Donald Beardslee v. Jill Brown, Warden of the California State Prison at San Quentin

ORDER

In Beardslee v. Woodford, 358 F.3d 560 (9th Cir.2004), we affirmed the denial of federal habeas relief in this capital case. Subsequently, the Supreme Court denied Beardslee’s petition for a writ of certiorari. Beardslee v. Brown, - U.S. -, 125 S.Ct. 281 , 160 L.Ed.2d 68 (2004). Beard-slee has now requested the issuance of a certificate of appealability (“COA”), arguing that he is entitled to relief pursuant to Sanders v. Woodford, 373 F.3d 1054 (9th Cir.2004), a decision that was issued by another panel of this Court during the pendency of his petition for a writ of cer-tiorari. This case is in an unusual posture because Beardslee’s request was made after the Supreme Court denied his petition for a writ of certiorari, but before this Court’s issuance of the mandate.

We previously granted Beard-slee’s motion for an order temporarily staying issuance of the mandate. As we noted in that order, “a circuit court has the inherent power to stay its mandate following the Supreme Court’s denial of certiora-ri.” Bryant v. Ford Motor Co., 886 F.2d 1526, 1529 (9th Cir.1989). “An appellate court’s decision is not final until its mandate issues.” Id. (quoting Mary Ann Pensiero, Inc. v.…