Prosecutors asked the U.S. Supreme Court to order that an execution go forward as planned Thursday, hours after a federal appeals panel halted preparations in their final hours.
The attorney general's office filed a motion that, if granted, would allow for the execution of Hubert Lester Michael Jr., who was convicted of fatally shooting 16-year-old Trista Elizabeth Eng in 1993.
The move was the latest twist in a flurry of legal activity surrounding plans to execute Michael at 7 p.m. Thursday at Rockview State Prison in Bellefonte. His death warrant remains valid until midnight.
Michael's lawyers issued a statement in response, saying they were confident the U.S. Supreme Court would not grant the prosecutors' request.
"We are hopeful that the Supreme Court will recognize that the court of appeals acted reasonably in light of the complexity of Mr. Michael's case, and we are confident that the stay will remain in place," his lawyers said.
Prison officials said the execution would only be carried out "if and when" the stay was lifted by the courts.
Michael pleaded guilty to murdering Eng after kidnapping her in York County, and he could be the first person executed in the state since 1999. Pennsylvania has put to death only three inmates in the past 50 years, and all three, unlike Michael, had abandoned their appeals.
Earlier Thursday, the 3rd U.S. Circuit Court of Appeals sent the case back to a district court judge for additional proceedings.
The circuit court panel directed the district court to address, among other things, whether Michael's appeal should be considered a successive petition that is subject to stricter rules, whether "extraordinary circumstances" existed and whether a district court proceeding is needed to consider the merits of Michael's claims.
Prosecutors said that decision was in error.
"An examination of this case leads to the inexorable conclusion that Michael simply is not entitled to relief," wrote Chief Deputy Attorney General James P. Barker.
Since he was sentenced to death, Michael had abandoned his appeals but later resumed a legal fight, saying he had been confined under circumstances at Graterford State Prison that worsened mental health problems. Those problems got better after he was transferred to Greene State Prison, his lawyers have argued.
In a filing Thursday, the attorney general's office said Michael is pursuing a "successive" federal appeal that is subject to more strict court rules.
"Michael's entire argument was that, since the time of his voluntary waiver, the circumstances of his confinement have improved and effected some concomitant amelioration of his spirit. He has developed relationships ... and he has changed his mind," prosecutors wrote. "Even if true, this argument is in no way similar to a complaint of error at the district court proceeding based on failure to exhaust, procedural default, or the relevant statute of limitations."
Pennsylvania has just over 200 people on death row, the fourth most of any state after California, Texas and Florida.
The lack of executions has been attributed to a number of factors and debated for years in the state's legal circles. Prosecutors claim an anti-death penalty bias on the part of appeals judges, while defense attorneys note many of the sentences have been proved to be flawed and overturned on legitimate legal grounds.
At a 1997 hearing in Michael's case, his former public defender testified that Michael told him how he picked up the girl hitchhiking, bound her with electrical cord stolen from her home, raped her and killed her on state game land.
He was not charged with rape because of a lack of physical evidence, though prosecutors suspected it. Michael confessed to his brother, who located her remains about a month after she disappeared and called police. She had been shot in the head and chest.
At Wednesday's pardons board hearing, the victim's mother, Suzanne Eng, set the tone for relatives and friends who made emotional pleas to keep the execution on track.
"He kidnapped her, he raped her and then he executed her," the mother said. "As she begged him not to kill her, he shot her three times."
