Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 97-10878
______________________
DELBERT BOYD TEAGUE, JR.,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
-----------------------
Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
-----------------------
August 14, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
BY THE COURT:
Delbert Boyd Teague, a Texas death penalty candidate, has
moved this court to stay his execution, currently scheduled for
September 9, 1998, pending disposition of a petition for writ of
certiorari in the United States Supreme Court. Lacking
jurisdiction to enter such an order, we dismiss Teague's motion.
In Teague v. Johnson, No. 97-10878 (5th Cir. Apr. 30, 1998)
(unpublished), we affirmed the district court's denial of Teague's
petition for a writ of habeas corpus. The appellate mandate issued

on May 22. Pursuant to 28 U.S.C. § 2251, only "[a] Justice or
Judge of the United States before whom a habeas petition is
pending, may . . . stay a[] proceeding against the person
detained." As we recently attempted to make clear, see Williams v.
Cain, 143 F.3d 949, 950 & n.1 (5th Cir.), cert. denied, 118 S.Ct.
2338 (1998), once the appellate mandate issues, a habeas petition
is no longer pending before the court of appeals, and we have no
jurisdiction to stay proceedings under § 2251. In this situation,
if a petitioner desires a stay of execution pending disposition of
a writ of certiorari in the United States Supreme Court, he simply
must seek that stay in the Supreme Court itself. Id.
MOTION DISMISSED.
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