1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-16-1995

In Re: Leon Moser

Precedential or Non-Precedential:

Docket 95-9006

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Recommended Citation

"In Re: Leon Moser" (1995). 1995 Decisions. Paper 225.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/225
1 

 UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 95-9006 

___________ 

In Re: Leon Moser 

___________ 

 August 16, 1995 

Before: MANSMANN, COWEN and NYGAARD, Circuit Judges. 

(Opinion filed August 16, 1995) 

___________ 

OPINION AND ORDER OF THE COURT 

__________ 

MANSMANN, Circuit Judge. 

 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-Conviction Defender Organization 

(PPCDO) 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. The PPCDO filed an appeal to us, requesting a 
2 

certificate of probable cause and a stay of execution. By per

curiam opinion entered August 16, 1995, we granted the 

certificate of probable cause, denied the request for a stay on 

the record as it then existed and remanded 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. We also indicated our view that the 

district court possessed the authority to grant a temporary stay, 

if one should be required, on the basis of the newly developed 

record. 

 The district court heard arguments from counsel 

commencing at 10:45 a.m. on August 16, 1995, regarding the 

petition of Mr. Moser's brother, Theodore Moser of Theresa, 

Wisconsin to intervene as a "next friend" on his brother's behalf 

in addition to Reverend Holland.1 The district court also 

 

1 On this issue, the PPCDO presented the affidavit of 

Paul Messing, court appointed counsel for Mr. Moser regarding 

Theodore Moser's request that Mr. Messing represent his concerns 

of his brother's competence. The state responded only with 

unsubstantiated assertions by counsel raised during argument that 

Theodore Moser has shown no interest in his brother during the 

nearly 10 years of incarceration. However, the Messing Affidavit 

indicates that the Moser family could not secure proper 
3 

considered arguments on the issue of whether Mr. Moser engaged in 

deliberate delay so as to flout the judicial processes pursuant 

to McFarland v. Scott, 114 S. Ct. 2568, 2573 (1994). On August 

16, 1995 at 2:20 p.m., the district court issued an order 

permitting the PPCDO to amend its pleading to include Theodore 

Moser as a next friend and requiring the State to produce Mr. 

Moser and his mental health records forthwith to the district 

court at which time an immediate hearing would convene to 

determine Mr. Moser's competency. 

 The State immediately appealed the district court's 

August 16, 1995 2:20 p.m. order simultaneously to the Supreme 

Court of the United States and to us. We dismissed the appeal 

for lack of jurisdiction given the interlocutory nature of the 

order which did not invoke our jurisdiction under either 28 

U.S.C. § 1292(a)(1) or 28 U.S.C. § 1651(a). 

 When it became apparent that neither Mr. Moser nor his 

mental health records would be produced prior to the execution 

scheduled for 10:00 p.m. tonight,2 the district court entered a 

temporary stay of Mr. Moser's execution currently scheduled for 

10:00 p.m. on August 16, 1995 until August 17, 1995 at 10:00 p.m. 

 

hospitalization, psychiatric care and mental health assistance 

for Leon because of their lack of resources. Messing Affidavit 

¶ 4. 

2 Mr. Moser was presently enroute to the State Correction 

Institution at Rockview causing doubt as to whether he could be 

produced on August 16, 1995. Mr. Horowitz, the State's 

representative in charge of Mr. Moser's mental health records, 

indicated that he required a minimum of two weeks to produce the 

records. 
4 

 This appeal is markedly different from the appeal at 

No. 95-9003 on which the Supreme Court vacated the stay of 

execution by order dated August 15, 1995. In the matter now 

before us, the district court was presented with Theodore Moser's 

petition to act as next friend for his brother, death row inmate 

Leon Moser in addition to Reverend Holland. The district court 

did not err in finding that Theodore Moser clearly is dedicated 

to the best interests of Leon Moser and has a significant 

relationship with him. Whitmore v. Arkansas, 495 U.S. 149, 163-

64 (1990). We also hold that the district court's action in 

briefly staying the execution for roughly 24 hours was a sound 

exercise of discretion given the state's inability to produce Mr. 

Moser for examination by the district court or the mental health 

records in a prompt fashion. Additionally, the district court 

properly exercised federal judicial power. Demosthenes v. Baal, 

495 U.S. 731, 737 (1990). 

 We state sincerely that we recognize the Supreme 

Court's proper review authority and respect the Court's previous 

order vacating our order affirming the stay yesterday. Given the 

changed circumstances and severe consequences, we are constrained 

to state our view that the extremely brief delay here does not 

prejudice the State but severely prejudices Mr. Moser. 

 We thus affirm the order of the district court. 
5 

NYGAARD, Circuit Judge, dissenting. 

 In 1985 Leon Moser appeared before a Judge of the Court 

of Common Pleas in the Commonwealth of Pennsylvania and entered 

an intelligent, knowing, and voluntary guilty plea to three 

charges of first degree murder. He was sentenced to death by a 

three-judge panel of the same court. The Supreme Court of 

Pennsylvania affirmed the judgment. Throughout the proceedings, 

Leon Moser maintained that he wanted to die. From all 

indications he still does. 

 Moreover, since being found capable to enter a plea, 

there is no evidence that his situation or desire to die has 

changed. All of the allegations contained in petitioners' 

submissions are only the same allegations indicating that Leon 

Moser is in the same frame of mind as he was ten years ago. The 

experts who testified by affidavit as to Moser's incompetence 

have not seen him for ten years. Moreover, their assessment of 

Leon Moser was rejected by the state trier of fact. The minister 

and brother who claim to represent Moser's personal interests as 

"next friend" have not visited with him in prison during the past 

ten years. And finally, the attorneys who claim to represent his 

legal interests have never seen him. 

 I do not believe that petitioners have made the 

requisite threshold showing that Moser is incompetent to make his 

own decisions. In light of that failure, the federal courts are 

powerless to make a decision for him. If Moser wants to die by 

the hands of the Commonwealth of Pennsylvania, we must let him. 
6 

 Hours ago the Commonwealth petitioned the U.S. Supreme 

Court, which thereupon vacated an earlier stay of execution. The 

Court's Order contained no explanation; but, in its petition the 

Commonwealth, incorporating all the records of the lower federal 

courts, represented to the Court that: 

1. Petitioner's application was filed 37 

hours before Moser's scheduled execution; 

2. The Commonwealth had witnesses available 

to testify in district court about Moser's 

current state of mind; 

3. The district court's stay was granted 

after argument; 

4. Petitioners lacked standing to file a 

motion on behalf of Moser; 

5. Moser has consistently and unequivocally 

expressed his desire to die; and 

6. The district court had based its decision 

on affidavits of a psychiatrist and a 

psychologist, (neither of whom has seen Moser 

in ten years, and both of whom testified at 

the state hearing ten years ago at which 

Moser was found capable of entering a knowing 

and voluntary guilty plea); the fact that 

Moser had been hospitalized once for 

depression nine years ago; and, the fact that 

he takes a routine anti-depressant, 

Imipramine. 

 Aside from the appearance of Leon Moser's brother as 

next friend, the district court in entering its stay order today 

had essentially the same material before it as it had yesterday, 

and has once again granted a stay. No new evidence has been 

submitted on the threshold inquiry of Moser's incompetence. 

Hence, I believe that the stay entered today contravenes the 

mandate of last night's Supreme Court order. I would reverse the 
7 

second stay of execution entered by the district court and allow 

Moser to have his wish.