concurring in the denial of the suggestion for rehearing en banc.
Upon receipt of the petition for rehearing and suggestion for rehearing en banc, I requested a response from the state in order to examine the district court’s opinion and state court record. The district court made an exhaustive examination of the state court record and found that there was not sufficient evidence to support the issue of alleged mental retardation such that it would have altered the jury’s findings at the state murder trial. The district court made an exhaustive and thorough study of the record and wrote a 136-page opinion.
I feel the district court was fully justified in allowing the filing of a successive petition and for not dismissing the petition as an abuse of the writ. Fairchild’s allegation was that his trial attorneys were misled by the evidence relating to his mental condition so as to not consider an issue of mental retardation. Subsequent psychiatric evaluations and reports disclosed evidence of early retardation. Under the circumstances, I feel there were sufficient facts facing the district court requiring Judge Eisele, particularly in light of the irrevocable penalty involved, to make a thorough and exhaustive examination of the state court record. I write separately to state my disagreement with the panel’s findings that Fairchild’s successive petition was an abuse of the writ. The district court’s findings after review of the state court record that there does not exist sufficient evidence to show that Fairchild is mentally retarded are not clearly erroneous. On this basis the petition should be denied.