Scott Allen Hain v. Mike Mullin, Warden, Oklahoma State Penitentiary, Federal Public Defender For The Western District of Oklahoma, Amicus Curiae, 327 F.3d 1177, 10th Cir. (2003)
Uploaded by
Scribd Government DocsScott Allen Hain v. Mike Mullin, Warden, Oklahoma State Penitentiary, Federal Public Defender For The Western District of Oklahoma, Amicus Curiae, 327 F.3d 1177, 10th Cir. (2003)
Uploaded by
Scribd Government Docs327 F.
3d 1177
Scott Allen HAIN, Petitioner-Appellant,
v.
Mike MULLIN, Warden, Oklahoma State Penitentiary,
Respondent-Appellee.
Federal Public Defender for the Western District of Oklahoma,
Amicus Curiae.
No. 03-5038.
No. 03-5049.
United States Court of Appeals, Tenth Circuit.
April 29, 2003.
Steven M. Presson and Robert W. Jackson of Jackson & Presson, P.C.,
Norman, OK, for Petitioner-Appellant.
W.A. Drew Edmondson, Attorney General of Oklahoma and Robert L.
Whittaker, Assistant Attorney General, Criminal Division, Oklahoma
City, OK, for Respondent-Appellee.
David E. O'Meilia, United States Attorney, and Kevin Danielson,
Assistant United States Attorney, Tulsa, Oklahoma, for the United States.
Susan M. Otto, Federal Public Defender, Western District of Oklahoma,
Oklahoma City, OK, amicus curiae.
Before TACHA, Chief Judge, EBEL, KELLY, BRISCOE, LUCERO,
MURPHY, HARTZ, O'BRIEN, and McCONNELL, Circuit Judges.1
BRISCOE, Circuit Judge.
Petitioner Scott Allen Hain, an Oklahoma state prisoner sentenced to death for
capital murder, filed these appeals challenging the district court's denial of his
request for funding under 21 U.S.C. 848(q)(8) and the district court's denial
of his request for a stay of execution pending resolution of the 848(q)(8)
issue. We conclude that Hain's execution by the State of Oklahoma on April 3,
2003, has rendered these appeals moot. With respect to both appeals, we vacate
the panel decisions previously entered and remand to the district court with
directions to vacate the orders that led to these appeals. We also vacate the
court's order granting rehearing en banc.
I.
2
Hain was convicted in Oklahoma state court of two counts of first degree
murder and sentenced to death. After exhausting his state court remedies, he
filed a 28 U.S.C. 2254 petition for federal habeas relief. Acting pursuant to 21
U.S.C. 848(q)(4)(B), the district court appointed counsel to represent Hain.
The court subsequently denied the request for habeas relief. We affirmed the
district court's decision. See Hain v. Gibson, 287 F.3d 1224 (10th Cir.2002).
The Supreme Court denied Hain's petition for writ of certiorari. See Hain v.
Mullin, ___ U.S. ___, 123 S.Ct. 993, 154 L.Ed.2d 916 (2003).
Hain's federally-appointed counsel filed a motion with the district court
requesting "confirmation" that Hain was entitled to federally-appointed and
funded counsel to represent him in his state clemency proceedings pursuant to
848(q)(8). The court denied the motion, concluding that 848(q)(8) did not
encompass representation of a state prisoner in state clemency proceedings.
Hain filed a timely notice of appeal from that order (case No. 03-5038). Hain
then filed a separate motion in district court for a stay of execution pending his
appeal of the 848(q)(8) issue. The district court denied the stay and Hain filed
a separate notice of appeal from that denial (case No. 03-5049).
The panel unanimously affirmed the district court's denial of Hain's motion for
a stay of execution, and a panel majority affirmed the district court's denial of
funding under 848(q)(8), with Judge Lucero dissenting. Hain filed an
emergency petition for panel rehearing of both the denial of the stay and the
affirmance of the 848(q)(8) ruling. A divided panel denied the emergency
petition for rehearing on the 848(q)(8) issue and granted a stay to permit en
banc review of the 848(q)(8) issue. Judge Murphy dissented from the grant of
the stay. Hain also had filed a petition for rehearing en banc on the 848(q)(8)
issue. A majority of the active judges granted en banc review of both the
848(q)(8) issue and the stay, and voted not to lift the stay pending the ruling of
the en banc court. Respondent immediately filed an application to vacate the
stay with the Circuit Justice. The Supreme Court, upon referral by the Circuit
Justice, granted the application and Hain was executed on April 3, 2003. The
en banc court issued an order to show cause why these appeals should not be
dismissed as moot.
II.
The threshold question we must address is whether the Supreme Court's grant
of respondent's application to vacate the stay of execution divested us of
jurisdiction. "There is no question as to the power of a Circuit Justice[, or the
Court itself,] to dissolve a stay entered by a court of appeals." Commodity
Futures Trading Comm'n v. British American Commodity Options Corp., 434
U.S. 1316, 1319, 98 S.Ct. 10, 54 L.Ed.2d 28 (1977); Petition of Johnson, 72
S.Ct. 1028, 1031-32, 96 L.Ed. 1377 (1952) (discussing power of Circuit Justice
to stay execution of judgment). The exercise of that power does not, however,
constitute a decision on the merits. See Messer v. Kemp, 831 F.2d 946, 957
(11th Cir.1987). Nor does it necessarily deprive a lower court of jurisdiction.
Cf. Johnson, 72 S.Ct. at 1031-32 (suggesting that stay of execution of district
court judgment could be entered by Circuit Justice pending resolution of case
by court of appeals); Messer, 831 F.2d at 957 (holding that Supreme Court's
stay of execution did not divest court of appeals of jurisdiction to consider
petitioner's appeal en banc). Because no final judgment had been entered by this
court on the merits at the time the Supreme Court vacated the stay of execution,
we conclude we retain jurisdiction over these appeals.
Having now received and reviewed the responses to our order to show cause,
we conclude that Hain's execution has rendered these appeals moot. "`A case is
moot when the issues presented are no longer "live" or the parties lack a legally
cognizable interest in the outcome.'" Citizens for Responsible Gov't State
Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir.2000)
(quoting City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146
L.Ed.2d 265 (2000)); see also Arizonans for Official English v. Arizona, 520
U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ("To qualify as a case fit
for federal-court adjudication, an actual controversy must be extant at all stages
of review, not merely at the time the complaint is filed.") (internal quotation
omitted). It is obvious, under the circumstances presented here, that Hain can
no longer benefit from a ruling in his favor by the en banc court in either
pending appeal. See generally Friends of the Earth, Inc. v. Laidlaw Env. Servs.,
Inc., 528 U.S. 167, 192, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (noting that
courts are not licensed "to retain jurisdiction over cases in which ... a plaintiff
pursuing a nonsurviving claim has died"); Lewis v. Cont'l Bank Corp., 494 U.S.
472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (noting that the party
seeking relief "must have suffered, or be threatened with, an actual injury ...
likely to be redressed by a favorable judicial decision.").
Hain's counsel suggests that the appeal of the 848(q)(8) issue falls within the
"capable of repetition, yet evading review" exception to the mootness doctrine.
We disagree. In order for this exception to apply, two prerequisites must be
satisfied: (1) the duration of the challenged action must be too short to be fully
litigated prior to its cessation or expiration; and (2) there must be a reasonable
expectation that the same complaining party will be subjected to the same
action again. United States v. Seminole Nation of Okla., 321 F.3d 939, 943
(10th Cir.2002). Here, in light of Hain's execution, it is apparent that he will not
again confront the issue of whether 848(q)(8) provides federally-appointed
and funded counsel at a state clemency proceeding. Thus, the second
prerequisite for application of the exception has not been met.
8
Respondent, who has consistently denied an interest in the 848(q)(8) issue,
asserts that the appeal is not moot because Hain's counsel "did in fact expend
funds and time in representing" Hain "in a bid for clemency before the
Oklahoma Pardon and Parole Board." Resp. Br. at 6. Thus, respondent argues,
"[w]hether [counsel] should be compensated and reimbursed from the federal
fisc for representing" Hain "at the state clemency hearing is still a case or
controversy justifying exercise of continuing jurisdiction by this Court." Id.
Although it appears uncontroverted that Hain's counsel represented him during
the state clemency proceedings, Hain's counsel does not yet have a personal
stake in the appeal of the 848(q)(8) issue. In particular, Hain's counsel has not
sought compensation from the district court for the time expended on Hain's
behalf, nor has he sought to intervene in this appeal.
The court's order granting rehearing en banc is VACATED and counsel are
excused from attendance on Tuesday, May 6, 2003. With respect to both
appeals, we VACATE the panel decisions previously entered and REMAND to
the district court with directions to vacate the orders that led to these appeals.
Notes:
1
