Russell v. Anderson ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-60038
_____________________
WILLIE RUSSELL,
Petitioner-Appellant,
v.
JAMES V ANDERSON, SUPERINTENDENT, MISSISSIPPI
STATE PENITENTIARY,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________________________________________________
July 22, 1998
Before POLITZ, Chief Judge, KING and PARKER, Circuit Judges.
PER CURIAM:*
Petitioner-appellant Willie Russell appeals the district
court’s denial of his motion for a stay of execution. The State
of Mississippi moves to vacate the stay of execution entered by
this court and to dismiss Russell’s appeal. We affirm the
district court’s order denying a stay and vacate the stay which
we entered.
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
2
I. BACKGROUND
Willie Russell was convicted of capital murder of a law
enforcement officer and sentenced to death. The Mississippi
Supreme Court affirmed Russell’s conviction but reversed his
sentence of death. Russell v. State, 607 So. 2d 1107 (Miss.
1992). After a second sentencing hearing, Russell was again
sentenced to death, and his sentence was subsequently affirmed by
the Mississippi Supreme Court. Russell v. State, 670 So. 2d 816
(Miss. 1995). The United States Supreme Court denied his
petition for certiorari on November 12, 1996. Russell v.
Mississippi, 117 S. Ct. 436 (1996).
On January 3, 1997, the Mississippi Supreme Court set
Russell’s execution date for 12:01 a.m. on January 22, 1997. On
January 20, 1997, Russell wrote a letter to the Mississippi
Supreme Court asking that the court appoint him counsel. That
night, attorneys Robert McDuff and James Craig submitted a motion
to the Mississippi Supreme Court on Russell’s behalf for a stay
of execution and for appointment of counsel. On January 21,
1997, McDuff and Craig filed a motion for stay of execution in
the United States District Court for the Northern District of
Mississippi on Russell’s behalf. Later that day, the Mississippi
Supreme Court denied his motions for a stay of execution and for
appointment of counsel, finding that Russell was still currently
represented by his counsel on direct appeal who had not properly
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withdrawn and that Russell’s counsel on his petition for writ of
certiorari to the United States Supreme Court had also appeared
before the Mississippi Supreme Court. With respect to that
order, McDuff and Craig filed a petition for writ of certiorari
in the United States Supreme Court; the Supreme Court has
subsequently dismissed that petition. Russell v. Mississippi,
117 S. Ct. 2407 (1997).
Also on January 21, 1997, the federal district court denied
Russell’s motion for a stay of execution, reasoning that it
lacked jurisdiction to grant a stay under 28 U.S.C. § 2251
because (1) a habeas corpus petition had not been filed and (2)
the exception to the filing requirement laid out in McFarland v.
Scott, 512 U.S. 849 (1994), did not apply because Russell was
represented by counsel. This court granted Russell a stay of
execution pending appeal of that order the same day in order to
enable us fully to consider the order. Subsequently, the State
has filed a motion to vacate the stay of execution and to dismiss
Russell’s appeal.
II. DISCUSSION
“Federal courts cannot enjoin state-court proceedings unless
the intervention is authorized expressly by federal statute or
falls under one or two other exceptions to the Anti-Injunction
Act.” McFarland v. Scott, 512 U.S. 849, 857 (1994) (citing
Mitchum v. Foster, 407 U.S. 225, 226 (1972)). Under 28 U.S.C.
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§ 2251, a federal judge “before whom a habeas corpus proceeding
is pending” may stay a state proceeding “for any matter involved
in the habeas corpus proceeding.” In McFarland, the Supreme
Court determined that a federal court has jurisdiction to grant a
stay of execution under § 2251 when necessary to give effect to
the petitioner’s statutory right to counsel on federal habeas
review invoked by a motion requesting the appointment of counsel.
512 U.S. at 859.
Russell argues that the district court erred in finding that
it did not have jurisdiction to grant a stay under 28 U.S.C.
§ 2251 because he had not filed a habeas petition and the
exception to the filing requirement in McFarland did not apply
because Russell was represented by counsel. He contends that,
under McFarland, the district court had jurisdiction to enter a
stay and that the district court erred in determining that he was
represented by counsel. The State responds (1) that Russell is
currently represented by counsel, making McFarland inapplicable;
(2) that Russell has failed to exhaust his state post-conviction
remedies and is therefore barred from currently seeking
appointment of counsel in order to file a federal habeas
petition; and (3) that his motion for a stay of execution is
purely a dilatory tactic which should not be given effect by
granting a stay.
We need not reach the bulk of the parties’ arguments because
the dispositive question (as the district court recognized) is
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whether the district court had jurisdiction to grant a stay under
McFarland despite the fact that no actual federal habeas petition
had been filed. We find that, assuming arguendo that Russell is
not represented by counsel for the purposes of 21 U.S.C.
§ 848(q)(4), McFarland provides no jurisdictional basis for the
court to grant a stay of execution in this case.
Russell’s motion filed in the district court is entitled,
“Motion for Stay of Execution” and begins as follows:
Willie Russell has filed a motion for appointment of
counsel, and a motion for stay of execution, in the Supreme
Court of Mississippi so that he may pursue his right to a
post-conviction petition to challenge his conviction and
sentence of death on federal constitutional grounds. The
Supreme Court of Mississippi has not granted his motion as
of 1:40 PM today and he is scheduled to be executed as 12:01
AM on January 22, 1997--one minute past midnight tonight.
Copies of those requests, as filed in the Mississippi
Supreme Court in Willie Russell v. State of Mississippi, No.
93-DP-00418-SC, are attached.
Unless the execution is stayed, Mr. Russell will
be unable to pursue his lawful rights and remedies
under the Mississippi Post-Conviction Relief Act and
under the writ of habeas corpus as guaranteed by
federal law, 28 U.S.C. § 2254. Unless the execution is
stayed, he will be unable to seek the appointment of
counsel in accordance with the Fourteenth Amendment and
21 U.S.C. § 848(q)(4)(B), to pursue those rights and
remedies and to enforce the protections of the
Constitution.
The motion then describes the difficulties in recruiting
volunteer counsel for collateral review of capital convictions
for Mississippi death-row inmates resulting from the fact that
Mississippi does not provide for appointment of counsel for
collateral proceedings. The motion also notes that the counsel
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filing this motion do not represent Russell and cannot accept
appointment to his case. The motion ends by arguing that, under
McFarland, the federal district court “has the power and duty to
enter a stay to allow Mr. Russell to obtain appointment of
counsel who will then have an opportunity to meaningfully
research and present Mr. Russell’s habeas claims.”
In this motion, Russell never requests that the district
court appoint him counsel to aid him in filing a federal habeas
petition. He only states that the stay is necessary in order for
him to have the opportunity to pursue his remedies in both state
and federal court and “to seek the appointment of counsel” or “to
allow [him] to obtain appointment of counsel.” The language is
carefully chosen to avoid actually requesting the appointment of
counsel or suggesting that Russell has any present intention of
filing a federal habeas petition. It is clear from the district
court’s order that only a motion for a stay of execution was
before it; its order described the motion as a motion for a stay
of execution while also noting that Russell had filed a motion
for a stay of execution and a motion for appointment of counsel
in the Mississippi Supreme Court. The parties’ description of
the motion in the district court as a motion for a stay and for
appointment of counsel does not alter the true character of the
motion.**
**
In support of its conclusion that Russell did invoke
his right to appointed counsel under 21 U.S.C. § 848(q)(4)(B),
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In McFarland, the jurisdiction to enter a stay was necessary
to give effect to the petitioner’s invocation of his statutory
right of counsel under 21 U.S.C. § 848(q)(4). See 512 U.S. at
859; see also Williams v. Cain, No. 98-30587, 1998 WL 314747, at
*1 (5th Cir. June 16, 1998) (stating McFarland’s holding);
Steffen v. Tate, 39 F.3d 622, 623 (6th Cir. 1994) (same). In
this case, however, the district court never had jurisdiction to
enter a stay of execution because Russell (1) never sought
appointment of counsel, (2) never filed a federal habeas
petition, or (3) assuming arguendo that an announced intention to
file a federal habeas petition shortly would be grounds for a
stay, see Steffen, 39 F.3d at 625, never announced such an
intention. Russell’s reference to protecting his rights to seek
state and federal remedies does not alter the fact that the
the dissent points to Russell’s state court pleadings in which
“Russell unequivocally requests the appointment of counsel
through his handwritten, pro se correspondence and accompanying
motion for appointment of counsel.” We have difficulty
understanding how the fact that Russell was contemporaneously
pursuing the appointment of counsel from the state court supports
the dissent’s conclusion that he was also asking the federal
district court to appoint counsel; that fact seems to us to cut
the other way. The dissent also points to a “Reply in Support of
Motion for Stay of Execution and Appointment of Counsel” wherein
Russell notes that nineteen exhausted challenges are available
for federal habeas review and that appointment of counsel is
therefore “permissible” under § 848(q). That “Reply” is somewhat
of a mystery. It was never docketed in the district court and is
not file-stamped. Our best guess is that it was faxed by
attorneys McDuff and Craig to the district judge’s chambers at
some point late in the day of January 21. Although it bears a
caption that includes the words “Appointment of Counsel,” it does
not directly ask for appointment of counsel and ends by asking
simply for a stay.
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district court lacked jurisdiction to enter a stay. We leave it
to the state courts to administer state remedies, and no
jurisdiction exists for a federal district court to enter a stay
to allow a petitioner to pursue his state-court remedies. See
Steffen, 39 F.3d at 624-25 (rejecting petitioner’s argument under
both the All Writs Act and § 2251 that a stay can be granted in
order for the petitioner to pursue his state-court arguments to
preserve them for review in a federal habeas petition).
Russell’s counsel on this motion are experienced capital
defense counsel and know how to invoke federal jurisdiction.
They did not do so here.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order and VACATE the previously entered stay of execution. The
respondent’s motion to dismiss the appeal is DENIED as moot.
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