Cite as: 512 U. S. 849 (1994)
Opinion of the Court
The District Court denied McFarland's motion on October 25, 1993, concluding that because no "post conviction proceeding" had been initiated pursuant to 28 U. S. C. § 2254 or § 2255, petitioner was not entitled to appointment of counsel and the court lacked jurisdiction to enter a stay of execution. App. 77. The court later denied a certificate of probable cause to appeal.
On October 26, the eve of McFarland's scheduled execution, the Court of Appeals for the Fifth Circuit denied his application for stay. 7 F. 3d 47. The court noted that federal law expressly authorizes federal courts to stay state proceedings while a federal habeas corpus proceeding is pending, 28 U. S. C. § 2251, but held that no such proceeding was pending, because a "motion for stay and for appointment of counsel [is not] the equivalent of an application for habeas relief." 7 F. 3d, at 49. The court concluded that any other federal judicial interference in state-court proceedings was barred by the Anti-Injunction Act, 28 U. S. C. § 2283.
Shortly before the Court of Appeals ruled, a Federal Magistrate Judge located an attorney willing to accept appointment in McFarland's case and suggested that if the attorney would file a skeletal document entitled "petition for writ of habeas corpus," the District Court might be willing to appoint him and grant McFarland a stay of execution. The attorney accordingly drafted and filed a pro forma habeas petition, together with a motion for stay of execution and appointment of counsel. As in the Gosch case, see n. 1, supra, despite the fact that Texas did not oppose a stay, the District Court found the petition to be insufficient and denied the motion for stay on the merits. McFarland v. Collins, No. 4:93-CV-723-A (WD Tex., Oct. 26, 1993).
On October 27, 1993, this Court granted a stay of execution in McFarland's original suit pending consideration of
reluctant to invoke their federal right to counsel by filing pro forma habeas petitions, given the substantial possibility that the petition might be dismissed on the merits, and that any habeas petition later filed would be dismissed summarily as an abuse of the writ. See App. 73-74.
853
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