Donald Kenneth Fetterly v. David Paskett, Warden, Idaho State Prisons and Jim Jones, Attorney General of the State of Idaho

dissenting from the order rejecting the suggestion for rehearing en banc:

The Supreme Court has told us in no uncertain terms that we may not delay federal habeas proceedings so the petitioner can litigate unrelated claims in state court. In re Blodgett, — U.S.-,-, 112 S.Ct. 674, 676 , 116 L.Ed.2d 669 (1992). Rather, our duty is “to take all steps necessary to ensure a prompt resolution of the matter....” Id.

The district judge here followed this prescription to the letter: He adjudicated expeditiously the claims Fetterly raised in his ■ federal habeas petition and refused to stay proceedings to let Fetterly exhaust an unrelated claim in state court. On appeal, a panel of our court reverses. Without even a nod to Blodgett , the panel holds that the district judge abused his discretion by doing what the Supreme Court said he must do. Refusing to look at the claims actually decided by the district court, the panel holds the appeal in limbo so Fetterly can litigate a claim he did not raise and could not have raised in his habeas petition. As Yogi Berra is said to have said,- it’s deja vu all over again.

The panel’s cold shoulder to Blodgett is but the first of many errors. The…

Concurring in the Order rejecting the suggestion for rehearing en banc:

Estelle v. McGuire, — U.S. -, 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991), which Judge Kozinski believes has been ignored, 1 merely reprises the unremarkable and longstanding proposition that ‘“federal habeas corpus relief does not lie for errors of state law.’ ” Id. at -, 112 S.Ct. at 480 (quoting Lewis v. Jeffers, 497 U.S. 764 , 110 S.Ct. 3092 , 111 L.Ed.2d 606 (1990)). Estelle v. McGuire is not a landmark decision. It simply reiterates the settled law and then applies it to a pending case.

Hicks v. Oklahoma, 447 U.S. 343 , 100 S.Ct. 2227 , 65 L.Ed.2d 175 (1980), appears to be better authority for the instant case than Estelle v. McGuire because the issue in Hicks is more similar to the issues raised by Fetterly. Whereas Estelle v. McGuire deals with the admissibility of evidence and limiting jury instructions, Hicks demonstrates how a state law sentencing error can be a deprivation of a due process interest protected by the Constitution:

Id. at 346 , 100 S.Ct. at 2229 (citations and footnote omitted). Substitute “life interest” for “liberty interest” in this quotation and it is easy to see that Hicks is…

The panel has voted to deny appellees’ petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter faded to receive a majority of the votes of the nonrecused active judges in favor of en bane consideration. Fed.RApp.P. 35. Judges Kozinski, Hall, and Wiggins would grant the suggestion for rehearing en banc.

The petition for rehearing is denied and the suggestion for rehearing en bane is rejected.

15 F.3d 1472 Donald Kenneth FETTERLY, Petitioner-Appellant, v. David PASKETT, Warden, Idaho State Prisons; and Jim Jones, Attorney General of the State of Idaho, Respondents-Appellees. No. 90-35627. United States Court of Appeals, Ninth Circuit. Jan. 24, 1994. Amended March 8, 1994. Prior Report: 997 F.2d 1295 . Before: SCHROEDER, LEAVY, and TROTT, Circuit Judges. 1 The panel has voted to deny appellees' petition for rehearing and to reject the suggestion for rehearing en banc. 2 The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35. Judges Kozinski, Hall, and Wiggins would grant the suggestion for rehearing en banc. 3 The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. 4 KOZINSKI, Circuit Judge, with whom Circuit Judges HALL and WIGGINS join, dissenting from the order rejecting the suggestion for rehearing en banc: 5 The Supreme Court has told us in no uncertain terms that we may not delay federal habeas proceedings so…