Graham S Henry v. Charles Ryan

Judge TALLMAN, with whom Judges O’SCANNLAIN, CALLAHAN, BEA, and IKUTA join,

dissenting from the grant of rehearing en banc:

If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now — after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed — we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely…