Perry Bellamy v. William Cogdell, Warden, Brooklyn House of Detention

(with whom OAKES, JON 0. NEWMAN, KEARSE, CARDAMONE and WINTER, Circuit Judges, join), dissenting:

I respectfully dissent. This case should never have been subjected to an in banc hearing. And now that it has been, the majority has reached a result that is inconsistent with our precedents.

Misuse of the in banc procedure

Rule 35(a) of the Federal Rules of Appellate Procedure provides that:(a) When Hearing or Rehearing in Banc Will be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals…