IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-60787
____________________
WILLIAM WILEY,
Petitioner-Appellant,
v.
JAMES V ANDERSON, Commissioner, Mississippi Department
of Corrections, and THE ATTORNEY GENERAL OF THE STATE
OF MISSISSIPPI,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(3:97-MC-37-B)
_________________________________________________________________
December 8, 1997
Before POLITZ, Chief Judge, KING and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner-appellant William Wiley is a capital defendant in
Mississippi. The State has set his execution date for December
10, 1997. Wiley appeals the district court’s order denying his
motion for a stay of execution and for appointment of counsel
pursuant to 21 U.S.C. § 848(q). He has also applied for a stay
*
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that this opinion should not be published and is not precedent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.
of execution pending appeal. We grant the stay, and we vacate
the district court’s order and remand the case with instructions.
I. BACKGROUND
William Wiley was convicted of capital murder while in the
course of a robbery pursuant to section 97-3-19(2)(e) of the
Mississippi Code in February 1982. MISS. CODE ANN. § 97-3-19(2)(e)
(Supp. 1981). After the penalty phase of the trial, he was
sentenced to death. On appeal, the Mississippi Supreme Court
affirmed his conviction, but reversed his death sentence for
prosecutorial misconduct. Wiley v. State, 449 So. 2d 756 (Miss.
1984).
In June 1984, Wiley was again sentenced to death after a new
sentencing hearing. This sentence was affirmed by the
Mississippi Supreme Court. Wiley v. State, 484 So. 2d 339 (Miss.
1986). The United States Supreme Court denied his petition for
certiorari. Wiley v. Mississippi, 479 U.S. 906 (1986). Wiley
unsuccessfully attempted to gain post-conviction relief in the
Mississippi courts. Wiley then filed a habeas corpus petition in
federal district court, which the district court denied. On
appeal, this court affirmed the denial of relief as to his
conviction but reversed the denial of relief as to his sentence.
Wiley v. Puckett, 969 F.2d 86 (5th Cir. 1992). In response to
this court’s ruling, the Mississippi Supreme Court again vacated
2
Wiley’s death sentence. Wiley v. State, 635 So. 2d 802 (Miss.
1993).
There followed a new sentencing hearing and Wiley was
sentenced to death for the third time. In February 1997, the
Mississippi Supreme Court affirmed his sentence. Wiley v. State,
691 So. 2d 959 (Miss. 1997). The United States Supreme Court
denied his petition for a writ of certiorari on October 6, 1997.
Wiley v. Mississippi, 118 S. Ct. 219 (1997).
On November 5, 1997, the Mississippi Supreme Court set
Wiley’s execution date for December 10, 1997. This order was
filed on November 13. On November 24, 1997, Wiley filed his pro
se Motion to Stay Execution and to Appoint an Attorney in federal
district court. In his motion, he asked the district court to
“appoint an attorney with the ability to file a habeas corpus
petition in your court.” Although Wiley’s direct criminal appeal
included four challenges to his current sentence, he has not
petitioned for any state post-conviction relief as to that
sentence. On December 4, 1997, the district court entered and
order denying Wiley’s motion. On December 5, 1997, Wiley filed a
Notice of Appeal in the district court and an Application for
Stay Pending Appeal in this court.
II. DISCUSSION
In its Memorandum Opinion, the district court based its
3
denial of relief upon Wiley’s failure to seek state post-
conviction relief or request a stay of execution from the
Mississippi Supreme Court. The district court found these two
facts dispositive in light of Sterling v. Scott, 57 F.3d 451 (5th
Cir. 1995), cert. denied, 116 S. Ct. 715 (1996), and In re
Joiner, 58 F.3d 143 (5th Cir. 1995). Relying upon these cases,
the district court noted that a federal habeas petitioner must
exhaust his state remedies and that a petitioner is only entitled
to appointment of counsel after the state-court proceedings have
concluded. The district court denied the motion for a stay and
appointment of counsel because Wiley “has failed to exhaust his
state remedies through the filing of a motion for post-conviction
relief as required by law.”
We think that the district court erred in concluding, under
the circumstances that obtain here, that Wiley must pursue state
post-conviction relief before he obtains counsel pursuant to 21
U.S.C. § 848(q) to pursue his federal remedies. This court’s
prior decisions, Sterling and Joiner, inform this case, but for
three reasons they are not controlling. First, the issue in both
cases was the use of federally-appointed counsel to pursue state
remedies, which is not the issue posed here. In Sterling, the
issue before the court was whether the petitioner’s federally-
appointed counsel was allowed to investigate and file his state
post-conviction relief claims. 57 F.3d at 455. The court held
that the federally-appointed counsel could not be used to exhaust
4
the petitioner’s state remedies. Id. at 458. However, it is
important to note that the petitioner in Sterling had not filed
for state post-conviction relief at the time his counsel was
appointed pursuant to § 848(q), and the court nevertheless held
that the district court’s order appointing counsel was proper for
the federal proceeding. Id. at 453, 458; cf. McFarland v. Scott,
512 U.S. 849, 851-53, 856-57 (1994) (holding that 21 U.S.C.
§ 848(q) provides for appointment of counsel before a federal
habeas corpus petition is filed, in a situation where petitioner
had yet to file a state post-conviction relief petition).
Joiner presented an issue similar to the one in Sterling.
See Joiner, 58 F.3d at 143. In Joiner, the petitioner also had
not filed any petition for state post-conviction relief. Id.
Relying upon Sterling, this court held that the petitioner had no
right to federally-funded assistance to exhaust his state
remedies. Id. at 144.
Second, Sterling and Joiner were pre-AEDPA cases. See
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214 (1996); Tucker v. Johnson,
115 F.3d 276, 278 (5th Cir. 1997) (noting that AEDPA applies to
petitions filed after AEDPA’s effective date of April 24, 1996).
Under post-AEDPA § 2254(b)(1), a habeas petitioner must exhaust
his state remedies in order to gain relief upon a federal habeas
5
petition.1 See 28 U.S.C. § 2254(b)(1). The district court may,
however, deny relief on the merits notwithstanding the failure of
the petitioner to exhaust state remedies. See 28 U.S.C. §
2254(b)(2). The power to deny relief on the merits implies the
discretion to entertain the petition for habeas relief
notwithstanding the failure to exhaust.2 And, of course, the
state may waive exhaustion. See 28 U.S.C. § 2254(b)(3).
Third, this case is factually different from Sterling and
Joiner, both of which involved the initial post-conviction
challenges to the petitioners’ convictions and sentences.
Joiner, 58 F.3d at 143-44; Sterling, 57 F.3d at 453. Here, Wiley
has already obtained federal and state post-conviction review of
his conviction. Presumably, the issues he has available to
present relating to his third death sentence would be more
limited than the typical habeas petitioner. Indeed, they may not
exceed those that he has exhausted on direct appeal. Put
1
That exhaustion is a predicate for granting relief does
not erect a new requirement - both time consuming and needless -
that a petitioner seek state post-conviction relief as to claims
that have been exhausted on direct appeal. The State of
Mississippi even concedes that Wiley is not barred from seeking
habeas relief on the issues that he has raised on direct appeal
of his sentence. Under the State’s own view of things,
therefore, the district court could entertain a habeas petition
as to Wiley’s exhausted claims.
2
We intimate no view on the subject whether, post-AEDPA,
the district court must entertain a mixed petition. See
Granberry v. Greer, 481 U.S. 129, 134-36, 135 n.7 (1987); Nobles
v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). See generally
Martin v. Jones, 969 F. Supp. 1058, 1062-63 (M.D. Tenn. 1997),
and cases cited therein.
6
differently, whatever may be the case generally, it is
particularly difficult here to predict whether there will be any
unexhausted claims.3
Because Wiley could at this time file a habeas petition
which the district court could entertain and as to which the
district court could grant relief, he is entitled to the
appointment of counsel under § 848(q) and to a stay to allow
counsel to prepare his petition.4
III. CONCLUSION
For the foregoing reasons, we VACATE the district court’s
order and REMAND the case to the district court with instructions
to appoint counsel for Wiley to proceed on his federal habeas
corpus petition. We encourage the use of a scheduling order to
promote the progress of the litigation. Because the time before
Wiley’s scheduled execution is short, we STAY his execution, the
length of that stay to be determined by the district court. The
mandate shall issue forthwith.
VACATED. Execution STAYED.
3
We note that in Sterling and Joiner, the relief requested
in the district court was predicated on the existence of
unexhausted claims.
4
Wiley’s failure to request a stay from the Mississippi
Supreme Court is not a factor militating against a stay here
because according to Wiley - a point which the State does not
contest and which we therefore accept - the Mississippi Supreme
Court will not issue a stay without the filing of a petition for
post-conviction relief; the futility of asking for a stay without
filing a post-conviction relief petition merges this factor into
his failure to file for post-conviction relief.
7