Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-1996

Duffey v. Lehman
Precedential or Non-Precedential:

Docket 94-9003




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"Duffey v. Lehman" (1996). 1996 Decisions. Paper 181.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/181


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                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                              No. 94-9003
                              ___________

         STEVEN DUFFEY,

                          Appellant

                     v.

         JOSEPH D. LEHMAN, Commissioner of the
         PA Department of Corrections;
         WILLIAM J. LOVE, Superintendent of the
         State Correctional Institution at Huntingdon;
         JOSEPH P. MAZURKIEWICZ, Superintendent of
         the State Correctional Institution at Rockview
                           ___________

          Appeal from the United States District Court
             for the Middle District of Pennsylvania
                   (D.C. Civ. No. 94-cv-01947)
                           ___________

                                 Argued
                            October 26, 1995
       Before:     MANSMANN, COWEN and LEWIS, Circuit Judges.

 (Opinion Filed:    January 16, 1996; Vacated:   February 12, 1996)

                         Reargued In Banc
                           May 14, 1996
                 Before: SLOVITER, Chief Judge,
         BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA,
      COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE and SAROKIN,
                         Circuit Judges.

                            (Filed: 5-22-96)
                               _________

Billy H. Nolas, Esquire
Robert B. Dunham, Esquire (ARGUED)
Pennsylvania Post-Conviction
  Defender Organization
437 Chestnut Street
Suite 501
Philadelphia, PA 19106

  COUNSEL FOR APPELLANT
Michael J. Barrasse, Esquire
William P. O'Malley, Esquire (ARGUED)
Office of the District Attorney
200 North Washington Avenue
Lackawana County Courthouse
Scranton, PA 18503

  COUNSEL FOR APPELLEE
                            __________

                              ORDER
                            __________

         On December 23, 1994, Steven Duffey, a Pennsylvania
state prisoner incarcerated under a sentence of death, appealed
the district court's denial of his motion for stay of execution,
alleging entitlement under the standard announced by the U.S.
Supreme Court in McFarland v. Scott, 

(1994).
Agreeing, a panel of this court remanded the case for entry of an
order granting Duffey a stay pending the presentation of a first
petition for writ of habeas corpus after the state courts ruled
on his post-conviction petition. By order dated February 12,
1996, we granted the Commonwealth's petition for rehearing in
banc, thus vacating the panel's judgment and withdrawing the
panel opinion.
         Prior to the in banc argument, Duffey filed a motion to
dismiss the appeal as moot, claiming that because the district
court has now appointed counsel under 21 U.S.C.   848(q)(4)(B) to
assist him in the investigation, preparation, and filing of a
federal habeas petition, his entitlement to a stay is no longer
governed by McFarland. Moreover, the death warrant issued for
the week of December 4, 1994, has expired.
         At oral argument before the court in banc, counsel for
Duffey advised that a first federal habeas petition has not yet
been filed. Court-appointed counsel instead elected to pursue
Duffey's unexhausted state claims under the Pennsylvania Post-
Conviction Relief Act, 42 Pa. Cons. Stat.   9543, et. seq., and a
petition is currently pending before the Court of Common Pleas of
Lackawanna County, Pennsylvania. Should a new death warrant
issue, counsel assured us that Duffey was prepared to append to
any motion for stay of execution, if not granted by the state
courts, his first federal habeas petition. Thus, counsel
contended that this appeal, which challenged the denial of a stay
under McFarland, is factually moot and could not arise again.
         Because we agree that this appeal is now factually in a
different posture and accepting the representations of Duffey's
counsel that Duffey would not return to the federal courts under
the same circumstances, we decline to consider the issue
originally presented in this appeal. In accordance with United
States v. Munsingwear, Inc., 

(1950), we, therefore,
dismiss this appeal and vacate the judgment of the district court
on the motion for stay.

                         BY THE COURT,
                         /s/ Carol Los Mansmann
                            Circuit Judge




Attest:



_____________________
P. Douglas Sisk, Clerk