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DEATH ROW PRISONERS v. RIDGE

October 24, 1996

DEATH ROW PRISONERS OF PENNSYLVANIA, including, MICHAEL RAINEY, JAMES SMITH, TYRONNE MOORE, GEORGE EDWARDS, SCOTT BLYSTONE and ROLAND STEELE, for themselves and all other Pennsylvania Death Row Prisoners who are similarly situated,
v.
THOMAS RIDGE, individually and in his official capacity as Governor of the Commonwealth of Pennsylvania; THOMAS CORBETT, individually and in his official capacity as Attorney General of the Commonwealth of Pennsylvania; MARTIN HORN, individually and in his official capacity as Commissioner of the Department of Corrections of the Commonwealth of Pennsylvania, and OTHER EMPLOYEES AND OFFICERS OF THE COMMONWEALTH OF PENNSYLVANIA WHOSE IDENTITIES ARE PRESENTLY NOT KNOWN



The opinion of the court was delivered by: PADOVA

 Padova, J.

 October 24, 1996

 Plaintiffs, death row prisoners in the Commonwealth of Pennsylvania, filed this action against sundry Commonwealth officials, seeking a declaratory judgement that the Commonwealth of Pennsylvania is not an "opt-in" jurisdiction as that term is used and understood in the context of the Habeas Corpus provisions of the recently enacted Antiterrorism and Effective Death Penalty Act, 1996. Pub. L. No. 104-132, 110 Stat. 1214 (1996) (the "Act"). The named Defendants in this suit are Governor Thomas Ridge, Attorney General Thomas Corbett, and Commissioner Martin Horn of the Pennsylvania Department of Corrections ("Defendants"). Each Defendant is sued in both his official capacity and his individual capacity.

 In addition to the Complaint seeking relief in connection with the Habeas Corpus provisions of the Act, Plaintiffs filed a motion for the appointment of federal habeas counsel pursuant to 21 U.S.C.A. § 848(q)(4)(B) of the Drug Abuse and Prevention Act §§ 801-971 (West 1972 and Supp. 1996) and an accompanying Motion for Subclass Certification to pursue the same. *fn1" For the reasons that follow, Plaintiffs' Motion for the Appointment of Counsel is denied as to the named Plaintiffs. *fn2"

 I. DISCUSSION

 Plaintiffs argue that they are entitled to appointment of counsel pursuant to § 848(q)(4)(B) which provides, in relevant part that,

 
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 the appointment of one or more attorneys and the furnishing of such other services in accordance with [the paragraphs that follow].

 21 U.S.C.A. § 848(q)(4)(B) (West 1996).

 Plaintiffs rely on the Supreme Court's decision in McFarland v. Scott, 512 U.S. 849, 129 L. Ed. 2d 666, 114 S. Ct. 2568 (1994), where a Texas trial court set an execution date for petitioner after the Supreme Court denied certiorari on his direct appeal. Id. at 2570. Shortly before his execution date, the prisoner filed a pro se motion requesting that the trial court stay his execution date and appoint counsel for his state habeas corpus proceeding. Id. The trial court postponed the execution date by a month, but declined to appoint counsel. Id. The petitioner then filed a pro se motion with the state appellate court requesting a stay and a remand for appointment of counsel, which was denied. Id. Petitioner then filed a motion in federal district court, stating that he wished to challenge his conviction under § 2254, requesting appointment of counsel under § 848(q)(4)(B), and seeking a stay to allow counsel time to prepare and file a federal habeas petition. Id.

 The district court denied the motion for counsel and a stay. The Court found that because no federal habeas petition had been filed, it did not have the authority under § 848 to appoint counsel or to grant a stay under 28 U.S.C. § 2251. McFarland, 114 S. Ct. at 2571. On appeal, the Supreme Court held that under

 § 848(q)(4)(B), a capital prisoner is entitled to the appointment of habeas counsel "prior to the filing of a formal, legally sufficient habeas corpus petition . . . . Congress thus established a right to preapplication legal assistance for capital defendants in federal habeas proceedings." Id. at 2572. Moreover, once the motion for appointment of counsel has been filed, the district court has the authority and discretion to grant a stay. Id. at 2573.

 Plaintiffs in the instant action contend that they do not seek appointment of counsel to prepare and conduct state post-conviction proceedings, a course of action foreclosed in Sterling v. Scott, 57 F.3d 451, 458 (5th Cir. 1995). Rather, Plaintiffs contend that they would like federal counsel to prepare federal habeas petitions on their behalf. Plaintiffs acknowledge that they will have to obtain separate counsel for state post-conviction proceedings from other sources and that the efforts of state and federal counsel may parallel each other.

 Nevertheless, Plaintiffs contend that McFarland holds that they have a right to appointment of federal habeas counsel now. Specifically, Plaintiffs point to the language in McFarland which states that "a '[federal] post conviction proceeding' within the meaning of § 848(q)(4)(B) is commenced by the filing of a death row defendant's motion requesting the ...


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