                                REVISED July 10, 2008

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                       No. 08-70025                        FILED
                                                                           July 7, 2008

                                                                    Charles R. Fulbruge III
                                                                            Clerk


CARLTON AKEE TURNER,

                                                  Petitioner-Appellant,

v.

NATHANIEL QUARTERMAN,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                                  Respondent-Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               No. 3:04-CV-2232-D




Before SMITH, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
                                  No. 08-70025


       Carlton Turner appeals an order of the district court, entered June 19,
2008, denying his motion for appointment of counsel and his motion for stay of
execution. In his merits brief, Turner raises only the following issue: “Does the
federal appointment statute, 18 U.S.C. § 3599, provide prisoners sentenced un-
der state law the right to federally appointed and funded counsel to pursue clem-
ency under state law?”
       In his brief, Turner “acknowledges that the law of this Circuit has fore-
closed the issue.” He is correct that in Clark v. Johnson, 278 F.3d 459, 462-63
(5th Cir. 2002), this court held that the statute does not apply to state clemency
proceedings.
       The order of the district court is accordingly AFFIRMED. Turner’s sepa-
rate motion for stay of execution filed in this court is DENIED. See Hood v.
Quarterman, No. 08-70022, 2008 U.S. App. LEXIS 12800 (5th Cir. June 16,
2008) (per curiam), cert. denied, 2008 U.S. LEXIS 5027, 76 U.S.L.W. 3671 (U.S.
June 17, 2008) (No. 07-11423), stay denied sub nom. In re Hood, 2008 U.S.
LEXIS 5026, 76 U.S.L.W. 3671 (U.S. June 17, 2008) (No. 07-11406), stay denied
sub nom. Hood v. Texas, 2008 U.S. LEXIS 5028, 76 U.S.L.W. 3671 (U.S. June 17,
2008) (No. 07-11452).




R. 47.5.4.

                                        2
                                  No. 08-70025

PRADO, Circuit Judge, concurring in part and dissenting in part:
      I agree that Fifth Circuit precedent forecloses Turner’s argument. See
Clark v. Johnson, 278 F.3d 459 (5th Cir. 2002). However, the Supreme Court
recently granted certiorari to consider this issue. Harbison v. Bell, No. 07-8521,
2008 WL 2484732 (June 23, 2008).            Harbison will resolve a circuit split
concerning whether the federal appointment statute applies to state clemency
proceedings. Given the gravity and finality of the death penalty, I would grant
Turner’s motion for stay of execution pending the outcome of that case. The
Supreme Court employed a similar tactic when it stayed executions while it
resolved a dispute involving lethal injection in Baze v. Rees, 128 S. Ct. 1520
(2008). Accordingly, I agree with the majority’s decision to affirm the ruling of
the district court, but I dissent from the majority’s decision to deny Turner’s
motion for stay of execution.




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