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


8-16-1995

In Re: Leon Moser
Precedential or Non-Precedential:

Docket 95-9003




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Recommended Citation
"In Re: Leon Moser" (1995). 1995 Decisions. Paper 220.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/220


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                                                FOR PUBLICATION

                                           UNITED STATES COURT OF
                              APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                            No. 95-9003
                            ___________


                         In Re:   Leon Moser

                            ___________

           Submitted Under Third Circuit LAR 34.1(a)
                        August 15, 1995
     Before: MANSMANN, COWEN and NYGAARD, Circuit Judges.
                          ___________

                        OPINION OF THE COURT
                              __________
                           (Filed: August 15, l995)

Per Curiam.
          The State1 challenges the district court's entry, in

this next friend petition, of a stay of execution pending an

independent psychiatric exam and evidentiary hearing to determine

Mr. Moser's mental competency.

          The parties have not delineated the basis of our
jurisdiction nor do they dispute it.      It is nonetheless incumbent

upon us to ensure a proper exercise of our appellate

jurisdiction.   Because the effect of the stay here is injunctive

in nature, we exercise jurisdiction pursuant to 28 U.S.C.

§1292(a)(1).    See Brown v. Vasquez, 952 F.2d 1164, 1165 (9th

Cir.), cert. denied, 503 U.S. 1011 (1992).      Jurisdiction is also
1
          The "State" includes Martin Horn, Commissioner,
Pennsylvania Department of Corrections; and Joseph P.
Maurkiewicz, Superintendent of the State Correction Institution
at Rockview.


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appropriate as an exercise of our mandamus authority under the

All Writs Act, 28 U.S.C. § 1651(a).

          We review the district court's entry of the stay of

execution for an abuse of discretion.   Wainwright v. Ford, 467

U.S. 1220 (1984) (Powell, J., concurring); Kemp v. Smith, 463

U.S. 1344 (1983).   The district court here soundly exercised its

discretion in adopting procedures consistent with those adopted

by the district court as we described in In Re Zettlemoyer, 53

F.3d 24 (3d Cir. 1995) in holding the next friend petition in

abeyance to permit resolution of the issue of Mr. Moser's

competence to waive his right to federal court review of his

conviction and sentence pursuant to 42 U.S.C. § 2254.   Here the

district court reviewed the affidavits of Drs. Sadoff and Cooke,

both of whom indicated that they found Mr. Moser incompetent in

1985 when they examined him in connection with the state

competency proceedings.   The court also considered the fact that

Moser had been placed in Fairview psychiatric facility during his

incarceration, that he is currently receiving anti-depressant

medication and that his psychiatric records had not been released

by the State.

           Accordingly, we affirm the district court's grant of a

stay of execution pending an independent psychiatric examination

and evidentiary hearing to assess Mr. Moser's mental competence

given that it is the threshold issue in the determination of

standing of the "next friend" who petitioned on Mr. Moser's

behalf.   The mandate shall issue forthwith.




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