Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 94-cv-01947)
Before: MANSMANN, COWEN and LEWIS, Circuit Judges.
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.
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.
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. Section(s) 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 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. Section(s) 2251 and 21 U.S.C. Section(s) 848(q) -- and -- Complaint for Injunctive Relief under 42 U.S.C. Section(s) 1983" *fn1 in the United States District Court for the Middle District of Pennsylvania, naming as respondents several officials with the Pennsylvania Department of Corrections. *fn2 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. *fn3 With regard to Duffey's 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 postconviction 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 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. *fn4
In McFarland v. Scott, ___ U.S. ___, 114 S. Ct. 2568 (1994), *fn5 the Supreme Court was presented with a two-pronged inquiry of statutory construction: whether a capital defendant's right under 21 U.S.C. Section(s) 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. Section(s) 2251 to enter a stay of execution "in a habeas corpus proceeding" adhere prior to the filing of a legally sufficient habeas corpus petition. *fn6 The Court determined that they did.
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 Section(s) 848(q)(4)(B) is commenced by the filing of a death row 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. Section(s) 2251 to enter a stay of execution because the language in 21 U.S.C. Section(s) 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. Section(s) 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 presumably would not abuse its discretion in denying a stay of execution. Id. at 2573 (emphasis added) (citation omitted).
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). *fn7 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. Section(s) 848(q)(4)(B) which, in turn, invoked the stay jurisdiction of the district court under 28 U.S.C. Section(s) 2251.
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.
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. *fn8 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 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), *fn9 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]".
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 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 ...