1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-22-1996

Duffey v. Lehman

Precedential or Non-Precedential:

Docket 94-9003

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Recommended Citation

"Duffey v. Lehman" (1996). 1996 Decisions. Paper 181.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/181
 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 

 No. 94-9003 

 ___________ 

 STEVEN DUFFEY, 

 Appellant 

 v. 

 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. 

 (Opinion Filed: January 16, 1996; Vacated: February 12, 1996) 

 Reargued In Banc 

 May 14, 1996 

 Before: SLOVITER, Chief Judge, 

 BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, 

 COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE and SAROKIN, 

 Circuit Judges. 

 (Filed: 5-22-96) 

 _________ 

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 

 __________ 

 ORDER 

 __________ 

 On December 23, 1994, Steven Duffey, a Pennsylvania 

state prisoner incarcerated under a sentence of death, appealed 

the district court's denial of his motion for stay of execution, 

alleging entitlement under the standard announced by the U.S. 

Supreme Court in McFarland v. Scott, 114 S. Ct. 2568 (1994). 

Agreeing, a panel of this court remanded the case for entry of an 

order granting Duffey a stay pending the presentation of a first 

petition for writ of habeas corpus after the state courts ruled 

on his post-conviction petition. By order dated February 12, 

1996, we granted the Commonwealth's petition for rehearing in 

banc, thus vacating the panel's judgment and withdrawing the 

panel opinion. 

 Prior to the in banc argument, Duffey filed a motion to 

dismiss the appeal as moot, claiming that because the district 

court has now appointed counsel under 21 U.S.C.  848(q)(4)(B) to 

assist him in the investigation, preparation, and filing of a 

federal habeas petition, his entitlement to a stay is no longer 

governed by McFarland. Moreover, the death warrant issued for 

the week of December 4, 1994, has expired. 

 At oral argument before the court in banc, counsel for 

Duffey advised that a first federal habeas petition has not yet 

been filed. Court-appointed counsel instead elected to pursue 

Duffey's unexhausted state claims under the Pennsylvania PostConviction Relief Act, 42 Pa. Cons. Stat.  9543, et. seq., and a 

petition is currently pending before the Court of Common Pleas of 

Lackawanna County, Pennsylvania. Should a new death warrant 

issue, counsel assured us that Duffey was prepared to append to 

any motion for stay of execution, if not granted by the state 

courts, his first federal habeas petition. Thus, counsel 

contended that this appeal, which challenged the denial of a stay 

under McFarland, is factually moot and could not arise again. 

 Because we agree that this appeal is now factually in a 

different posture and accepting the representations of Duffey's 

counsel that Duffey would not return to the federal courts under 

the same circumstances, we decline to consider the issue 

originally presented in this appeal. In accordance with United 

States v. Munsingwear, Inc., 340 U.S. 36 (1950), we, therefore, 

dismiss this appeal and vacate the judgment of the district court 

on the motion for stay. 

 BY THE COURT, 
 /s/ Carol Los Mansmann 

 Circuit Judge 

Attest: 

_____________________ 

P. Douglas Sisk, Clerk