IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 98-30587

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DOBIE GILLIS WILLIAMS

Petitioner, Appellee

v.

BURL CAIN, Warden

Respondent, Appellant.

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Appeal from the United States District Court for the

Western District of Louisiana

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June 16, 1998

Before JOLLY and BENAVIDES, Circuit Judges*

In this death penalty case, Burl Cain, Warden for the

Louisiana Sta te Penitentiary, appeals the entry of a stay of

execution by the district court pending disposition of a petition

for writ of certiorari in the United States Supreme Court. Finding

that the district court lacked jurisdiction to enter this order, we

reverse and grant the State of Louisiana’s motion to vacate the

stay.

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*This matter is being decided by a quorum, 28 U.S.C. 46(d).

I2

In 1985, Dobie Gi llis Williams was found guilty of first

degree murder in Louisiana state court and sentenced to death.

After e xhausting his state court remedies, Williams filed a

petition for writ of habeas corpus in the United States District

Court for the Western District of Louisiana. On October 9, 1996,

District Judge Little granted the writ, see Williams v. Cain , 942

F. Supp. 1088 (W.D. La. 1996), from which final decision Cain

timely appealed. On October 3, 1997, this court reversed the

judgmen t of the district court and reinstated Williams’s death

sentence. S ee Williams v. Cain

, 125 F.3d 269 (5th Cir. 1997).

Following an unsuccessful petition for rehearing and rehearing en

banc, the mandate issued on April 24, 1998, which gave Williams

until July 23 to file a petition fo r writ of certiorari in the

United States Supreme Court.

Apparently seeking to force a quick disposition, on May 14,

the State of Louisiana obtained a new execution date o f June 18

from a Louisiana state court. The record before us indicates that

the new date was obtained without prior notice to Wil liams’s

attorney, who promptly moved the state court for a renewed stay

pending disposition of an anticipated p etition for writ of

certiorari. On June 3, Judge Wright of the 35th Judicial District

responded, stating that “[t]he ab ove requested stay order is

denied. Counsel for defendant have not applied for a stay order

w ith the Supreme Court and have not filed an appeal w ith the

Supreme Court.”

II3

His state remedie s again exhausted, Williams returned to

federal court . On June 8, he filed a petition for a stay of

execution in the United States District Court for the Western

District of Louisiana. On June 11, District Judge Little granted

the stay pending disposition of Williams’s still unfiled petition

for writ of certiorari, relying on the relaxed jurisdictional

requirement for pro se habeas petitions enunciated in McFarland v.

Scott

, 512 U.S. 849 (1994). Cain noticed his appeal of this order

exactly one day later, appending thereto a motion by the State of

Louisiana to vacate the stay.

III

Under 28 U.S.C. § 2251, it is quite clear that only “[a]

Justice or Judge of the United States before whom a habeas petition

is pending, m ay . . . stay a[] proceeding against the person

detained.” Although the Supreme Court broadened the scope of §

2251 somewhat in McFarland

, that case is inapposite to the one

before us. Contrary to the district court’s broad reading,

McFarland simply held “that a capital defendant may invoke his

right to a counseled federal habeas corpus proceeding by filing a

motion reques ting the appointment of habeas counsel, and that a

district court has jurisdiction to enter a stay of execution where

necessary to give effect to that statutory right.” 512 U.S. at

859. Obviously, the M cFarland rule, which is concerned with

effec tuating the petitioner’s right to file for habeas in the

district court in the first instance, has nothing to say about the

jurisdiction of that court to enter a stay pending disposition of1 Or, in limited circumstances, from the circuit court as a

part of the disposition of his appeal. See, e.g.

, Maggio v.

Williams , 464 U.S. 46, 48 (1983).

4 certiorari when the habeas petition has already been ruled on, the

appellate mandate has issued, and the case is no longer before the

court in any fashion. In that instance, the only reasonable

analysis is that the habeas petition is no longer pending before

the district court, and the court therefore lacks jurisdiction to

enter a stay unde r the clear terms of the statute. We note in

passing that this conclusion accords with the Sixth Circuit’s

reading of § 2251 in Steffen v. Tate , 39 F.3d 622 (6th Cir. 1994)

(Boggs, J.) (concluding that district court had no jurisdiction to

enter stay of executi on pending disposition of additional state

court remedie s where defendant was represented and no habeas

petition was pending).

IV

Judge Wright called this case correctly at the outset. When

a petitioner seeks a stay of execution pending the disposition of

a writ of certiorari in the United States Supreme Court, he should

seek that stay in the Supreme Court itself. 1 The district court

lacks the ability to give it under 28 U.S.C. § 2251, and we

accordingly REVERSE the order of the district court in this case,

and GRANT the State of Louisiana’s motion to vacate the stay.

STAY OF EXECUTION VACATED.