Thomas West v. Janice Brewer

                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

THOMAS PAUL WEST; GREGORY               
DICKENS; CHARLES M. HEDLUND;
ROBERT W. MURRAY; THEODORE
WASHINGTON; TODD SMITH,
               Plaintiffs-Appellants,          No. 11-16707
                 v.                               D.C. No.
                                              2:11-cv-01409-
JANICE K BREWER, Governor of
Arizona; CHARLES L. RYAN,                         NVW
Director, Arizona Department of             District of Arizona,
Corrections; ERNEST TRUJILLO;                     Phoenix
CARSON MCWILLIAMS, Warden,                       ORDER
Arizona Department of
Corrections- Florence; UNKNOWN
PARTIES, named as Does 1-50,
             Defendants-Appellees.
                                        
                     Filed July 18, 2011

 Before: Sidney R. Thomas, Circuit Judge and Capital Case
                      Coordinator.


                           ORDER

   Pursuant to the rules applicable to capital cases in which an
execution date has been scheduled, a deadline was established
by which any judge could request a vote on whether the
panel’s order denying the Emergency Motion for a Temporary
Restraining Order should be reheard en banc. No judge
requested a vote on whether to rehear the panel’s decision en
banc within the time period established. Therefore, the peti-
tion for rehearing en banc is denied and en banc proceedings

                             9451
9452                    WEST v. BREWER
are concluded with respect to the Emergency Motion for a
Temporary Restraining Order.

  The three-judge panel will issue a separate order concern-
ing the petition for panel rehearing. Judges McKeown, Clif-
ton, and Bea did not participate.



Statement of REINHARDT, Circuit Judge:

   This is a brief explanation of why I am not calling for
rehearing en banc. I consider such a call futile in light of the
recent decisions of this court in Beaty v. Brewer, No.
11-99007, 2011 WL 2040916 (9th Cir. May 25, 2011), Cook
v. Brewer, No. 11-15743, 2011 WL 1213095 (9th Cir. April
1, 2011), and Cook v. Brewer, 637 F.3d 1002 (9th Cir. 2011),
decisions I believe to be clearly erroneous, as well as the
Supreme Court’s decision in Baze v. Rees, 553 U.S. 35
(2008), a case on which it would be injudicious for me to
comment. Thus, while I believe that West’s execution will
violate the Constitution, I can play no further role in seeking
to protect his constitutional rights.