712 F.2d 441 (10th Cir. 1983), 83-1862, Chaney v. Brown

Docket Nº:83-1862.
Citation:712 F.2d 441
Party Name:Larry Leon CHANEY, Petitioner-Appellant, v. John H. BROWN, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Respondent-Appellee.
Case Date:July 15, 1983
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 441

712 F.2d 441 (10th Cir. 1983)

Larry Leon CHANEY, Petitioner-Appellant,

v.

John H. BROWN, Warden, Oklahoma State Penitentiary,

McAlester, Oklahoma, Respondent-Appellee.

No. 83-1862.

United States Court of Appeals, Tenth Circuit

July 15, 1983

Page 442

Allen M. Smallwood, Tulsa, Okl., for petitioner-appellant.

Michael C. Turpen, Atty. Gen. of Okl., David W. Lee, Asst. Atty. Gen., Chief, Federal Div., Robert A. Nance, Asst. Atty. Gen., Deputy Chief, Federal Div., Patricia M. Gerrity, Asst. Atty. Gen., Oklahoma City, Okl., for respondent-appellee.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

ORDER GRANTING STAY OF EXECUTION OF DEATH WARRANT

PER CURIAM.

The court has for consideration the appellant Larry Leon Chaney's application for a stay of execution of appellant's death warrant, the memorandum of law in support of the application for stay of appellant's death warrant, and the response of the respondent Warden thereto. In the response, the State concedes that it is futile to resist entry of a stay while the merits of this federal habeas appeal are under consideration; the State, however, requests an expedited briefing and oral argument schedule and prompt resolution of this appeal.

The court is advised that the United States District Court for the Northern District of Oklahoma has considered and denied appellant's petition for habeas corpus relief on June 30, 1983, challenging the constitutionality of appellant's first degree murder conviction and death sentence. Appellant filed a notice of appeal on July 6, 1983, to this court. The District Court on July 12, 1983, granted a certificate under Title 28, United States Code § 2253, "that there is probable cause for an appeal in this proceeding." The District Court also denied on July 12, 1983, appellant's application for a stay of execution, pending this appeal, concluding that the "petitioner's application for stay of execution of death warrant beyond July 25, 1983, is hereby denied."

The certificate of probable cause for an appeal having been granted, the appellant must "be afforded an opportunity to address the merits, and the court of appeals is obligated to decide the merits of the appeal. Accordingly, a circuit court, where necessary to prevent the case from becoming moot by the petitioner's execution, should grant a stay of execution pending disposition of an appeal when a...

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