Jeffery Wood v. Nathaniel Quarterman, Director , 316 F. App'x 359 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 20, 2009
No. 09-70011 Charles R. Fulbruge III
Clerk
JEFFERY LEE WOOD
Petitioner-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
5:01-CV-423
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
“In order to be entitled to a stay pending appeal under Rule 62 [Federal
Rule of Civil Procedure] or 8 [Federal Rule of Appellate Procedure], a petitioner
must show the likelihood of his prevailing on the merits on appeal, that he is
likely to suffer irreparable injury from the denial of the stay, that the other
parties will not be substantially harmed by the grant of stay, and that granting
the stay will serve the public interest.” Wildmon v. Berwick Universal Pictures,
983 F.2d 21, 23 (5th Cir. 1992) (citation omitted).
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published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 CIR . R. 47.5.4.
18 U.S.C. § 3599 states that:
Upon a finding that investigative, expert, or other services are
reasonably necessary for the representation of the defendant,
whether in connection with issues relating to guilt or the sentence,
the court may authorize the defendant’s attorneys to obtain such
services on behalf of the defendant and, if so authorized, shall order
the payment of fees and expenses . . . . No ex parte proceeding,
communication, or request may be considered pursuant to this
section unless a proper showing is made concerning the need for
confidentiality. Any such proceeding, communication, or request
shall be transcribed and made a part of the record available for
appellate review.
(emphasis added). The petitioner presents no reasons for his need for
confidentiality in his appellate briefings. We also do not find any specific reasons
for confidentiality in the records below. The petitioner therefore cannot show a
likelihood of success on the merits. Moreover, the district court’s judgment
permitted the petitioner to file another motion requesting leave to file a proposed
sealed, ex parte motion for appointment of a second mental health expert. The
petitioner may file another motion, and therefore will suffer no irreparable
injury if the stay is denied. Finally, the respondent and the public interest are
not served by stopping all proceedings in the district court, because the
petitioner does not show that a stay of all proceedings before the district court,
even those unrelated to the interlocutory appeal, is necessary.
Accordingly, IT IS ORDERED that petitioner’s motion to stay proceedings
in the district court pending appeal is DENIED.