                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 24 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 DAVID JAY BROWN,

          Petitioner - Appellee,

 v.                                                    No. 03-6081
                                                 (D.C. No. CIV-03-113-A)
 MIKE MULLIN, Warden, Oklahoma                      (W.D. Oklahoma)
 State Penitentiary,

          Respondent - Appellant.



                             ORDER AND JUDGMENT *


Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE,
Circuit Judge.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

the appeal in Case No. 03-6081. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument.

      Respondent Mike Mullin appeals from the district court’s entry of a stay of

execution for petitioner David Jay Brown. We exercise jurisdiction pursuant to


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
28 U.S.C. § 1292(a)(1) and reverse. We also deny as moot Brown’s motion for

appointment of counsel.

                                          I.

      Brown, an Oklahoma death row inmate, was convicted in 1988 of first

degree murder and sentenced to death. After exhausting his remedies in the

Oklahoma courts, Brown sought and was denied federal habeas relief. Brown v.

Gibson, 7 Fed. Appx. 894 (10th Cir. 2001) (affirming district court’s denial of

federal habeas relief), cert. denied, 534 U.S. 1057 (2001). Brown then returned to

state court by filing an application for post-conviction relief (his second) with the

Oklahoma Court of Criminal Appeals (OCCA). In pertinent part, Brown’s

application asserted that the prosecution failed to disclose material impeachment

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and knowingly

argued a theory of guilt it knew to be false, in violation of Napue v. Illinois, 360

U.S. 264 (1959). After initially reviewing Brown’s application, the OCCA stayed

his scheduled execution and remanded the case to state district court for an

evidentiary hearing on his claims.

      Before an evidentiary hearing could be conducted, a conflict arose

involving Brown’s counsel (federal public defenders appointed by the federal

district court that heard Brown’s initial petition for federal habeas relief), the

federal district court that appointed Brown’s counsel, and the OCCA. The federal

district court ruled that Brown’s counsel could not continue to represent Brown in
state court. Based on that ruling, Brown’s counsel sought to withdraw from the

ongoing state proceedings. The OCCA denied the motion to withdraw. The

stalemate continued thereafter, with the district court and the OCCA maintaining

their positions. Ultimately, the OCCA entered a sua sponte order withdrawing the

case from the state district court’s jurisdiction, dismissing the application for

post-conviction relief without prejudice, and rescheduling Brown’s execution for

March 27, 2003.

      Brown filed a petition for federal habeas relief pursuant to 28 U.S.C. 2254,

asserting that the OCCA’s treatment of his application for post-conviction relief

violated the Fourteenth Amendment’s Due Process and Equal Protection clauses,

the Supremacy Clause, and the right to petition guaranteed by the First and

Fourteenth Amendments. In connection with his petition, Brown filed a motion

for stay of execution. The district court granted Brown’s motion for stay on

March 14, 2003. Although Brown’s federal habeas petition remains pending

before the district court, respondent appeals from the district court’s stay of

execution.

                                          II.

      Under 28 U.S.C. § 2251, a federal court “before whom a habeas corpus

proceeding is pending” may enjoin related state court proceedings, including a

scheduled execution. See McFarland v. Scott, 512 U.S. 849, 858 (1994). In

doing so, “it must apply a four-part test: whether the movant has made a showing
of likelihood of success on the merits and of irreparable injury if the stay is not

granted, whether the stay would substantially harm other parties, and whether

granting the stay would serve the public interest.” Bundy v. Wainwright, 808

F.2d 1410, 1421 (11th Cir. 1987); see also Barefoot v. Estelle, 463 U.S. 880, 895

(1983) (adopting similar standard for stay of execution pending the filing and

consideration of a petition for writ of certiorari). “The standard of review of a

stay of execution issued by a district court is abuse of discretion.” Hauser v.

Moore, 223 F.3d 1316, 1321 (11th Cir. 2000); cf. Hawkins v. City & County of

Denver, 170 F.3d 1281, 1292 (10th Cir. 1999) (applying abuse of discretion

standard to district court’s ruling on request for preliminary injunction).

      After reviewing the parties’ pleadings, we conclude that Brown has failed

to establish a likelihood of success on the merits of the claims asserted in his

current federal habeas petition. Although Brown alleges the OCCA violated his

constitutional rights by dismissing his application for post-conviction relief, the

critical fact, in our view, is that the dismissal was without prejudice. Thus, as

pointed out by respondent, it appears clear that Brown retains the right to pursue

his claims in the OCCA by refiling his application for post-conviction relief. See

Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 498 (2001) (indicating

that a dismissal without prejudice allows refiling of the same claim in the same

court). Given these circumstances, we fail to see how Brown can demonstrate

that the OCCA’s dismissal violated his constitutional rights, or how the OCCA’s
actions could possibly entitle him to relief from his conviction and sentence.

                                        III.

      Also before us is Brown’s motion for appointment of counsel to represent

him in this appeal. Because the record on appeal indicates the district court

appointed counsel to represent Brown in his current federal habeas proceeding,

and because that appointment necessarily extends to this interlocutory appeal, see

21 U.S.C. § 848(q)(8), we conclude Brown’s motion is moot.

      The district court’s stay of petitioner David Jay Brown’s execution is

REVERSED. Brown’s motion for appointment of counsel is DENIED as moot.

The mandate shall issue forthwith.



                                      ENTERED FOR THE COURT

                                      Mary Beck Briscoe
                                      Circuit Judge
