United States District Court, D. Idaho
LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE
9, 2018-following the State's obtaining a death warrant
against Petitioner-the Court entered a temporary stay of
execution in this capital habeas corpus matter. (Dkt. 6.)
Because 28 U.S.C. § 2251(a)(3) restricts the authority
of the Court to stay an execution when the petitioner has not
yet filed a habeas petition, the stay was limited to 90 days
from the date counsel was appointed, as set forth in that
statute. The Court explained that once the petition was
filed, the stay could be extended. (Id. at 3.)
has now filed a Motion to Extend the Stay, and the Court
ordered expedited briefing. (Dkt. 7, 8.) Petitioner asks that
the Court extend the temporary stay for the duration of the
proceedings, notwithstanding the fact that Petitioner has yet
to file his Petition.
Court recognizes that Petitioner “did not request a
stay pursuant to § 2251(a)(3). Rather, he invoked Dist.
Idaho Loc. Civ. R. 9.2(c).” (Id. at 3
(internal citation omitted).) That Local Rule provides that
the Court “must immediately review the ... preliminary
initial filings [in a capital habeas case], and, if the
matter is found to be properly before the court, the court
will issue an initial review order ... staying the
execution for the duration of the proceedings in this
court.” (emphasis added).
what Petitioner fails to recognize is that this provision of
the Local Rule can apply only if it is within the statutory
authority of the Court. If § 2251(a)(3) limits a
pre-petition stay of execution to 90 days after counsel is
appointed-as the Court previously held-then the Local Rule is
not in compliance with that statute and, therefore, must
we come to the crux of Petitioner's argument-that §
2251 does not, in fact, prohibit an indefinite pre-petition
stay. Petitioner is correct that subsection (a)(1) authorizes
an indefinite stay of execution in a “pending”
habeas corpus proceeding: “A ... judge of the United
States before whom a habeas corpus proceeding is pending
may ... stay any proceeding against the person detained ...
for any matter involved in the habeas corpus
proceeding.” (See Dkt. 7-1 at 3.) But
Petitioner is incorrect in asserting that nothing in §
2251 prohibits an indefinite pre-petition stay.
(See generally Dkt. 7-1, 10.)
reason that a district court has the statutory authority to
issue a stay of execution in a habeas case is because
“legislation governing federal habeas corpus
proceedings” constitutes an express exception to the
Anti-Injunction Act. Mitchum v. Foster, 407 U.S.
225, 234-35; see 28 U.S.C. § 2283 (“A
court of the United States may not grant an injunction to
stay proceedings in a State court except as expressly
authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.” (emphasis
added).) Therefore, the Court's authority to
issue a stay of execution is limited to the terms of that
2251, by its terms, allows a judge “before whom a
habeas corpus proceeding is pending” to issue
an indefinite stay; however, the statute also explicitly
states that “a habeas corpus proceeding is not
pending until the application is filed.” 28 U.S.C.
§ 2251(a)(2) (emphasis added). Therefore, §
2251(a)(1)'s express authorization to issue a stay of
execution applies only once the petition is actually filed.
The immediate problem one can see from reading these two
subsections is that, if a petitioner does not yet have
counsel to aid him in preparing a petition in the first
place, how is the petitioner to obtain a stay of execution?
solved that problem with subsection (a)(3), which grants a
federal court the authority to issue a stay of execution
where a person has filed an application for the appointment
of counsel in a capital habeas matter, “but such stay
shall terminate not later than 90 days after counsel is
appointed.” The Court does not have the authority to
issue an indefinite stay until a petition is filed. The Court
cannot simply ignore or rewrite the statutory language, no
matter how practical and desirable such an endeavor might be.
relies on McFarland v. Scott, 512 U.S. 849 (1994),
for the proposition that a “more extended stay is
mandatory” in a pre-petition case. (Dkt. 7-1 at 3
(emphasis omitted).) In that case, the United States Supreme
[O]nce a capital defendant invokes his right to appointed
counsel, a federal court also has jurisdiction under §
2251 to enter a stay of execution. Because section 2251
expressly authorizes federal courts to stay state-court
proceedings “for any matter involved in the habeas
corpus proceeding, ” the exercise of this authority is
not barred by the Anti-Injunction Act.
512 U.S. at 858. In so holding, the Court rejected the
state's argument that a “habeas corpus
proceeding” could not be deemed “pending”
prior to the filing of a petition. Id. at 857-58.
McFarland was decided long before subsections (a)(2)
and (a)(3) were added to § 2251. See 62 Stat.
966 (June 25, 1948). Before 2006, the statute read, in its
entirety, as follows:
A justice or judge of the United States before whom a habeas
corpus proceeding is pending may ... stay any proceeding
against the person detained ... for any matter ...