Gregory Warren BEAVER, Petitioner-Appellant, v. J.D. NETHERLAND, Warden, Respondent-Appellee, 101 F.3d 977

AMENDED ORDER We have before us a motion for a stay of the execution of Beaver which has been set for December 3,1996, and as well a motion to extend our previously entered stay of our mandate. It is ADJUDGED and ORDERED that the previously ordered stay of our mandate be extended until November 29, 1996, on which date our mandate will issue. It is further ORDERED that the motion to stay the execution of Beaver, which has been set for December 3, 1996, shall be, and the same hereby is, denied. Judge Widener concurs in all of the foregoing order.

Judge Hall agrees to the extension of the issuance of our mandate, but dissents from the denial of the stay of execution. Judge Luttig concurs in the denial of the stay of execution, but dissents from the stay of our mandate. The opinion of the panel is delivered by Judge Widener; Judge Hall filed a concurring the dissenting opinion; and Judge Lut-tig filed a concurring and dissenting opinion. All of those opinions follow. WIDENER, Circuit Judge.

On September 30, 1996, we stayed our mandate in this case for a period of 30 days, to expire on October 30, 1996, “in order that ... [Beaver] may file his petition for certio-rari in the Supreme Court.” I refer to Fed. R.App. P. 41(b), which limits the usual stay of mandates to 30 days in such circumstances. Beaver, on October 30,1996, filed a motion to extend the stay of the mandate and for a stay of execution. In Netherland v.

Tuggle, — U.S. -, 116 S.Ct. 4, 132 L.Ed.2d 879 (1996), the Court required that in granting a stay of execution, we “undertake the three-part inquiry required by ... [its] decision in Barefoot v. Estelle, 463 U.S. 880, 895-896 [103 S.Ct. 3383, 3395-3896, 77 L.Ed.2d 1090] ... (1983).” The Court also cited us to Maggio v. Williams, 464 U.S. 46, 48, 104 S.Ct. 311, 312-313, 78 L.Ed.2d 43 (1983) and Autry v. Estelle, 464 U.S. 1, 2-3, 104 S.Ct. 20, 21-22, 78 L.Ed.2d 1 (1983).

The Court stated that “there is no hint that the court [of appeals] found that ‘four Members of this Court would consider the underlying issue sufficiently meritorious for the grant of certiorari’ or that ‘a significant possibility of reversal existed,’ ” citing Barefoot, at 895, 103 S.Ct. at 3395-3396.

The three-part inquiry referred to in Barefoot is that “there must be a reasonable probability that four Members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court’s decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed.” Barefoot, at 895, 103 S.Ct. at 3396. (italics added) The initial part of the rule with respect to four Justices grew from the practice of the Court in a Circuit Justice’s in-chambers review of stay applications.

See Graves v. Barnes, 405 U.S. 1201, 92 S.Ct. 752, 30 L.Ed.2d 769 (1972) (Justice Powell, Circuit Justice). It is there phrased as requiring that “there being a reasonable probability that four Members of the Court will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction.” Graves, at 1203, 92 S.Ct. at 753-754.

The opinion referred to that principle as the “threshold consideration,” and Justice Powell recited that he had utilized the practice of other Justices in passing on applications raising serious constitutional questions of “consulting with each of my Brethren who was available.” He recited that all the Justices except two were available and that all who were available would have denied the application for a stay.

The second requirement of Barefoot is that “there must be a significant, possibility of reversal of the lower court’s decision,” Barefoot, at 895, 103 S.Ct. at 3396, and the third requirement of Barefoot is that “there must be a likelihood that irreparable harm will result if that decision is not stayed,” Barefoot, at 895, 103 S.Ct at 3396. In eases involving the death penalty when an execution date has been set, as here, it is a certainty that irreparable harm will result if the court of appeals’ decision is not stayed.

The rule, as stated in Barefoot is that four Members of the Court must consider the underlying issue sufficiently meritorious for the grant of certiorari and that a significant possibility of reversal exists. Until Tuggle, we were of opinion that the three-part Barefoot rule did not apply to courts of appeal considering whether or not to stay their own orders or to stay executions pursuant to their orders, but that the rule with respect to four Justices thinking a case was worthy of certio-rari was only applied in the Supreme Court in its own consideration of applications for a stay.

That is illustrated by Autry v. Estelle, 464 U.S. 1, 104 S.Ct. 20, 78 L.Ed.2d 1 (1983), which significantly was an opinion of the Court and not of a single Justice, and which opinion stated that Had applicant convinced four Members of the [Supreme] Court that certiorari would be granted on any of his claims, a stay would issue. But this is not the case; fewer than four Justices, would grant cer-tiorari. Applicant thus fails to satisfy one of the basic requirements for the issuance of a stay. Autry at 2, 104 S.Ct. at 21.

Of considerable significance is that in Tug-gle, a significant possibility of reversal is not added to the fact that four Members of the Supreme Court should consider the underlying issue sufficiently meritorious for the grant of certiorari, rather the opinion states that “or that ‘a significant possibility of a reversal’ existed.” (italics added) We do not believe that the change from the serial requirement of Barefoot to the alternative requirement of Tuggle is inadvertent.

Courts of appeal have no way of knowing or intelligently ascertaining the individual opinions of the Members of the Supreme Court, and I am not aware that this court, at least, has engaged in that speculation. This leaves the question of whether there is a significant possibility of reversal. If there is, a stay should issue. If there is not, a stay should not issue. The dissenting panel opinion of Judge Hall correctly describes the heart of the case as the relationship between Beaver’s attorney and his client. Beaver’s attorney was a part-time attorney for the Commonwealth in a neighboring county.

He argues that there should be a per se rule forbidding an attorney from representing a criminal defendant in one county if the attorney is a part-time attorney for the Commonwealth in a neighboring county. No actual conflict of interest was shown. As the dissent stated: “the dual nature of Rainey’s [the attorney’s] representation is the only ‘historical fact’ of which we need take note.” If the per se rule espoused by the dissent is the correct rule, then Beaver may be due a new trial. If not, his execution should proceed. To this I would add that in the case of Angelone v.

Bennett, — U.S. -, 117 S.Ct. 381, 136 L.Ed.2d 299, on November 4, 1996, the Court vacated our stay of execution in that case, which is our ease No. 95-4004 styled Bennett v. Angelone. In that order, the Court made it clear that it did not approve of what had been a routine practice of this court to extend in death penalty cases the time to file petitions for certiorari the same as in other cases.

On the off-chance that something we have done might hinder Beaver’s fifing of a petition for certiorari, we further extend the stay of the mandate in this case until November 29, 1996, but deny the motion for a stay of execution. Beaver’s attorney forthwith should file his petition for certiorari and motion for a stay of execution and our mandate, any or all of them. I cannot say that I believe there is a significant possibility that the Supreme Court will adopt the per se rule espoused by the dissent.