864
Thomas, J., dissenting
in the judgment reversing the Court of Appeals on this point. But because in my view petitioner cannot obtain a stay of execution before filing a petition for a writ of habeas corpus in the District Court, I would affirm the judgment in part. I therefore respectfully dissent from the Court's contrary determination.
Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting.
Today the Court holds that a state prisoner under sentence of death may invoke a federal district court's jurisdiction to obtain appointed counsel under 21 U. S. C. § 848(q) (4)(B) and to obtain a stay of execution under 28 U. S. C. § 2251 simply by filing a motion for appointment of counsel. In my view, the Court's conclusion is at odds with the terms of both statutory provisions. Each statute allows a federal district court to take action (appointing counsel under § 848(q)(4)(B) or granting a stay under § 2251) only after a habeas proceeding has been commenced. As Justice O'Connor points out, such a proceeding is initiated under the habeas corpus statute, 28 U. S. C. § 2241 et seq., only with the filing of an application for a writ of habeas corpus. I therefore agree with Justice O'Connor that a district court lacks jurisdiction to grant a stay under § 2251 until such an application has been filed. See ante, at 860-863 (concurring in judgment in part and dissenting in part). But because § 848(q)(4)(B), like § 2251, conditions a court's power to act upon the existence of a habeas proceeding, I would also hold that a district court cannot appoint counsel until an application for habeas relief has been filed. I therefore respectfully dissent.
I
In its attempt to discern Congress' intent regarding the point at which § 848(q)(4)(B) makes counsel available, the Court spends a good deal of time considering how, as a "practical matter," the provision of counsel can be made meaning-
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