In Re: John W. Byrd, Jr. Movant

269 F.3d 561

Opinion

BOGGS, Circuit Judge.

I request that the en banc court determine whether to vacate the 8-day stay of execution granted by a majority of the panel that considered Byrd’s ambiguous motion, which the panel treated as a motion to file a second or successive habeas petition, and denied.

I can understand how a panel, faced with a last-minute motion, and out of an abundance of caution, could stay an execution while it is considering the motion. I can understand why a member of the panel, for tactical or other reasons, could request that the panel defer a ruling and issue a stay.

However, I cannot understand how a panel can render a decision on the merits, which affirmatively finds that the prisoner’s claims and tactics have no merit, and then issue a stay to allow one member of the panel “additional time to consider the matter.” We are not a “super-court” that supervises all executions in the states within our jurisdiction. Our jurisdiction is limited by Constitution and statute. The panel has determined all matters that come within that jurisdiction.

In my opinion, it is therefore simply lawless to stay an execution as a matter of comity to one member of the panel, when there is no jurisdictional basis for doing so.