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In re Zettlemoyer

filed: May 1, 1995; As Amended May 2, 1995.

IN RE: KEITH ZETTLEMOYER ALDONA DEVETSCO; THOMAS SCHMIDT; AND KEITH ZETTLEMOYER, PETITIONERS/APPELLANTS
v.
MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; AND JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW



On Appeal from the United States District Court For the Middle District of Pennsylvania. (D.C. No. 95-cv-00660).

Before: Sloviter, Chief Judge, Greenberg and Nygaard, Circuit Judges.

Opinion OF THE COURT

Per Curiam.

Petitioners Aldonda DeVetsco and Thomas Schmidt appeal from the district court's orders dismissing their petition for a writ of habeas corpus brought on behalf of Keith Zettlemoyer and denying their request for a stay of Zettlemoyer's execution on the ground that they have no standing. For the reasons set forth below, we will affirm the dismissal order of the district court and deny the petitioners' motion for a stay of execution filed in this court.

I.

On October 13, 1980, Keith Zettlemoyer was arrested and charged with murder for the shooting death of Charles DeVetsco. On April 24, 1981, after a jury trial in the Court of Common Pleas of Dauphin County, Zettlemoyer was convicted of first degree murder. On that same date, after a brief sentencing hearing, the jury determined that the death penalty should be imposed.

After Zettlemoyer's post-verdict motions were denied, Zettlemoyer filed a direct appeal to the Supreme Court of Pennsylvania, which affirmed the conviction and sentence. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (Pa. 1982), cert. denied, 461 U.S. 970 (1983). Zettlemoyer then filed a petition under Pennsylvania's Post-Conviction Hearing Act ("PCHA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq.*fn1 The PCHA action was denied without a hearing, see Commonwealth v. Zettlemoyer, 106 Dauphin County Reports 215 (1985), and that denial was affirmed on appeal. Commonwealth v. Zettlemoyer, 515 A.2d 620 (Pa. Super. Ct. 1986), allocatur denied, 518 A.2d 807 (Pa. 1986), cert. denied, 481 U.S. 1007 (1987).

On July 17, 1987, Zettlemoyer filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Middle District of Pennsylvania. On May 31, 1988, the district court dismissed the petition. The dismissal was affirmed by this court in a split opinion. See Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.), cert. denied, 502 U.S. 902 (1991).*fn2

On February 28, 1995, the governor of Pennsylvania signed a death warrant scheduling Zettlemoyer's execution for the week of April 30, 1995. The execution is currently set for May 2, 1995.

On April 27, 1995, petitioners Aldonda DeVetsco, the mother of the individual murdered by Zettlemoyer, and Thomas Schmidt, who was Zettlemoyer's attorney in the PCHA proceedings and in Zettlemoyer's prior federal habeas action, filed a second petition for habeas corpus on Zettlemoyer's behalf in the United States District Court for the Middle District of Pennsylvania.*fn3 The petition raises a variety of claims, including (1) that Zettlemoyer is mentally ill and incompetent and his execution would therefore violate the Eighth Amendment, (2) that Zettlemoyer's trial counsel was inadequate, (3) that newly discovered evidence suggests that the imposition of the death penalty in this case was unconstitutional under Simmons v. South Carolina, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), and (4) that the method of execution (lethal injection) employed by the state of Pennsylvania constitutes cruel and unusual punishment under the Eighth Amendment. In conjunction with the filing of the petition, petitioners filed an application to stay the execution.

On April 29, 1995, after a two-day evidentiary hearing, the district court concluded that DeVetsco and Schmidt lacked standing to pursue the petition. It therefore dismissed the petition and denied the petitioners' application for the stay. The district court, however, granted the petitioners' application for a certificate of probable cause and this appeal followed. In connection with the appeal, petitioners have filed with this court a "Motion for Stay of Execution and Request for a Meaningful Opportunity for Briefing and for Oral Argument."

II.

In considering the petitioners' request for a stay, and before proceeding to the merits of the petition, we must first address the threshold question of petitioners' standing to pursue this habeas petition and request for a stay. Article III of the United States Constitution grants the federal courts jurisdiction over only "cases and controversies," and the standing doctrine "serves to identify those disputes which are appropriately resolved through the judicial process." Whitmore v. Arkansas, 495 U.S. 149, 155, 109 L. Ed. 2d 135, 110 S. Ct. 1717 (1990) (citing Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471-76, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982)). Where standing is lacking, the federal courts lack the power to grant habeas relief. See Demosthenes v. Baal, 495 U.S. 731, 737, 109 L. Ed. 2d 762, 110 S. Ct. 2223 (1990).

In the petition, both DeVetsco and Schmidt argue that they are entitled to "next friend" standing to pursue the petition on behalf of Zettlemoyer. In Whitmore, the Supreme Court clarified that a party seeking to establish "next friend" standing must, among other things, "provide an adequate explanation--such as inaccessibility, mental incompetence, or other disability--why the real party in interest cannot appear on his own behalf to prosecute the action." Whitmore, 495 U.S. at 163.*fn4 The burden is on the "next friend" to establish this prerequisite. Id. at 164. Notably, the Whitmore Court also held that "next friend" standing is not available if "an evidentiary hearing shows that the defendant has given a knowing, intelligent and ...


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