In Re John W. Byrd Jr, 21 F.3d 427 (6th Cir. 1994)

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US Court of Appeals for the Sixth Circuit - 21 F.3d 427 (6th Cir. 1994) March 24, 1994

Before: JONES, SUHRHEINRICH, and BATCHELDER, Circuit Judges.


Petitioner seeks a stay of execution of his pending death sentence. On March 14, 1994, this court, following a denial of Petitioner's stay application by District Judge Carl B. Rubin, granted Petitioner's Emergency Motion for Stay of Execution. We now adhere to the relief granted on that issue. We also conclude that the petition for writ of habeas corpus is before the district court. Upon further consideration, we find that Petitioner's requests for further relief in the form of an abeyance of the habeas proceedings until the Supreme Court could address one of the claims implicated in the habeas action, stay of the habeas proceedings to permit further investigation and discovery and allowance of costs for that investigation, and leave to amend the habeas petition to include any newly discovered claims, were not properly before this court, and must be addressed by the district court.

Accordingly, we amend our prior order as follows:

1. The Motion for Emergency Stay of Execution is granted for a period of 120 days.

2. The remainder of the order is vacated.

3. We request that the Honorable John D. Holschuh, Chief Judge of the Southern District of Ohio, reassign the pending habeas petition to another District Judge.

4. The District Judge to whom this matter is reassigned is instructed to consider the pending habeas petition on its merits, and to make the appropriate findings on all remaining issues including Petitioner's application for funds for further discovery and investigation pursuant to 21 U.S.C. § 848(q).