L.A.R. Misc. 111.7: Determination of Causes by the Court En Banc

(a) Filing. The filing of petitions seeking hearing or rehearing by the court en banc is governed by FRAP 35 and 3d Cir. L.A.R. 35. However, because of the difficulty of delivering petitions seeking hearing or rehearing by the court en banc to the judges of the court, the parties are hereby notified that due to these logistical considerations any such petition filed within 48 hours of a scheduled execution may not be delivered to the judges of the court in sufficient time for adjudication prior to the time of the scheduled execution. Petitions for rehearing by the court en banc filed within 48 hours of a scheduled execution will be processed and distributed by the normal means of delivery used by the court unless the panel handling the case has entered an order for expedited voting in accordance to subsection (b) of this rule.

(b) Consideration. Consideration of a petition seeking hearing or rehearing by the court en banc will be in accordance with the procedures specified in the court's Internal Operating Procedures except that if an execution is scheduled, the original panel which has determined the matter may, upon a majority vote, direct that the time normally allowed for voting to request answers or to grant the petition may be reduced to a time specified by the panel. Upon the entry of an order by the panel reducing the time for voting, the clerk must immediately transmit the petition and the order to the court by the most expedient means available.

(c) Stays. Generally the court will not enter a stay of execution solely to allow additional time for counsel to prepare, or for the court to consider, a petition for rehearing or for rehearing by the court en banc except as follows:

(1) A stay may be granted in order to allow time for counsel to prepare, or for the court to consider, a petition for rehearing upon majority vote of the original panel. Such a vote will be based upon a determination that there is a reasonable possibility that a majority of the active members of the court would vote to grant rehearing by the court en banc and whether there is a substantial possibility of reversal of its decision, in addition to a likelihood that irreparable harm will result if the decision is not stayed.

(2) In the event that four judges vote to direct the filing of answers to a petition seeking rehearing by the court en banc, the presiding judge of the merits panel will enter a stay.

(3) A stay entered in accordance with 3d Cir. L.A.R. 8.2 in a direct appeal of a conviction or sentence in a criminal case in which the district court has imposed a sentence of death will remain in effect until the court's mandate issues. The mandate will ordinarily not issue until such time that the time for filing a petition for rehearing has expired, or if such a petition has been filed, until the petition has been determined.

(d) No petition for rehearing may be filed from the denial of a petition seeking authorization under 28 U.S.C. § 2244 or §2255 to file a second or successive habeas corpus petition under § 2254 or motion to vacate sentence under § 2255.

New Provision in 1995. Although the extraordinary nature of death penalty cases is recognized, this section must be read in conjunction with 3d Cir. L.A.R. 35.4 in which it is emphasized that the court does not favor requests for hearing or rehearing en banc. Because 28 U.S.C. § 2244(b)(3)(D) prohibits the filing of a petition for rehearing from the denial of an application seeking permission to file a second or successive § 2254 or § 2255 petition, there is no conflict with Rule 25(a), FRAP, which states that the clerk may not reject a document “solely because it is not presented in proper form.” The rejection of such a petition for rehearing is not for form, but is required by statute.