Elroy CHESTER, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee, 522 F. App'x 208

PER CURIAM: In Chester v. Thaler, 666 F.3d 340, 340-51 (5th Cir.2011), cert. denied, — U.S. -, 133 S.Ct. 525, 184 L.Ed.2d 338 (2012) (mem.), this court affirmed the district court’s denial of Chester’s 28 U.S.C. § 2254 habeas petition, which challenged his Texas conviction for capital murder and resulting death sentence. Chester’s execution is currently scheduled for 6:00 P.M. tomorrow, June 12, 2013. Chester has now filed a Motion for Stay of Execution and a Motion to Recall Mandate. For the reasons set out below, the panel has determined that this case should be assigned to a different three-judge panel.

Chester attached to his motion to recall the mandate a copy of a complaint of judicial misconduct against one of the members of the panel that was subsequently filed with the clerk of court. He asserts that the allegations of the complaint and its attached affidavits raise questions about the impartiality of the judge as respects petitioners like himself and his underlying claims. In addition to the allegations relied on by Chester, the complaint also alleges that in a different case, the subject judge showed disrespect toward a second member of this panel.

The third member of this panel is the Chief Circuit Judge, whose duties under 28 U.S.C. § 351 et seq. give him a substantial role in the consideration of any complaint of judicial misconduct, including this one. Given these extraordinary circumstances, the panel has concluded that another panel must be assigned to consider the pending motions. This conclusion is based on the connections between all three members of the panel and the complaint of judicial misconduct; no inferences should be drawn about the merits of that complaint.

It is hereby ORDERED that the clerk’s office assign this matter to another panel forthwith. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Chester also filed a motion to recuse one of the members of the panel. The motion has been denied by the subject judge. . Judge Jones dissents.