     Case: 08-70023       Document: 00512269913         Page: 1     Date Filed: 06/11/2013




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                             June 11, 2013
                                       No. 08-70023
                                                                             Lyle W. Cayce
                                                                                  Clerk
ELROY CHESTER,

                                                  Petitioner - Appellant,
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent - Appellee.



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                                    5:05-CV-29


Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*


           In Chester v. Thaler, 666 F.3d 340, 340-51 (5th Cir. 2011), cert.
denied, 133 S. Ct. 525 (2012) (mem.), this court affirmed the district
court’s denial of Chester’s 28 U.S.C. § 2254 habeas petition, which


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                      No. 08-70023

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.1 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

       1
       Chester also filed a motion to recuse one of the members of the panel. The motion has
been denied by the subject judge.
                                             2
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                                  No. 08-70023

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.2




     2
         Judge Jones dissents.
                                        3
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                                  No. 08-70023

DENNIS, Circuit Judge, concurring:


      I concur in the order to transfer this case to another panel and write
separately only to express my view that this court should stay Chester’s
execution scheduled for 6:00 p.m. tomorrow in order to afford the new panel
adequate time to consider whether to recall the mandate and take further action
in this case. If this court ultimately concludes that Chester’s motion to recall the
mandate is without merit, no irreparable harm will have been done to the state
and the execution can be rescheduled. Unless a temporary stay of the execution
is granted, however, the court may be unable to give the issues presented the
deliberate and judicious attention they deserve before the execution takes place.
Chester’s execution, of course, will moot those issues and any constitutional
injury to his rights will be irreparable.
      This court unquestionably has the power to recall its mandate and render
a new judgment in this matter. See Calderon v. Thompson, 523 U.S. 538, 549
(1998); United States v. Tolliver, 116 F.3d 120, 123 (5th Cir. 1997). Under the
extraordinary circumstances of this case, this federal court also has the power
in aid of its jurisdiction to stay the state’s execution pending the court’s
consideration of the motion to recall the mandate. Although ordinarily a federal
court will not intervene in state court criminal proceedings, see Younger v.
Harris, 401 U.S. 37 (1971), there are exceptions to this rule in extraordinary
circumstances. “[A] federal court may provide equitable intervention in a state
criminal proceeding even in the absence of the usual prerequisites of bad faith
and harassment when extraordinary circumstances in which the necessary
irreparable injury can be shown are present.” Gilliam v. Foster, 75 F.3d 881,
904 (4th Cir. 1996) (quoting Kugler v. Helfant, 421 U.S. 117, 123 (1975))
                                            4
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                                 No. 08-70023

(internal quotation marks omitted)). The Supreme Court explained that federal
injunctive relief against pending state prosecutions are appropriate only where
there is proven harassment or prosecutions taken in bad faith, or where there are
“other extraordinary circumstances where irreparable injury can be shown.”
Kugler, 421 U.S. at 124. The extraordinary circumstances must “creat[e] a threat
of irreparable injury both great and immediate” in order to enable federal court
intervention. Id. at 123. There is no doubt that such requirements are met here.
The circumstances of this case are unique and extraordinary, and has created a
risk of immediate, great, and irreparable injury to Chester—namely, his
execution before another panel has had an adequate opportunity to consider the
motion to recall the mandate.




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