* Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT

RULE 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-60038

_____________________

WILLIE RUSSELL,

Petitioner-Appellant,

v.

JAMES V ANDERSON, SUPERINTENDENT, MISSISSIPPI

STATE PENITENTIARY,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court 

for the Northern District of Mississippi

_________________________________________________________________

July 22, 1998

Before POLITZ, Chief Judge, KING and PARKER, Circuit Judges.

PER CURIAM:*

Petitioner-appellant Willie Russell appeals the district

court’s denial of his motion for a stay of execution. The State

of Mississippi moves to vacate the stay of execution entered by

this court and to dismiss Russell’s appeal. We affirm the

district court’s order denying a stay and vacate the stay which

we entered.
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I. BACKGROUND

Willie Russell was convicted of capital murder of a law

enforcement officer and sentenced to death. The Mississippi

Supreme Court affirmed Russell’s conviction but reversed his

sentence of death. Russell v. State, 607 So. 2d 1107 (Miss.

1992). After a second sentencing hearing, Russell was again

sentenced to death, and his sentence was subsequently affirmed by

the Mississippi Supreme Court. Russell v. State, 670 So. 2d 816

(Miss. 1995). The United States Supreme Court denied his

petition for certiorari on November 12, 1996. Russell v.

Mississippi, 117 S. Ct. 436 (1996).

On January 3, 1997, the Mississippi Supreme Court set

Russell’s execution date for 12:01 a.m. on January 22, 1997. On

January 20, 1997, Russell wrote a letter to the Mississippi

Supreme Court asking that the court appoint him counsel. That

night, attorneys Robert McDuff and James Craig submitted a motion

to the Mississippi Supreme Court on Russell’s behalf for a stay

of execution and for appointment of counsel. On January 21,

1997, McDuff and Craig filed a motion for stay of execution in

the United States District Court for the Northern District of

Mississippi on Russell’s behalf. Later that day, the Mississippi

Supreme Court denied his motions for a stay of execution and for

appointment of counsel, finding that Russell was still currently

represented by his counsel on direct appeal who had not properly
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withdrawn and that Russell’s counsel on his petition for writ of

certiorari to the United States Supreme Court had also appeared

before the Mississippi Supreme Court. With respect to that

order, McDuff and Craig filed a petition for writ of certiorari

in the United States Supreme Court; the Supreme Court has

subsequently dismissed that petition. Russell v. Mississippi,

117 S. Ct. 2407 (1997). 

Also on January 21, 1997, the federal district court denied

Russell’s motion for a stay of execution, reasoning that it

lacked jurisdiction to grant a stay under 28 U.S.C. § 2251

because (1) a habeas corpus petition had not been filed and (2)

the exception to the filing requirement laid out in McFarland v.

Scott, 512 U.S. 849 (1994), did not apply because Russell was

represented by counsel. This court granted Russell a stay of

execution pending appeal of that order the same day in order to

enable us fully to consider the order. Subsequently, the State

has filed a motion to vacate the stay of execution and to dismiss

Russell’s appeal.

II. DISCUSSION

“Federal courts cannot enjoin state-court proceedings unless

the intervention is authorized expressly by federal statute or

falls under one or two other exceptions to the Anti-Injunction

Act.” McFarland v. Scott, 512 U.S. 849, 857 (1994) (citing

Mitchum v. Foster, 407 U.S. 225, 226 (1972)). Under 28 U.S.C.
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§ 2251, a federal judge “before whom a habeas corpus proceeding

is pending” may stay a state proceeding “for any matter involved

in the habeas corpus proceeding.” In McFarland, the Supreme

Court determined that a federal court has jurisdiction to grant a

stay of execution under § 2251 when necessary to give effect to

the petitioner’s statutory right to counsel on federal habeas

review invoked by a motion requesting the appointment of counsel. 

512 U.S. at 859.

Russell argues that the district court erred in finding that

it did not have jurisdiction to grant a stay under 28 U.S.C.

§ 2251 because he had not filed a habeas petition and the

exception to the filing requirement in McFarland did not apply

because Russell was represented by counsel. He contends that,

under McFarland, the district court had jurisdiction to enter a

stay and that the district court erred in determining that he was

represented by counsel. The State responds (1) that Russell is

currently represented by counsel, making McFarland inapplicable;

(2) that Russell has failed to exhaust his state post-conviction

remedies and is therefore barred from currently seeking

appointment of counsel in order to file a federal habeas

petition; and (3) that his motion for a stay of execution is

purely a dilatory tactic which should not be given effect by

granting a stay.

We need not reach the bulk of the parties’ arguments because

the dispositive question (as the district court recognized) is
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whether the district court had jurisdiction to grant a stay under

McFarland despite the fact that no actual federal habeas petition

had been filed. We find that, assuming arguendo that Russell is

not represented by counsel for the purposes of 21 U.S.C.

§ 848(q)(4), McFarland provides no jurisdictional basis for the

court to grant a stay of execution in this case.

Russell’s motion filed in the district court is entitled,

“Motion for Stay of Execution” and begins as follows: 

Willie Russell has filed a motion for appointment of

counsel, and a motion for stay of execution, in the Supreme

Court of Mississippi so that he may pursue his right to a

post-conviction petition to challenge his conviction and

sentence of death on federal constitutional grounds. The

Supreme Court of Mississippi has not granted his motion as

of 1:40 PM today and he is scheduled to be executed as 12:01

AM on January 22, 1997--one minute past midnight tonight. 

Copies of those requests, as filed in the Mississippi

Supreme Court in Willie Russell v. State of Mississippi, No.

93-DP-00418-SC, are attached.

Unless the execution is stayed, Mr. Russell will

be unable to pursue his lawful rights and remedies

under the Mississippi Post-Conviction Relief Act and

under the writ of habeas corpus as guaranteed by

federal law, 28 U.S.C. § 2254. Unless the execution is

stayed, he will be unable to seek the appointment of

counsel in accordance with the Fourteenth Amendment and

21 U.S.C. § 848(q)(4)(B), to pursue those rights and

remedies and to enforce the protections of the

Constitution.

The motion then describes the difficulties in recruiting

volunteer counsel for collateral review of capital convictions

for Mississippi death-row inmates resulting from the fact that

Mississippi does not provide for appointment of counsel for

collateral proceedings. The motion also notes that the counsel
** In support of its conclusion that Russell did invoke

his right to appointed counsel under 21 U.S.C. § 848(q)(4)(B),

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filing this motion do not represent Russell and cannot accept

appointment to his case. The motion ends by arguing that, under

McFarland, the federal district court “has the power and duty to

enter a stay to allow Mr. Russell to obtain appointment of

counsel who will then have an opportunity to meaningfully

research and present Mr. Russell’s habeas claims.”

In this motion, Russell never requests that the district

court appoint him counsel to aid him in filing a federal habeas

petition. He only states that the stay is necessary in order for

him to have the opportunity to pursue his remedies in both state

and federal court and “to seek the appointment of counsel” or “to

allow [him] to obtain appointment of counsel.” The language is

carefully chosen to avoid actually requesting the appointment of

counsel or suggesting that Russell has any present intention of

filing a federal habeas petition. It is clear from the district

court’s order that only a motion for a stay of execution was

before it; its order described the motion as a motion for a stay

of execution while also noting that Russell had filed a motion

for a stay of execution and a motion for appointment of counsel

in the Mississippi Supreme Court. The parties’ description of

the motion in the district court as a motion for a stay and for

appointment of counsel does not alter the true character of the

motion.**
the dissent points to Russell’s state court pleadings in which

“Russell unequivocally requests the appointment of counsel

through his handwritten, pro se correspondence and accompanying

motion for appointment of counsel.” We have difficulty

understanding how the fact that Russell was contemporaneously

pursuing the appointment of counsel from the state court supports

the dissent’s conclusion that he was also asking the federal

district court to appoint counsel; that fact seems to us to cut

the other way. The dissent also points to a “Reply in Support of

Motion for Stay of Execution and Appointment of Counsel” wherein

Russell notes that nineteen exhausted challenges are available

for federal habeas review and that appointment of counsel is

therefore “permissible” under § 848(q). That “Reply” is somewhat

of a mystery. It was never docketed in the district court and is

not file-stamped. Our best guess is that it was faxed by

attorneys McDuff and Craig to the district judge’s chambers at

some point late in the day of January 21. Although it bears a

caption that includes the words “Appointment of Counsel,” it does

not directly ask for appointment of counsel and ends by asking

simply for a stay.

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In McFarland, the jurisdiction to enter a stay was necessary

to give effect to the petitioner’s invocation of his statutory

right of counsel under 21 U.S.C. § 848(q)(4). See 512 U.S. at

859; see also Williams v. Cain, No. 98-30587, 1998 WL 314747, at

*1 (5th Cir. June 16, 1998) (stating McFarland’s holding);

Steffen v. Tate, 39 F.3d 622, 623 (6th Cir. 1994) (same). In

this case, however, the district court never had jurisdiction to

enter a stay of execution because Russell (1) never sought

appointment of counsel, (2) never filed a federal habeas

petition, or (3) assuming arguendo that an announced intention to

file a federal habeas petition shortly would be grounds for a

stay, see Steffen, 39 F.3d at 625, never announced such an

intention. Russell’s reference to protecting his rights to seek

state and federal remedies does not alter the fact that the
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district court lacked jurisdiction to enter a stay. We leave it

to the state courts to administer state remedies, and no

jurisdiction exists for a federal district court to enter a stay

to allow a petitioner to pursue his state-court remedies. See

Steffen, 39 F.3d at 624-25 (rejecting petitioner’s argument under

both the All Writs Act and § 2251 that a stay can be granted in

order for the petitioner to pursue his state-court arguments to

preserve them for review in a federal habeas petition).

Russell’s counsel on this motion are experienced capital

defense counsel and know how to invoke federal jurisdiction. 

They did not do so here.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

order and VACATE the previously entered stay of execution. The

respondent’s motion to dismiss the appeal is DENIED as moot.