ORDER

Sitting as a panel for motions and screening, we have before us an emergency proceeding in a death penalty case. The appellant is scheduled to be executed tonight in Missouri.

In the case before us, the Honorable William J. Rea, United States District Judge, has written an opinion granting in part and denying in part the State of California’s motion for summary judgment on Malone’s petition for a writ of habeas corpus relating to his California conviction and death penalty for the murder of Myrtle Benham. Judge Rea granted the writ as to the penalty. Regarding the conviction, Judge Rea granted summary judgment as to some claims, and denied summary judgment, or granted it without prejudice to renewal of the claims, as to others.

This California conviction and death penalty were part of the predicate for the Missouri death penalty, State v. Malone, 694 S.W.2d 723, 728 (Mo.1985). Under Johnson v. Mississippi, 486 U.S. 578, 586 , 108 S.Ct. 1981 , 100 L.Ed.2d 575 (1988), if the California conviction is vacated, the Missouri death penalty might have to be vacated.

We cannot complete review of the district court decision, rendered yesterday, before Malone’s scheduled execution tonight. Resolution of the claims will require examination of the record. It consists of fifteen cartons of papers currently in Pasadena. We three judges are now in Phoenix, Seattle, and Fairbanks. Both time and distance make examination of the record impossible prior to Malone’s scheduled execution. Also, appellate jurisdiction may not exist at this time as to some of the issues, and more issues may be identified after sufficient time for further study.

We have studied the matter sufficiently to identify serious issues on which reasonable jurists may differ, and which may affect the validity of Malone’s California conviction for the Myrtle Benham murder (another California conviction, for the murder of Minnie Ola White, is not challenged in this proceeding). The serious issues identified so far are those as to which Judge Rea denied summary judgment or granted it without prejudice. The claims which, in the limited time available to us, appear to be of serious concern are:

Therefore,

IT IS ORDERED that this case be transferred to a regular merits panel to be heard as soon as practicable.

We have previously determined, in another petition by Malone, that we lack jurisdiction to stay Malone’s execution in Missouri, which is in the Eighth Circuit. Accordingly,

IT IS ORDERED that the clerk advise counsel and the clerk of the Eighth Circuit by telephone of this order, and immediately fax a copy of it to the Eighth Circuit, to be lodged in their case No. 96-1613.

We have concluded that serious questions have been raised going to the validity of the California conviction which was part of the predicate for the Missouri death sentence.