ORDER
On January 30, 2004, a majority of the non-recused judges in active service voted sua sponte to reconsider and rescind the order of January 13, 2004, granting hearing en banc in Case No. 04-3044, and ordering that "all pending motions and filings are referred in the first instance to the assigned panel, for such action as it finds appropriate."
Thus, presently before this panel are the following motions:
(1) Appellant Roe's Motion to Conform the En Banc Court to the requirements of
28 U.S.C. § 46(c);
(2) Appellant Roe's Motion to Set Aside Judgment and Renewed Motion for Stay of Execution;
(3) Appellant Roe's Motion to Expedite Appeal;
(4) Appellees' Motion to Dismiss the Case for Lack of Jurisdiction; and
(5) Appellees' Renewed Motion to Dismiss Appeal for Lack of Appellate Jurisdiction.
The majority of the panel having previously concluded that Judge Graham properly transferred the § 1983 case to this Court as a request to file a second petition, and having concluded that Roe failed to meet the requirements for filing a second or successive petition under 28 U.S.C. § 2244(b)(2), and having no sound reason to revisit those rulings, we HEREBY DENY Appellant Roe's Renewed Motion to Set Aside Judgment and FURTHER DENY Roe's Renewed Motion for Stay of Execution. Appellant Roe's Motion to Expedite Appeal is GRANTED. Given the En Banc Court's January 30, 2004 order reconsidering and rescinding the order of January 13, 2004, Appellant Roe's Motion to Conform the En Banc Court to the Requirements of 28 U.S.C. § 46(c) is MOOT. Appellees' Motion and Renewed Motion to Dismiss the Appeal are GRANTED.
CLAY, Circuit Judge, dissenting in part.
I dissent from the panel's denial of the motion to stay the execution and the grant of the motion to dismiss the appeal. My reasons for dissenting are set forth in my dissent to the panel's prior order of January 13, 2004, in Case No. 04-3044, and in my dissent to the en banc Court's order of January 30, 2004, in Case Nos. 04-3044/3066.