Frank Atwood v. David Shinn

34 F.4th 1124

Opinion

FILED FOR PUBLICATION MAY 31 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK JARVIS ATWOOD, No. 22-70084

Applicant, Nos. District of Arizona v. Tucson

DAVID SHINN, Director,

Respondent. ORDER

Before: S.R. THOMAS, Capital Case Coordinator and Circuit Judge.

On May 27, 2022, the three judge panel issued an order denying the

application for leave to file a second or successive habeas petition in the district

court. Pursuant to 28 U.S.C. § 2244(b)(3)(E), parties are not permitted to file a

petition for rehearing or rehearing en banc as to the panel’s action. However,

rehearing en banc may be granted if a judge sua sponte requests a vote on whether

to rehear the panel’s order en banc. See Thompson v. Calderon, 151 F.3d 918, 922

(9th Cir. 1998) (en banc). Pursuant to the rules applicable to capital cases when an execution date has

been scheduled, a deadline was established for any judge to request a vote on

whether the panel’s order denying the application should be reheard en banc. No

judge requested a vote on whether the order should be reheard en banc within the

established time period. Therefore, en banc proceedings with respect to the order

are concluded. The panel’s order denying the application is the final order of this

Court pertaining to the application.