Patrick Mahon McGee v. Frank Eyman, Superintendent, Arizona State Prison

Upon direction of the Chief Judge of this court, I have undertaken to consider and act upon this application for a stay of execution made on behalf of petitioner who, it is stated, has been ordered executed by the respondent on the 30th day of November, 1962, pursuant to judgment and order of the Supreme Court of Arizona which has affirmed petitioner’s sentence of death. The petition recites that petitioner desires to appeal to this court from the decision of the United States District Court for the District of Arizona which has denied his petition for a writ of habeas corpus.

At the outset I note that the petition here present merely prays for an order staying petitioner’s execution. I am of the opinion that I have no jurisdiction to entertain such a petition in the absence of a certificate of probable cause or an application for such certificate as that is a condition precedent to petitioner’s right to appeal. See U.S.C. Title 28, § 2253. However, since petitioner recites that he desires to appeal, I disregard this formal insufficiency in the petition and treat the petition as one both for a certificate of probable cause and for a stay of execution. Such disregard of formal…