84 F.3d 668

Steven DUFFEY, Appellant,
v.
Joseph D. LEHMAN, Commissioner of the PA Department of
Corrections; William J. Love, Superintendent of the State
Correctional Institution at Huntingdon; Joseph P.
Mazurkiewicz, Superintendent of the State Correctional
Institution at Rockview.

No. 94-9003.

United States Court of Appeals,
Third Circuit.

Argued Oct. 26, 1995.
Filed Jan. 16, 1996.
Vacated Feb. 12, 1996.
Reargued In Banc May 14, 1996.
Decided May 22, 1996.

Billy H. Nolas, Robert B. Dunham (argued), Pennsylvania Post-Conviction Defender Organization, Philadelphia, PA, for appellant.

Michael J. Barrasse, William P. O'Malley (argued), Office of the District Attorney, Scranton, PA, for appellees.

Before SLOVITER, Chief Judge, and BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE and SAROKIN, Circuit Judges.

ORDER

1

On December 23, 1994, Steven Duffey, a Pennsylvania state prisoner incarcerated under a sentence of death, appealed the district court's denial of his motion for stay of execution, alleging entitlement under the standard announced by the U.S. Supreme Court in McFarland v. Scott, --- U.S. ----, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). Agreeing, a panel of this court remanded the case for entry of an order granting Duffey a stay pending the presentation of a first petition for writ of habeas corpus after the state courts ruled on his post-conviction petition. By order dated February 12, 1996, we granted the Commonwealth's petition for rehearing in banc, thus vacating the panel's judgment and withdrawing the panel opinion.

2

Prior to the in banc argument, Duffey filed a motion to dismiss the appeal as moot, claiming that because the district court has now appointed counsel under 21 U.S.C. § 848(q)(4)(B) to assist him in the investigation, preparation, and filing of a federal habeas petition, his entitlement to a stay is no longer governed by McFarland. Moreover, the death warrant issued for the week of December 4, 1994, has expired.

3

At oral argument before the court in banc, counsel for Duffey advised that a first federal habeas petition has not yet been filed. Court-appointed counsel instead elected to pursue Duffey's unexhausted state claims under the Pennsylvania Post-Conviction Relief Act, 42 Pa. Cons.Stat. § 9543, et. seq., and a petition is currently pending before the Court of Common Pleas of Lackawanna County, Pennsylvania. Should a new death warrant issue, counsel assured us that Duffey was prepared to append to any motion for stay of execution, if not granted by the state courts, his first federal habeas petition. Thus, counsel contended that this appeal, which challenged the denial of a stay under McFarland, is factually moot and could not arise again.

4

Because we agree that this appeal is now factually in a different posture and accepting the representations of Duffey's counsel that Duffey would not return to the federal courts under the same circumstances, we decline to consider the issue originally presented in this appeal. In accordance with United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), we, therefore, dismiss this appeal and vacate the judgment of the district court on the motion for stay.

5

BY THE COURT,

6

/s/ Carol Los Mansmann

Circuit Judge