### 1996 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-22-1996 

# Du ffe y v . Lehm a n

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 94-9003

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. e du/thir dc ir c uit_1996/181UNITED 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 Huntingd on; JOSEPH P. MAZURKIEWICZ, Superintendent of the State Correctional Institution at Rock view

___________
Appeal from the United States District Co urt for the Middle District of Pennsylvani a (D.C. Civ. No. 94-cv-01947)

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Argued October 26, 1995 Before: MANSMANN, COWEN and LEWIS, Circuit Judges.

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

Reargued In Banc May 14, 1996 Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SC IRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE and SAROKIN, Circuit Judges.

(Filed: 5-22-96)

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Billy H. Nolas, Esquire Robert B. Dunham, Esquire (ARGUED) Pennsylvania Post-Conviction Defender Organization 437 Chestnut Street Suite 501 Philadelphia, PA 19106

COUNSEL FOR APPELLANTMichael 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

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ORDER

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On December 23, 1994, Steven Duffey, a Pen nsylvania state prisoner incarcerated under a sentence of dea th, appealed the district court's denial of his motion for stay of execution, alleging entitlement under the standard announced b y the U.S. Supreme Court in McFarland v. Scott, 114 S. Ct. 256 8 (1994). Agreeing, a panel of this court remanded the case f or entry of an order granting Duffey a stay pending the presentati on of a first petition for writ of habeas corpus after the state courts ruled on his post-conviction petition. By order dated Fe bruary 12, 1996, we granted the Commonwealth's petition for re hearing in banc, thus vacating the panel's judgment and withdr awing the panel opinion. Prior to the in banc argument, Duffey file d a motion to dismiss the appeal as moot, claiming that because t he district court has now appointed counsel under 21 U.S.C.  848(q)(4)(B) to assist him in the investigation, preparation, and f iling 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 electe d to pursue Duffey's unexhausted state claims under the Pennsyl vania PostConviction Relief Act, 42 Pa. Cons. Stat.  9543, et. seq., and a petition is currently pending before the Court of C ommon Pleas of Lackawanna County, Pennsylvania. Should a new deat h 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, c ounsel contended that this appeal, which challenged the de nial of a stay under McFarland, is factually moot and could not ar ise again. Because we agree that this appeal is now f actually 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