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DUFFEY v. LEHMAN

February 21, 1995

STEVEN DUFFEY, Petitioner/Plaintiff,
v.
JOSEPH D. LEHMAN, Commissioner of the Pennsylvania Department of Corrections; WILLIAM J. LOVE, Superintendent of the State Correctional Institution at Huntingdon; and JOSEPH P. MAZURKIEWICZ, Superintendent of the State Correctional Institution at Rockview, Respondents/Defendants.



The opinion of the court was delivered by: THOMAS I. VANASKIE

 The Commonwealth of Pennsylvania has moved for reconsideration of this Court's issuance of a "certificate of probable cause" ("CPC") incident to the denial of convicted murderer Steven Duffey's request for a stay of execution pending the preparation of a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Congress has provided that "an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding . . . unless . . . the judge who rendered the order or a circuit justice or judge issues a certificate of probable cause." 28 U.S.C. § 2253 (emphasis added). Because the denial of a stay is not a "final" order in a habeas corpus proceeding, it appears that a CPC was improvidently granted in this matter. Moreover, a CPC may be issued only where the appellant makes a "'substantial showing of the denial of a federal right.'" Barefoot v. Estelle, 463 U.S. 880, 893, 77 L. Ed. 2d 1090, 103 S. Ct. 3383 (1983). Although Duffey raises substantial issues concerning a district court's discretion to deny a stay when an inmate has not invoked post-conviction processes for almost six-years, his appeal does not concern a "federal right" because there is no "right" to a stay of execution Accordingly, the Commonwealth's Motion for Reconsideration will be granted and the CPC will be stricken.

 BACKGROUND

 On September 22, 1994, Governor Robert P. Casey signed a death warrant, scheduling Duffey's execution for the week of December 4, 1994. The warrant was issued based upon Duffey's conviction of the February 17, 1984 murder of 19 year-old Kathy Kurimchak. Execution of the warrant was scheduled for December 6, 1994, at 10:00 p.m.

 On November 16, 1994, Duffey, acting "pro se" but clearly represented by the Pennsylvania Capital Case Resource Center (the "Resource Center"), filed in the Court of Common Pleas of Lackawanna County a motion for a stay of execution in order to permit him to obtain counsel to prepare a petition under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 et seq. No grounds for challenging the constitutional validity of Duffey's conviction and death sentence were articulated in this "pro se" motion.

 On November 18, 1994, the Honorable James M. Munley, who had presided over Duffey's trial, denied the motion. A motion for reconsideration was denied by Judge Munley on November 22, 1994. An appeal from Judge Munley's Order was taken to the Pennsylvania Supreme Court on November 28, 1994. Duffey asked the Pennsylvania Supreme Court to stay his execution.

 Also on November 28, 1994, the Resource Center, acting as counsel for Duffey, filed in this Court an "omnibus" document, titled "Motion to Proceed in Forma Pauperis, for 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." Duffey asserted that he was entitled to appointment of counsel to assist in the preparation of a federal habeas corpus petition, see 21 U.S.C. § 848(q)(4)(b), and requested a stay of execution to enable counsel to seek relief under 28 U.S.C. § 2254. *fn1"

 On December 5, 1994, the Pennsylvania Supreme Court denied Duffey's request for a stay of execution. Later that day, I granted a temporary stay under 28 U.S.C. § 2251 in order to determine whether Duffey had inexcusably ignored available post-conviction remedies for the purpose of delaying his execution. This concern was prompted by the fact that Duffey's conviction had been affirmed in 1988, Commonwealth v. Duffey 519 Pa. 348, 548 A.2d 1178 (1988), and no post-conviction challenge had been mounted by Duffey for approximately 6 years. Indeed, Duffey did not move for the appointment of counsel to assist in the preparation of a PCRA petition until almost two months after the death warrant was issued. In McFarland v. Scott, U.S. , 129 L. Ed. 2d 666, 676, 114 S. Ct. 2568 (1994), the Court stated that "if a dilatory capital defendant inexcusably ignores [the opportunity to present a counseled habeas corpus petition] and flouts the available processes, a federal court presumably would not abuse its discretion in denying a stay of execution." An evidentiary hearing was ordered to address the question of delay in the context of this caveat in McFarland.

 In order to afford the parties adequate time to secure evidence that may be relevant to Duffey's delay in pursuing post-conviction relief, the hearing was scheduled for December 15, 1994, with the stay to remain in effect until December 23, 1994. *fn2" Evidence was presented by the parties on December 15, 16, 19, and 20, 1994. Closing argument was heard on December 21, 1994, after which I expressed from the Bench findings of fact and conclusions of law. I ruled that, although Duffey was entitled to the appointment of counsel to prepare a § 2254 petition, he was not entitled to a stay of execution because he had inexcusably ignored available post-conviction processes.

 At the conclusion of what was a very emotional proceeding, the following exchange occurred:

 
Mr. Wiseman: Your Honor, first we will be filing with the court a request for a certificate of probable cause, I imagine, tomorrow morning.
 
THE JUDGE: All right. That will be granted. I think there is a sufficient issue here that you would get a certificate of probable cause on that. [Transcript of December 21, 1994 proceedings at 110.] *fn3"

 The following day, without awaiting a written application for a CPC, I issued the following Order:

 
NOW, in accordance with the Findings of Fact and Conclusions of Law expressed following oral argument on December 21, 1994, IT IS HEREBY ORDERED THAT:
 
1. Plaintiff's Motion for a Stay pending preparation of a petition for a writ of habeas corpus pursuant to ...

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