                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-3292
                                   ___________

Roderick Nunley,                        *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Western District of Missouri.
                                        *
Michael Bowersox,                       *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: October 19, 2010
                                 Filed: October 19, 2010
                                 ___________

Before MURPHY, BYE, and MELLOY, Circuit Judges.
                           ___________

PER CURIAM.

      On October 18, 2010, the district court1 granted Roderick Nunley’s motion to
stay execution pending the resolution of his habeas case because “there is an issue
which required further development,” namely “[i]f the right to have a jury determine
his punishment did not exist when [Nunley] was originally sentenced to death, but this
right was subsequently established by Ring and found to be retroactive by the




      1
       The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
Missouri Supreme Court in Whitfield, is [Nunley]’s waiver still valid?”2 The
government appeals the stay. We deny the motion to vacate the stay.

       We generally review an order to grant a stay of execution for abuse of
discretion. Jones v. Hobbs, 604 F.3d 580, 581 (8th Cir. 2010); Nooner v. Norris, 491
F.3d 804, 807 (8th Cir. 2007). After carefully reviewing the submissions of the
parties and the well-reasoned district court opinion, we can find no abuse of
discretion. While we express no opinion on the issue of whether the Missouri
Supreme Court unreasonably applied controlling Supreme Court precedent, we do
believe the issue is sufficiently meritorious to say that the district court did not abuse
its discretion to grant a stay to fully develop the record and decide the issue.
                         ______________________________




      2
       In Ring v. Arizona, 536 U.S. 584 (2002), the United States Supreme Court
recognized the right to a jury determination of all facts necessary to impose the death
penalty. In State v. Whitfield, 107 S.W.3d 253 (Mo. Banc 2003), the Missouri
Supreme Court made Ring retroactive under state law.

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