dissenting.
In 1985, Leon Moser appeared before a Judge of the Court of Common Pleas in the Commonwealth of Pennsylvania and entered an intelligent, knowing, and voluntary guilty plea to three charges of first degree murder. He was sentenced to death by a three-judge panel of the same court. The Supreme Court of Pennsylvania affirmed the judgment. Commonwealth v. Moser, 519 Pa. 441, 549 A.2d 76 (1988). Throughout the proceedings, Leon Moser maintained that he wanted to die. From all indications, he still does.
Moreover, since being found capable to enter a plea, there is no evidence that his situation or desire to die has changed. All of the allegations contained in petitioners’ submissions are only the same allegations indicating that Leon Moser is in the same frame of mind as he was ten years ago. The experts who testified by affidavit as to Moser’s incompetence have not seen him for ten years. Moreover, their original assessment of Leon Moser was rejected by the state trier of fact. The minister and brother who claim to represent Moser’s personal interests as “next friend” have not visited with him in prison during the past ten years. And finally, the attorneys who claim to represent his legal interests have never seen him.
I do not believe that petitioners have made the requisite threshold showing that Moser is incompetent to make his own decisions. In light of that failure, the federal courts are powerless to make a decision for him. If Moser wants to die by the hands of the Commonwealth of Pennsylvania, we must let him.
Hours ago the Commonwealth petitioned the U.S. Supreme Court, which thereupon vacated an earlier stay of execution. The Court’s Order contained no explanation; but, in its petition the Commonwealth, incorporating all the records of the lower federal courts, represented to the Court that:
1. Petitioner’s application was filed 37 hours before Moser’s scheduled execution;
2. The Commonwealth had witnesses available to testify in district court about Moser’s current state of mind;
3. The district court’s stay was granted after argument;
4. Petitioners lacked standing to file a motion on behalf of Moser;
5. Moser has consistently and unequivocally expressed his desire to die; and
6. The district court had based its decision on the following: affidavits of a psychiatrist and a psychologist (neither of whom has seen Moser in ten years, and both of whom testified at the state hearing ten years ago at which Moser was found capable of entering a knowing and voluntary guilty plea); the fact that Moser had *694been hospitalized once for depression nine years ago; and, the fact that he takes a common anti-depressant, Imipramine.
Aside from the appearance of Leon Mos-er’s brother as next friend, the district court in entering its stay order today had essentially the same material before it as it had yesterday, and has once again granted a stay. No new evidence has been submitted on the threshold inquiry of Moser’s incompetence. Hence, I believe that the stay entered today contravenes the mandate of last night’s Supreme Court order. I would reverse the second stay of execution entered by the district court and allow Moser to have his wish.