Stumes, In re
| Decision Date | 22 June 1982 |
| Docket Number | No. 82-1609,82-1609 |
| Parties | In re Norman STUMES, Petitioner. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Timothy J. McGreevy, Dana, Golden, Moore & Rasmussen, Sioux Falls, S. D., for petitioner.
Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and HARRIS, * Senior District Judge.
The motion of petitioner for leave to proceed in forma pauperis is granted.
Petitioner seeks a writ of mandamus to review an order of the District Court staying the execution of this Court's mandate pending action by the Supreme Court of the United States on a petition for a writ of certiorari filed by respondent Herman Solem. The District Court's order entered on May 10, 1982, relies on 28 U.S.C. Section 2101(f) as authority for its ruling. We are not persuaded that Section 2101(f) grants the District Court this authority. The statute provides that in any case in which the final judgment of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari. The statute further provides that the stay "may be granted by a judge of the court rendering the judgment or decree or by a justice of the Supreme Court ...." It appears, therefore, that only a judge of this Court, or a justice of the Supreme Court, is empowered by 28 U.S.C. Section 2101(f) to stay the execution or enforcement of this Court's judgment. Respondent Solem could have applied to this Court for a stay of its mandate, but he did not do so, and this Court's mandate issued on April 23, 1982.
We are nevertheless of the opinion that relief by mandamus would be inappropriate in the circumstances of this case. This Court's opinion, filed on March 1, 1982, did not direct the District Court to issue a writ of habeas corpus unconditionally. Our order was that the writ be issued "discharging Stumes from custody unless the State commences proceedings to try him again within such reasonable time as the District Court may fix." Stumes v. Solem, 671 F.2d 1150 (8th Cir. 1982). The District Court's stay order of May 10, 1982, in effect does no more than hold that the reasonable time within which Stumes should be retried should be determined with the fact in mind that the State has applied for review in the Supreme Court. The District Court, in other words, seems to have taken the view that...
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U.S. v. Lentz
...to stay execution or enforcement of a Fourth Circuit judgment while awaiting the outcome of a certiorari petition. See In re Stumes, 681 F.2d 524, 525 (8th Cir.1982). While it is true, as Lentz observes, that § 2101(f) does not explicitly preclude a district court from issuing such a stay, ......
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In re Richards, Bankruptcy No. 97-01501. Adversary No. 97-0090.
...hold that the district court has no authority to enter a stay after the appeal is resolved by the court of appeals. In re Stumes, 681 F.2d 524, 525 (8th Cir.1982)(court of appeals judgment directing issuance of writ of habeas corpus); Brinkman v. Department of Corrections, 857 F.Supp. 775, ......
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Cole v. City of Memphis, 2:13-cv-02117-JPM-dkv
...Servs., Inc., 669 F. Supp. 392, 393 (N.D. Ala. 1987); Filardo v. Foley Bros., 191 Misc. 671, 78 N.Y.S.2d 689 (1948); In Re Stumes, 681 F.2d 524 (8th Cir. 1982); Mister v. Illinois Central Gulf Railroad Co., 680 F.Supp. 297 (S.D. Ill. 1988) (also rejecting applicability of Fed.R.Civ.P. 62); ......
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In re A.F. Moore & Assocs., Inc., 20-2497
...the issue, accepted this interpretation. See In re Time Warner Cable, Inc. , 470 F. App'x 389, 390 (5th Cir. 2012) ; In re Stumes , 681 F.2d 524, 525 (8th Cir. 1982) ; United States v. Lentz , 352 F. Supp. 2d 718, 726 (E.D. Va. 2005) ; see also Whitehead v. Frawner , No. CV 17-275 MV/KK, 20......