Thomas West, et al v. Janice Brewer, et al, No. 11-16707 (9th Cir. 2011)

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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, v. JANICE K BREWER, Governor of Arizona; CHARLES L. RYAN, Director, Arizona Department of Corrections; ERNEST TRUJILLO; CARSON MCWILLIAMS, Warden, Arizona Department of Corrections- Florence; UNKNOWN PARTIES, named as Does 1-50, Defendants-Appellees. ï£¼ ï£½ No. 11-16707 D.C. No. 2:11-cv-01409NVW District of Arizona, Phoenix ORDER ï£¾ 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 petition 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 concerning the petition for panel rehearing. Judges McKeown, Clifton, 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.

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