Malone

concurring in the denial of rehearing en banc.

I do not disagree with the decision to deny Malone’s petition for rehearing and reject his suggestion for rehearing en banc, given the fact that he has only asked us to stay the scheduled execution by the state of Missouri and has failed to ask us to order the district court to rule on his pending summary judgment motion forthwith or in the alternative to treat the district court’s failure to act as a denial and to review that denial. I am convinced from the record that Malone has a substantial likelihood of obtaining relief from his California conviction and sentence if the district court or this court reaches the merits of his habeas petition. In that event, as Judge Hawkins notes in his concurrence to the panel’s opinion denying a stay of execution, Malone will be entitled to a new sentencing hearing in Missouri because his Missouri death sentence was based in large measure upon the California conviction. Malone should then be able to obtain a stay of execution from a Missouri state or federal court.

Unfortunately, this may never happen. Malone is scheduled to die early next week, and the district court has removed Malone’s…

ORDER

The panel has voted to deny appellant’s emergency motion for reconsideration. Judges Kleinfeld and Hawkins vote to deny the motion for rehearing en banc and Judge Beezer so recommends.

The full court was advised of appellant’s suggestion for rehearing en bane. 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 nonre-cused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The motion for reconsideration is denied. The motion for rehearing en banc is denied.