852
Opinion of the Court
On October 16, 1993, the Resource Center informed the trial court that it had been unable to recruit volunteer counsel and asked the court to appoint counsel for McFarland. Concluding that Texas law did not authorize the appointment of counsel for state habeas corpus proceedings, the trial court refused either to appoint counsel or to modify petitioner's execution date. McFarland then filed a pro se motion in the Texas Court of Criminal Appeals requesting a stay and a remand for appointment of counsel. The court denied the motion without comment.
Having failed to obtain either the appointment of counsel or a modification of his execution date in state court, McFarland, on October 22, 1993, commenced the present action in the United States District Court for the Northern District of Texas by filing a pro se motion stating that he "wish[ed] to challenge [his] conviction and sentence under [the federal habeas corpus statute,] 28 U. S. C. Sec. 2254." App. 42. McFarland requested the appointment of counsel under 21 U. S. C. § 848(q)(4)(B) and a stay of execution to give that counsel time to prepare and file a habeas corpus petition.1
1 Traditionally in Texas, capital defendants had invoked their federal right to appointed counsel by filing a perfunctory habeas corpus petition, often reciting a single claim. Texas customarily did not oppose a stay following the filing of such a pro forma petition, and federal district courts regularly granted a stay of execution under these circumstances and appointed counsel to file a legally sufficient habeas application. Tr. of Oral Arg. 32-33.
In the month prior to McFarland's scheduled execution, however, a capital defendant facing imminent execution filed such a pro forma habeas petition in District Court. Texas did not oppose the filing, but the District Court denied the stay and dismissed the skeletal petition on the merits. Gosch v. Collins, No. SA-93-CA-731 (WD Tex., Sept. 15, 1993). The Court of Appeals for the Fifth Circuit affirmed, Gosch v. Collins, 8 F. 3d 20 (1993), cert. dism'd sub nom. Gosch v. Scott, post, p. 1216. Gosch then filed a subsequent, substantive habeas petition, which the District Court dismissed as successive and abusive. Gosch v. Collins, No. SA-93-CA- 736 (WD Tex., Oct. 12, 1993).
In a letter supporting McFarland's motion in the District Court, the Resource Center indicated that the Gosch case had left capital defendants
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