Campbell

with whom Circuit Judge JAMES R. BROWNING joins, and with whom Circuit Judge TANG joins as to Part I, concurring and dissenting:

I.

I dissent from this court’s refusal to stay Campbell’s execution by hanging pending his *1052 filing of a petition for a writ of certiorári with the United States Supreme Court. Our denial of Campbell’s request for a stay is in direct violation of the rules that govern the operation of this court. By our decision we pronounce our willingness to hang Campbell first and submit the serious constitutional issue he raises to the Supreme Court for decision later.' So the Ninth Circuit returns, at least for now, to the rough Western justice of frontier days: Hang ’em first, ask questions later.

Our decision demonstrates once again that in capital punishment cases, the current federal judiciary is less concerned with rules of law and constitutional principles than with ensuring that defendants are executed speedily. The unprincipled and arbitrary decision-making of which Justice Blackmun recently spoke so eloquently, see Collins v. Collins, — U.S. -, 114 S.Ct. 1127 , 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting from denial of certiorari), infects not…

ORDER

This order disposes of the various motions filed by the parties since we filed an opinion on February 8, 1994.

I

Campbell’s petition for rehearing with suggestion for rehearing by the full court is denied. The eleven-judge en banc court voted to deny the petition for rehearing and to reject the suggestion for rehearing by the full court en banc. A vote was taken of the active judges and has failed to receive a *1051 majority of votes in favor of full court en banc consideration. Fed.R.App.P. 35(b).

II

Campbell's motion for a stay of the mandate pending application to the Supreme Court for a writ of certiorari is denied. The mandate has already been delayed beyond the 21 days provided in Fed.R.App.P. 41(a). Campbell is not entitled to an automatic stay under Circuit Rule 41-1. We agree with Campbell that ordinarily a party need not demonstrate that exceptional circumstances justify a stay of the mandate. Nevertheless, we find that exceptional circumstances justify denying the stay in this case. Over two years ago, in In re Blodgett, — U.S. -, -, 112 S.Ct. 674, 676 , 116 L.Ed.2d 669 (1992), the Supreme Court reminded us that the delay in this particular case has…

dissenting from the limited en banc court’s refusal to stay its mandate.

This court has a general policy against issuing the mandate forthwith (General Order 4.6) and we commonly stay our mandate pending application for a writ of certiorari without requiring any demonstration of exceptional circumstances. See, e.g., Bryant v. Ford Motor Co., 886 F.2d 1526, 1528 (9th Cir.1989). The en banc court deviates from this standard practice purportedly because of In re Blodgett, — U.S. -, 112 S.Ct. 674 , 116 L.Ed.2d 669 (1994), where the Supreme Court scolded the court for delay in this case. I have not forgotten that scolding; but In re Blodgett did not criticize the propriety of our conduct which did not deviate from our established procedures. I read In re Blodgett as a warning against deviating from established procedures in capital cases, not as a direction to ignore established procedures. Because I would grant Campbell’s request, as in other cases, to stay the mandate for thirty days as provided for by Fed.R.App.P. 41(b), I respectfully dissent from Part II of the en banc court’s order.

dissenting from the limited en banc court’s refusal to stay its mandate:

I concur in the order of the limited en banc court with the exception of Part II, in which the court concludes that Campbell is not entitled to a stay of the issuance of its mandate pending application for a writ of certio-rari in the Supreme Court. Because I believe that Campbell is entitled to such a stay pursuant to Fed.RApp.Proc. 41(b) and Circuit Rule 41-1 of this court, I dissent from this portion of the court’s order.