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SPANN v. MARTIN

No. 91-4007.

963 F.2d 663 (1992)

Sterling Barnett SPANN, Petitioner-Appellee, v. George N. MARTIN, III, Warden, Broad River Correctional Institution; PARKER EVATT, Commissioner, South Carolina Department of Corrections, Respondents-Appellants.

United States Court of Appeals, Fourth Circuit.

Decided April 30, 1992.

Attorney(s) appearing for the Case

Donald John Zelenka, Chief Deputy Atty. Gen., Columbia, S.C., argued, for respondents-appellants.

John Henry Blume, III, S.C. Death Penalty Resource Center, Columbia, S.C., argued (R. Mickell Branham, Franklin W. Draper, S.C. Death Penalty Resource Center, Jon Popowski, Bolt, Popowski, McCullough & Strom, on brief), for petitioner-appellee.

Before ERVIN, Chief Judge, WILKINS, Circuit Judge, and CHAPMAN, Senior Circuit Judge.

OPINION

CHAPMAN, Senior Circuit Judge:

The issue is whether the district court abused its discretion in granting the capital habeas corpus petitioner dismissal without prejudice of his federal court action so that he might reexhaust certain state court claims, when such action had been in litigation in federal court for over five years and the execution of the state sentence has been stayed by the federal court since June 17, 1986. We hold that the district...

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