federal habeas relief with a government-supplied lawyer to prep
file the petition. See 21 U.S.C. § 848(q)(4)(B). This amendment created an ine
tension with 28 U.S.C. § 2251, which permits a federal judge to stay state proc
only when a habeas corpus proceeding is "pending" in federal court. Typica
proceeding was considered pending for purposes of § 2251 only when a formal petit
been filed. Thus, prior to McFarland, death-row inmates conceivably could hav
executed before their appointed attorneys had an adequate opportunity to prepare a
their petitions, since in those circumstances a federal court would lack subject
jurisdiction to stay an execution.
In 1994 the Supreme Court alleviated this apparent unfairness by esse
deeming an unrepresented death-row inmate's request for counsel under § 848(q)(4)(B
a pending habeas proceeding for purposes of § 2251. McFarland, ___ U.S. at ___,
Ct. at 2568. Accordingly, as long as there has been a motion for the appoint
counsel under § 848(q)(4)(B), a federal court has subject-matter jurisdiction under
to stay state proceedings without running afoul of the Anti-Injunction Act. 28 U
2283.
B.
25
Two separate and distinct concepts underlie the McFarland Court's reason
analysis. I refer to them as "stay jurisdiction" and "stay discretion." The ra
for McFarland's "stay jurisdiction" holding--that a request for counsel constit
"pending" proceeding under § 2251--is understandable. The Court believed that w
unrepresented death-row inmate wishes to invoke his statutory right to have an a
file a petition for habeas corpus, federal courts should have the power to ensure t
state will not execute the inmate before the petition has been filed. Otherwi
right to an attorney free of charge would be meaningless. McFarland, ___ U.S. at _
S. Ct. at 2573 ("[T]he right to counsel necessarily includes a right for that
meaningfully to research and present a defendant's habeas claims. Where this oppo
is not afforded, approving the execution of a defendant before his petition is dec
the merits would clearly be improper.") (internal quotation marks, alteration and c
omitted).
The Court warned, however, that its "conclusion by no means grants
defendants a right to an automatic stay of execution." Id. at ___, 114 S. Ct. a
On the contrary, in the "stay discretion" portion of its discussion, the Court o
that
[s]ection 2251 does not mandate the entry of a stay, but
dedicates the exercise of stay jurisdiction to the sound
discretion of a federal court. Under ordinary circumstances,
a capital inmate presumably will have sufficient time to
request the appointment of counsel and file a formal habeas
petition prior to his scheduled execution. But the right to
counsel necessarily includes a right for that counsel
meaningfully to research and present a defendant's habeas
claims. Where this opportunity is not afforded, approving
the execution of a defendant before his petition is decided
on the merits would clearly be improper. On the other hand,
if a dilatory capital defendant inexcusably ignores this
opportunity and flouts the available processes, a federal
court presumably would not abuse its discretion in denying a
stay of execution.
26
Id. (emphasis added) (internal quotation marks, alteration and citation omitted).
the proper interpretation of the second highlighted portion in the above-quoted l
that divides us today.
The "stay discretion" aspect of the McFarland Court's analysis a
describes three separate and distinct situations. In the first situation--i.e., "
ordinary circumstances"--no stay should issue because the inmate is represented
ample time in which to file the petition. Indeed, the Court of Appeals for th
Circuit has gone so far as to hold that a district court lacks even the subject
jurisdiction to grant a stay in those circumstances. In re Parker, 49 F.3d 204 (6
1995). The Parker court reasoned that an already-represented inmate who nevertheles
a formal request for counsel under §848(q)(4)(B) cannot confer subject-matter juris
on a federal court to issue a stay of execution under McFarland. Accord Steffen v
39 F.3d 622 (6th Cir. 1994).
The second situation was the one presented in McFarland itself: where,
eve of execution, an unrepresented, nondilatory inmate who wishes to file a first p
for habeas corpus seeks counsel under § 848(q)(4)(B) and moves for a stay of ex
under § 2251. In such a situation, a federal court would abuse its discretion as a
of law in not granting the stay. This is only logical. It is both unfair and "im
to permit an inmate who, like McFarland, has been frantically attempting to pursu
conviction remedies to be executed simply because the state's execution ma
functions more efficiently than the pro se litigant. In that situation it is the
not the inmate, that has created the exigency necessitating federal court equity re
the nature of a stay of execution.
The third situation is the one we confront in this case: where, on the
execution, an unrepresented, dilatory inmate invokes his right to counsel u
848(q)(4)(B) and moves for a stay under § 2251 so that appointed counsel can prep
file a habeas petition. McFarland makes very clear that such inmates have no
27
entitlement to a stay of execution. Since the Court referred to "inexcusably ign
and given the context of that statement, the Court was referring to inmates who, b
own calculated inaction, have created the exigency necessitating a stay of executi
the Court's view, because § 2251 "dedicates the exercise of stay jurisdiction to th
discretion of a federal court," ___ U.S. at ___, 114 S. Ct. at 2573, a capital i
dilatory conduct in creating the necessity of federal court intervention into
proceedings is a relevant (and in some cases a dispositive) factor in deciding whe
grant a stay of execution, even where it is the inmate's first petition.
To be sure, the McFarland Court's "inexcusably ignores" language mi
considered a change in direction to the extent that it contemplates allowing an in
be executed before a first habeas petition can be considered on the merits. Cf.
v. Thomas, 58 F.3d 590 (11th Cir.) (vacating stay and dismissing capital inmate'
habeas petition filed on the eve of execution solely for the purpose of delay)
granted, 115 S. Ct. 2640 (1995). But McFarland is not to that extent inconsiste
prior Supreme Court cases dealing with dilatory habeas petitioners. On the contra
Court has recognized that the remedy of federal habeas is an equitable one that
with its attendant stay provision, implicates sensitive federalism concerns. McCl
Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 1470 (1991); Barefoot v. Estelle, 463 U.
887, 103 S. Ct. 3383, 3392 (1983).
Because it is an equitable remedy, moreover, Justice Brennan wrote in San
United States that a petitioner's dilatoriness (i.e., "unclean hands") can bar
habeas relief:
[A habeas petitioner's] conduct . . . may disentitle him to
the relief he seeks. . . . Nothing in the traditions of
habeas corpus requires the federal courts to . . . entertain
collateral proceedings whose only purpose is to vex, harass,
or delay.
28
373 U.S. 1, 17-18, 83 S. Ct. 1068, 1078 (1963), overruled in part on other g
McClesky, 499 U.S. at 467, 111 S. Ct. at 1470. More recently, the High Court gr
State's motion to vacate a stay of execution, noting that even apart from the ab
the-writ doctrine applicable to successive petitions,
[e]quity must take into consideration the State's strong
interest in proceeding with its judgment and [the inmate's]
obvious attempt at manipulation. . . . There is no good
reason for . . . abusive delay, which has been compounded by
last-minute attempts to manipulate the judicial process. A
court may consider the last-minute nature of an application
to stay execution in deciding whether to grant equitable
relief.
Gomez v. United States Dist. Court, 503 U.S. 653, 654, 112 S. Ct. 1652, 1653 (199
curiam) (citations omitted) (emphasis added). Furthermore, this court has long rec
that inequitable conduct can preclude a party from obtaining equitable relief:
The guiding doctrine in this case is the equitable
maxim that "he who comes into equity must come with clean
hands." This maxim is far more than a mere banality. It is
a self-imposed ordinance that closes the doors of a court of
equity to one tainted with inequitableness or bad faith
relative to the matter in which he seeks relief . . . .
Monsanto Co. v. Rohm & Haas Co., 456 F.2d 592, 598 (3d Cir.) (quoting Precision Ins
Mfg. Co. v. Automotive Co., 324 U.S. 806, 814, 65 S. Ct. 993, 997 (1945)), cert.
407 U.S. 934, 92 S. Ct. 2463 (1972). Accord Northeast Women's Center v. McMonag
F.2d 1342, 1354 (3d Cir.), cert. denied, 493 U.S. 901, 110 S. Ct. 261 (1989).
McFarland's "inexcusably ignores" language is simply a logical extension
equitable principles set forth in Gomez and Sanders. Deliberately declining to
postconviction processes to delay execution constitutes inequitable conduct. Wh
conduct results in a last-minute application for equitable relief in federal court,
preclude an inmate from having a federal court invoke its equity jurisdiction to in
into state proceedings. Far from relying on "mere delay" or "delay alone," M
Typescript at 20 n.11, my interpretation of McFarland would permit denial of a st
29
where there has been abusive delay--that is, where the failure to invoke known col
processes is not the result of some force external to the inmate, but rather
product of a deliberate attempt to manipulate the remedy of federal habeas corpus
the Majority acknowledges is governed by equitable principles. Id. "Federal hab
not] a means by which a defendant is entitled to delay an execution indefin
Barefoot, 463 U.S. at 887, 103 S. Ct at 3392.
C.
Although I agree with the Majority that "[t]he application of the [McF
standard . . . to the evidence in this case is not difficult," Majority Typescript
I reach a contrary result. As Part IV of the Majority Opinion illustrates, the
developed below amply supports the district court's factual findings. The distric
found: (1) "that [Duffey] was indeed aware that there were available post-con
review processes for him," App. at 32; (2) that "[t]he evidence concerning his
disorder, the prescription of a low dosage of Mellaril, is not the type of eviden
would cause a court to determine that failure to take action should be excused,"
37-38; and (3) that "it was a deliberate decision on the part of Mr. Duffey not
any action to challenge his convictions until a warrant had been signed." Id. at 3
Based on these findings, the district court announced its legal conc
"[Duffey] certainly had the ability to understand that by delaying invoking
conviction processes, he could obtain additional time, [an] additional stay, and fo
the execution of a death warrant." Id. at 34-35. Since the district court's
findings demonstrate conclusively that Duffey had "unclean hands," the court act
within its discretion in denying Duffey's last-minute request to stay his execution
II.
Notwithstanding factual findings that track McFarland's language nearly
word, the Majority concludes that those findings are insufficient to justify the de
a stay. Instead, the Majority reverses and directs entry of a stay under McFarla
30
matter of law. Two distinct reasons appear to support the Majority's decision;
discuss them in turn.
A.
According to the Majority, the primary reason that the district court abu
discretion in denying the requested stay is because the State failed to prove that
"even though dilatory, . . . waive[d] his rights and remedies" under the waiver s
the Supreme Court enunciated in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019
Majority Typescript at 2, 19
(emphasis added). This new-found "waiver" requirement, according to the Major
implicit in and consistent with the McFarland Court's "inexcusably ignores . .
flouts" language. But strict adherence to the Majority's caveat that "the best sou
the standard lies in the language the [McFarland] Court used," id. at 19, reveals t
disputed passage from McFarland in no way implicates the constitutional waiver s
the Majority has interpolated into it.
1.
The greatest difficulty with the Majority's analysis is that it confu
equitable concept of "unclean hands," which disentitles a party to equitable relie
"waiver." As we recently observed in United States v. Goldberg, 67 F.3d 1092 (
1995), the "most commonly understood method of 'waiving' a constitutional right i
affirmative, verbal request." Id. at 1099 (emphasis added). If this is wh
Majority's formulation requires, a stay of execution under § 2251 must issue as a
of law unless a state can prove that an inmate affirmatively said the words "I kno
right to a government-supplied attorney under § 848(q)(4)(B) and am choosing to for
But this belies reality because no inmate bent on waiting until the last minute to
post-conviction remedies will ever say those words within earshot of a state offici
for good reason. Thus, no state could ever prove "inexcusably ignores . . . and
under the Majority's formulation.
31
Elaborating on its waiver requirement, however, the Majority insists
affirmative verbal waiver is unnecessary and that both words and conduct can be ind
of an inmate's "waiver" of "his or her right to counseled habeas review." M
Typescript at 22 n.13. But nowhere does the Majority provide any examples of wo
conduct that would rise to the level of "waiver." Nor does the Majority att
explain why the record in this case fails to satisfy its waiver standard. If th
found by the district court in this case are insufficient to establish waiver un
Majority's view, then it is difficult to imagine any set of circumstances, other
affirmative verbal waiver which the Majority expressly disavows, see id., in which
of execution may be denied under McFarland.
McFarland's language contemplates that inequitable conduct can lead to
forfeiture of equitable relief under §2251 to which the inmate is otherwise entitl
matter of law. This is entirely consistent with notion that the equitable doct
"unclean hands" can bar relief in federal habeas, see Gomez, 503 U.S. at 654, 112
at 1653; Sanders, 373 U.S. at 17-18, 83 S. Ct. at 1078, even where it is the i
first petition. Lonchar, 58 F.3d at 590.
2.
The Majority imports Johnson v. Zerbst's "waiver" requirement into Mc
because it appears to believe that the right to appointed counsel in § 848(q
occupies the same venerated status as the Sixth Amendment right to counsel. See M
Typescript at 19-21 & nn.11-12. Because the Sixth Amendment right to counsel
"fundamental" to fair adjudication, Goldberg, 67 F.3d at 1097, counsel must be p
regardless of whether criminal defendants are aware of their rights. Precisely f
reason the "waiver" standard enunciated in Johnson is a stringent one. Based
analogy, the Majority essentially holds that states must provide habeas coun
indigent inmates unless and until the inmate affirmatively and verbally expre
contrary desire.
32
This both misstates and grossly exaggerates the role of § 848(q)(4)(B)
scheme of federal habeas. Unlike the Sixth Amendment, § 848(q)(4)(B) is neit
affirmative obligation nor a negative restriction on states. On the contrary,
simply "a funding statute [that] provides for the appointment of attorneys . .
defendants or habeas corpus petitioners seeking to vacate or set aside a death sen
Jackson v. Vasquez, 1 F.3d 885, 888 (9th Cir. 1993) (emphasis added). It is the
therefore, who must take the initiative. Even then, however, a stay of execution
effect to the right to counsel, once invoked, will not be forthcoming if the inmat
into federal court with unclean hands; that is, if he has "inexcusably ignore[
conviction remedies] and flout[ed] the available processes." McFarland, ___ U.S.
114 S. Ct. at 2573.
The Majority's view essentially converts the counsel-funding statute into
prohibition on executing death-sentenced inmates until a first habeas petition h
prepared and filed. But McFarland's "stay discretion" analysis contemplates th
dilatory capital inmates could be executed before a first petition has been consid
the merits. The Majority's position, therefore, directly contravenes the Supreme
explicit admonition that its "conclusion by no means grants capital defendants a r
an automatic stay of execution." Id. at ___, 114 S. Ct. at 2573.
3.
There is a third difficulty with the "waiver" standard. If the Major
indeed correct that the McFarland Court contemplated denying a stay only when th
been a true verbal waiver, then the Court's separate treatment of "stay discreti
"stay jurisdiction" was unnecessary; under the Majority's view the two merge.
As discussed earlier, the rationale for the Court's "stay jurisdiction"
is that if a defendant who seeks federal habeas relief and attempts to invoke his r
a government-supplied lawyer under § 848(q)(4)(B) is executed before the petition h
prepared and filed, the statutory right would be meaningless. But where an i
33
dilatory or otherwise--has affirmatively waived his right to a lawyer u
848(q)(4)(B), McFarland indicates that a district court would lack subject
jurisdiction under § 2251 even to consider the request. "[A] district cou
jurisdiction to enter a stay of execution where necessary to give effect to that st
right." McFarland, ___ U.S. at ___, 114 S. Ct. at 2574 (emphasis added). Since a
execution logically cannot give effect to a statutory right that the inma
affirmatively waived, the Majority's "waiver" standard effectively collapses McFa
distinct "stay jurisdiction" and "stay discretion" discussions into a single inquir
More significantly, collapsing McFarland's "stay jurisdiction" and
discretion" discussions into a single inquiry has the effect of placing the bu
proof on the "inexcusably ignores . . . flouts" issue on the inmate. It is well-
that the party seeking federal relief must plead and prove facts sufficient to demo
a federal court's subject-matter jurisdiction. See, e.g., McNutt v. General
Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785 (1936); Columbia Gas Trans
Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995). If discretion to issue a stay
only where there is jurisdiction to grant a stay, then a prima facie show
entitlement to a stay would require affirmative proof of nonwaiver. Because the M
insists that the burden to demonstrate waiver is on the state, Majority Typescript
21, its waiver analysis proves to be wholly unworkable.0
B.
0
I agree with the Majority that the burden to show "inexcusably ignores . . . and
rests with the state, but I base that conclusion on the simple fact that Mc
expresses a presumption in favor of a stay. Since that presumption is rebutted on
the inmate has "inexcusably ignore[d] . . . and flout[ed]," the state should b
burden of demonstrating that an inmate has engaged in conduct that disentitles
equity relief that otherwise would issue as a matter of law. See generally Cib
Corp. v. Bolar Pharm. Co., Inc., 747 F.2d 844, 855 (3d Cir. 1984) ("unclean hands
affirmative defense; burden of persuasion on party resisting opponent's reque
equitable relief), cert. denied, 471 U.S. 1137, 105 S. Ct. 2678 (1985).
34
The second reason the Majority relies on to support its decision to rever
flows directly from its constitutional waiver requirement. The Majority appe
believe that when the Supreme Court referred to an inmate who "inexcusably ignor
opportunity and flouts available processes," it was requiring that the inmate
specific awareness of the federal right to counsel codified in § 848(q)(4)(B):
[T]he opportunity and processes of which the Supreme Court
spoke in the passage at issue . . . include the right to
federal habeas counsel . . . . We believe that the Court's
antecedent reference in that passage to a capital
defendant's 'right to counsel' . . . compel[s] this result.
Majority Typescript at 16. Since there was no record evidence that Duffey speci
was aware of his statutory right to a government-supplied attorney, the a
continues, Duffey could not have knowingly and intelligently "waived," or "inex
ignore[d]," that right as a matter of law. I disagree.
In my view, the McFarland Court's reference to "this opportunity" was ad
to state and federal post-conviction processes in a general sense, not to the c
funding statute specifically. As noted above, the statutory right to counsel obtai
if and when an inmate decides to initiate federal habeas relief. But inmat
purposely decline to invoke state or federal collateral remedies solely to delay ex
are intentionally subjecting themselves to the very risk that a stay of executio
McFarland is designed to avoid: execution prior to having a federal court adjudicat
constitutional claims on the merits. Thus, a specific awareness of § 848(q)(4
irrelevant to the McFarland inquiry; rather, the deliberate creation of
circumstances necessitating federal court intervention into state proceedings sh
the central focus.
There is a more common-sense reason for interpreting the Supreme
reference to "this opportunity" as relating to collateral remedies generally.
inmates who are cognizant of state and federal post-conviction processes but w
35
determined to wait until a death warrant has been signed to invoke them will
motivated to seek relief any sooner simply because they know that a government-s
attorney stands ready and willing to prepare and file their habeas petitions. Th
Circuit's recent observation about the current state of death-penalty litigation c
that even
counsel for a death-sentenced criminal never wishes to file
a habeas corpus petition unless that is the last-ditch way
to avoid an actual execution, when the prisoner is more
concerned with avoiding execution than with receiving a
final adjudication of his claims. . . . Therefore, it is
almost always in the interest of a death-sentenced prisoner
to delay filing that petition as long as possible.
Steffen, 39 F.3d at 625 (emphasis added). If counsel for a capital defendant ac
his client's best interests will deliberately wait until the eve of execution to
first habeas petition, then an unrepresented inmate's specific awareness of a st
counsel-funding provision is unlikely to alter the inmate's behavior. The
statute, therefore, should not be dispositive of McFarland's dilatoriness inquiry.
C.
Finally, I agree with the Majority that the district court erred in loo
the "cause" prong of the "cause and prejudice" test to determine whether Duffey's i
of available postconviction remedies was "inexcusable" under McFarland.
Majority Typescript at 18.0 The "cause and prejudice" standard is not implicated
McFarland Court's language and, thus, is irrelevant.
In any event, "cause," as the Majority observes, refers to a deliberate
of a state procedural requirement, whereas McFarland is concerned with the fai
invoke either state or federal substantive remedies. Indeed, the "cause" anal
0
As the Majority recognizes, the factors the district court analyzed under its
analysis--possible state interference with Duffey's attempts to litigate and co
impairment--certainly were relevant to the question whether there was some force e
to Duffey that prevented him from invoking postconviction remedies. To this
therefore, the district court's legal error was harmless, because it ultimately l
more developed factual record.
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illogical, for while the failure to initiate a state postconviction proceeding
death warrant has been signed may be "excusable" (because it is permissible) unde
procedural law, it very well may simultaneously constitute "inexcusably ignor[ing]
and flout[ing]" under McFarland. That is so because, as the Majority observe
exhaustion doctrine requires that a habeas petitioner first present his claims
state courts before obtaining federal habeas relief. See 28 U.S.C. § 2254(b); E
Royall, 117 U.S. 241, 6 S. Ct. 734 (1886); see also Coleman v. Thompson, 501 U.
731, 111 S. Ct. 2546, 2554 (1991). Since exhaustion of state remedies is a ne
predicate to obtaining federal habeas relief, a capital inmate should not be permi
circumvent McFarland's warning to dilatory inmates simply by deliberately ignorin
post-conviction remedies as a way of delaying federal habeas relief and, ulti
execution. Cf. Steffen, 39 F.3d at 622 (no jurisdiction to issue McFarland
represented inmate so that counsel can pursue novel claims in state court); c
Sterling v. Scott, 57 F.3d 451 (5th Cir. 1995) (no right to counsel under § 848(q
to pursue unexhausted claims in state court). Thus, I agree with the Majority t
"cause and prejudice" test is wholly inapposite to McFarland's dilatoriness inquiry
IV.
The Supreme Court in McFarland specifically stated that a stay of execut
be denied if a death-row inmate "inexcusably ignores [post-conviction remedies] and
the available processes." McFarland, ___ U.S. at ___, 114 S. Ct. at 2573. The d
court found that for over six years after his direct appeal had been exhausted,
Duffey declined to attack collaterally his conviction and sentence simply to postp
execution. Those findings are amply supported by the record. The district
decision to deny the stay, therefore, was well within its discretion under § 2
consistent with the dictates of McFarland. Because I fear that the Majority's "
standard will render the issuance of a stay under § 2251 automatic in this C
37
notwithstanding the McFarland Court's express admonition to the contrary, I respe
dissent.
38