Walter J. Blair v. Paul K. Delo

999 F.2d 1219, 1993 U.S. App. LEXIS 19656, 1993 WL 281858

Opinions

ORDER

Walter Blair moves for a stay of execution following the entry of the district court order dismissing his third petition for writ of habe-as corpus and the state opposes. We grant the stay.

The district court, while dismissing Blair’s petition for writ of habeas corpus, issued a certificate of probable cause. The Supreme court has set out standards in Barefoot v. Estelle, 463 U.S. 880, 894, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983), that a court of appeals may dismiss an appeal on motion for stay which is “frivolous and entirely without merit.” We may take such action only if the petitioner’s claim is squarely foreclosed by statute, rule or authoritative court decision, or is lacking any factual basis in the record of the case. With respect to successive petitions, such as Blair’s, “granting of the stay should reflect the presence of substantial grounds upon which relief might be granted.” Id. at 895, 103 S.Ct. at 3396.

The entire question is whether Blair’s third petition states a claim that survives the Supreme court’s decision in Herrera v. Collins, — U.S. -, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). In Herrera there were three separate opinions concurring in the judgment, and there was also a dissent. While we question whether Blair’s claim survives Herrera, because of the differing views of the several Justices, we cannot conclude without more detailed study that Blair’s claim is “frivolous and entirely without merit” or that there is not a substantial question upon which relief might be granted.

' Accordingly, we grant a temporary stay of execution and will hear argument on the stay and the merits of the appeal during the week of August 23, 1993.

FLOYD R. GIBSON, Senior Circuit Judge, dissents and would deny the motion to stay.