In Re: Leon Moser ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-16-1995
In Re: Leon Moser
Precedential or Non-Precedential:
Docket 95-9003
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Recommended Citation
"In Re: Leon Moser" (1995). 1995 Decisions. Paper 220.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/220
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FOR PUBLICATION
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
___________
No. 95-9003
___________
In Re: Leon Moser
___________
Submitted Under Third Circuit LAR 34.1(a)
August 15, 1995
Before: MANSMANN, COWEN and NYGAARD, Circuit Judges.
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OPINION OF THE COURT
__________
(Filed: August 15, l995)
Per Curiam.
The State1 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.
§1292(a)(1). See Brown v. Vasquez, 952 F.2d 1164, 1165 (9th
Cir.), cert. denied, 503 U.S. 1011 (1992). Jurisdiction is also
1
The "State" includes Martin Horn, Commissioner,
Pennsylvania Department of Corrections; and Joseph P.
Maurkiewicz, Superintendent of the State Correction Institution
at Rockview.
1
appropriate as an exercise of our mandamus authority under the
All Writs Act, 28 U.S.C. § 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 (1984) (Powell, J., concurring); Kemp v. Smith, 463
U.S. 1344 (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 42 U.S.C. § 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 threshold issue in the determination of
standing of the "next friend" who petitioned on Mr. Moser's
behalf. The mandate shall issue forthwith.
2
3