Duffey v. Lehman

• Court: U.S. District Court — Middle District of Pennsylvania
• Writing for the Court: VANASKIE
• Citation: Duffey v. Lehman, 880 F.Supp. 303 (M.D. Pa. 1995)
• Decision Date: 21 February 1995
• Docket Number: No. 3:CV-94-1947.,3:CV-94-1947.
• Parties: Steven DUFFEY, Petitioner/Plaintiff, v. Joseph D. LEHMAN, Commissioner of the Pennsylvania Department of Corrections; William J. Love, Superintendent of the State Correctional Institution at Huntingdon; and Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview, Respondents/Defendants.

880 F. Supp. 303

Steven DUFFEY, Petitioner/Plaintiff, v. Joseph D. LEHMAN, Commissioner of the Pennsylvania Department of Corrections; William J. Love, Superintendent of the State Correctional Institution at Huntingdon; and Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview, Respondents/Defendants.

No. 3:CV-94-1947.

United States District Court, M.D. Pennsylvania.

February 21, 1995.

Steven Duffey, Huntingdon, PA, Robert B. Dunham, Michael Wiseman, David Wycoff, Philadelphia, PA, for petitioner.

Michael Jude Barrasse, Edmund W.J. Zigmund, Asst. Dist. Atty., Scranton, PA, for respondents.

William P. O'Malley, Asst. Dist. Atty., Scranton, PA.

Jerome Thomas Foerster, Office of Atty. Gen., Harrisburg, PA.

MEMORANDUM

VANASKIE, District Judge.

The Commonwealth of Pennsylvania has moved for reconsideration of this Court's issuance of a "certificate of probable cause" ("CPC") incident to the denial of convicted murderer Steven Duffey's request for a stay of execution pending the preparation of a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Congress has provided that "an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding ... unless ... the judge who rendered the order or a circuit justice or judge issues a certificate of probable cause." 28 U.S.C. § 2253 (emphasis added). Because the denial of a stay is not a "final" order in a habeas corpus proceeding, it appears that a CPC was improvidently granted in this matter. Moreover, a CPC may be issued only where the appellant makes a "`substantial showing of the denial of a federal right.'" Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). Although Duffey raises substantial issues concerning a district court's discretion to deny a stay when an inmate has not invoked post-conviction processes for almost six-years, his appeal does not concern a "federal right" because there is no "right" to a stay of execution. Accordingly, the Commonwealth's Motion for Reconsideration will be granted and the CPC will be stricken.

BACKGROUND

On September 22, 1994, Governor Robert P. Casey signed a death warrant, scheduling Duffey's execution for the week of December 4, 1994. The warrant was issued based upon Duffey's conviction of the February 17, 1984 murder of 19 year-old Kathy Kurimchak. Execution of the warrant was scheduled for December 6, 1994, at 10:00 p.m.

On November 16, 1994, Duffey, acting "pro se" but clearly represented by the Pennsylvania Capital Case Resource Center (the "Resource Center"), filed in the Court of Common Pleas of Lackawanna County a motion for a stay of execution in order to permit him to obtain counsel to prepare a petition under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq. No grounds for challenging the constitutional validity of Duffey's conviction and death sentence were articulated in this "pro se" motion.

On November 18, 1994, the Honorable James M. Munley, who had presided over Duffey's trial, denied the motion. A motion for reconsideration was denied by Judge Munley on November 22, 1994. An appeal from Judge Munley's Order was taken to the Pennsylvania Supreme Court on November 28, 1994. Duffey asked the Pennsylvania Supreme Court to stay his execution.

Also on November 28, 1994, the Resource Center, acting as counsel for Duffey, filed in this Court an "omnibus" document, titled "Motion to Proceed in Forma Pauperis, for Stay of Execution, and for Appointment of Federal Habeas Corpus Counsel under 28 U.S.C. § 2251 and 21 U.S.C. § 848(q) — and — Complaint for Injunctive Relief under 42 U.S.C. § 1983." Duffey asserted that he was entitled to appointment of counsel to assist in the preparation of a federal habeas corpus petition, see 21 U.S.C. § 848(q)(4)(B), and requested a stay of execution to enable counsel to seek relief under 28 U.S.C. § 2254.¹

On December 5, 1994, the Pennsylvania Supreme Court denied Duffey's request for a stay of execution. Later that day, I granted a temporary stay under 28 U.S.C. § 2251 in order to determine whether Duffey had inexcusably ignored available post-conviction remedies for the purpose of delaying his execution. This concern was prompted by the fact that Duffey's conviction had been affirmed in 1988, Commonwealth v. Duffey 519 Pa. 348, 548 A.2d 1178 (1988), and no post-conviction challenge had been mounted by Duffey for approximately 6 years. Indeed, Duffey did not move for the appointment of counsel to assist in the preparation of a PCRA petition until almost two months after the death warrant was issued. In McFarland v. Scott, ___ U.S. ___, ___, 114 S.Ct. 2568, 2573-74, 129 L.Ed.2d 666, 676 (1994), the Court stated that "if a dilatory capital defendant inexcusably ignores the opportunity to present a counseled habeas corpus petition and flouts the available processes, a federal court presumably would not abuse its discretion in denying a stay of execution." An evidentiary hearing was ordered to address the question of delay in the context of this caveat in McFarland.

In order to afford the parties adequate time to secure evidence that may be relevant to Duffey's delay in pursuing post-conviction relief, the hearing was scheduled for December 15, 1994, with the stay to remain in effect until December 23, 1994.² Evidence was presented by the parties on December 15, 16, 19, and 20, 1994. Closing argument was heard on December 21, 1994, after which I expressed from the Bench findings of fact and conclusions of law. I ruled that, although Duffey was entitled to the appointment of counsel to prepare a § 2254 petition, he was not entitled to a stay of execution because he had inexcusably ignored available post-conviction processes.

At the conclusion of what was a very emotional proceeding, the following exchange occurred:

Mr. Wiseman: Your Honor, first we will be filing with the court a request for a certificate of probable cause, I imagine, tomorrow morning.

THE JUDGE: All right. That will be granted. I think there is a sufficient issue here that you would get a certificate of probable cause on that. Transcript of December 21, 1994 proceedings at 110.³

The following day, without awaiting a written application for a CPC, I issued the following Order:

NOW, in accordance with the Findings of Fact and Conclusions of Law expressed following oral argument on December 21, 1994, IT IS HEREBY ORDERED THAT:

1. Plaintiff's Motion for a Stay pending preparation of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED.

2. The stay issued in this matter on December 5, 1994 is hereby VACATED.

3. Counsel for plaintiff shall be appointed pursuant to 21 U.S.C. § 848(q)(4)(B) upon notification by the Pennsylvania Capital Case Resource Center as to the identity of counsel who has agreed to represent plaintiff for the purpose of preparing a petition for a writ of habeas corpus.

4. Plaintiff's action under 42 U.S.C. § 1983 is dismissed, without prejudice, on the basis of the representations made by counsel for plaintiff on the record in this matter that this action had been withdrawn.

5. The Clerk of Court is directed to mark this matter closed.

6. Plaintiff is hereby granted a certificate of probable cause pursuant to 28 U.S.C. § 2253 for the purpose of pursuing an appeal. Dkt. Entry 41.

On December 23, 1994, Duffey filed a notice of appeal. (Dkt. Entry 53.)

On December 30, 1994, the Commonwealth moved for reconsideration of the issuance of the CPC. (Dkt. Entry # 54.) A supporting brief accompanied the Commonwealth's Motion. (Dkt. Entry # 55.) On January 5, 1995, a telephone conference concerning the Motion for Reconsideration was conducted, and I determined that the briefing schedule established by pertinent Local Rules of Court should apply to this matter. On January 17, 1995, counsel for Duffey timely filed a Memorandum of Law in opposition to the Motion for Reconsideration. (Dkt. Entry # 66). On January 24, 1995, the Commonwealth timely filed a Reply Memorandum of Law. (Dkt. Entry 68.) This matter is ripe for disposition.⁴

DISCUSSION

A. Authority to Consider the Commonwealth's Motion for Reconsideration.

The initial issue that must be addressed is whether a district court may reconsider the grant of a CPC following the filing of a notice of appeal.⁵ Duffey contends that, with the issuance of a CPC, which enables an appeal in a habeas corpus action to proceed, Fitzsimmons v. Yeager, 391 F.2d 849, 854 (3rd Cir.), cert. denied, 393 U.S. 868, 89 S.Ct. 154, 21 L.Ed.2d 137 (1968), a district court's authority to reconsider the grant of the CPC terminates. The premise for this argument is that appellate court jurisdiction in habeas proceedings is perfected by the issuance of a CPC.⁶

Duffey's challenge to this Court's authority to consider the Motion for Reconsideration must be rejected. As the Commonwealth argues, "transfer of jurisdiction" to the Court of Appeals does not preclude consideration of a timely-filed motion for reconsideration of an otherwise appealable order. For example, in Lenard v. Agento, 699 F.2d 874 (3rd Cir.), cert. denied, 464 U.S. 815, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983), a motion for reconsideration was filed within the ten-day time requirement for post-judgment motions but after a notice of appeal had already been filed. On appeal, the appellants, as does Duffey here, argued that the district court did not have "jurisdiction" over the motion for reconsideration because they had already filed their appeal. Id. at 898. In rejecting this argument, our Court of Appeals explained:

A timely motion to reconsider postpones the running of the time for appeal. If the time to file is postponed by a motion, the district court must have jurisdiction to consider the motion.... We find that the district court had jurisdiction to consider the Motion to Reconsider.... Id.

See also United States v....