Rhoades

We consider Paul Ezra Rhoades’s Motion for a Stay of Execution Pending United States Supreme Court Decision in Martinez v. Ryan, — U.S. —, 131 S.Ct. 2960 , 180 L.Ed.2d 244 (2011). Rhoades seeks a stay of his impending execution, leave to file successive petitions for habeas corpus relief in his two capital cases under 28 U.S.C. § 2244 (b)(3)(A), and appointment of new counsel to represent him in pursuing those petitions. Rhoades contends that his federal habeas corpus counsel, some of whom continue to represent him in this motion, were unconstitutionally ineffective because they did not have Rhoades tested for brain damage when litigating his claim that trial counsel had ineffectively represented Rhoades during the penalty phase of his two capital trials. He acknowledges that “courts have uniformly rejected the claim that there is a constitutional right to effective assistance of counsel in post-conviction proceedings,” and that the only way he could be entitled to file a successive petition is if the Supreme Court holds that there is such a right in Martinez .

This motion was filed less than 48 hours before Rhoades’s pending execution. We consider “not only the…