Vasquez

ORDER

The mandate is recalled. The en banc court having completed its duty pursuant to Death Penalty Rule 22^1(e)(3), the en banc court remands this cause to the- panel which had initial jurisdiction.

dissenting:

Because I do not believe that the en banc panel completed its duties under Ninth Circuit Rules 22 — 2(b)(4) and 22-4(ej(2), I respectfully dissent. I also concur in Judge Noonan’s dissent.

I. PROCEDURE

Rule 22-2(b)(4) states that, upon a call for en banc review under Rule 22-4(e)(2),

(Emphasis added.)

On August 23, 1993, the en bane panel issued an order that stated

This order reflects an en bane vote as to the stay of execution only. The en banc court did not review the merits of the opinion issued by the special state death penalty three-judge panel. It is true that an en banc panel member’s vote on whether to grant a stay will often reflect that member’s position on the merits of the three-judge panel’s opinion. But in this instance it was clear that *1227 several panel members east their votes only on the stay. This is not the review explicitly provided for by our death penalty rules.

There are problems with the death penalty three-judge panel’s opinion. I…

dissenting:

I concur in Judge Pregerson’s dissent and add the following:

1. The rules, as carefully constructed to govern cases involving the imposition of death, were not observed.

2. Precedent was not observed. If reasonable jurists can disagree on the merits of an issue involving death, the court should grant a stay so that the matter may be fully considered. Barefoot v. Estelle, 463 U.S. 880 , 893 n. 4, 103 S.Ct. 3383 , 3394-95 n. 4, 77 L.Ed.2d 1090 (1983).

3. Emergencies and errors of the kind that occurred in this case are created by the exigencies of state law setting a twenty-four hour period in which the death warrant is good. Cal.Penal Code § 1227 (“appointing a day upon which the judgment shall be executed”). The State of California is capable of legislative action that does not impose such draconian limits. See id. § 1227.5.

The state law should be conformed to the requirements of the United States Constitution and the review that habeas corpus provides thereunder.