Balentine v. Thaler

HAYNES, Circuit Judge,

dissenting from the denial of rehearing en banc:

Judge Dennis’s dissent from the denial of rehearing en banc gives a scholarly analysis of the substantive reasons that the panel opinions in Rocha and Balentine are incorrect. I write to express the view that these cases merit en banc reconsideration because they involve a question “of exceptional importance.” Fed. RApp. P. 35(a)(2), (b)(1)(B). Further, the decisions in question “eonflict[] with a decision of the United States Supreme Court” (namely, Long and its progeny). Fed. R.App. P. 35(b)(1)(A). Congress has limited, but not eliminated, the role of federal courts in the *490process of state habeas review. See generally 28 U.S.C. §§ 2244, 2254. The contours of that line are exceptionally important in any case, but are particularly so here where the death penalty is involved. Accordingly, I respectfully dissent from the court’s declination to rehear these cases en banc.