                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-16-1995

In Re: Leon Moser (II)
Precedential or Non-Precedential:

Docket 95-9004




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Recommended Citation
"In Re: Leon Moser (II)" (1995). 1995 Decisions. Paper 221.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/221


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                                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                              No. 95-9004
                              ___________

                     In Re: Leon Moser (II)
                           ___________


                (E.D. PA    D.C.Civil No. 95-cv-05175)


                      Argued August 16, 1995

      Before:   MANSMANN, COWEN and NYGAARD, Circuit Judges

                            (Filed August 16, l995)
                                          ___________

                           ORDER OF THE COURT
                               __________



Per Curiam.


          By order entered August 14, 1995, the District Court

granted a stay of execution of death sentence, directed an

independent psychiatric evaluation of Mr. Leon Moser, and

appointed CJA counsel for the purpose of reporting to the Court

with respect to Mr. Moser's present competency.     The State

appealed, and by per curiam opinion entered August 15, 1995, we

affirmed the order of the District Court at C.A.No. 95-9003. Upon

consideration of the State's motion to vacate the stay of

execution, the Supreme Court of the United States granted the

State's motion and vacated the stay.     The Pennsylvania Post-



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Conviction Defender Organization filed renewed motions for relief

in the District Court on August 16, 1995 which were denied by

order dated August 16, 1995 at 1:55 a.m.

          Presented to us are a request for certificate of

probable cause and for a stay of execution.

          Upon consideration of the written submissions of the

parties and the record of the District Court, and this Court

having adopted expedited procedures in order to consider the

merits of an appeal along with the motion for stay, Barefoot v.

Estelle, 463 U.S. 880, 893 (1983); 3rd Cir. L.A.R. 111.6 (1993),

it is hereby ordered by this Court that the request for

certificate of probable cause is granted and the request for a

stay on this record is denied.

          We hereby remand the matter to the district court for

an immediate hearing on all outstanding merits issues including

inter alia:   the standing of the Reverend Holland to act as Mr.

Moser's next friend and a possible amendment to include Mr.

Moser's brother as a next friend if an appropriate petition

should be filed; the competency of Mr. Moser which may require

that the district court order the State to produce Mr. Moser in

the court's presence and that any mental health records of Mr.

Moser relevant to the issue of his competency be produced for the

district court's review; and the issue of deliberate delay.

          If the district court should determine that a temporary

stay is warranted based on this newly developed record, we are of




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the view that the district court has the authority to grant a

stay of the execution scheduled for 10:00 p.m. this evening.1




1
          Judge Nygaard expresses no view on the propriety of any
further stays.


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