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Frey v. Beard

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


May 4, 2007

JAMES E. FREY, PETITIONER,
v.
JEFFREY BEARD, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; LOUIS S. FOLINO, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GREENE; THIS IS A CAPITAL CASE AND FRANKLIN J. TENNIS, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, RESPONDENTS.

The opinion of the court was delivered by: (Judge Conner)

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS

Petitioner, James E. Frey, a state prisoner sentenced to death following his conviction for first-degree murder and related charges, filed a motion for leave to proceed in forma pauperis and for appointment of federal habeas corpus counsel on February 9, 2007. (Doc. 1.) The court granted the motion on February 12, 2007,*fn1 and petitioner was directed to file a petition for writ of habeas corpus on or before August 13, 2007. (See Doc. 2.)

On April 25, 2007, the Governor of Pennsylvania signed a warrant scheduling petitioner's execution for June 21, 2007. (See Doc. 4.) Consequently, petitioner presently seeks a stay of execution pursuant to McFarland v. Scott, 512 U.S. 849 (1994), and 28 U.S.C. § 2251.*fn2

In McFarland, the United States Supreme Court held that "a 'post conviction proceeding' within the meaning of [§ 3599(a)(2)] is commenced by the filing of a capital defendant's motion requesting the appointment of counsel for his federal habeas corpus proceeding." Id. at 856-57. Accordingly, once a capital defendant files a motion requesting appointment of counsel, as petitioner has done in this case, he is granted "a mandatory right to qualified legal counsel." Id. at 854. This right to counsel "necessarily includes a right for that counsel meaningfully to research and present a defendant's habeas claims." Id. at 858. The Supreme Court cautioned that "[w]here this opportunity is not afforded, '[a]pproving the execution of a defendant before his [petition] is decided on the merits would clearly be improper.'" Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 889 (1983)).

Consequently, the Supreme Court further held that § 3599(a)(2) and § 2251 "must be read in pari materia to provide that once a capital defendant invokes his right to appointed counsel, a federal court also has jurisdiction under § 2251 to enter a stay of execution." McFarland, 512 U.S. at 858. This conclusion, however, "by no means grants capital defendants a right to an automatic stay of execution." Id. Rather, the Supreme Court interpreted § 2251 as granting "the exercise of stay jurisdiction to the sound discretion of a federal court." Id. Circumstances warranting such a stay include a situation where a capital defendant's counsel would not have time to meaningfully research and prepare a defendant's habeas claims before a warrant of execution is carried out by the state. See id.

In the present case, petitioner is scheduled to be executed approximately two months before his petition for writ of habeas corpus is due to this court. In order to afford not only petitioner an opportunity to litigate a meaningfully counseled habeas corpus petition, but also this court an opportunity to address that petition on the merits, it is evident that petitioner's motion for a stay of execution must be granted. In doing so, the court is following, as it must, the clear precedents established by the United States Supreme Court and the United States Court of Appeals for the Third Circuit governing actions of this type.

ACCORDINGLY, upon consideration of petitioner James E. Frey's motion for a stay of execution (Doc. 3), it is hereby ORDERED that the motion (Doc. 3) is GRANTED. Any state proceedings for the execution of petitioner are STAYED pending disposition of the anticipated petition for writ of habeas corpus, or until further order of this court. See 28 U.S.C. § 2251.

CHRISTOPHER C. CONNER United States District Judge


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