Petitioner, a state prisoner scheduled for electrocution on February 2, 1982, filed a motion to stay the execution of sentence in this case pursuant to 28 U.S.C. § 2251. Because of time constraints, the motion was considered and granted before the panel had time to prepare a written opinion.

At about 7:30 p. m. on Saturday, January 30, 1982, the United States District Court for the Middle District of Florida denied petitioner's petition for writ of habeas corpus in a 32-page opinion. The following grounds for relief were considered:

1. insufficiency of the evidence;

2. refusal to consider relevant mitigating circumstances;

3. striking aggravating circumstances;

4. refusal to instruct jury on a lesser included offense;

5. the Supreme Court of Florida's improper ex parte consideration of extra-record materials;

6. systematic exclusion of death scrupled jurors;

7. improper overriding of jury's verdict of life imprisonment;

8. unconstitutionality of trial court overriding jury verdict of life and imposing a sentence of death;

9. improper restriction of mitigating circumstances;

10. refusal to sever counts;

11. improperly admitted prejudicial evidence;

12. improper closing argument;

13. unconstitutional aggravating evidence.

The district court issued a certificate of probable cause under 28 U.S.C. § 2253,1 but denied a stay of execution of sentence. Upon the issuance of the certificate, the petitioner had an absolute right to appeal the final order of the district court to this Court. A review on the merits is required. Nowakowski v. Maroney, 386 U.S. 542, 87 S. Ct. 1197, 18 L. Ed. 2d 282 (1967).

Petitioner was under a death sentence and scheduled for execution on Tuesday, February 2, 1982, at 7:00 a. m. The appeal papers were delivered to the members of this panel on February 1, 1982.

It was apparent to the Court that a responsible review of the district court proceedings could not be accomplished prior to the scheduled time for execution of sentence. Petitioner's application for a writ of habeas corpus is his first assertion of most of his constitutional arguments in federal court. Although state-court fact findings properly made are presumed correct by the federal court in a § 2254 action,2 Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981), this Court is required to consider every legal challenge made pursuant to federal constitutional law. Napue v. Illinois, 360 U.S. 264, 271, 79 S. Ct. 1173, 1178, 3 L. Ed. 2d 1217 (1959).

Issue number five presented by the petition for habeas corpus relief has never been decided by any federal appellate court. It was considered by the state court, Brown v. Wainwright, 392 So. 2d 1327 (Fla.1981), cert. denied, --- U.S. ----, 102 S. Ct. 542, 70 L.Ed.2d ---- (1981). The issue is present in several similar appeals in which the sentences of execution have been stayed. Antone v. Strickland, No. 82-5120 (11th Cir., appeal filed Feb. 1, 1982) (order remanding to district court); Ford v. Wainwright, No. 81-6200 (11th Cir., appeal filed Dec. 7, 1981); Witt v. Wainwright, No. 81-5750 (11th Cir., appeal filed July 24, 1981); Foster v. Strickland, No. 81-5734 (11th Cir., appeal filed July 23, 1981).

Unless the execution of sentence is stayed in this case, the issues on appeal would become moot, and defendant would never have his day in this court on Constitutional issues. Because the brief period of time between the filing of this appeal and the scheduled execution is insufficient to consider properly the merits of the issues raised, this Court must stay the execution of the death sentence. Where the merits cannot be satisfactorily considered prior to execution of a scheduled death sentence, as in this instance, a stay should be granted. Shaw v. Martin, 613 F.2d 487 (4th Cir. 1980).

The motion for stay pending appeal is GRANTED. The appeal is ORDERED expedited to the earliest oral argument panel to which the case can be properly submitted.