McCarthy v. Harper, 449 U.S. 1309 (1981)

McCarthy v. Harper

No. A-631

Decided February 3, 1981
449 U.S. 1309

ON APPLICATION FOR STAY

Syllabus

An application for a stay, pending applicant’s petition for certiorari, of the mandate of the Court of Appeals -- which had reversed the District Court’s judgment dismissing respondent state prisoner’s habeas corpus petition -- is granted. Title 28 U.S.C. § 2253 provides that an appeal may not be taken to a court of appeals from a final order in a habeas corpus proceeding based on detention arising from state court process unless the judge who rendered the order or a circuit justice or judge issues a certificate of probable cause. There is no indication that such a certificate was issued here, and at least four other Members of this Court would probably share the view that, accordingly, the Court of Appeals was prohibited by statute from entertaining respondent’s appeal from the District Court’s judgment. Thus, this Court would probably grant certiorari and reverse the Court of Appeals’ judgment with instructions to dismiss respondent’s appeal.