                                                                              [PUBLISH]


                   IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                                                                      FILED
                            ________________________           U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                   No. 99-10895                       07/07/99
                             ________________________             THOMAS K. KAHN
                                                                       CLERK
                            D. C. Docket No. 95-B-3020-S

PERNELL FORD,
                                                                      Petitioner-Appellant,

                                        versus

MICHAEL W. HALEY, Commissioner,
Alabama Department of Corrections,
                                                                     Respondent-Appellee.
                             ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________
                                    (July 7, 1999)


Before ANDERSON, Chief Judge, DUBINA and HULL, Circuit Judges.

PER CURIAM:

      This appeal involves Ford’s first § 2254 habeas petition in his capital case.

LaJuana Davis (“Davis”), acting as counsel for Pernell Ford (“Ford”), has filed in

Ford’s name a Motion for a Stay of Ford’s execution. Ford’s execution is

scheduled for 12:01 a.m. on Friday, July 9, 1999. The district court dismissed with
prejudice Ford’s § 2254 habeas petition, finding Ford was mentally competent to

dismiss his counsel and dismiss that petition. On July 6, 1999, the district court

issued a certificate of probable cause for Ford to appeal its dismissal of his § 2254

habeas petition.1 Therefore, this Court grants Ford’s Motion for a Stay of

Execution pursuant to Eleventh Circuit Rule 22-3, which we attach as an appendix

to this opinion.

                              I. PROCEDURAL HISTORY

       Appellant Ford was convicted of two murders and sentenced to death. The

evidence is summarized in the opinions of the Alabama appellate courts affirming

Ford’s conviction and sentence. Ford v. State, 515 So.2d 34 (Ala. Crim. App.

1986), aff’d, 515 So.2d 48 (Ala. 1987), cert. denied, 484 U.S. 1079 (1988); Ford v.

State, 630 So.2d 111 (Ala. Crim. App. 1991) (affirming the denial of Ford’s state

habeas petitions), aff’d, 630 So.2d 113 (Ala. 1993), cert. denied, 511 U.S. 1078

(1994).

       On November 21, 1995, Ford filed a § 2254 habeas petition in the United

States District Court for the Northern District of Alabama. On May 30, 1997, Ford

filed a motion to dismiss his habeas petition. Before allowing the petition to be


       1
         Because Ford’s § 2254 habeas petition was filed in 1995, Davis properly sought a
certificate of probable cause to appeal, as opposed to a certificate of appealability under the
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2253(c) (1996).

                                                 2
dismissed, the Magistrate Judge selected Dr. Rollins, from the names submitted by

Ford’s attorney, to examine Ford. After examining Ford, Dr. Rollins submitted his

psychiatric evaluation giving his opinion that Ford was competent to dismiss his

attorney and his § 2254 habeas petition. On June 10, 1998, an evidentiary hearing

was held wherein both Ford and Dr. Rollins were questioned by the Magistrate

Judge, and Ford’s attorney. Subsequently, Dr. Rollins re-examined Ford and the

Magistrate Judge held a telephone conference with all parties and questioned Ford

again. Davis subsequently submitted another mental evaluation of Ford by Dr.

Pincus. In his report, Dr. Pincus gave his opinion that Ford was not competent to

dismiss his attorney and his § 2254 habeas petition.

      Thereafter, the Magistrate Judge issued a detailed Report recommending that

Ford be found mentally competent to dismiss his attorney and to dismiss, with

prejudice, his § 2254 habeas petition. The Magistrate Judge found, inter alia, that

Dr. Rollins’s report was more persuasive than Dr. Pincus’s. On March 31, 1999,

the federal district court in Alabama issued a detailed order finding Ford mentally

competent, granting Ford’s request to dismiss his attorney, granting his motion to

dismiss his habeas petition, and dismissing with prejudice Ford’s § 2254 habeas

petition.




                                         3
       On April 14, 1999, Davis, signing as Ford’s attorney, filed, in Ford’s name,

a Motion to Alter and Amend the Judgment, a Notice of Appeal of the district

court’s order dated March 31 dismissing with prejudice Ford’s § 2254 habeas

petition, and a Motion for Stay of Execution in the district court. On July 1, 1999,

the district court denied the Motion to Alter and Amend and the Motion for Stay of

Execution.

       On July 6, 1999, Davis, signing as Ford’s attorney, filed a Notice of Appeal

of the district court’s July 1 order denying the Motion to Alter and Amend and the

Motion for a Stay of Execution.2 On July 6, Davis also filed a Motion for

Certificate of Probable Cause to Authorize Appeal, which the district court

granted. In its July 6, 1999 order, the district court stated as follows:

       [T]he court has considered the fact that this is a capital case involving
       issues that are “debatable among jurists of reason” and that “a court
       could resolve the issues in a different manner.” While this court has
       resolved the issues against Petitioner, and is confident of the
       correctness of its decision, the foregoing findings by the court are
       sufficient to authorize the issuance of a certificate of probable cause
       under Barefoot v. Estelle, 463 U.S. 880, 893 (1983), thus allowing
       Petitioner’s counsel to appeal this court’s grant of Petitioner’s request
       to waive his appeals, to dismiss counsel and the dismissal of a writ of
       habeas corpus in this death penalty case. Accordingly, it is
       ORDERED that the certificate of probable cause is hereby issued.

       2
        Davis’s first Notice of Appeal, filed April 28, 1999, may have been premature but
remains effective. Fed. R. App. P. 4(a)(4)(B)(i). The Motion to Alter or Amend tolled the time
for appeal. Fed. R. App. P. 4(a)(4). Together, the two Notices of Appeal are sufficient to appeal
both the district court’s March 31 and July 1, 1999 orders. Fed. R. App. P. 4(a)(4)(B)(i),(ii).

                                                4
                             II. DAVIS’S STANDING

      The Appellee contends that the Notices of Appeal and Motion for Stay of

Execution, filed by Davis in Ford’s name, should be dismissed because the district

court found Ford was mentally competent, and thus Davis lacks standing to pursue

this appeal as Ford’s attorney. If we conclude that the district court’s finding that

Ford is mentally competent is not clearly erroneous, then the district court correctly

honored Ford’s wishes to dismiss his attorney and his § 2254 habeas petition. See

Whitmore v. Arkansas, 495 U.S. 149 (1990); Gilmore v. Utah, 429 U.S. 1012

(1976); Lonchar v. Zant, 978 F.2d 637 (11th Cir. 1992). Accordingly, Davis, no

longer Ford’s attorney, would lack standing to pursue Ford’s case further.

However, if the district court’s finding is clearly erroneous and Ford is mentally

incompetent, then the dismissals of Davis and the petition were in error, and Davis

may be entitled, as Ford’s attorney, to pursue Ford’s § 2254 habeas petition.

      In other words, Davis’s standing in this appeal ultimately may depend on the

limited issue of whether the district court’s factual finding that Ford is mentally

competent is clearly erroneous. See Whitmore v. Arkansas, 495 U.S. 149 (1990);

Gilmore v. Utah, 429 U.S. 989 (1976), stay vacated, 429 U.S. 1012 (1976). Thus,

at this juncture, Davis appears to retain standing to the limited extent necessary to

file this appeal and to challenge the district court’s findings that Ford is mentally


                                           5
competent to dismiss Davis as his counsel and his § 2254 habeas petition with

prejudice. Otherwise, a district court would be able to find a defendant mentally

competent in a capital case to dismiss his counsel and dismiss with prejudice his

first § 2254 habeas petition in a federal court and there never would be any appeal

or review of that contested mental competency ruling.

      Likewise, at this juncture Davis appears to retain standing to seek a stay of

execution to the limited extent necessary to prosecute this appeal of the district

court’s mental competency rulings in Ford’s first habeas petition. The district

court issued a certificate of probable cause based on its finding that Ford’s mental

competency to dismiss his capital appeals involves “issues that are ‘debatable

among jurists of reason’ and that ‘a court could resolve the issues in a different

manner.’” When non-frivolous issues are presented on appeal in a capital case, the

Supreme Court has made it clear that a stay of execution should be issued, even if

only temporarily, when a stay is needed for the court to address such issues before

the appeal becomes moot. See Barefoot v. Estelle, 463 U.S. 880, 893-94 (1983).

Thus, since Davis appears to have limited standing to pursue the district court’s

mental competency rulings, Davis necessarily also has limited standing to move for




                                          6
a stay of Ford’s execution while this Court hears that appeal in order to prevent the

appeal from becoming mooted by Ford’s execution.3

                                III. STAY OF EXECUTION

       This brings us to whether the Motion for a Stay of Execution should be

granted under the circumstances of this first § 2254 habeas petition in a capital

case. We attach Eleventh Circuit Rule 22-3 because it provides the answer to this

question. Under this Circuit’s Rule 22-3(a)(7), “[i]f a certificate of appealability is

granted by the district court or by this Court, the panel shall grant a temporary stay

pending consideration of the merits of the appeal if necessary to prevent mooting

the appeal. . . .” 11th Cir. R. 22-3(a)(7) (emphasis added). Certificates of probable

cause are the prior equivalent of certificates of appealability. Hardwick v.

Singletary, 126 F.3d 1312, 1313 (11th Cir. 1997) (“Notwithstanding a marginal

variance in the language identifying the necessary showing with respect to

certificates of probable cause and appealability, we conclude that the standard

governing certificates of probable cause and certificates of appealability is

materially identical.”).


       3
         The standing issue here is arguably akin to a court’s having limited jurisdiction to
determine its own jurisdiction. While we find Davis has made a sufficient showing of standing
to be able to pursue this appeal at this juncture, questions do arise regarding Davis’s status, as
she is no longer Ford’s attorney and is not filing this appeal as his next friend, and the effect, if
any, on her standing. We carry those jurisdictional issues with the appeal.

                                                  7
      The district court has granted a certificate of probable cause and a temporary

stay of the July 9 execution is clearly necessary to prevent the mooting of this

appeal filed July 6. Therefore, Eleventh Circuit Rule 22-3(a)(7) directs that we

shall grant a temporary stay of the July 9 execution until further order of this

Court. See Barefoot v. Estelle, 463 U.S. 880 (1983).

      We recognize that subsections (i) and (ii) of our Circuit Rule 22-3(a)(7)

permit exceptions to this grant of a stay after a certificate has been issued by the

district court; however, neither exception applies under the particular factual

circumstances revealed in the record in this case. First, we do not find that the

district court abused its discretion in finding the appeal was non-frivolous and in

issuing the certificate of probable cause. See Barefoot v. Estelle, 463 U.S. 880,

893-94 (1983). In fact, the Appellee has not cross-appealed the district court’s

grant of that certificate as of this juncture. Also, this appeal does not involve a

successive habeas petition.

                              IV. APPEAL SCHEDULE

      Finally, pursuant to the last paragraph in our Circuit Rule 22-3(a), we

conclude that at this late date the merits of this appeal, filed on July 6, 1999, cannot

be appropriately addressed and decided concurrently with a decision on the motion




                                           8
to stay. However, we do find that good cause clearly exists for an advanced

briefing schedule and oral argument.

      This appeal involves only the limited issue of whether the district court was

clearly erroneous in its factual finding that Ford is mentally competent to dismiss

his counsel and dismiss his § 2254 petition. Ford has been requesting dismissal of

his § 2254 habeas petition since May 1997. In fact, in a letter dated May 9, 1999,

Ford again expressed his desire that his execution date be set and that his execution

be carried out. Thus, for good cause shown, the Court advances the briefing

schedule and oral argument in this appeal. Appellant’s brief shall be due on July

22, 1999; Appellee’s brief shall be due on August 5, 1999; Appellant’s reply brief

shall be due on August 12, 1999; and, oral argument is scheduled for August 18,

1999 at 2:00 p.m. in Atlanta, Georgia. The Clerk immediately shall issue oral

argument and briefing notices to all parties.

                                     V. STAY

      The Court grants the Motion to Stay Execution and temporarily stays the

execution of Pernell Ford pending further order of this Court.




                                          9
