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]
O'Connor, concurring in the judgment in part As the
Court explains, §848(q) must be read to apply prior to the filing of a
habeas petition. It is almost meaningless to provide a lawyer to
pursue claims on federal habeas if the lawyer is not available to help
prepare the petition. First, the habeas petition, unlike a complaint,
must allege the factual underpinning of the petitioner's claims. See
Habeas Corpus Rule 2(c) ("The petition . . . shall specify all the
grounds for relief which are available to the petitioner . . . and
shall set forth in summary form the facts supporting each of the
groundsthus specified"). Furthermore, district courts are authorized
to summarily dismiss petitions which appear on their face to be
meritless. See Habeas Corpus Rule 4. And our carefully crafted
doctrines of waiver and abuse of the writ make it especially important
that the first petition adequately set forth all of a state prisoner's
colorable grounds for relief. Indeed, Congress expressly recognized "the
seriousness of the possible penalty and . . . the unique and complex
nature of the litigation."
21 U.S.C. § 848(q)(4)(B)(7). Moreover, the statute entitles
capital defendants not only to qualified counsel, but also to "investigative,
expert or other services . . . reasonably necessary for the
representation of the defendant."
21 U.S.C. § 848(q)(4)(B)(9). For such services to be meaningful in
the habeas context, they also must be available prior to the filing of
a first habeas petition. See ante, at 5-6.
In my view, however, petitioner is not entitled
under present law to a stay of execution while counsel prepares a
habeas petition. The habeas statute provides in relevant part that
"[a] justice or judge of the United States before whom a habeas corpus
proceeding is pending, may . . . stay any proceeding against the
person detained in any State court." 28 U.S.C. § 2251. While this
provision authorizes a stay in the habeas context, it does not
explicitly allow a stay prior to the filing of a petition, and our
cases have made it clear that capital defendants must raise at least
some colorable federal claim before a stay of execution may be entered.
"[F]ederal habeas is [not] a means by which a
defendant is entitled to delay an execution indefinitely. The
procedures adopted to facilitate the orderly consideration and
disposition of habeas petitions are not legal entitlements that a
defendant has a right to pursue irrespective of the contribution these
procedures make toward uncovering constitutional error." Barefoot
v. Estelle, 463 U.S. 880, 887-888 (1983).
See also Autry v. Estelle, 464 U.S.
1 (1983) (per curiam) (no automatic stay in this Court for
review of a first federal habeas petition where petition lacks merit).
Petitioner has not filed anything describing the
nature of his claims, if any. As a consequence, the Court's approach,
which permits a stay of execution in the absence of any showing of a
constitutional claim, conflicts with the sound principle underlying
our precedents that federal habeas review exists only to review errors
of constitutional dimension, and that the habeas procedures may be
invoked only when necessary to resolve a constitutional claim.
Barefoot, supra, at 892-896; see Townsend v. Sain, 372
U.S. 293, 312 (1963).
Congress knows how to give courts the broad
authority to stay proceedings of the sort urged by the petitioner. For
example, Congress expressly provided this Court with authority to
grant stays pending the filing of a petition for a writ of certiorari:
"In any case in which the final judgment or decree
of any court is subject to review by the Supreme Court on writ of
certiorari, the execution and enforcement of such judgment or decree
may be stayed for a reasonable time to enable the party aggrieved to
obtain a writ of certiorari from the Supreme Court."
28 U.S.C. § 2101(f).
The absence of such explicit authority in the
habeas statute is evidence that Congress did not intend federal courts
to enter stays of execution in the absence of some showing on the
Moreover, just as the counsel provisions of
§848(q) are intended to apply before the submission of a petition, the
text and structure of the federal habeas statute suggest that the stay
provision contained in §2251 isintended to apply only after a petition
has been filed. Although the statute does not specifically identify
when "a habeas corpus proceeding is pending," ibid., other
provisions of the statute show that there is no "pending" habeas
corpus proceeding until an application for habeas corpus has been
filed, which is the mechanism for "institut[ing]" a proceeding under
the statute. For example §2254(d) refers to "any proceeding
instituted in a Federal court by an application for
a writ of habeas corpus" (emphasis added). Another statute setting
filing fees provides that "the parties instituting any . . .
proceeding in [district court must] pay a filing fee of $120, except
that on application for a writ of habeas corpus the filing fee shall
28 U.S.C. § 1914(a) (emphasis added). This indicates that the
institution of a proceeding requires the filing of an "application,"
which petitioner has not done. See
28 U.S.C. § 2242 (an "[a]pplication for a writ of habeas corpus .
. . shall allege the facts concerning the applicant's commitment or
detention"); Habeas Corpus Rule 2(a) ("[T]he application shall be in
the form of a petition").
The rules governing §2254 cases confirm this
conclusion. Although originally enacted by this Court, the rules were
amended by Congress and approved as amended. See Pub. L. 94-426, §1,
90 Stat. 1334 (1976). By their terms, the habeas rules only apply to "procedure[s]
in the United States district courts on applications under
28 U.S.C. § 2254." Rule 1(a) (emphasis added). See also Habeas
Corpus Rule 2 (referring to "[a]pplicants in present custody" and "[a]pplicants
subject to future custody"). These same rules also make an express
exception for the appointment of counsel "at any stage of the case,"
Rule 8(c), a further indication that the rules otherwise apply
after an application for a writ of habeas corpus has been filed in
the district court. This consistent textual focus on the existence of
an "application" leads me to conclude that the districtcourt's
authority to issue a stay pursuant to §2251 also requires the filing
of an "application."
Congress is apparently aware of the clumsiness of
its handiwork in authorizing appointment of an attorney under
21 U.S.C. § 848(q)(4)(B) "[i]n any post-conviction proceeding,"
while leaving intact
28 U.S.C. § 2251 which authorizes a stay only when a "habeas
corpus proceeding is pending." See S. 1441, §3(b), 103rd Cong., 1st
Sess. (1993). The remedy for this problem, however, lies with Congress,
and not, as the Court would have it, by reading the Anti Drug Abuse
Act of 1988, Pub. L. 100-690, 102 Stat. 4393, to impliedly amend the
habeas statute. See Regional Rail Reorganization Act Cases, 419
U.S. 102, 134 (1974). Such a reading is inconsistent with our
prior cases and with the important federalism principles underlying
the limited habeas jurisdiction of the federal courts. I would leave
the matter to Congress to resolve. Finally, prisoners can avoid the
need for a stay by filing a prompt request for appointment of counsel
well in advance of the scheduled execution.
In the judgment currently under review, the Court
of Appeals for the Fifth Circuit held that petitioner's "motion for
stay of execution and appointment of counsel is . . . denied." 7 F. 3d
47, 49 (1993) (per curiam). Because I agree with the Court that
petitioner is entitled to an attorney, I concur in the judgment
reversing the Court of Appeals on this point. But because in my view
petitioner cannot obtain a stay ofexecution before filing a petition
for a writ of habeas corpus in the District Court, I would affirm the
judgment in part. I therefore respectfully dissent from the Court's