United States v. Fell , 571 F.3d 264 ( 2009 )

ORDER

Defendant-Appellant Donald Fell, having filed a petition for panel rehearing or, in the alternative, for rehearing en banc, and the panel that determined the appeal having considered the request for panel rehearing, and the active members¹ of the Court having considered the request for rehearing en banc, IT IS HEREBY ORDERED that the petition is DENIED. See Fed. R.App. P. 35(a).

Pursuant to Second Circuit Local Rule 0.28(7)(d), an automatic stay of execution of the sentence of death has been in place as of the date of the filing of the notice of appeal from the judgment of conviction, and remains in effect (unless vacated or modified) until the expiration of all proceedings available to the Defendant-Appellant (including review by the United States Supreme Court) as part of the direct review of the judgment of conviction.

Accordingly, the issuance of the mandate is held until the expiration of all proceedings available to the Defendant-Appellant (including review by the United States Supreme Court) as part of the direct review of the judgment of conviction.

With this Order, Judge RAGGI is filing a concurring opinion, in which Chief Judge JACOBS and Judges CABRANES, B.D. PARKER, WESLEY, and LIVINGSTON join; Judge CALABRESI is filing a dissenting opinion; Judge POOLER is filing a dissenting opinion; and Judge SACK is filing a dissenting opinion.

1 . Judge Hall is recused from consideration of the petition for rehearing en banc.