Blodgett v. Campbell, 508 U.S. 1301 (1993)

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on application to vacate order

No. A-851. Decided May 14, 1993

An application to vacate an order by the Ninth Circuit en banc, remanding this case to the District Court for an evidentiary hearing on whether hanging is cruel and unusual punishment, is dismissed without prejudice. Although the progress in this case has been glacial, see In re Blodgett, 502 U. S. 236, it would exceed a Circuit Justice's authority— which is limited to providing or vacating stays and other temporary relief where necessary or appropriate in aid of this Court's jurisdiction— to vacate an en banc court's remand order, thereby barring the case's return to district court and prohibiting the taking of more evidence.

Justice O'Connor, Circuit Justice.

I have before me an application requesting that I vacate a remand order issued by an en banc panel of the United States Court of Appeals for the Ninth Circuit. This is not the first time that applicant James Blodgett, who is Superintendent of the Washington State Penitentiary, has sought relief here with respect to Charles Campbell's second petition for a writ of habeas corpus. Last Term applicant sought a writ of mandamus to compel the United States Court of Appeals for the Ninth Circuit to issue a decision in Campbell's appeal from a District Court decision denying the petition. In re Blodgett, 502 U. S. 236 (1992). Campbell's appeal, which had been argued and submitted on June 27, 1989, still had not been resolved in January 1992, a delay of well over two years. Id., at 237. Although we declined to issue a writ of mandamus—applicant had failed to seek appropriate relief from the Court of Appeals before seeking extraordi-1301

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