### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 07/07/99 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 99-10895

________________________ D. C. Docket No. 95-B-3020-S PERNELL FORD, Petitioner-Appellant,

versus MICHAEL W. HALEY, Commissioner, Alabama Department of Corrections, Respondent-Appellee.

________________________ Appeal from the United States District Court for the Northern District of Alabama

_________________________ (July 7, 1999)
Before ANDERSON, Chief Judge, DUBINA and HULL, Circuit Judges. PER CURIAM: This appeal involves Ford’s first § 2254 habeas petition in his capital case. LaJuana Davis (“Davis”), acting as counsel for Pernell Ford (“Ford”), has filed in Ford’s name a Motion for a Stay of Ford’s execution. Ford’s execution is scheduled for 12:01 a.m. on Friday, July 9, 1999. The district court dismissed with1 Because Ford’s § 2254 habeas petition was filed in 1995, Davis properly sought a certificate of probable cause to appeal, as oppos ed to a certificate of appealability under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2253(c) (1996). 2 prejudice Ford’s § 2254 habeas petition, finding Ford was mentally competent to dismiss his counsel and dismiss that petition. On July 6, 1999, the district court issued a certificate of probable cause for Fo rd to appeal its dismissal of his § 2254 habeas petition. 1 Therefore, this Court grants Ford’s Motion for a Stay of Execution pursuant to Eleventh Circuit Rule 22-3, which we attach as an appendix to this opinion.
I. PROCEDURAL HISTORY Appellant Ford was convicted of two murders and sentenced to death. The evidence is summarized in the opinions of the Alabama appellate courts affirming Ford’s conviction and sentence. Ford v. State , 515 So.2d 34 (Ala. Crim. App. 1986), aff’d , 515 So.2d 48 (Ala. 1987), cert. denied , 484 U.S. 1079 (1988); Ford v.
State , 630 So.2d 111 (Ala. Crim. App. 1991) (affirming the denial of Ford’s state habeas petitions), aff’d , 630 So.2d 113 (Ala. 1993), cert. denied , 511 U.S. 1078 (1994). On November 21, 1995, Ford filed a § 2254 habeas petition in the United States District Court for the Northern Di strict of Alabama. On May 30, 1997, Ford filed a motion to dismiss his habeas petition. Before allowing the petition to be3 dismissed, the Magistrate Judge select ed Dr. Rollins, from the names submitted by Ford’s attorney, to examine Ford. Afte r examining Ford, Dr. Rollins submitted his psychiatric evaluation giving his opinion that Ford was competent to dismiss his attorney and his § 2254 habeas petition. OnJune 10, 1998, an evidentiary hearing was held wherein both Ford and Dr. Ro llins were questioned by the Magistrate Judge, and Ford’s attorney. Subsequen tly, Dr. Rollins re-examined Ford and the Magistrate Judge held a telephone confer ence with all parties and questioned Ford again. Davis subsequently submitted another mental evaluation of Ford by Dr. Pincus. In his report, Dr. Pincus gave his opinion that Ford was not competent to dismiss his attorney and his § 2254 habeas petition. Thereafter, the Magistrate Judge i ssued a detailed Report recommending that Ford be found mentally competent to dismiss his attorney and to dismiss, with prejudice, his § 2254 habeas petition. The Magistrate Judge found, interalia , that Dr. Rollins’s report was more persuasive than Dr. Pincus’s. On March 31, 1999, the federal district court in Alabama i ssued a detailed order finding Ford mentally competent, granting Ford’s request to dismiss his attorney, granting his motion to dismiss his habeas petition, and dismissing with prejudice Ford’s § 2254 habeas petition.2 Davis’s first Notice of Appeal, filed April 28, 1999, may have been premature but remains effective. Fed. R. App. P. 4(a)(4)(B)(i). The Motion to Alter or Amend tolled the time for appeal. Fed. R. App. P. 4(a)(4). Together, the two Notices of Appeal are sufficient to appeal both the district court’s March 31 and July 1, 1999 orders. Fed. R. App. P. 4(a)(4)(B)(i),(ii). 4 On April 14, 1999, Davis, signing as Ford’s attorney, filed, in Ford’s name, a Motion to Alter and Amend the Judgment, a Notice of Appeal of the district court’s order dated March 31 dismissi ng with prejudice Ford’s § 2254 habeas petition, and a Motion for Stay of Execution in the district court. On July 1, 1999, the district court denied the Motion to Alter and Amend and the Motion for Stay of Execution. On July 6, 1999, Davis, signing as Ford ’s attorney, filed a Notice of Appeal of the district court’s July 1 order de nying the Motion to Alter and Amend and the Motion for a Stay of Execution. 2 On July 6, Davis also filed a Motion for Certificate of Probable Cause to Author ize Appeal, which the district court granted. In its July 6, 1999 order, the district court stated as follows: [T]he court has considered the fact that this is a capital case involving issues that are “debatable among juri sts of reason” and that “a court could resolve the issues in a different manner.” While this court has resolved the issues against Petitioner, and is confident of the correctness of its decision, the foregoing findings by the court are sufficient to authorize the issuan ce of a certificate of probable cause under Barefoot v. Estelle , 463 U.S. 880, 893 (1983), thus allowing Petitioner’s counsel to appeal this court’s grant of Petitioner’s request to waive his appeals, to dismiss counsel and the dismissal of a writ of habeas corpus in this death pe nalty case. Accordingly, it is ORDERED that the certificate of probable cause is hereby issued.5 II. DAVIS’S STANDING The Appellee contends that the Notices of Appeal and Motion for Stay of Execution, filed by Davis in Ford’s name, should be dismissed because the district court found Ford was mentally competent, and thus Davis lacks standing to pursue this appeal as Ford’s attorney. If we c onclude that the district court’s finding that Ford is mentally competent is not clearly erroneous, then the district court correctly honored Ford’s wishes to dismiss his attorney and his § 2254 habeas petition. See Whitmore v. Arkansas , 495 U.S. 149 (1990); Gilmore v. Utah , 429 U.S. 1012 (1976); Lonchar v. Zant , 978 F.2d 637 (11th Cir. 1992). Accordingly, Davis, no longer Ford’s attorney, would lack standing to pursue Ford’s case further. However, if the district court’s finding is clearly erroneous and Ford is mentally incompetent, then the dismissals of Davi s and the petition were in error, and Davis may be entitled, as Ford’s attorney, to pursue Ford’s § 2254 habeas petition. In other words, Davis’s standing in this appeal ultimately may depend on the limited issue of whether the district court’s factual finding that Ford is mentally competent is clearly erroneous. See Whitmore v. Arkansas , 495 U.S. 149 (1990); Gilmore v. Utah , 429 U.S. 989 (1976), stay vacated , 429 U.S. 1012 (1976). Thus, at this juncture, Davis appears to retainstanding to the limited extent necessary to file this appeal and to challenge the district court’s findings that Ford is mentally6 competent to dismiss Davis as his counsel and his § 2254 habeas petition with prejudice. Otherwise, a district court w ould be able to find a defendant mentally competent in a capital case to dismiss his counsel and dismiss with prejudice his first § 2254 habeas petition in a federal c ourt and there never would be any appeal or review of that conteste d mental competency ruling. Likewise, at this juncture Davis appear s to retain standing to seek a stay of execution to the limited extent necessary to prosecute this appeal of the district court’s mental competency rulings in Fo rd’s first habeas petition. The district court issued a certificate of probable cause based on its finding that Ford’s mental competency to dismiss his capital appeal s involves “issues that are ‘debatable among jurists of reason’ and that ‘a court could resolve the issues in a different manner.’” When non-frivolous issues are pr esented on appeal in a capital case, the Supreme Court has made it clear that a st ay of execution should be issued, even if only temporarily, when a stay is needed fo r the court to address such issues before the appeal becomes moot. See Barefoot v. Estelle , 463 U.S. 880, 893-94 (1983). Thus, since Davis appears to have limited standing to pursue the district court’s mental competency rulings, Davis necessarily also has limited standing to move for3 The standing issue here is arguably akin to a court’s having limited jurisdiction to determine its own jurisdiction. While we find Davis has made a sufficient showing of standing to be able to pursue this appeal at this juncture, questions do arise regarding Davis’s status, as she is no longer Ford’s attorney and is not filing this appeal as his next friend, and the effect, if any, on her standing. We carry those jurisdictional issues with the appeal. 7 a stay of Ford’s execution while this Court hears that appeal in order to prevent the appeal from becoming mooted by Ford’s execution. 3
III. STAY OF EXECUTION This brings us to whether the Motion for a Stay of Execution should be granted under the circumstances of this first § 2254 habeas petition in a capital case. We attach Eleventh Circuit Rule 22-3 because it provides the answer to this question. Under this Circuit’s Rule 22-3( a)(7), “[i]f a certificate of appealability is granted by the district court or by this Court, the panel shall grant a temporary stay pending consideration of the merits of the appeal if necessary to prevent mooting the appeal. . . .” 11th Cir. R. 22-3(a)(7) (emphasis added). Certificates of probable cause are the prior equivalent of certif icates of appealability. Hardwick v. Singletary , 126 F.3d 1312, 1313 (11th Cir. 1997) (“Notwithstanding a marginal variance in the language identifying th e necessary showing with respect to certificates of probable cause and appeal ability, we conclude that the standard governing certificates of probable cause and certificates of appealability is materially identical.”).8 The district court has granted a certifi cate of probable cause and a temporary stay of the July 9 execution is clearly necessary to prevent the mooting of this appeal filed July 6. Therefore, Eleven th Circuit Rule 22-3(a)(7) directs that we shall grant a temporary stay of the July 9 execution until further order of this
Court. See Barefoot v. Estelle , 463 U.S. 880 (1983). We recognize that subsections (i) and (ii) of our Circuit Rule 22-3(a)(7) permit exceptions to this grant of a stay after a certificate has been issued by the district court; however, neither excepti on applies under the particular factual circumstances revealed in th e record in this case. First, we do not find that the district court abused its discretion in finding the appeal was non-frivolous and in issuing the certificate of probable cause. See Barefoot v. Estelle , 463 U.S. 880, 893-94 (1983). In fact, the Appellee has notcross-appealed the district court’s grant of that certificate as of this juncture. Also, this appeal does not involve a successive habeas petition.
IV. APPEAL SCHEDULE Finally, pursuant to the last paragr aph in our Circuit Rule 22-3(a), we conclude that at this late date the merits of this appeal, filed on July 6, 1999, cannot be appropriately addressed and decided concurrently with a decision on the motion9 to stay. However, we do find that good cause clearly exists for an advanced briefing schedule and oral argument. This appeal involves only the limited issue of whether the district court was clearly erroneous in its factual finding thatFord is mentally competent to dismiss his counsel and dismiss his § 2254 petition. Ford has been requesting dismissal of his § 2254 habeas petition since May 1997. In fact, in a letter dated May 9, 1999, Ford again expressed his desire that his execution date be set and that his execution be carried out. Thus, for good cause show n, the Court advances the briefing schedule and oral argument in this appeal . Appellant’s brief shall be due on July 22, 1999; Appellee’s brief shall be due on August 5, 1999; Appellant’s reply brief shall be due on August 12, 1999; and, or al argument is scheduled for August 18, 1999 at 2:00 p.m. in Atlanta, Georgia. The Clerk immediately shall issue oral argument and briefing notices to all parties.
V. STAY The Court grants the Motion to Stay Execution and temporarily stays the execution of Pernell Ford pending further order of this Court.