An application to stay the order, in habeas corpus proceedings,
of the Federal District Court (as directed by the Court of Appeals)
for a state court retrial of respondent state prisoner prior to
August 18, 1984, is granted pending this Court's disposition of
applicants' petition for certiorari to review the Court of Appeals'
judgment ordering habeas corpus relief. Respondent's scheduled
retrial some six weeks before the start of this Court's October
1984 Term would effectively deprive this Court of jurisdiction to
consider the petition for writ of certiorari. Moreover, the balance
of harm favors applicants.
CHIEF JUSTICE BURGER, Circuit Justice.
On June 29, 1984, applicants, the Warden and Attorney General of
the State of North Carolina filed a petition for writ of certiorari
to review the judgment of the United States Court of Appeals for
the Fourth Circuit. In respondent's second federal appeal
concerning his murder conviction and life sentence, the Court of
Appeals reversed the decision of the United States District Court
for the Western District of North Carolina and directed that a writ
of habeas corpus issue to release respondent from confinement if
applicants fail to retry him within a reasonable time. Judgment
order reported at 732 F.2d 150 (1984). The District Court then
ordered retrial prior to August 18, 1984. Applicants challenge the
Court of Appeals' decision in their certiorari petition, No.
83-2144, and seek to stay the scheduled retrial until this Court
acts on the petition for certiorari. Hudson filed a response to the
application earlier today asserting that the decision of the Court
of Appeals is correct.
Page 468 U. S. 1302
The petition for certiorari would not in the normal course be
acted on by this Court before the start of the October 1984 Term --
some six weeks after the scheduled retrial.
See this
Court's Rule 22.4. Retrial of respondent by August 18, 1984, prior
to the "first Monday in October" would effectively deprive this
Court of jurisdiction to consider the petition for writ of
certiorari. Applicants assert that their right to a review of the
holding of the Court of Appeals will be extinguished if they are
compelled to retry respondent on or about August 18. When, as in
this case, "the normal course of appellate review might otherwise
cause the case to become moot,"
In re Bart, 82 S. Ct. 675,
676, 7 L. Ed. 2d 767, 768 (1962) (Warren, C.J., in chambers),
issuance of a stay is warranted. The balance of harm favors
applicants; foreclosure of certiorari review by this Court would
impose irreparable harm upon applicants. In contrast, a 6-week
delay of the scheduled retrial would not impose an unreasonable
delay on respondent, who has remained in confinement under a life
sentence since 1977.
I therefore grant the application for a stay of the order of the
United States District Court for the Western District of North
Carolina, pending disposition of the petition for writ of
certiorari in No. 83-2144.
It is so ordered.