Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-16-1995
In Re: Leon Moser (II)
Precedential or Non-Precedential:
Docket 95-9004
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Recommended Citation
"In Re: Leon Moser (II)" (1995). 1995 Decisions. Paper 221.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/221
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 95-9004
___________
In Re: Leon Moser (II)
___________
(E.D. PA D.C.Civil No. 95-cv-05175)
Argued August 16, 1995
Before: MANSMANN, COWEN and NYGAARD, Circuit Judges
(Filed August 16, l995)
___________
ORDER OF THE COURT
__________
Per Curiam.
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. 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. The Pennsylvania Post-
1
Conviction Defender Organization 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.
Presented to us are a request for certificate of
probable cause and for a stay of execution.
Upon consideration of the written submissions of the
parties and the record of the District Court, and this Court
having adopted expedited procedures in order to consider the
merits of an appeal along with the motion for stay, Barefoot v.
Estelle, 463 U.S. 880, 893 (1983); 3rd Cir. L.A.R. 111.6 (1993),
it is hereby ordered by this Court that the request for
certificate of probable cause is granted and the request for a
stay on this record is denied.
We hereby remand 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.
If the district court should determine that a temporary
stay is warranted based on this newly developed record, we are of
2
the view that the district court has the authority to grant a
stay of the execution scheduled for 10:00 p.m. this evening.1
1
Judge Nygaard expresses no view on the propriety of any
further stays.
3