dissenting.
I respectfully dissent. I would deny the motion for stay of execution.
The Supreme Court teaches that on second and later habeas petitions a stay must not be entered unless “there are substantial grounds upon which relief might be granted.” Delo v. Blair, — U.S. —, —, 113 S.Ct. 2922, 2923, 125 L.Ed.2d 751 (1993) [citing cases].
The district court in its memorandum and order denying the stay of execution has carefully analyzed Foster’s latest claims and discusses the most recent cases from the Supreme Court in death penalty cases. Kyles v. Whitley, — U.S. —, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), and Schlup v. Delo, — U.S. —, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). As I conclude there are no substantial grounds upon which relief might be granted, I would deny the stay on the basis articulated in the district court’s memorandum and order.
ORDER
May 1, 1995
The appellee’s petition for rehearing before the panel is hereby denied. Judge John R. Gibson votes to grant the petition for rehearing and vacate the stay of execution.
The appellee’s petition for rehearing en banc and motion to vacate stay of execution have been considered by the Court and are hereby granted. Judges McMillian and Murphy vote to deny the petition for rehearing en banc and the motion to vacate stay of execution.