Malone
Malone v. Calderon
Opinion
Lead Opinion
Beezer, J.
Kelvin Shelby Malone is under sentence of death in California and Missouri. At present, Malone is in custody in Missouri. He is scheduled to be executed by the state of Missouri on January 13, 1999. We now consider Malone’s motion for consolidation and emergency motion to stay the execution. We have jurisdiction pursuant to 28 U.S.C. § 1292 (a)(1) because we are reviewing the *1236 denial of injunctive relief. See Carson v. American Brands, 450 U.S. 79, 84 , 101 S.Ct. 993 , 67 L.Ed.2d 59 (1981); Calderon v. United States District Court, 137 F.3d 1420, 1422 (9th Cir.1998). We deny the motion to consolidate and dismiss the motion to stay for lack of jurisdiction.
I
Malone petitioned for a writ of habeas corpus in the Central District of California. On July 1, 1998, the district court stayed “execution of the judgment and sentence of death in People v. Malone, San Bernadino [sic] Superior Court Case no. SCR-39154, and any proceedings related thereto, pending final disposition of this habeas action.” Malone v. Calderon, No. CV-96-04040-WJR (C.D. Cal. July 1, 1998 order). 2 In November 1998, the district court in the Central District of California granted, and this court declined…
Concurring Opinion
Hawkins, J.
concurring:
However one may have viewed Malone’s Johnson v. Mississippi claim — and I for one thought it sufficiently colorable to permit a district court to hear it out before being rendered moot by his execution 1 — we passed through that gate when this court refused to stay Malone’s transfer to Missouri authorities. Now that he is there, we have, as the opinion quite properly points out, no jurisdiction over either Malone, his custodian, or the courts of the Eight Circuit so as to grant the relief he seeks.
. I read Johnson to require the sentencing court to re-visit the issue where the original sentence was based, even in part, on a conviction which is later invalidated. 486 U.S. at 584-85, 108 S.Ct. 1981 . Although success in his California habeas proceeding would still leave a separate aggravating circumstance (murder for pecuniary gain) in place, the Missouri Supreme Court appears not to have passed on the validity of that aggravating factor in upholding Malone’s death sentence. See State v. Malone, 694 S.W.2d 723, 727-28 (Mo.1985).