Gerald Ross Pizzuto, Jr. v. Arvon J. Arave, Warden

specially concurring.

I concur that petitioner’s motion to stay the mandate may be denied. I write separately to emphasize that this result is not mandated by Bell v. Thompson, — U.S. *1029 -, 125 S.Ct. 2825 , 162 L.Ed.2d 693 (2005), as respondent claims. In Bell , the Supreme Court scolded the Sixth Circuit for delay in issuing the mandate after denial of certiorari, but Bell is factually distinguishable from our case. In Bell , the Sixth Circuit issued an amended opinion some seven months after the Supreme Court had denied certiorari. Id. at 2830 . The amended decision was a surprise to the state, which had requested and been granted an execution date on the assumption that federal habeas proceedings had terminated with the denial of certiorari. Id. Instead of delineating the scope of the Sixth Circuit’s discretion to continue to hold the mandate after the denial of certiorari, the Court held that holding the mandate was an abuse of discretion, because the Court of Appeals had failed to provide the parties with notice that it was reconsidering its decision. The decision leaves open the question of whether Rule 41 of the Federal Rules of Appellate Procedure limits the discretion…

432 F.3d 1028 Gerald Ross PIZZUTO, Jr., Petitioner-Appellant, v. Arvon J. ARAVE, Warden, Respondent-Appellee. No. 97-99017. United States Court of Appeals, Ninth Circuit. December 28, 2005. Joan M. Fisher, Esq., Bruce D. Livingston, Esq., Federal Public Defender, Moscow, ID, for Petitioner-Appellant. Robert H. Gombiner, Esq., Federal Public Defender's Office Western District of Washington, Seattle, WA, Michael A. Henderson, AAG, Kenneth Robins, L. Lamont Anderson, Esq., Office of Attorney General, Boise, ID, for Respondent-Appellee. Before B. FLETCHER, RYMER, and GOULD, Circuit Judges. ORDER 1 Petitioner's motion to stay the mandate pending state court proceedings is DENIED. 2 B. FLETCHER, Circuit Judge, specially concurring. 3 I concur that petitioner's motion to stay the mandate may be denied. I write separately to emphasize that this result is not mandated by Bell v. Thompson, ___ U.S. ___, 125 S.Ct. 2825 , 162 L.Ed.2d 693 (2005), as respondent claims. In Bell , the Supreme Court scolded the Sixth Circuit for delay in issuing the mandate after denial of certiorari, but Bell is factually distinguishable from our case. In Bell , the Sixth Circuit issued an amended opinion some…

ORDER

Petitioner’s motion to stay the mandate pending state court proceedings is DENIED.