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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-1956
_____________________________________
FRANK BASIL McFARLAND,
Petitioner-Appellant,
VERSUS
JAMES A. COLLINS,
Texas Department of Criminal Justice, Institution Division,
Respondent-Appellee.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________________________________
(November 19, 1993)
Before DAVIS, JONES and DUHÉ, Circuit Judges.
PER CURIAM:
Frank Basil McFarland appeals the district court's denial of
a stay of execution and the district court's failure to appoint
counsel.1 The district court denied the stay finding that
McFarland had not shown substantial grounds upon which habeas
relief might be granted, largely because of his failure to exhaust
his state remedies. Late on the eve of the scheduled execution,
this Court granted a stay of execution in part because the State
waived the exhaustion requirement as to the issue raised by
Petitioner's habeas petition, and indicated it had no objection to
a stay.
1 The motion for appointment filed in this matter was not ruled on
by the district court, so there is no action to review.

Thereafter Petitioner, in an effort to avoid future abuse of
writ problems,2 noticed the dismissal of his petition for writ of
habeas corpus in the district court.3 McFarland's attorney and the
Texas Resource Center urge this Court not to consider McFarland's
appeal moot as a result of the dismissal. We are unconvinced and
find that the dismissal of the habeas renders moot the issues
raised in this appeal. We accordingly dismiss this appeal and lift
the stay of execution issued by this Court on October 26, 1993.
This appeal calls upon us to determine whether the district
court correctly denied the stay of execution. Answering this
question requires us to review the district court's decision that
McFarland has not shown a substantial ground upon which habeas
relief can be granted. Petitioner is no longer seeking habeas
relief. Any decision now by this Court whether the dismissed
habeas petition did or did not show substantial grounds on which
relief could be granted would be purely advisory. The dismissal of
the habeas rendered the question moot.
We are unpersuaded by the suggestion that Petitioner's claimed
violation of his right to meaningful assistance of counsel by the
denial of the stay remains justiciable because it is "capable of
repetition yet evading review." The present scenario is not
capable of repetition, because Rule 41(a) will not allow successive
2 But see Potts v. Zant, 638 F.2d 727, 742 (5th Cir.), cert.
denied, 454 U.S. 877 (1981).
3 The district court originally had pending before it a habeas
petition and a motion by McFarland for stay of execution.
2

voluntary dismissals without prejudice. A subsequent notice of the
dismissal of an action based on or including the same claim will
operate as an adjudication upon the merits. Fed. R. Civ. P.
41(a)(1). Moreover, now that Petitioner has counsel, and now that
his execution has been delayed by both a stay granted by this Court
and a stay granted by the Supreme Court in a related case, counsel
has had a continuing opportunity to review McFarland's case.
Petitioner now has both counsel and a stay. We can grant him no
further relief in this appeal. Accordingly, the appeal is
DISMISSED AS MOOT; STAY LIFTED.
3