Karl ROBERTS, Appellee, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellant, 415 F.3d 816

MELLOY, Circuit Judge. Karl Roberts asks us to dismiss the pending appeal by the State of an order staying execution by the district court. We dismiss the State’s appeal as moot. I. Roberts was tried, convicted, and sentenced to death for the murder of Andria Brewer. On June 13, 2000, Roberts filed a written waiver of his appeals that stated that he did not want his attorneys to challenge his conviction or sentence. The trial court conducted a hearing to investigate the waiver. At the hearing, Roberts stated that his waiver was knowing and voluntary, and he reaffirmed his desire to waive any appeal.

He said “I want to die” in response to questioning by the trial judge. On February 2, 2002, the Supreme Court of Arkansas appointed an attorney to prepare an abstract of the waiver by Roberts. The Supreme Court of Arkansas upheld the waiver and affirmed the conviction and sentence. Subsequently, Roberts was brought before the trial court where he reaffirmed his desire not to pursue post-conviction relief. On October 9, 2003, the Supreme Court of Arkansas reviewed the matter and again affirmed the waiver by Roberts. The Governor of Arkansas set Roberts’s execution date as January 6, 2004.

Hours before his scheduled execution, the district court granted a request for a stay of execution so that newly-appointed counsel from the Federal Public Defender Office could investigate and present federal habeas claims on behalf of Roberts. At the time that the stay was entered, Roberts had over seven months remaining to file his habeas claims to meet the deadlines of the Anti-Terrorism and Effective Death Penalty Act. However, the district court’s stay order was for only ninety days. The State appealed the stay order. The state also asked for expedited relief and that the stay vacated.

But this Court and the United States Supreme Court declined to vacate the stay. The appeal of the original order granting the stay remains pending. On March 29, 2004, Roberts filed a motion to extend the stay and the district court granted the motion over the State’s opposition. The State did not appeal the district court’s grant of the motion extending the stay. On July 16, 2004, Roberts filed his federal petition for writ of habeas corpus. On July 22, 2004, Roberts filed a motion requesting an indefinite stay of execution so that the merits of his habeas petition could be considered by the district court.

The State did not oppose the motion, and the district court granted the indefinite stay on July 26, 2004. The State did not appeal the indefinite stay. On August 2, 2004, Roberts filed a motion to dismiss the State’s pending appeal of the original ninety-day stay of execution. Finding the issues raised in that appeal to be moot, we grant Roberts’s motion for dismissal. II. The State argues that the district court erred because it did not properly consider Roberts’s desire to be executed in issuing the original stay.

Specifically, the State argues that the district court exceeded the holding of the United States Supreme Court in McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), by allowing a defendant who had not expressly declared his desire to “vacate or set aside [his] death sentence” to have his execution stayed. Id. at 853, 114 S.Ct. 2568 (quoting 21 U.S.C. § 848(q)(4)(B)). We generally review a district court’s decision to stay execution for abuse of discretion. See Bowersox v. Williams, 517 U.S. 345, 346, 116 S.Ct. 1312, 134 L.Ed.2d 494 (1996).

However, in the present matter, we need not review the substance of the district court’s holding because we believe the State’s appeal is moot as a matter of law. The federal power of the judiciary only extends to “Cases” or “Controversies.” U.S. Const. Art. III, § 2. The “case or controversy” requirement is not met if “the question sought to be adjudicated has been mooted by subsequent developments.” Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). If there is no remaining cause of action, we must dismiss the suit for lack of jurisdiction. See Deposit Guaranty Nat’l Bank v.

Roper, 445 U.S. 326, 335, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980). In this case, we believe the “subsequent development[ ]” of Roberts filing his habeas petition has rendered the original stay moot. There is no longer any issue raised by the original stay because the sole purpose of that stay was to allow the filing of Roberts’s habeas petition. Since that petition has been filed with the district court, the original stay is no longer in effect. Further, the subsequent orders of the district court extending the original stay and the granting the stay of indefinite duration were unopposed by the State.

These stays effectively moot the State’s appeal of the original order because the subsequent time frame included the duration of the original stay. The state did not appeal either order, so any questions about the original stay were subsumed by the issuance of subsequent stays. The State asks us to apply the “capable of repetition, yet evading review” exception to the mootness doctrine. See Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1373 (8th Cir.1990); Rice v. Kempker, 374 F.3d 675, 678 (8th Cir.2004). However, we do not believe the exception applies in the present matter.

The State argues that the filing of a habeas petition by unauthorized counsel, as alleged in this case, is subject to repetition without review because the underlying question of whether the district court has jurisdiction to issue a stay to unauthorized counsel will remain unanswered. We do not agree. While there is a theoretical possibility that the present case will repeat itself, the likelihood is not sufficient for us to invoke the narrow exception. The mootness exception applies if it is “reasonably foreseeable” that a particular issue will be likely to repeat and evade review. Richmond Newspapers v.

Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). However, in the present matter, the likelihood of repetition is only speculative. The procedural history of this case is unique. We cannot reasonably foresee a defense attorney seeking last minute assignment to a death penalty appeal and then relying on an emergency stay to avert an execution of a “volunteer.” Even if such a case repeats, there is not sufficient indication that it will continue to evade review as the issuance of stays is subject to timely appellate review.

Further, the State’s position ignores the second reason we find the case to be moot. Because of the subsequent unappealed stay orders, there is no longer a “case or controversy” before us. The stay was extended well beyond the ninety-days regardless of whether the underlying reason for it (the preparation of a habeas appeal) was still in effect. When the subsequent stays were issued and not appealed, they effectively subsumed the duration of the original stay and have force whether or not the first stay was proper.

This issue is not “capable of repetition, yet evading review” for the fact that the State could have appealed all of the subsequent stays, and could do so in a similar case in the future. III. For the reasons above, we dismiss as moot the State’s appeal of the January 6, 2004 order staying Roberts’s execution. . The Honorable George Howard, Jr., United States District Judge for the Eastern District of Arkansas.