Moser, In re, 95-9003

Decision Date15 August 1995
Docket NumberNo. 95-9003,95-9003
Citation69 F.3d 690
PartiesIn re Leon MOSER. . Submitted Under Third Circuit LAR 34.1(a)
CourtU.S. Court of Appeals — Third Circuit

Mary M. Killinger, District Atty., Norristown, PA, for State.

Billy H. Nolas, Philadelphia, PA, for Moser.

Before: MANSMANN, COWEN and NYGAARD, Circuit Judges.



The State 1 challenges the district court's entry, in this next friend petition, of a stay of execution pending an independent psychiatric exam and evidentiary hearing to determine Mr. Moser's mental competency.

The parties have not delineated the basis of our jurisdiction nor do they dispute it. It is nonetheless incumbent upon us to ensure a proper exercise of our appellate jurisdiction. Because the effect of the stay here is injunctive in nature, we exercise jurisdiction pursuant to 28 U.S.C. Sec. 1292(a)(1). See Brown v. Vasquez, 952 F.2d 1164, 1165 (9th Cir.1991), cert. denied, 503 U.S. 1011, 112 S.Ct. 1778, 118 L.Ed.2d 435 (1992). Jurisdiction is also appropriate as an exercise of our mandamus authority under the All Writs Act, 28 U.S.C. Sec. 1651(a).

We review the district court's entry of the stay of execution for an abuse of discretion. Wainwright v. Ford, 467 U.S. 1220, 104 S.Ct. 3498, 82 L.Ed.2d 911 (1984) (Powell, J., concurring); Kemp v. Smith, 463 U.S. 1344, 104 S.Ct. 19, 77 L.Ed.2d 1446 (1983). The district court here soundly exercised its discretion in adopting procedures consistent with those adopted by the district court as we described in In Re Zettlemoyer, 53 F.3d 24 (3d Cir.1995) in holding the next friend petition in abeyance to permit resolution of the issue of Mr. Moser's competence to waive his right to federal court review of his conviction and sentence pursuant to 28 U.S.C. Sec. 2254. Here the district court reviewed the affidavits of Drs. Sadoff and Cooke, both of whom indicated that they found Mr. Moser incompetent in 1985 when they examined him in connection with the state competency proceedings. The court also considered the fact that Moser had been placed in Fairview psychiatric facility during his incarceration, that he is currently receiving anti-depressant medication and that his psychiatric records had not been released by the State.

Accordingly, we affirm the district court's grant of a stay of execution pending an independent psychiatric examination and evidentiary hearing to assess Mr. Moser's mental competence given that it is the...

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5 cases
  • Franklin v. Francis
    • United States
    • U.S. District Court — Southern District of Ohio
    • February 27, 1998
    ...756 (April 5, 1979) (Rehnquist, J., Opinion in Chambers); Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966); In re Moser, 69 F.3d 690 (3d Cir.1995); Wells v. Arave, 18 F.3d 656 (9th Cir. 1994); Brewer v. Lewis, 989 F.2d 1021 (9th Cir. 1993); Rumbaugh v. Procunier, 753 F.2d ......
  • Com. v. Morris
    • United States
    • Pennsylvania Supreme Court
    • April 20, 2001
    ...appeal since that is how federal courts and other states have opted to treat stays of execution for jurisdictional purposes. In re Moser, 69 F.3d 690 (3rd Cir.1995)(court has jurisdiction to consider stay of execution, since the effect of a stay is injunctive in nature; jurisdiction is also......
  • Franklin v. Francis
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 22, 1998
    ...not entered an order determining the competency of Berry nor whether his mother and sister can proceed as next friends. See In re Moser, 69 F.3d 695 (3d Cir.1995). However, we have jurisdiction to consider this matter, as the effect of a stay is injunctive in nature. Therefore, there is jur......
  • Moser, In re
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 16, 1995
    ... ... Leon Moser, and appointed CJA counsel for the purpose of reporting to the Court with respect to Mr. Moser's present competency. The State appealed, and by per curiam opinion entered August 15, 1995, we affirmed the order of the District Court at C.A. No. 95-9003, 69 F.3d 690. Upon consideration of the State's motion to vacate the stay of execution, the Supreme Court of the United States granted the State's motion and vacated the stay, --- U.S. ----, 116 S.Ct. 28, 132 L.Ed.2d 910 ...         The Pennsylvania Post-Conviction Defender Organization ... ...
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