James Dean Clark v. Samuel A. Lewis, Director, Arizona Department of Corrections and Roger Crist, Warden, Arizona State Prison

ORDER

The opinion filed April 13, 1993 is withdrawn. It is replaced with an order for publication filed contemporaneously herewith.

ORDER

The district court dismissed James Dean Clark’s second federal habeas corpus petition challenging his state convictions on four counts of first-degree murder and sentence of death. The district court had jurisdiction under 28 U.S.C. §§ 2241 (a) and 2254. It refused to issue a certificate of probable cause to permit Clark to appeal to this court. See 28 U.S.C. § 2253 ; Fed.R.App.P. 22(b).

We have jurisdiction to determine whether to issue a certificate of probable cause, id., and to entertain Clark’s application for such a certificate on its merits. Burwell v. Teets, 350 U.S. 808, 809 , 76 S.Ct. 98 , 98, 100 L.Ed. 726 (1955); Rogers v. Teets, 350 U.S. 809 , 76 S.Ct. 98 , 100 L.Ed. 726 (1955). We also have authority to “lay down a procedure ... to follow for the entertainment of such applications on their merits.” In re Application of Burwell, 350 U.S. 521, 522 , 76 S.Ct. 539, 540 , 100 L.Ed. 666 (1956).

We have adopted rules for state habeas corpus death penalty cases. See generally 9th Cir.R. 22-1 et seq. Under these rules, if the panel to…