D.C. No. 2:1 l-cv-01409-NVW, District of Arizona, Phoenix.
Before: SIDNEY R. THOMAS, Circuit Judge and Capital Case Coordinator.
ORDER
Pursuant to the rules applicable to capital cases in which an execution date has been scheduled, a deadline was established by which any judge could request a vote on whether the panel’s order denying the Emergency Motion for a Temporary Restraining Order should be reheard en banc. No judge requested a vote on whether to rehear the panel’s decision en banc within the time period established. Therefore, the petition for rehearing en banc is denied and en banc proceedings are concluded with respect to the Emergency Motion for a Temporary Restraining Order.
The three-judge panel will issue a separate order concerning the petition for panel rehearing. Judges McKeown, Clifton, and Bea did not participate.
Statement of
This is a brief explanation of why I am not calling for rehearing en banc. I consider such a call futile in light of the recent decisions of this court in Beaty v. Brewer, 649 F.3d 1071 (9th Cir.2011), Cook v. Brewer, 649 F.3d 915 (9th Cir.2011), and Cook v. Brewer, 637 F.3d 1002 (9th Cir.2011), decisions I believe to be clearly erroneous, as well as the Supreme Court’s decision in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), a case on which it would be injudicious for me to comment. Thus, while I believe that West’s execution will violate the Constitution, I can play no further role in seeking to protect his constitutional rights.