United States ex rel. De Vita v. McCorkle, 11399.

Decision Date18 August 1954
Docket NumberNo. 11399.,11399.
Citation214 F.2d 823
PartiesUNITED STATES of America ex rel. Silvio DE VITA, appellant, v. Lloyd W. McCORKLE, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey.
CourtU.S. Court of Appeals — Third Circuit

Isadore Glauberman, Jersey City, N. J., for appellant.

Maurice J. McKeown, Newark, N. J., for appellee.

Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.

PER CURIAM.

De Vita, found guilty of murder in connection with an armed robbery in New Jersey, petitioned the court below for a writ of habeas corpus alleging that he had been denied due process of law, as guaranteed by the Fourteenth Amendment, by the State Tribunals. Specifically he alleges that one of the jurors who sat in this case was not an impartial or indifferent person as required by law. He is under sentence of death, to be executed in the week commencing August 15th, 1954.

The court below by Judge Modarelli denied the relief sought by De Vita but nonetheless granted a certificate of probable cause for appeal pursuant to Section 2253, 28 U.S.C., and entered an order staying De Vita's execution until noon Thursday, August 19, 1954. De Vita has appealed and has petitioned this court for the stay of his execution pending the disposition of the appeal. We shall grant the stay. It obviously would be a mockery of federal justice to execute De Vita pending the disposition of his appeal in view of the fact that Judge Modarelli, after denying the petition for habeas corpus, granted a certificate of probable cause for appeal. See Fouquette v. Bernard, 9 Cir., 1952, 198 F.2d 96. In so acting we are not unaware of the delicate balance that exists and must continue to exist between the State and federal tribunals in matters of this nature. But under the circumstances presented we have no other alternative.

Accordingly, a stay of execution will be granted pending the disposition of the appeal in the instant case.

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4 cases
  • Barefoot v. Estelle
    • United States
    • U.S. Supreme Court
    • July 6, 1983
    ...v. Wainwright, 670 F.2d 941, 942 (CA11 1982); Shaw v. Martin, 613 F.2d 487, 492 (CA4 1980) (Phillips, J.); United States ex rel. DeVita v. McCorkle, 214 F.2d 823 (CA3 1954); Fouquette v. Bernard, 198 F.2d 96, 97 (CA9 1952) (Denman, C.J.).6 This rule reflects a recognition of the simple fact......
  • United States v. McCorkle
    • United States
    • U.S. District Court — District of New Jersey
    • July 14, 1955
    ...§ 2253. 13 The Court of Appeals granted a further stay of execution pending the disposition of the appeal. United States ex rel. De Vita v. McCorkle, 3 Cir., 214 F. 2d 823. 14 United States ex rel. De Vita v. McCorkle, 3 Cir., 216 F.2d 15 A stay of execution has been granted by this court t......
  • United States v. McCorkle
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 19, 1954
    ...by the district judge. 7 See O'Brien v. Lindsay, 1 Cir., 1953, 202 F.2d 418, 421; cf. our opinion in this action on application for stay, 214 F.2d 823. 8 In United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549, relied on by appellee, the trial and appellate state c......
  • United States ex rel. Goins v. Sigler, 17005.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 12, 1957
    ...to stay execution of the appellant pending the appeal. Fouquette v. Bernard, 9 Cir., 1952, 198 F.2d 96; United States ex rel. De Vita v. McCorkle, 3 Cir., 1954, 214 F.2d 823. It further appears, however, that there is no necessity for a delay in the consideration of said appeal for the reas......

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