Campbell v. Wood

ORDER

This order disposes of the various motions filed by the parties since we filed an opinion on February 8, 1994.

I

Campbell’s petition for rehearing with suggestion for rehearing by the full court is denied. The eleven-judge en banc court voted to deny the petition for rehearing and to reject the suggestion for rehearing by the full court en banc. A vote was taken of the active judges and has failed to receive a *1051majority of votes in favor of full court en banc consideration. Fed.R.App.P. 35(b).

II

Campbell's motion for a stay of the mandate pending application to the Supreme Court for a writ of certiorari is denied. The mandate has already been delayed beyond the 21 days provided in Fed.R.App.P. 41(a). Campbell is not entitled to an automatic stay under Circuit Rule 41-1. We agree with Campbell that ordinarily a party need not demonstrate that exceptional circumstances justify a stay of the mandate. Nevertheless, we find that exceptional circumstances justify denying the stay in this case. Over two years ago, in In re Blodgett, — U.S. -, -, 112 S.Ct. 674, 676, 116 L.Ed.2d 669 (1992), the Supreme Court reminded us that the delay in this particular case has prejudiced the State of Washington. We are under a duty to “ensure a prompt resolution of the matter.” Id. Denial of a stay of the mandate does not prevent Campbell from seeking a further stay of execution in the Supreme Court.

III

The Respondents-Appellees’ motion to strike Campbell’s suggestion for rehearing by the full court and to strike Campbell’s pro se brief in support of petition for rehearing is denied. The Respondents-Appellees’ motion to vacate the stay of execution, or in the alternative to immediately issue the mandate is moot. The Respondents-Appellees’ motion for reconsideration of our Order of March 10, 1994 is also moot. This order will result in the issuance of the mandate forthwith. The Respondents-Appellees’ motion for expedited consideration of Campbell’s petition for rehearing and renewed motion to vacate the stay of execution is moot.

NOW therefore, it is,

ORDERED that, pursuant to Rule 35(b) of the Federal Rules of Appellate Procedure, the petition for rehearing is denied and the suggestion for rehearing by the full court is rejected. The petition for rehearing having been denied, the Clerk shall issue the mandate.

Chief Judge WALLACE and Circuit Judges BEEZER, WIGGINS, DAVID R. THOMPSON, O’SCANNLAIN and KLEINFELD concur in this order.