SUPREME COURT OF THE UNITED STATES
FRANK B. McFARLAND, PETITIONER
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
on writ of certiorari to the united states court of appeals for the
[June 30, 1994]
Blackmun delivered the opinion of the Court.
Petitioner Frank Basil McFarland was convicted of
capital murder on November 13, 1989, in the State of Texas and
sentenced to death. The Texas Court of Criminal Appeals affirmed the
conviction and sentence, McFarland v. State, 845 S. W.
2d 824 (1992), and on June 7, 1993, this Court denied certiorari. 508
U. S. ___. Two months later, on August 16, 1993, the Texas trial court
scheduled McFarland's execution for September 23, 1993. On September
19, McFarland filed a pro se motion requesting that the trial
court stay or withdraw his execution date to allow the Texas
ResourceCenter an opportunity to recruit volunteer counsel for his
state habeas corpus proceeding. Texas opposed a stay of execution,
arguing that McFarland had not filed an application for writ of habeas
corpus and that the court thus lacked jurisdiction to enter a stay.
The trial court declined to appoint counsel, but modified McFarland's
execution date to October 27, 1993.
On October 16, 1993, the Resource Center informed
the trial court that it had been unable to recruit volunteer counsel
and asked the court to appoint counsel for McFarland. Concluding that
Texas law did not authorize the appointment of counsel for state
habeas corpus proceedings, the trial court refused either to appoint
counsel or to modify petitioner's execution date. McFarland then filed
a pro se motion in the Texas Court of Criminal Appeals
requesting a stay and a remand for appointment of counsel. The court
denied the motion without comment.
Having failed to obtain either the appointment of
counsel or a modification of his execution date in state court,
McFarland, on October 22, 1993, commenced the present action in the
United States District Court for the Northern District of Texas by
filing a pro se motion stating that he "wish[ed] to challenge [his]
conviction and sentence under [the federal habeas corpus statute,] 28
U.S.C. § 2254." App. 41. McFarland requested the appointment of
counsel under 21 U.S.C. § 848(q)(4)(B) and a stay of execution to give
that counsel time to prepare and file a habeas corpus petition.
The District Court denied McFarland's motion on
October 25, 1993, concluding that because no "post conviction
proceeding" had been initiated pursuant to 28 U.S.C. § 2254 or §2255,
petitioner was not entitled to appointment of counsel and the court
lacked jurisdiction to enter a stay of execution. App. 77. The court
later denied a certificate of probable cause to appeal.
On October 26, the eve of McFarland's scheduled
execution, the Court of Appeals for the Fifth Circuit denied his
application for stay. 7 F. 3d 47. The court noted that federal law
expressly authorizes federal courts to stay state proceedings while a
federal habeas corpus proceeding is pending, 28 U.S.C. § 2251 but held
that no such proceeding was pending, because a "motion for stay and
for appointment of counsel [is not] the equivalent of an application
for habeas relief." Id., at 49. The court concluded that any
other federal judicial interference in state court proceedings was
barred by the Anti Injunction Act, 28 U.S.C. § 2283.
Shortly before the Court of Appeals ruled, a
federal magistrate judge located an attorney willing to
acceptappointment in McFarland's case and suggested that if the
attorney would file a skeletal document entitled "petition for writ of
habeas corpus," the District Court might be willing to appoint him and
grant McFarland a stay of execution. The attorney accordingly drafted
and filed a pro forma habeas petition, together with a motion
for stay of execution and appointment of counsel. As in the Gosch
case, see n. 1, supra, despite the fact that Texas did not
oppose a stay, the District Court found the petition to be
insufficient and denied the motion for stay on the merits.
McFarland v. Collins, No. 4:93-CV 723-A (WD Tex., Oct. 26,
On October 27, 1993, this Court granted a stay of
execution in McFarland's original suit pending consideration of his
petition for certiorari. 510 U. S. ___. The Court later granted
certiorari, 510 U. S. ___ (1993), to resolve an apparent conflict with
Brown v. Vasquez, 952 F. 2d 1164 (CA9 1991).
Section 848(q)(4)(B) of Title 21 provides:
"In any post conviction proceeding
under section 2254 or 2255 of title 28, seeking to vacate or set
aside a death sentence, any defendant who is or becomes financially
unable to obtain adequate representation or investigative, expert,
or other reasonably necessary services shall be entitled to
the appointment of one or more attorneys and the furnishing of such
other services in accordance with paragraphs (5), (6), (7), (8), and
(9)" (emphasis added).
On its face, this statute grants indigent capital
defendants a mandatory right to qualified legal counsel
and related services "[i]n any [federal] post-conviction proceeding."
The express language does not specify, however, how a capital
defendant's right to counsel in such a proceeding shall be invoked.
Neither the federal habeas corpus statute, 28
U.S.C. § 2241 et seq., nor the rules governing habeas corpus
proceedings define a "post conviction proceeding" under §2254 or §2255
or expressly state how such a proceeding shall be commenced.
Construing §848(q)(4)(B) in light of its related provisions, however,
indicates that the right to appointed counsel adheres prior to the
filing of a formal, legally sufficient habeas corpus petition. Section
§848(q)(4)(B) expressly incorporates 21 U.S.C. § 848(q)(9), which
entitles capital defendants to a variety of expert and investigative
services upon a showing of necessity:
"Upon a finding in ex parte proceedings that
investigative, expert or other services are reasonably necessary for
the representation of the defendant, . . . the court shall
authorize the defendant's attorneys to obtain such services on
behalf of the defendant and shall order the payment of fees and
expenses therefore" (emphasis added).
The services of investigators and other experts
may be critical in the preapplication phase of a habeas
corpusproceeding, when possible claims and their factual bases are
researched and identified. Section 848(q)(9) clearly anticipates that
capital defense counsel will have been appointed under §848(q)(4)(B)
before the need for such technical assistance arises, since the
statute requires "the defendant's attorneys to obtain such services"
from the court. §848(q)(9). In adopting §848(q)(4)(B), Congress thus
established a right to preapplication legal assistance for capital
defendants in federal habeas corpus proceedings.
This interpretation is the only one that gives
meaning to the statute as a practical matter. Congress' provision of a
right to counsel under §848(q)(4)(B) reflects a determination that
quality legal representation is necessary in capital habeas corpus
proceedings in light of "the seriousness of the possible penalty and .
. . the unique and complex nature of the litigation." §848(q)(7). An
attorney's assistance prior to the filing of a capital defendant's
habeas corpus petition is crucial, because "[t]he complexity of our
jurisprudence in this area . . . makes it unlikely that capital
defendants will be able to file successful petitions for collateral
relief without the assistance of persons learned in the law."
Murray v. Giarratano, 492 U.S. 1, 14 (1989) (Kennedy, J.,
joined by O'Connor, J., concurring in judgment); see also id.,
at 28 (Stevens, J., joined by Brennan, Marshall, and Blackmun, JJ.,
dissenting) ("[T]his Court's death penalty jurisprudence
unquestionably is difficult even for a trained lawyer to master").
Habeas corpus petitions must meet heightened
pleading requirements, see 28 U.S.C. § 2254 Rule 2(c), and comply with
this Court's doctrines of procedural default and waiver, see
Coleman v. Thompson, 504 U. S. ___ (1992). Federal courts
are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face, see 28 U.S.C. § 2254 Rule 4, and to
deny a stay of execution where a habeas petitionfails to raise a
substantial federal claim, see Barefoot v. Estelle, 463
U.S. 880, 894 (1983). Moreover, should a defendant's pro se
petition be summarily dismissed, any petition subsequently filed by
counsel could be subject to dismissal as an abuse of the writ. See
McCleskey v. Zant, 499 U.S. 457, 494 (1991). Requiring an
indigent capital petitioner to proceed without counsel in order to
obtain counsel thus would expose him to the substantial risk that his
habeas claims never would be heard on the merits. Congress legislated
against this legal backdrop in adopting §848(q)(4)(B), and we safely
assume that it did not intend for the express requirement of counsel
to be defeated in this manner.
The language and purposes of §848(q)(4)(B) and its
related provisions establish that the right to appointed counsel
includes a right to legal assistance in the preparation of a habeas
corpus application. We therefore conclude that a "post conviction
proceeding" within the meaning of §848(q)(4)(B) is commenced by the
filing of a death row defendant's motion requesting the appointment of
counsel for his federal habeas corpus proceeding.
McFarland filed such a motion and was entitled to the appointment of a
Even if the District Court had granted McFarland's
motion for appointment of counsel and had found an attorney to
represent him, this appointment would have been meaningless unless
McFarland's execution also was stayed. We therefore turn to the
question whether the District Court had jurisdiction to grant
petitioner's motion for stay.
Federal courts cannot enjoin state court
proceedings unless the intervention is authorized expressly by federal
statute or falls under one of two other exceptions to the Anti
Injunction Act. See Mitchum v. Foster, 407 U.S. 225, 226
(1972). The federal habeas corpus statute grants any federal judge "before
whom a habeas corpus proceeding is pending" power to stay a
state court action "for any matter involved in the habeas corpus
proceeding." 28 U.S.C. § 2251 (emphasis added). McFarland argues that
his request for counsel in a "post conviction proceeding" under
§848(q)(4)(B) initiated a "habeas corpus proceeding" within the
meaning of §2251, and that the District Court thus had jurisdiction to
enter a stay. Texas contends, in turn, that even if a "post conviction
proceeding" under §848(q)(4)(B) can be triggered by a death row
defendant's request for appointment of counsel, no "habeas corpus
proceeding" is "pending" under §2251, and thus no stay can be entered,
until a legally sufficient habeas petition is filed.
The language of these two statutes indicates that
the sections refer to the same proceeding. Section 848(q)(4)(B)
expressly applies to "any post-conviction proceeding under section
2254 or 2255"--the precise "habeas corpus proceeding[s]" that §2251
involves. The terms "post conviction" and "habeas corpus" also are
used interchangeably in legal parlance to refer to proceedings under
§2254 and §2255. We thus conclude that the two statutes must be read
in pari materia to provide that once a capital defendant
invokes his rightto appointed counsel, a federal court also has
jurisdiction under §2251 to enter a stay of execution. Because §2251
expressly authorizes federal courts to stay state court proceedings "for
any matter involved in the habeas corpus proceeding," the exercise of
this authority is not barred by the Anti Injunction Act.
This conclusion by no means grants capital
defendants a right to an automatic stay of execution. Section 2251
does not mandate the entry of a stay, but dedicates the exercise of
stay jurisdiction to the sound discretion of a federal court. Under
ordinary circumstances, a capital defendant presumably will have
sufficient time to request the appointment of counsel and file a
formal habeas petition prior to his scheduled execution. But the right
to counsel necessarily includes a right for that counsel meaningfully
to research and present a defendant's habeas claims. Where this
opportunity is not afforded, "[a]pproving the execution of a defendant
before his [petition] is decided on the merits would clearly be
improper." Barefoot, 463 U. S., at 889. On the other hand, if a
dilatory capital defendant inexcusably ignores this opportunity and
flouts the available processes, a federal court presumably would not
abuse its discretion in denying a stay of execution.
A criminal trial is the "main event" at which a
defendant's rights are to be determined, and the Great Writ is an
extraordinary remedy that should not be employed to "relitigate state
trials." Id., at 887. At the same time, criminal defendants are
entitled by federal law to challenge their conviction and sentence in
habeas corpus proceedings. By providing indigent capital defendants
with a mandatory right to qualified legal counsel in these proceedings,
Congress has recognized that federal habeas corpus has a particularly
important role to play in promoting fundamental fairness in the
imposition of the death penalty.
We conclude that a capital defendant may invoke
this right to a counseled federal habeas corpus proceeding by filing a
motion requesting the appointment of habeas counsel, and that a
district court has jurisdiction to enter a stay of execution where
necessary to give effect to that statutory right. McFarland filed a
motion for appointment of counsel and for stay of execution in this
case, and the District Court had authority to grant the relief he
The judgment of the Court of Appeals is reversed.
It is so ordered.