                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    April 19, 2012
                            FOR THE TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                     Clerk of Court

    GARRY THOMAS ALLEN,

                Petitioner-Appellee,
                                                         No. 12-6094
    v.                                            (D.C. No. 5:12-cv-00140-R)
                                                         (W.D. Okla.)
    RANDALL G. WORKMAN, Warden,
    Oklahoma State Penitentiary,

                Respondent-Appellant.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, KELLY, LUCERO, MURPHY, HARTZ,
O’BRIEN, TYMKOVICH, GORSUCH, HOLMES and MATHESON, Circuit
Judges.



         The district court entered a stay of petitioner’s imminent execution pending

its disposition of a habeas petition claiming that he is not competent to be

executed. See generally Panetti v. Quarterman, 551 U.S. 930 (2007); Ford v.

Wainwright, 477 U.S. 399 (1986). Respondent appealed from the order granting


*
       After examining the briefs and appellate record, the en banc court has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the stay. After a divided panel decision vacated the stay, the en banc court voted

to take the matter under consideration and issued an order vacating the panel

decision. As we noted, the immediate result was that the district court’s stay

order remained in effect pending the en banc court’s resolution of respondent’s

appeal. Allen v. Workman, No. 12-6094, Order at 2 (Apr. 12, 2012) (en banc).

The Supreme Court subsequently denied respondent’s separate application to

vacate the district court’s stay order. Workman v. Allen, No. 11A975, 2012 WL

1232731, at *1 (U.S. Apr. 13, 2012).

       Upon further review, the en banc court is now prepared to enter a decision

disposing of the appeal and hereby affirms the order staying execution entered by

the district court.

       The order of the district court staying petitioner’s execution pending

disposition of his habeas petition is AFFIRMED. 1 The mandate shall issue

forthwith. The district court may immediately resume proceedings on the

underlying habeas petition.


                                                    Entered for the Court
                                                    Per Curiam




1
      Judges O’Brien, Gorsuch, and Holmes dissent from the en banc court’s
decision.

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