OPINION OF INDIVIDUAL JUSTICE
IN CHAMBERS
on application for stay
No. 01A375. Decided November 6, 2001
Applicant warden's request for a stay of District Court proceedings pending the disposition of her certiorari petition is denied. After that court and a Sixth Circuit panel denied respondent, an Ohio death-row inmate, relief on his second federal habeas petition, the en banc Sixth Circuit remanded the case for the District Court to develop a factual record sufficient to permit sua sponte consideration of a request for leave to file a second habeas petition supported by actual innocence allegations. Applicant argues that the Sixth Circuit's procedures are highly irregular, but she fails to demonstrate either that the District Court's hearing will cause irreparable harm to the State or that it will affect this Court's jurisdiction to act on her certiorari petition.
Justice Stevens, Circuit Justice.
Respondent, John W. Byrd, Jr., is an Ohio death-row inmate who has exhausted his state-court remedies and who was denied relief in his first federal habeas corpus proceeding. His application to file a second petition for a federal writ, which is supported by his allegations of actual innocence, has been denied by the District Court and a panel of the Court of Appeals for the Sixth Circuit. However, on October 9, 2001, a majority of the active judges of the Court of Appeals entered an order remanding the case to the District Court "for the development of a factual record sufficient to permit sua sponte consideration of a request for leave to file a second petition for a writ of habeas corpus." In re Byrd, 269 F. 3d 585, 608 (CA6 2001). The order cites cases decided by the Second and Eighth Circuits, Triestman v. United States, 124 F. 3d 361, 367 (CA2 1997); Krimmel v.
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