decided: August 18, 1954.
UNITED STATES OF AMERICA EX REL. SILVIO DE VITA, APPELLANT,
LLOYD W. MCCORKLE, PRINCIPAL KEEPER OF THE NEW JERSEY STATE PRISON AT TRENTON, NEW JERSEY.
Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.
De Vita, found guilty of murder in connection with an armed robbery in New Jersey, petitioned the court below for a writ of habeas corpus alleging that he had been denied due process of law, as guaranteed by the Fourteenth Amendment, by the State Tribunals. Specifically he alleges that one of the jurors who sat in this case was not an impartial or indifferent person as required by law. He is under sentence of death, to be executed in the week commencing August 15th, 1954.
The court below by Judge Modarelli denied the relief sought by De Vita but nonetheless granted a certificate of probable cause for appeal pursuant to Section 2253, 28 U.S.C., and entered an order staying De Vita's execution until noon Thursday, August 19, 1954. De Vita has appealed and has petitioned this court for the stay of his execution pending the disposition of the appeal. We shall grant the stay. It obviously would be a mockery of federal justice to execute De Vita pending the disposition of his appeal in view of the fact that Judge Modarelli, after denying the petition for habeas corpus, granted a certificate of probable cause for appeal. See Fouquette v. Bernard, 9 Cir., 1952, 198 F.2d 96. In so acting we are not unaware of the delicate balance that exists and must continue to exist between the State and federal tribunals in matters of this nature. But under the circumstances presented we have no other alternative.
Accordingly, a stay of execution will be granted pending the disposition of the appeal in the instant case.
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