In Re Leon Moser

OPINION AND ORDER OF THE COURT

MANSMANN, Circuit Judge.

By order entered August 14, 1995, the District Court granted a stay of execution of death sentence, directed an independent psychiatric evaluation of Mr. Leon Moser, and appointed CJA counsel for the purpose of reporting to the Court with respect to Mr. Moser’s present competency. The State appealed, and by per curiam opinion entered August 15,1995, we affirmed the order of the District Court at C.A No. 95-9003, 69 F.3d 690. Upon consideration of the State’s motion to vacate the stay of execution, the Supreme Court of the United States granted the State’s motion and vacated the stay, — U.S. —, 116 S.Ct. 28, 132 L.Ed.2d 910.

The Pennsylvania Post-Conviction Defender Organization (PPCDO) filed renewed motions for relief in the District Court on August 16, 1995 which were denied by order dated August 16, 1995 at 1:55 a.m. The PPCDO filed an appeal to us, requesting a certificate of probable cause and a stay of execution. By per curiam opinion entered August 16, 1995, 69 F.3d 694, we granted the certificate of probable cause, denied the request for a stay on the record as it then existed and remanded the matter to the district court for an immediate hearing on all outstanding merits issues including inter alia: the standing of the Reverend Holland to act as Mr. Moser’s next friend and a possible amendment to include Mr. Moser’s brother as a next friend if an appropriate petition should be filed; the competency of Mr. Moser which may require that the district court order the State to produce Mr. Moser in the court’s presence and that any mental health records of Mr. Moser relevant to the issue of his competency be produced for the district court’s review; and the issue of deliberate delay. We also indicated our view that the district court possessed the authority to grant a temporary stay, if one should be required, on the basis of the newly developed record.

The district court heard arguments from counsel commencing at 10:45 a.m. on August 16, 1995, regarding the petition of Mr. Mos-er’s brother, Theodore Moser of Theresa, Wisconsin, to intervene as a “next friend” on his brother’s behalf in addition to Reverend Holland.¹ The district court also considered arguments on the issue of whether Mr. Mos-er engaged in deliberate delay so as to flout the judicial processes pursuant to McFarland v. Scott, — U.S. —, —, 114 S.Ct. 2568, 2573, 129 L.Ed.2d 666 (1994). On August 16, 1995 at 2:20 p.m., the district court issued an order permitting the PPCDO to amend its pleading to include Theodore Mos-er as a next friend and requiring the State to produce Mr. Moser and his mental health records forthwith to the district court at which time an immediate hearing would convene to determine Mr. Moser’s competency.

The State immediately appealed the district court’s August 16, 1995 2:20 p.m. order simultaneously to the Supreme Court of the United States [— U.S. —, 116 S.Ct. 28, 132 L.Ed.2d 910] and to us. We dismissed the appeal for lack of jurisdiction given the interlocutory nature of the order which did not invoke our jurisdiction under either 28 U.S.C. § 1292(a)(1) or 28 U.S.C. § 1651(a), 69 F.3d 695.

When it became apparent that neither Mr. Moser nor his mental health records would be produced prior to the execution scheduled for 10:00 p.m. tonight,² the district court entered a temporary stay of Mr. Moser’s execution currently scheduled for 10:00 p.m. on August 16, 1995 until August 17, 1995 at 10:00 p.m.

This appeal is markedly different from the appeal at No. 95-9003 on which the Supreme Court vacated the stay of execution by order dated August 15, 1995. In the matter now before us, the district court was presented with Theodore Moser’s petition to act as next friend for his brother, death row inmate Leon Moser in addition to Reverend Holland. The district court did not err in finding that Theodore Moser clearly is dedicated to the best interests of Leon Moser and has a significant relationship with him. Whitmore v. Arkansas, 495 U.S. 149, 163-64, 110 S.Ct. 1717, 1727, 109 L.Ed.2d 135 (1990). We also hold that the district court’s action in briefly staying the execution for roughly 24 hours was a sound exercise of discretion given the state’s inability to produce Mr. Moser for examination by the district court or the mental health records in a prompt fashion. Additionally, the district court properly exercised federal judicial power. Demosthenes v. Baal, 495 U.S. 731, 737, 110 S.Ct. 2223, 2226, 109 L.Ed.2d 762 (1990).

We state sincerely that we recognize the Supreme Court’s proper review authority and respect the Court’s previous order vacating our order affirming the stay yesterday. Given the changed circumstances and severe consequences, we are constrained to state our view that the extremely brief delay here does not prejudice the State but severely prejudices Mr. Moser.

We thus affirm the order of the district court.

1 . On this issue, the PPCDO presented the affidavit of Paul Messing, court-appointed counsel for Mr. Moser regarding Theodore Moser’s request that Mr. Messing represent his concerns of his brother’s competence. The state responded only with unsubstantiated assertions by counsel raised during argument that Theodore Moser has shown no interest in his brother during the nearly 10 years of incarceration. However, the Messing Affidavit indicates that the Moser family could not secure proper hospitalization, psychiatric care and mental health assistance for Leon because of their lack of resources. Messing Affidavit ¶ 4.

2 . Mr. Moser was presently en route to the State Correction Institution at Rockview causing doubt as to whether he could be produced on August 16, 1995. Mr. Horowitz, the State's representative in charge of Mr. Moser's mental health records, indicated that he required a minimum of two weeks to produce the records.