Timothy JOHNSTON, Appellant, v. Donald P. ROPER, et al., Appellees, 421 F.3d 1152

SECOND AMENDED ORDER PER CURIAM. Appellees’ Petition for Rehearing En Banc is granted, and the stay of execution granted by the panel is vacated. Chief Judge Loken, Judge Bye and Judge Melloy would deny the Petition for Rehearing. Judge Duane Benton took no

part in the vote on the Petition for Rehearing En Banc. Rehearing En Banc having been granted, and the panel’s stay order having been vacated, the matter comes before the Court En Banc, including Judge Heaney and Judge Bowman, on appellant’s motion for a stay of execution of a sentence of death. The motion is denied. Chief Judge Loken, Judge Heaney, Judge Bye and Judge Melloy would grant the motion. Judge Duane Benton took no

part in the vote on the motion for a stay of execution. The clerk is directed to append Judge Heaney’s dissent to this order. The order and the dissent shall be published.