Fernando Belmontes, Jr. v. John Stokes, Warden, for the California State Prison at San Quentin

427 F.3d 663 Fernando BELMONTES, Jr., Petitioner-Appellant, v. John STOKES, Warden, for the California State Prison at San Quentin, * Respondent-Appellee. No. 01-99018. United States Court of Appeals, Ninth Circuit. October 24, 2005. Christopher H. Wing, Esq., Sacramento, CA, Eric S. Multhaup, Esq., Mill Valley, CA, for Petitioner-Appellant. Mark Anthony Johnson, Esq., AGCA — Office of the California Attorney General, Department of Justice, Sacramento, CA, for Respondent-Appellee. Before REINHARDT, O'SCANNLAIN, and PAEZ, Circuit Judges. ORDER 1 CALLAHAN, Circuit Judge, with whom O'SCANNLAIN, KLEINFELD, GOULD, TALLMAN, BYBEE and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc: 2 A judge requested a vote on whether to rehear this case en banc. The case failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. The request for rehearing en banc is denied. 3 I respectfully again dissent from a denial of rehearing en banc in Mr. Belmontes' case. My dissent is not based on my adherence to the reasons set forth in my dissent from our decision last year not to take this case en banc,…

ORDER

join, dissenting from denial of rehearing en banc:

A judge requested a vote on whether to rehear this case en bane. The case failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. The request for rehearing en banc is denied.

I respectfully again dissent from a denial of rehearing en banc in Mr. Belmontes’ *664 case. My dissent is not based on my adherence to the reasons set forth in my dissent from our decision last year not to take this case en banc, Belmontes v. Woodford, 359 F.3d 1079 (9th Cir.2004), but on our failure to follow the Supreme Court’s directions.

Following our prior opinion in this case, the Supreme Court summarily granted the State of California’s petition for a writ of certiorari, vacated our judgment, and remanded the case for further consideration in light of Brown v. Payton, — U.S.-, 125 S.Ct. 1432 , 161 L.Ed.2d 334 (2005). Brown v. Belmontes, — U.S. -, 125 S.Ct. 1697 , 161 L.Ed.2d 518 (2005). On remand, the panel properly rejected most of the issues raised by Belmontes. However, on one critical issue—the constitutional adequacy of the jury instructions in the penalty phase of the…