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MICHAEL v. HORN

No. 04-9002.

459 F.3d 411 (2006)

Hubert L. MICHAEL, Appellant v. Martin HORN, Commissioner, Pennsylvania Department of Corrections; David Diguglielmo, Superintendent of the State Correctional Institution at Graterford; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview.

United States Court of Appeals, Third Circuit.

Filed August 18, 2006.

As Amended August 21, 2006.

Attorney(s) appearing for the Case

Joseph M. Cosgrove, (Argued), Forty Fort, PA, for Appellant.

Thomas W. Corbett, Jr., Attorney General, Richard A. Sheetz, Jr., Executive Deputy Attorney General, Director, Criminal Law Division, Amy Zapp, Chief Deputy Attorney General, Appeals and Legal Services Section, Jonelle Harter Eshbach, (Argued), Senior Deputy Attorney General, Capital Litigation Unit, Office of Attorney General of Pennsylvania, Harrisburg, PA, Michael A. Farnan, Pennsylvania Department of Corrections, Office of Chief Counsel, Camp Hill, PA, for Appellees.

Before AMBRO, GREENBERG and NYGAARD, Circuit Judges.

AMBRO, Circuit Judge.

After finding Hubert Michael competent to terminate his habeas corpus petition in this death-penalty case, the District Court dismissed that petition. The dismissal was appealed, purportedly on Michael's behalf. He later vacillated on his desire to dismiss this appeal. We hold that the presumption of continuing competency does not apply here because the foundational expert for the District Court's competency finding has suggested a new...

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