                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-16-1996

Duffey v. Lehman
Precedential or Non-Precedential:

Docket 94-9003




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                           No. 94-9003
                           ___________

         STEVEN DUFFEY,

                                Appellant

                          vs.

         JOSEPH D. LEHMAN, Commissioner of the
         PA Department of Corrections;
         WILLIAM J. LOVE, Superintendent of the
         State Correctional Institution at Huntingdon;
         JOSEPH P. MAZURKIEWICZ, Superintendent of
         the State Correctional Institution at Rockview
                          ___________

          Appeal from the United States District Court
             for the Middle District of Pennsylvania
                   (D.C. Civ. No. 94-cv-01947)
                           ___________

                              Argued
                         October 26, 1995
      Before:   MANSMANN, COWEN and LEWIS, Circuit Judges.

                    (Filed January 16, 1996)
                          ___________

Billy H. Nolas, Esquire
Robert B. Dunham, Esquire (ARGUED)
Pennsylvania Post-Conviction
  Defender Organization
437 Chestnut Street
Suite 501
Philadelphia, PA 19106

  COUNSEL FOR APPELLANT

Michael J. Barrasse, Esquire
William P. O'Malley, Esquire (ARGUED)
Office of the District Attorney
200 North Washington Avenue
Lackawana County Courthouse
Scranton, PA 18503

  COUNSEL FOR APPELLEE


                                1
                             ___________

                        OPINION OF THE COURT
                             __________


MANSMANN,   Circuit Judge.
            In this case of first impression, we are called upon to

interpret and apply the United States Supreme Court's admonition

in McFarland v. Scott, ___ U.S. ___, 114 S. Ct. 2568 (1994), that

a district court would not abuse its discretion in denying a stay

of execution pending the presentation of a federal habeas

petition to a "dilatory" defendant who "inexcusably ignores [the]

opportunity [for counsel and for that counsel meaningfully to

research and present a defendant's habeas claims] and flouts the

available processes . . . ."    Id. at 2573.     We hold that under

McFarland, a district court may properly refuse a stay to a

dilatory defendant who has waived his right to counseled and

meaningful habeas review and his state court remedies.      Since

here, however, the defendant, even though dilatory, did not waive

his rights or remedies, we hold that the district court's

decision to deny him a stay of execution was not consistent with

a sound exercise of discretion.



                                  I.

            In the afternoon of February 19, 1984, Kathy Kurmchack,

then 19 years of age, was found stabbed to death in a restroom in

the restaurant where she worked.       Steven Duffey was charged with

the killing.




                                  2
           On February 6, 1985, a jury found Duffey guilty of

first degree murder.   Following the denial of post-verdict

motions, Duffey was formally sentenced, on August 4, 1986, to

death.   The Pennsylvania Supreme Court affirmed Duffey's

conviction and sentence on October 14, 1988.   Commonwealth v.

Duffey, 519 Pa. 353, 548 A.2d 1178 (1988).

          On September 22, 1994, Governor Robert P. Casey signed

a death warrant scheduling Duffey's execution for the week of

December 4, 1994.   On October 12, 1994, Duffey met with attorneys

from the Pennsylvania Capital Case Resource Center (the "Resource

Center") and signed an unsworn declaration of indigency and a

request that the Resource Center seek a stay of execution and the

recruitment of competent counsel to commence state post-

conviction proceedings on his behalf.

          Unable to recruit counsel, on November 16, 1994, the

Resource Center filed in the trial court a pro se motion for a

stay of execution to identify and appoint counsel for Duffey. The

motion was denied on November 18, 1994; a motion for

reconsideration was denied on November 22, 1994.

           Believing that the trial court's denials were

predicated on its view that it lacked jurisdiction to stay

Duffey's execution in the absence of a petition filed under

Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.

Stat. Ann. § 9541 et seq., the Resource Center then filed a

"Renewed Pro Se Motion for Stay of Execution to Permit Counsel

Time to Prepare PCRA Petition", to which a "form" PCRA petition

raising the issue of ineffective assistance of counsel was


                                3
attached.   On or about November 22, 1994, the trial court denied

the motion for stay based on the "frivolous" nature of the PCRA

petition and Duffey's delay in asserting the ineffectiveness of

counsel claim.   An appeal of the trial court's order was taken to

the Pennsylvania Supreme Court on November 28, 1994.

            That same day, Duffey filed a "Motion to Proceed In

Forma Pauperis, for a Stay of Execution, and for Appointment of

Federal Habeas Corpus Counsel under 28 U.S.C. § 2251 and 21

U.S.C. § 848(q) -- and -- Complaint for Injunctive Relief under

42 U.S.C. § 1983"0 in the United States District Court for the

Middle District of Pennsylvania, naming as respondents several

officials with the Pennsylvania Department of Corrections.0

Expressing its strong hesitation to take any action while

Duffey's request for a stay to pursue his state remedies was

pending before the Pennsylvania Supreme Court, the district court

reserved ruling on the motion.

            After the Pennsylvania Supreme Court denied Duffey's

request for a stay on December 5, 1994, the district court issued

a memorandum opinion and order, permitting Duffey to proceed in

forma pauperis and granting Duffey's request for the appointment

of federal habeas corpus counsel.0   With regard to Duffey's


0
          Duffy's claim under 42 U.S.C. § 1983 was dismissed
without prejudice on December 22, 1994.
0
          The respondents, the appellees here, refer to
themselves in their brief as the "Commonwealth [of
Pennsylvania]." We will adopt that designation.
0
          We understand that Duffey is presently represented by
legal counsel. We also understand that on or about April 27,
1995, counsel filed an "Amended Petition for Post-Conviction
Collateral Relief" in the Court of Common Pleas of Lackawana

                                 4
request for a stay of execution, the court interpreted the United

States Supreme Court's decision in McFarland v. Scott, ___ U.S.

___, 114 S. Ct. 2568 (1994), as holding that a stay was required

unless Duffey "inexcusably ignored post-conviction remedies for

the purpose of delaying his execution."   Finding the record

undeveloped in this regard, the court issued a temporary stay

until December 23, 1994, to allow the parties the opportunity to

submit evidence as to whether Duffey's six-year "delay" in

invoking post-conviction review was justifiable.

          After a hearing, the court held that Duffey was not

entitled to a stay of execution pending habeas review.   The court

found that Duffey was aware that state and federal collateral

review procedures are available to capital defendants; that

Duffey knew that he no longer had legal representation and that a

collateral challenge to his conviction and sentence was not being

mounted on his behalf following the Pennsylvania Supreme Court's

affirmance of his conviction and sentence; that Duffey was

capable of deciding and had decided to delay the invocation of

the post-conviction process in order to forestall the imposition

of his sentence; and that the Resource Center had proceeded in

this matter in good faith.   Seeing no evidence in the record to

support a finding that the Commonwealth had interfered with

Duffey's rights or that Duffey was incompetent, the court further

found that Duffey had not shown "cause" either for his

"deliberate decision" not to challenge his conviction and

County, Pennsylvania. The status of this petition is not before
us, nor is it relevant to the issues raised in this appeal.

                                5
sentence until a death warrant had issued or for "ignoring" post-

conviction remedies.    The court, therefore, concluded that under

McFarland v. Scott, ___ U.S. ___, 114 S. Ct. at 2573, Duffey's

inaction was "inexcusable" and constituted a "flouting of the

available processes".    Accordingly, the court denied Duffey's

request for a stay pending preparation of a petition for a writ

of habeas corpus and vacated the temporary stay it had granted on

December 5, 1994.   Duffey's appeal followed.0



                                II.

          In McFarland v. Scott, ___ U.S. ___, 114 S. Ct. 2568

(1994),0 the Supreme Court was presented with a two-pronged

0
          We granted a temporary stay of execution pending this
appeal.
0
          Frank Basil McFarland was convicted of murder in the
State of Texas and sentenced to death. Two months after the
final resolution of McFarland's direct appeal, the Texas trial
court scheduled his execution. Unable to secure either the
appointment of counsel or a modification of his execution date in
the trial court for state habeas corpus proceedings, McFarland
filed a pro se motion in a federal district court, alleging that
he "wish[ed]" to challenge his conviction and sentence under the
federal habeas corpus statute. McFarland v. Scott, ___ U.S. ___,
114 S. Ct. 2568, 2570 (1995). McFarland also asked for the
appointment of counsel under 21 U.S.C. § 848(q)(4)(B), and a stay
of execution to enable counsel to prepare and file a habeas
corpus petition. Id. Of the view that a "post conviction
proceeding" had not been initiated under 28 U.S.C. § 2254 or
§2255, the district court denied McFarland's motion on the
grounds that McFarland was not entitled to the appointment of
counsel and that it lacked jurisdiction to enter a stay of
execution. Id. at 2571. Affirming, the United States Court of
Appeals for the Fifth Circuit noted that under 28 U.S.C. § 2251,
a federal court may stay state proceedings while a federal habeas
corpus proceeding is pending, but held that no such proceeding
was pending because a "`motion for a stay and for appointment of
counsel [is not] the equivalent of an application for habeas
relief.'" Id. (citation omitted).



                                 6
inquiry of statutory construction:     whether a capital defendant's

right under 21 U.S.C. § 848(q)(4)(B) to qualified counsel in "any

post-conviction proceeding under sections 2254 or 2255 of Title

28" and a district court's jurisdiction under 28 U.S.C. § 2251 to

enter a stay of execution "in a habeas corpus proceeding" adhere

prior to the filing of a legally sufficient habeas corpus

petition.0    The Court determined that they did.


          The Supreme Court reversed.
0
          The Supreme Court was required to construe the meaning
of and interplay among 21 U.S.C. § 848(q)(4)(B) and 28 U.S.C.
§§2251, 2254, 2255.
          Section 848(q)(4)(B) states:

                § 848.   Continuing criminal enterprise

                 Appeal in capital cases; counsel for
                     financially unable defendants

                  (B) In any post conviction proceeding
             under section 2254 or 2255 of Title 28,
             seeking to vacate or set aside a death
             sentence, any defendant who is or becomes
             financially unable to obtain adequate
             representation or investigative, expert, or
             other reasonably necessary services shall be
             entitled to appointment of one or more
             attorneys and the furnishing of such other
             services in accordance with paragraphs (5),
             (6), (7), (8), and (9).

21 U.S.C. § 848(q)(4)(B).

             Sections 2254 and 2255 provide in pertinent part:

             § 2254.   State custody; remedies in Federal
                         courts.

               (a) The Supreme Court, a Justice thereof, a
             circuit judge, or a district court shall
             entertain an application for a writ of habeas
             corpus in behalf of a person in custody
             pursuant to the judgment of a State court
             only on the ground that he is in custody in

                                   7
          The Court held first that "[t]he language and purposes

of § 848(q)(4)(B) and its related provisions establish that a

right to appointed counsel includes a right to legal assistance

in the preparation of a habeas corpus application[,] . . . [such]

that a `post conviction proceeding' within the meaning of

§848(q)(4)(B) is commenced by the filing of a death row


          violation of the Constitution or laws or
          treaties of the United States.

28 U.S.C. § 2254(a).

          § 2255.   Federal Custody; remedies on motion
                      attacking sentence

            A prisoner in custody under sentence of a
          court established by Act of Congress claiming
          the right to be released upon the ground that
          the sentence was imposed in violation of the
          Constitution or laws of the United States, or
          that the court was without jurisdiction to
          impose such sentence, or that the sentence
          was in excess of the maximum authorized by
          law, or is otherwise subject to collateral
          attack, may move the court which imposed the
          sentence to vacate, set aside or correct the
          sentence.

Id. § 2255.

          Section 2251 states:

          § 2251.   Stay of State court proceedings

            A justice or judge of the United States
          before whom a habeas corpus proceeding is
          pending, may, before final judgment or after
          final judgment of discharge, or pending
          appeal, stay any proceeding against the
          person detained in any State court or by or
          under the authority of any State for any
          matter involved in the habeas corpus
          proceeding.

Id. § 2251.

                                 8
defendant's motion requesting the appointment of counsel for his

federal habeas corpus proceeding."   Id. at 2572-73 (footnote

omitted).   The Court further held that once a capital defendant

invokes his right to appointed counsel, a federal court also has

jurisdiction under 28 U.S.C. § 2251 to enter a stay of execution

because the language in 21 U.S.C. § 848(q)(4)(B), i.e., "any post

conviction proceeding under sections 2254 or 2255 of Title 28",

and the language in 28 U.S.C. § 2251, i.e., "habeas corpus

proceeding", refer to the same process.   Id. at 2573.

            The Court made clear, however, that its holding did not

grant defendants a right to an automatic stay of execution; that

the decision to grant or deny a motion for stay is committed to

the district court's sound discretion; and that a "dilatory"

defendant's request for a stay may be denied under the

appropriate circumstances:
               This conclusion by no means grants
          capital defendants a right to an automatic
          stay of execution. Section 2251 does not
          mandate the entry of a stay, but dedicates
          the exercise of stay jurisdiction to the
          sound discretion of a federal court. Under
          ordinary circumstances, a capital defendant
          presumably will have sufficient time to
          request the appointment of counsel and file a
          formal habeas petition prior to his scheduled
          execution. But the right to counsel
          necessarily includes a right for that counsel
          meaningfully to research and present a
          defendant's habeas claims. Where this
          opportunity is not afforded, "[a]pproving the
          execution of a defendant before his
          [petition] is decided on the merits would
          clearly be improper." On the other hand, if
          a dilatory capital defendant inexcusably
          ignores this opportunity and flouts the
          available processes, a federal court



                                 9
          presumably would not abuse its discretion in
          denying a stay of execution.


Id. at 2573 (emphasis added) (citation omitted).



                               III.

          Before we consider the merits of the district court's

decision to deny Duffey a stay of execution, we must confirm that

the court's jurisdiction was properly invoked, for we agree with

the Court of Appeals for the Sixth Circuit that "[w]hat can best

be called a `McFarland stay' is not available for every death row

prisoner, but only for those in McFarland's circumstances".   In

Re Parker, 49 F.3d 204, 213 (6th Cir. 1995).0   Like the defendant

in McFarland, however, Duffey was an uncounseled, pro se prisoner

who commenced an action in federal court seeking an attorney and

a stay of execution in order to file a legally competent petition

for a writ of habeas corpus.   Because Duffey was unrepresented,

he properly exercised his statutory right to appointed counsel

under 21 U.S.C. § 848(q)(4)(B) which, in turn, invoked the stay
jurisdiction of the district court under 28 U.S.C. § 2251.
0
          There the court of appeals held that the district court
was without jurisdiction to issue a "McFarland" stay where the
defendant asked the district court to appoint the attorney who
already represented him and to issue an indefinite stay of
execution to give counsel more time to file a habeas corpus
petition. In Re Parker, 49 F.3d 204 (6th Cir. 1995). In Steffen
v. Tate, 39 F.3d 622 (6th Cir. 1994), the defendant sought a
federal court stay of execution to enable his counsel to pursue
additional state remedies on his behalf.

          In both of these cases, the court of appeals reasoned
that the district court's jurisdiction was not necessary to give
effect to the statutory right to counseled federal habeas review.
In Re Parker, 49 F.3d at 210-11; Steffen v. Tate, 39 F.3d at 624-
25.


                                10
           We thus conclude that the court had jurisdiction in

this case.    We turn now to the district court's decision that

Duffey was not entitled to a stay of execution.



                                 IV.

             We first consider the district court's findings of

fact.   Our standard of review is quite high; we may set aside the

court's findings only for clear error.0    Sullivan v. Cuyler, 723

F.2d 1077, 1082 (3d Cir. 1983).

             Duffy argues that the evidence conclusively establishes

that he was ignorant of post-conviction processes; that during

the entire period between the Pennsylvania Supreme Court's

affirmance of his conviction and sentence in 1988 and until just

before the warrant was signed in 1994, he mistakenly believed

that he was represented by counsel who was handling his

"appeals"; and that he was intellectually incapable of the

thought and planning that necessarily underlie a deliberate

decision to delay the pursuit of one's rights.

             Based on our careful review of the record, however, we

conclude that the district court's factual determinations to the

contrary are amply supported by the record.     Several items of

proof sustain the court's finding that Duffey was aware of the

0
          A finding of fact is clearly erroneous "when although
there is evidence to support it, the reviewing court is left with
a definite and firm conviction that a mistake has been
committed". United States v. United States Gypsum Co., 333 U.S.
364, 394-95 (1948). Further, we will not disturb the district
court's findings simply because we are convinced that we would
have decided the case differently. Anderson v. Bessemer City,
N.C., 470 U.S. 564, 574 (1985).


                                  11
existence of federal and state procedures for post-conviction

review.   In correspondence to his mother, Duffey repeatedly

requested that she send him a copy of another prisoner's habeas

corpus petition; a fellow death row prisoner whom Duffey

described as a "big brother" was well-versed in post-conviction

process; information about collateral challenges to convictions

and sentences was ever-present in the environment in which Duffey

had resided for almost ten years.     In addition, Duffey referred

to the case of Griffin v. Illinois, 351 U.S. 12 (1956),0 in a

knowledgeable way in a letter he wrote to his mother and in a

motion he filed in the state court requesting a copy of his trial

transcript; and during his years on death row, Duffey was in

contact with Pamela Tucker, a one-time member of the Western

Pennsylvania Coalition against the Death Penalty and the Project

Director of the Pennsylvania Capital Case Monitoring Project who

sent prisoners, including Duffey, at least one update regarding

developments in Pennsylvania death penalty cases which mentioned

the "[Post Conviction Relief Act]".


0
          In Griffin, the defendants filed a petition under the
Illinois Post-Conviction Hearing Act, alleging, inter alia, that
the only impediment to full appellate review of their respective
convictions was a lack of funds to buy a trial transcript and
that the State's refusal to afford full appellate review solely
because of their poverty was a denial of due process and equal
protection. The defendants' petition was dismissed and the
Illinois Supreme Court affirmed, solely on the ground that the
petition did not raise a substantial state or federal
constitutional question. Holding that the defendants'
constitutional rights had been violated, the Court remanded and
instructed the Illinois Supreme Court to provide the defendants
with adequate and effective appellate review. Griffin v.
Illinois, 351 U.S. 12, 13-26 (1956).


                                12
          We also find that the evidence relating to Duffey's and

his mother's conduct both before and after the Pennsylvania

Supreme Court's October, 1988 affirmance of Duffey's conviction

and sentence supports the court's finding that Duffey knew that

he did not have legal counsel and that post-conviction remedies

were not being pursued following the affirmance.   The record

reveals that during the time that Duffey's case was in trial and

on direct appeal, he and his mother communicated by letter or

telephone with his attorneys on a variety of matters; once Duffey

received word of the affirmance, however, neither he nor his

mother had contact with any lawyer about the status of his case.

Moreover, a statement by Duffey in a 1991 letter to Pamela Tucker

that he would know "something" about his case "once [he] [got] a

[w]arrant signed" also supports the district court's factual

finding that Duffey was aware that post-conviction challenges

were not pending from October of 1988 to September of 1994.

          With regard to Duffey's deliberative capacities, the

Resource Center introduced expert testimony to establish that

Duffey could not reason abstractly due to his intellectual and

emotional deficiencies and the medication he was taking.    The

Commonwealth countered with expert testimony to show that Duffey

was capable of assimilating information, implementing plans and

appreciating the consequences of his actions.   Thus the hearing

on this issue was a dispute among experts, offering the district

court two conflicting perspectives of Duffey's abilities.

Crediting the Commonwealth's view, the court found that Duffey

was competent and capable of deliberately deciding not to


                               13
challenge his conviction and sentence until a warrant was signed.

We will not disturb this finding because it is "well-established

that `[w]here there are two permissible views of the evidence,

the factfinder's choice between them cannot be clearly

erroneous'", and in a battle of experts, the factfinder

"'decide[s] the victor'".   Lansford-Coaldale Joint Water Auth. v.

Tonolli Corp., 4 F.3d 1209, 1216 (3d Cir. 1993) (quoting Anderson

v. Bessemer City, N.C., 470 U.S. 564, 574 (1985) and citing

Mendes-Silva v. United States, 980 F.2d 1482, 1487 (D.C. Cir.

1993)).

          As to Duffy's decision to delay, the comments Duffey

and his mother made in correspondence to the effect that "no news

was good news" and that it would be unwise to call attention to

his circumstances support the court's finding that Duffey did

indeed decide to wait for a death warrant to issue before

pursuing post-conviction process and that he understood that, by

putting off the invocation of post-conviction processes until

then, he could postpone his sentence.   Moreover, the court

correctly found that the record did not contain any proof that

the Commonwealth prevented Duffey from pursuing his rights.

          Finally, given the undisputed evidence the Resource

Center submitted showing how severely limited its means are, the

court's finding that the Center pursued this matter in good faith

will not be set aside.

          Accordingly, we conclude that the district court's

findings of fact are not clearly erroneous.




                                14
                               V.

          We next address the district court's interpretation of

the instruction in McFarland concerning the denial of a stay to a

dilatory defendant who "inexcusably ignores" certain rights

relating to habeas review and "flouts the available processes".

Since we view the Court's instruction as a legal standard to be

applied to the facts, our review is plenary.   Sullivan v. Cuyler,

723 F.2d 1077, 1082 (3d Cir. 1983).




                               15
                                  A.

            We begin by stating explicitly what was implicit in the

district court's decision:    that the opportunity and processes of

which the Supreme Court spoke in the passage at issue, supra pp.

9-10, include the right to federal habeas counsel, time for that

counsel to prepare a habeas petition, and available state

remedies.    We believe that the Court's antecedent reference in

that passage to a capital defendant's "right to counsel" and

counsel's right "meaningfully to research and present a

defendant's habeas claims", McFarland v. Scott, ___U.S.___, 114

S. Ct. at 2573, as well as the long-held principle, now codified

in 28 U.S.C. § 2254(b),0 that a state defendant must exhaust

state remedies in order to receive federal habeas review, compel

this result.    See Ex Parte Royall, 117 U.S. 241 (1886) (holding

that as a matter of comity, federal courts should not consider a

claim in a habeas corpus petition until after the state courts

have had an opportunity to act).       Moreover, the exhaustion of
0
            Section 2254(b) provides:

            § 2254.   State custody; remedies in Federal
                      courts.

                 (b) An application for a writ of habeas
            corpus in behalf of a person in custody
            pursuant to the judgment of a State curt
            shall not be granted unless it appears that
            the applicant has exhausted the remedies
            available in the courts of the State, or that
            there is either an absence of available State
            corrective process or the existence of
            circumstances rendering such process
            ineffective to protect the rights of the
            prisoner.

28 U.S.C. § 2254(b).

                                  16
state remedies doctrine leads us to conclude that the district

court was correct to consider the question of Duffey's delay in

asking for federal habeas relief, not from the date that the

death warrant issued on September 22, 1994, as Duffey urges, but

from the date that Duffey could have initiated state post-

conviction process, which was some six years earlier upon

resolution of his direct appeal on October 14, 1988.   In this

regard, we also point out that delay in this context does not

refer to the mere passage of time, but to a defendant's

postponing the initiation of any of the steps that lead to habeas

review.

                                B.

           Turning to the standard the district court used to

determine whether, under McFarland, Duffey should be granted a

stay of execution despite his delay, we note that the court

required Duffey to establish "cause" to excuse his failure to

pursue available post-conviction processes in an expeditious

fashion.   By doing so, the court borrowed directly from the

"cause and prejudice" or "independent state ground" test of

Wainwright v. Sykes, 433 U.S. 72 (1977), which bars federal

habeas review where a defendant has failed to comply with a state

procedural rule unless the defendant shows "cause" for his

failure to comply with a state procedural requirement and actual

"prejudice" as a result of the constitutional violations he

presents in federal court.

           We disagree with the district court's analogy to Sykes

for two reasons.   First, we do not see, nor has the Commonwealth


                                17
of Pennsylvania shown us, that the basis for the standard -- a

state procedural requirement -- is present here.    The

Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.

Stat. Ann. § 9541 et seq., does not impose a time period within

which a defendant must file a petition for collateral review.

Moreover, it is standard practice in Pennsylvania for defendants

to pursue an initial, counseled PCRA petition only after a death

warrant has issued and for the Pennsylvania courts to grant stays

of execution to defendants in these circumstances.   See, e.g.,

Commonwealth v. Henry, No. 849-1986 (C.P. Northampton Cty. March,

1995, and cases cited therein).    Second and more importantly, we

cannot discern any basis in McFarland for the district court's

approach.   Had the Supreme Court intended the courts to apply the

standard enunciated in Sykes when deciding whether a dilatory

defendant may receive a stay, we believe the Court would have

said so.    Thus, even assuming the presence of a state procedural

default, we conclude that Sykes does not control.

            It remains for us, therefore, to determine what

standard regarding the denial of a stay was announced by the

Court in McFarland.    We think the best source for the standard

lies in the language the Court used to render its decision.

Accordingly, we turn directly to McFarland's critical passage,

supra pp. 9-10, and we first observe that delay alone is not

dispositive; the Court referred to denying a stay not just to a

"dilatory" defendant, but to a defendant who has also behaved in

a particular manner and displayed a certain attitude with regard

to the opportunity for counseled habeas review and available


                                  18
processes.   The words the Court chose to describe the conduct it

denounced -- "inexcusably ignore" and "flout" -- connote a

knowing disregard, which borders on contempt for and a turning

away from, one's federal and state rights.   In our view, these

words are tantamount to the definition of waiver enunciated in

Johnson v. Zerbst, 304 U.S. 458, 464 (1938): "an intentional

relinquishment or abandonment of a known right or privilege". We,

therefore, believe that the Court instructed in McFarland that a

district court would not abuse its discretion in denying a stay

to a defendant who delayed pursuit of habeas relief and whose

actions constitute a waiver of the right to counseled and

meaningful habeas review and available state processes.   In this

regard, we adopt the definition of waiver from Johnson v. Zerbst

as the guiding standard.0

0
          In Johnson v. Zerbst, 304 U.S. 458 (1938), the Court
addressed a defendant's waiver of the Sixth Amendment right to
the assistance of counsel.

          The dissent's characterization of our analysis
notwithstanding, we do not "import Johnson v. Zerbst's `waiver'
requirement into McFarland" because we believe that the "right to
appointed counsel in § 848(q)(4)(B) occupies the same venerated
status as the Sixth Amendment right to counsel." (Dissent
Typescript at 11-12). Our holding is premised, as we stated, on
our interpretation of the language the Supreme Court used in the
McFarland opinion.

          In our view, the disagreement between the majority and
the dissent in this case is straightforward; it is a disagreement
over what the Supreme Court meant in McFarland when it stated
that a "dilatory capital defendant" who "inexcusably ignores this
opportunity and flouts the available processes" may be denied a
stay of execution. McFarland v. Scott, ___ U.S. ___, 114 S.Ct.
at 2573. As we understand it, the dissent's position is that
with these words the Supreme Court invoked the equitable doctrine
of unclean hands, inviting a district court to deny a McFarland
stay to a defendant who engaged in inequitable conduct. Applying


                                19
          We further hold that a defendant's delay and waiver,

which are in the nature of a defense to the stay to which a

defendant would otherwise be entitled, is for the State to prove.

This allocation of the burden of proof is consistent with the

manner by which defenses are typically proven, Metzel v.


this general principle to the facts at hand, the dissent would
hold that an uncounseled defendant who created exigent
circumstances by purposefully delaying the pursuit of post-
conviction processes until a death warrant issued, is guilty of
unclean hands, and, thus, may be denied a stay of execution
pending the preparation and disposition of a first habeas corpus
petition. Again, focusing on the Supreme Court's words in
McFarland, our difficulty with the dissent's position is two-
fold. First, we believe that they demand a more exacting
standard than the dissent's unclean hands principle. Second, we
believe that they require something more than mere delay, even if
deliberate, on a defendant's part to disentitle him to a stay.

          To be sure, "`habeas corpus has traditionally been
regarded as governed by equitable principles'". Sanders v.
United States, 373 U.S. 1, 17 (1963) (quoting Fay v. Noia, 372
U.S. 391, 438 (1963)). We do not, however, agree with the
dissent's view that "abuse-of-the writ" or "misuse-of-the-writ"
jurisprudence supports the application in a McFarland situation
of an unclean hands doctrine under which delay alone is
sufficient to deny a stay of execution. (Dissent Typescript at
6-7). See, e.g., Gomez v. United States Dist. Court, 503 U.S.
653, 654 (1992) (per curiam) (vacating a stay of execution where
petitioner failed to show cause for not raising the claim that
his execution by lethal injection would violate the Eighth
Amendment in four prior federal habeas petitions and where
"[t]here [was] no good reason for this abusive delay, which [was]
compounded by last-minute attempts to manipulate the judicial
process."); McClesky v. Zant, 499 U.S. 467 (1991) (holding that
the cause and prejudice standard enunciated in Wainwright v.
Sykes applies to determine whether the failure to raise a claim
in the first round of habeas review should be excused in a
subsequent petition); Lonchar v. Thomas, 58 F.3d 590 (11th Cir.)
(vacating a stay of execution where petitioner expressly refused
to pursue state collateral remedies, consistently waited until
the day of execution to seek relief, and openly sought federal
habeas relief, not to vindicate his constitutional rights, but to
delay his execution so that the method of execution may be
changed to allow him to donate his organs), cert.granted, ___
U.S. ___, 115 S. Ct. 2640 (1995).


                               20
Leininger, 57 F.3d 618, 622 (7th Cir. 1995), and is, moreover, in

keeping with the traditional application of the Johnson v. Zerbst

waiver standard.   See Brewer v. Williams, 430 U.S. 387, 404

(1977) ("[A]s a matter of federal constitutional law . . . it was

incumbent upon the State to prove `an intentional relinquishment

or abandonment of a known right or privilege.'")(quoting Johnson

v. Zerbst, 304 U.S. at 464).0



                                VI.

          The application of the standard we have enunciated to

the evidence in this case is not difficult.   Although we do not

quarrel with the district court's ultimate finding that Duffey

deliberately decided to postpone the pursuit of collateral

challenges to his conviction and sentence until after a death

warrant issued, it alone cannot sustain the court's conclusion

that Duffey inexcusably ignored and flouted relevant rights and

processes under our waiver standard.   Indeed, we find the record

devoid of any proof whatsoever that Duffey intentionally

relinquished or abandoned his rights to counseled and meaningful

habeas review or to available state remedies.0   Thus, we conclude
0
          Although that traditional application of the Johnson v.
Zerbst standard of which the Court spoke in Brewer v. Williams,
430 U.S. 387, 404 (1977), involved the waiver of the
constitutional right to the assistance of counsel, we do not see
any reason for not requiring the State to bear the same burden of
proof when the waiver involves the statutory right to counseled
federal habeas review under 21 U.S.C. § 848(q)(4)(B) and the
right to state post-conviction remedies.
0
          We contemplate that proof of a defendant's waiver will
frequently be "verbal"; that is, comprised of the words that a
defendant has spoken or written which show that he or she has
intentionally relinquished or abandoned his or her federal right

                                21
that under McFarland the district court's decision to deny Duffey

a stay was not consistent with a sound exercise of discretion.

            We do not reach this decision lightly and we are, of

course, mindful of the Commonwealth's interest in seeing that

criminal judgments and sentences are carried out in a orderly

fashion.    We are also, however, aware of the Commonwealth's

desire to ensure that capital punishment comports with the

Constitution.    Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174

(1978).    We believe that the entry of a stay in this particular

case does not upset the Commonwealth's capital punishment process

but, rather, guarantees that the death penalty will not be

carried out unless the habeas review to which this defendant

remains entitled demonstrates that his execution would be lawful.



                                VII.

            For the foregoing reasons, we will reverse the district

court's order denying Duffy a stay and remand to the court for

entry of an order granting Duffey a stay of execution pending the

presentation of a petition for a writ of habeas corpus0 once the

state courts have ruled on his post-conviction petition.


to counseled habeas review and applicable state remedies. We
further contemplate that evidence of waiver will also involve a
defendant's actions. We do not, as the dissent suggests, require
that the Commonwealth prove waiver by showing that a defendant
knew specifically of the existence of 21 U.S.C. § 848(q)(4)(B)
and engaged in what amounts to a colloquy forgoing his or her
right to a government-supplied attorney under the statute.
(Dissent Typescript at 10, 15-16).
0
          During the December, 1994 hearing, the Resource Center
clarified that Duffey was asking for a stay pending the
presentation of a petition for a writ of habeas corpus and would


                                 22
Duffey v. Lehman, No. 94-9003




COWEN, Circuit Judge, dissenting.



          The   district   court   found   as   a    matter   of   fact   that

Steven Duffey sat on death row for six and one-half years after

his conviction had been affirmed and, despite being aware of the

existence of both state and federal post-conviction remedies,

intentionally declined to invoke them for the specific purpose of

delay.   Based on these findings the district court concluded that

Duffey had "inexcusably ignore[d] [post-conviction remedies] and

flout[ed] the available processes."        McFarland v. Scott, ___ U.S.

___, ___, 114 S. Ct. 2568, 2573 (1994). The court, therefore,

denied Duffey's request for a stay of execution under 28 U.S.C.

§2251 while counsel appointed under 21 U.S.C. § 848(q)(4)(B)

prepared and filed a first petition for habeas corpus.

          The Majority concludes, as do I, that the district

court's factual findings are not clearly erroneous.            Indeed, they

are amply supported by record evidence.             The Majority, however,

has discovered a "waiver" requirement in McFarland's "inexcusably

ignores" language.    Applying it to the district court's factual

findings, the Majority holds that the district court abused its

discretion in denying a stay under McFarland because the record



leave it to appointed counsel to ask for a stay beyond that point
for the duration of habeas review.

                                   23
contains no evidence that Duffey affirmatively "waived" his right

to appointed habeas counsel.

            I find no such waiver requirement in McFarland.           In my

view, an inmate who purposely declines to pursue known post-

conviction    remedies    for    the    specific   purpose     of   delaying

execution    presents    the    quintessential     case   of   "inexcusably

ignor[ing]               .                  .             .              and




                                       24
flout[ing]."        Such an inmate comes into court with "unclean hands" and, thus, forfe

right to have a federal court invoke its equity jurisdiction under § 2251 to inter

state proceedings.       Because that is just what Duffey did, the district court's deci

deny a stay of execution was consistent with a sound exercise of discretion.                  I th

must respectfully dissent.            I am, however, in substantial agreement with Parts I-IV

Majority Opinion.

                                                         I.

                                                         A.

               In 1988 Congress amended federal law to provide indigent death-row

wishing to pursue federal habeas relief with a government-supplied lawyer to prep

file the petition. See 21 U.S.C. § 848(q)(4)(B).                This amendment created an ine

tension with 28 U.S.C. § 2251, which permits a federal judge to stay state proc

only    when    a   habeas   corpus    proceeding   is   "pending"   in   federal   court.   Typica

proceeding was considered pending for purposes of § 2251 only when a formal petit

been filed.         Thus, prior to McFarland, death-row inmates conceivably could hav

executed before their appointed attorneys had an adequate opportunity to prepare a

their petitions, since in those circumstances a federal court would lack subject

jurisdiction to stay an execution.

               In 1994 the Supreme Court alleviated this apparent unfairness by esse

deeming an unrepresented death-row inmate's request for counsel under § 848(q)(4)(B

a pending habeas proceeding for purposes of § 2251.                  McFarland, ___ U.S. at ___,

Ct. at 2568.         Accordingly, as long as there has been a motion for the appoint

counsel under § 848(q)(4)(B), a federal court has subject-matter jurisdiction under

to stay state proceedings without running afoul of the Anti-Injunction Act. 28 U

2283.

                                                         B.




                                                         25
            Two separate and distinct concepts underlie the McFarland Court's reason

analysis.    I refer to them as "stay jurisdiction" and "stay discretion."      The ra

for McFarland's "stay jurisdiction" holding--that a request for counsel constit

"pending" proceeding under § 2251--is understandable.     The Court believed that w

unrepresented death-row inmate wishes to invoke his statutory right to have an a

file a petition for habeas corpus, federal courts should have the power to ensure t

state will not execute the inmate before the petition has been filed.          Otherwi

right to an attorney free of charge would be meaningless.    McFarland, ___ U.S. at _

S. Ct. at 2573 ("[T]he right to counsel necessarily includes a right for that

meaningfully to research and present a defendant's habeas claims.    Where this oppo

is not afforded, approving the execution of a defendant before his petition is dec

the merits would clearly be improper.") (internal quotation marks, alteration and c

omitted).

            The Court warned, however, that its "conclusion by no means grants

defendants a right to an automatic stay of execution."      Id. at ___, 114 S. Ct. a

On the contrary, in the "stay discretion" portion of its discussion, the Court o

that
                [s]ection 2251 does not mandate the entry of a stay, but
                dedicates the exercise of stay jurisdiction to the sound
                discretion of a federal court. Under ordinary circumstances,
                a capital inmate presumably will have sufficient time to
                request the appointment of counsel and file a formal habeas
                petition prior to his scheduled execution. But the right to
                counsel necessarily includes a right for that counsel
                meaningfully to research and present a defendant's habeas
                claims.   Where this opportunity is not afforded, approving
                the execution of a defendant before his petition is decided
                on the merits would clearly be improper. On the other hand,
                if a dilatory capital defendant inexcusably ignores this
                opportunity and flouts the available processes, a federal
                court presumably would not abuse its discretion in denying a
                stay of execution.




                                             26
Id. (emphasis added) (internal quotation marks, alteration and citation omitted).

the proper interpretation of the second highlighted portion in the above-quoted l

that divides us today.

          The     "stay   discretion"    aspect    of     the   McFarland      Court's       analysis   a

describes three separate and distinct situations. In the first situation--i.e., "

ordinary circumstances"--no stay should issue because the inmate is represented

ample time in which to file the petition.                Indeed, the Court of Appeals for th

Circuit has gone so far as to hold that a district court lacks even the subject

jurisdiction to grant a stay in those circumstances.                 In re Parker, 49 F.3d 204 (6

1995). The Parker court reasoned that an already-represented inmate who nevertheles

a formal request for counsel under §848(q)(4)(B) cannot confer subject-matter juris

on a federal court to issue a stay of execution under McFarland.                   Accord Steffen v

39 F.3d 622 (6th Cir. 1994).

          The second situation was the one presented in McFarland itself: where,

eve of execution, an unrepresented, nondilatory inmate who wishes to file a first p

for habeas corpus seeks counsel under § 848(q)(4)(B) and moves for a stay of ex

under § 2251.     In such a situation, a federal court would abuse its discretion as a

of law in not granting the stay. This is only logical.                 It is both unfair and "im

to permit an inmate who, like McFarland, has been frantically attempting to pursu

conviction   remedies     to   be   executed    simply     because    the     state's    execution      ma

functions more efficiently than the pro se litigant.                 In that situation it is the

not the inmate, that has created the exigency necessitating federal court equity re

the nature of a stay of execution.

          The third situation is the one we confront in this case: where, on the

execution,   an   unrepresented,     dilatory     inmate    invokes     his    right    to    counsel    u

848(q)(4)(B) and moves for a stay under § 2251 so that appointed counsel can prep

file a habeas petition.         McFarland makes very clear that such inmates have no


                                                    27
entitlement to a stay of execution.           Since the Court referred to "inexcusably ign

and given the context of that statement, the Court was referring to inmates who, b

own calculated inaction, have created the exigency necessitating a stay of executi

the Court's view, because § 2251 "dedicates the exercise of stay jurisdiction to th

discretion of a federal court," ___ U.S. at ___, 114 S. Ct. at 2573, a capital i

dilatory conduct in creating the necessity of federal court intervention into

proceedings is a relevant (and in some cases a dispositive) factor in deciding whe

grant a stay of execution, even where it is the inmate's first petition.

          To   be   sure,   the   McFarland    Court's   "inexcusably   ignores"   language   mi

considered a change in direction to the extent that it contemplates allowing an in

be executed before a first habeas petition can be considered on the merits.               Cf.

v. Thomas, 58 F.3d 590 (11th Cir.) (vacating stay and dismissing capital inmate'

habeas petition filed on the eve of execution solely for the purpose of delay)

granted, 115 S. Ct. 2640 (1995).        But McFarland is not to that extent inconsiste

prior Supreme Court cases dealing with dilatory habeas petitioners.            On the contra

Court has recognized that the remedy of federal habeas is an equitable one that

with its attendant stay provision, implicates sensitive federalism concerns. McCl

Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 1470 (1991); Barefoot v. Estelle, 463 U.

887, 103 S. Ct. 3383, 3392 (1983).

          Because it is an equitable remedy, moreover, Justice Brennan wrote in San

United States that a petitioner's dilatoriness (i.e., "unclean hands") can bar

habeas relief:
                 [A habeas petitioner's] conduct . . . may disentitle him to
                 the relief he seeks. . . . Nothing in the traditions of
                 habeas corpus requires the federal courts to . . . entertain
                 collateral proceedings whose only purpose is to vex, harass,
                 or delay.




                                                   28
373 U.S. 1, 17-18, 83 S. Ct. 1068, 1078 (1963), overruled in part on other g

McClesky, 499 U.S. at 467, 111 S. Ct. at 1470. More recently, the High Court gr

State's motion to vacate a stay of execution, noting that even apart from the ab

the-writ doctrine applicable to successive petitions,
               [e]quity must take into consideration the State's strong
               interest in proceeding with its judgment and [the inmate's]
               obvious attempt at manipulation. . . . There is no good
               reason for . . . abusive delay, which has been compounded by
               last-minute attempts to manipulate the judicial process. A
               court may consider the last-minute nature of an application
               to stay execution in deciding whether to grant equitable
               relief.


Gomez v. United States Dist. Court, 503 U.S. 653, 654, 112 S. Ct. 1652, 1653 (199
curiam) (citations omitted) (emphasis added).    Furthermore, this court has long rec

that inequitable conduct can preclude a party from obtaining equitable relief:
                         The guiding doctrine in this case is the equitable
               maxim that "he who comes into equity must come with clean
               hands." This maxim is far more than a mere banality. It is
               a self-imposed ordinance that closes the doors of a court of
               equity to one tainted with inequitableness or bad faith
               relative to the matter in which he seeks relief . . . .


Monsanto Co. v. Rohm & Haas Co., 456 F.2d 592, 598 (3d Cir.) (quoting Precision Ins

Mfg. Co. v. Automotive Co., 324 U.S. 806, 814, 65 S. Ct. 993, 997 (1945)), cert.

407 U.S. 934, 92 S. Ct. 2463 (1972).   Accord Northeast Women's Center v. McMonag

F.2d 1342, 1354 (3d Cir.), cert. denied, 493 U.S. 901, 110 S. Ct. 261 (1989).

          McFarland's "inexcusably ignores" language is simply a logical extension
equitable principles set forth in Gomez and Sanders.       Deliberately declining to

postconviction processes to delay execution constitutes inequitable conduct.      Wh

conduct results in a last-minute application for equitable relief in federal court,

preclude an inmate from having a federal court invoke its equity jurisdiction to in

into state proceedings.   Far from relying on "mere delay" or "delay alone," M
Typescript at 20 n.11, my interpretation of McFarland would permit denial of a st



                                            29
where there has been abusive delay--that is, where the failure to invoke known col

processes is not the result of some force external to the inmate, but rather

product of a deliberate attempt to manipulate the remedy of federal habeas corpus

the Majority acknowledges is governed by equitable principles.                  Id.   "Federal hab

not] a means by which a defendant is entitled to delay an execution indefin

Barefoot,   463 U.S. at 887, 103 S. Ct at 3392.

                                                     C.

            Although I agree with the Majority that "[t]he application of the [McF

standard . . . to the evidence in this case is not difficult,"                 Majority Typescript

I reach a contrary result.          As Part IV of the Majority Opinion illustrates, the

developed below amply supports the district court's factual findings.                  The distric

found: (1) "that [Duffey] was indeed aware that there were available post-con

review processes for him,"      App. at 32; (2) that "[t]he evidence concerning his

disorder, the prescription of a low dosage of Mellaril, is not the type of eviden

would cause a court to determine that failure to take action should be excused,"

37-38; and (3) that "it was a deliberate decision on the part of Mr. Duffey not

any action to challenge his convictions until a warrant had been signed."                  Id. at 3

            Based on these findings, the district court announced its legal conc

"[Duffey]   certainly   had   the    ability    to   understand    that   by    delaying   invoking

conviction processes, he could obtain additional time, [an] additional stay, and fo

the execution of a death warrant."             Id. at 34-35.      Since the district court's

findings demonstrate conclusively that Duffey had "unclean hands," the court act

within its discretion in denying Duffey's last-minute request to stay his execution

                                                     II.

            Notwithstanding factual findings that track McFarland's language nearly

word, the Majority concludes that those findings are insufficient to justify the de

a stay. Instead, the Majority reverses and directs entry of a stay under McFarla


                                                     30
matter of law.      Two distinct reasons appear to support the Majority's decision;

discuss them in turn.

                                              A.

            According to the Majority, the primary reason that the district court abu

discretion in denying the requested stay is because the State failed to prove that

"even though dilatory, . . . waive[d] his rights and remedies" under the waiver s

the Supreme Court enunciated in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019

Majority Typescript at 2, 19

(emphasis added).      This new-found "waiver" requirement, according to the Major

implicit in and consistent with the McFarland Court's "inexcusably ignores . .

flouts" language.    But strict adherence to the Majority's caveat that "the best sou

the standard lies in the language the [McFarland] Court used," id. at 19, reveals t

disputed passage from McFarland in no way implicates the constitutional waiver s

the Majority has interpolated into it.

                                              1.

            The greatest difficulty with the Majority's analysis is that it confu

equitable concept of "unclean hands," which disentitles a party to equitable relie

"waiver."    As we recently observed in United States v. Goldberg, 67 F.3d 1092 (

1995), the "most commonly understood method of 'waiving' a constitutional right i

affirmative, verbal request."       Id. at 1099 (emphasis added).     If this is wh

Majority's formulation requires, a stay of execution under § 2251 must issue as a

of law unless a state can prove that an inmate affirmatively said the words "I kno

right to a government-supplied attorney under § 848(q)(4)(B) and am choosing to for

But this belies reality because no inmate bent on waiting until the last minute to

post-conviction remedies will ever say those words within earshot of a state offici

for good reason.     Thus, no state could ever prove "inexcusably ignores . . . and

under the Majority's formulation.


                                              31
           Elaborating on its waiver requirement, however, the Majority insists

affirmative verbal waiver is unnecessary and that both words and conduct can be ind

of an inmate's "waiver" of "his or her right to counseled habeas review." M

Typescript at 22 n.13.      But nowhere does the Majority provide any examples of wo

conduct that would rise to the level of "waiver."                 Nor does the Majority att

explain why the record in this case fails to satisfy its waiver standard.                    If th

found by the district court in this case are insufficient to establish waiver un

Majority's view, then it is difficult to imagine any set of circumstances, other

affirmative verbal waiver which the Majority expressly disavows, see id., in which

of execution may be denied under McFarland.

           McFarland's language contemplates that inequitable conduct can lead to

forfeiture of equitable relief under §2251 to which the inmate is otherwise entitl

matter of law. This is entirely consistent with notion that the equitable doct

"unclean hands" can bar relief in federal habeas, see Gomez, 503 U.S. at 654, 112

at 1653; Sanders, 373 U.S. at 17-18, 83 S. Ct. at 1078, even where it is the i

first petition. Lonchar, 58 F.3d at 590.

                                                  2.

           The Majority imports Johnson v. Zerbst's "waiver" requirement into Mc

because it appears to believe that the right to appointed counsel in § 848(q

occupies the same venerated status as the Sixth Amendment right to counsel.                  See M

Typescript at 19-21 & nn.11-12.           Because the Sixth Amendment right to counsel

"fundamental" to fair adjudication,        Goldberg, 67 F.3d at 1097, counsel must be p

regardless of whether criminal defendants are aware of their rights.                Precisely f

reason the "waiver" standard enunciated in Johnson is a stringent one.                  Based

analogy,   the   Majority   essentially   holds   that   states    must   provide   habeas    coun

indigent inmates unless and until the inmate affirmatively and verbally expre

contrary desire.


                                                  32
          This both misstates and grossly exaggerates the role of § 848(q)(4)(B)

scheme of federal habeas.     Unlike the Sixth Amendment, § 848(q)(4)(B) is neit

affirmative obligation nor a negative restriction on states.       On the contrary,

simply "a funding statute [that] provides for the appointment of attorneys . .

defendants or habeas corpus petitioners seeking to vacate or set aside a death sen

Jackson v. Vasquez, 1 F.3d   885, 888 (9th Cir. 1993) (emphasis added).   It is the

therefore, who must take the initiative.   Even then, however, a stay of execution

effect to the right to counsel, once invoked, will not be forthcoming if the inmat

into federal court with unclean hands; that is, if he has "inexcusably ignore[

conviction remedies] and flout[ed] the available processes." McFarland, ___ U.S.

114 S. Ct. at 2573.

          The Majority's view essentially converts the counsel-funding statute into

prohibition on executing death-sentenced inmates until a first habeas petition h

prepared and filed.    But McFarland's "stay discretion" analysis contemplates th

dilatory capital inmates could be executed before a first petition has been consid

the merits.   The Majority's position, therefore, directly contravenes the Supreme

explicit admonition that its "conclusion by no means grants capital defendants a r

an automatic stay of execution." Id. at ___, 114 S. Ct. at 2573.

                                            3.

          There is a third difficulty with the "waiver" standard. If the Major

indeed correct that the McFarland Court contemplated denying a stay only when th

been a true verbal waiver, then the Court's separate treatment of "stay discreti

"stay jurisdiction" was unnecessary; under the Majority's view the two merge.

          As discussed earlier, the rationale for the Court's "stay jurisdiction"

is that if a defendant who seeks federal habeas relief and attempts to invoke his r

a government-supplied lawyer under § 848(q)(4)(B) is executed before the petition h

prepared and filed, the statutory right would be meaningless.       But where an i


                                            33
dilatory     or    otherwise--has         affirmatively           waived    his     right      to    a    lawyer    u

848(q)(4)(B),       McFarland       indicates        that   a     district       court    would      lack    subject

jurisdiction       under    §    2251    even   to    consider       the    request.          "[A]   district      cou

jurisdiction to enter a stay of execution where necessary to give effect to that st

right."     McFarland, ___ U.S. at ___, 114 S. Ct. at 2574 (emphasis added).                                Since a

execution      logically        cannot   give   effect      to       a   statutory       right    that      the   inma

affirmatively waived, the Majority's "waiver" standard effectively collapses McFa

distinct "stay jurisdiction" and "stay discretion" discussions into a single inquir

            More     significantly,         collapsing          McFarland's       "stay       jurisdiction"        and

discretion" discussions into a single inquiry has the effect of placing the bu

proof on the "inexcusably ignores . . . flouts" issue on the inmate.                                     It is well-

that the party seeking federal relief must plead and prove facts sufficient to demo

a federal court's subject-matter jurisdiction.                             See, e.g., McNutt v. General

Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785 (1936); Columbia Gas Trans

Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995).                          If discretion to issue a stay

only   where      there    is    jurisdiction        to   grant      a   stay,    then    a   prima      facie    show

entitlement to a stay would require affirmative proof of nonwaiver. Because the M

insists that the burden to demonstrate waiver is on the state, Majority Typescript

21, its waiver analysis proves to be wholly unworkable.0

                                                             B.




0
 I agree with the Majority that the burden to show "inexcusably ignores . . . and
rests with the state, but I base that conclusion on the simple fact that Mc
expresses a presumption in favor of a stay. Since that presumption is rebutted on
the inmate has "inexcusably ignore[d] . . . and flout[ed],"     the state should b
burden of demonstrating that an inmate has engaged in conduct that disentitles
equity relief that otherwise would issue as a matter of law. See generally Cib
Corp. v. Bolar Pharm. Co., Inc., 747 F.2d 844, 855 (3d Cir. 1984) ("unclean hands
affirmative defense; burden of persuasion on party resisting opponent's reque
equitable relief), cert. denied, 471 U.S. 1137, 105 S. Ct. 2678 (1985).


                                                                34
              The second reason the Majority relies on to support its decision to rever

flows directly from its constitutional waiver requirement.                       The Majority appe

believe that when the Supreme Court referred to an inmate who "inexcusably ignor

opportunity and flouts available processes," it was requiring that the inmate

specific awareness of the federal right to counsel codified in § 848(q)(4)(B):
               [T]he opportunity and processes of which the Supreme Court
               spoke in the passage at issue . . . include the right to
               federal habeas counsel . . . . We believe that the Court's
               antecedent   reference  in   that  passage   to  a   capital
               defendant's 'right to counsel' . . . compel[s] this result.


Majority Typescript at 16.             Since there was no record evidence that Duffey speci

was   aware    of     his   statutory    right   to   a    government-supplied    attorney,       the   a

continues, Duffey could not have knowingly and intelligently "waived," or "inex

ignore[d]," that right as a matter of law.                I disagree.

              In my view, the McFarland Court's reference to "this opportunity" was ad

to state and federal post-conviction processes in a general sense, not to the c

funding statute specifically.           As noted above, the statutory right to counsel obtai

if and when an inmate decides to initiate federal habeas relief.                             But inmat

purposely decline to invoke state or federal collateral remedies solely to delay ex

are intentionally subjecting themselves to the very risk that a stay of executio

McFarland is designed to avoid: execution prior to having a federal court adjudicat
constitutional claims on the merits.              Thus, a specific awareness of § 848(q)(4

irrelevant      to    the   McFarland     inquiry;    rather,    the     deliberate    creation    of

circumstances necessitating federal court intervention into state proceedings sh

the central focus.

              There    is   a   more   common-sense   reason    for     interpreting   the   Supreme

reference to "this opportunity" as relating to collateral remedies generally.
inmates who are cognizant of state and federal post-conviction processes but w



                                                          35
determined to wait until a death warrant has been signed to invoke them will

motivated to seek relief any sooner simply because they know that a government-s

attorney stands ready and willing to prepare and file their habeas petitions.             Th

Circuit's recent observation about the current state of death-penalty litigation c

that even
                counsel for a death-sentenced criminal never wishes to file
                a habeas corpus petition unless that is the last-ditch way
                to avoid an actual execution, when the prisoner is more
                concerned with avoiding execution than with receiving a
                final adjudication of his claims. . . . Therefore, it is
                almost always in the interest of a death-sentenced prisoner
                to delay filing that petition as long as possible.


Steffen, 39 F.3d at 625 (emphasis added).          If counsel for a capital defendant ac

his client's best interests will deliberately wait until the eve of execution to

first habeas petition, then an unrepresented inmate's specific awareness of a st

counsel-funding   provision   is   unlikely   to   alter   the   inmate's   behavior.   The

statute, therefore, should not be dispositive of McFarland's dilatoriness inquiry.

                                                   C.

            Finally, I agree with the Majority that the district court erred in loo

the "cause" prong of the "cause and prejudice" test to determine whether Duffey's i

of available postconviction remedies was "inexcusable" under McFarland.
Majority Typescript at 18.0    The "cause and prejudice" standard is not implicated

McFarland Court's language and, thus, is irrelevant.

            In any event, "cause," as the Majority observes, refers to a deliberate

of a state procedural requirement, whereas McFarland is concerned with the fai

invoke either state or federal substantive remedies.              Indeed, the "cause" anal
0
 As the Majority recognizes, the factors the district court analyzed under its
analysis--possible state interference with Duffey's attempts to litigate and co
impairment--certainly were relevant to the question whether there was some force e
to Duffey that prevented him from invoking postconviction remedies.      To this
therefore, the district court's legal error was harmless, because it ultimately l
more developed factual record.


                                                   36
illogical, for while the failure to initiate a state postconviction proceeding

death warrant has been signed may be "excusable" (because it is permissible) unde

procedural law, it very well may simultaneously constitute "inexcusably ignor[ing]

and flout[ing]" under McFarland.     That is so because, as the Majority observe

exhaustion doctrine requires that a habeas petitioner first present his claims

state courts before obtaining federal habeas relief.     See 28 U.S.C. § 2254(b); E

Royall, 117 U.S. 241, 6 S. Ct. 734 (1886); see also Coleman v. Thompson, 501 U.

731, 111 S. Ct. 2546, 2554 (1991).    Since exhaustion of state remedies is a ne

predicate to obtaining federal habeas relief, a capital inmate should not be permi

circumvent McFarland's warning to dilatory inmates simply by deliberately ignorin

post-conviction remedies as a way of delaying federal habeas relief and, ulti

execution.   Cf. Steffen, 39 F.3d at 622 (no jurisdiction to issue       McFarland

represented inmate so that counsel can pursue novel claims in state court); c

Sterling v. Scott, 57 F.3d 451 (5th Cir. 1995) (no right to counsel under § 848(q

to pursue unexhausted claims in state court).      Thus, I agree with the Majority t

"cause and prejudice" test is wholly inapposite to McFarland's dilatoriness inquiry

                                             IV.

         The Supreme Court in McFarland specifically stated that a stay of execut

be denied if a death-row inmate "inexcusably ignores [post-conviction remedies] and

the available processes."   McFarland, ___ U.S. at ___, 114 S. Ct. at 2573.    The d

court found that for over six years after his direct appeal had been exhausted,

Duffey declined to attack collaterally his conviction and sentence simply to postp

execution.   Those findings are amply supported by the record.        The district

decision to deny the stay, therefore, was well within its discretion under § 2

consistent with the dictates of McFarland.     Because I fear that the Majority's "

standard will render the issuance of a stay under § 2251 automatic in this C




                                             37
notwithstanding the McFarland Court's express admonition to the contrary, I respe

dissent.




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