Appeal from the United States District Court for the Southern District of Illinois, Benton Division. James L. Foreman, Judge.
Hon. Walter J. Cummings, Chief Judge, Hon. Wilbur F. Pell, Jr., Circuit Judge, Hon. William J. Bauer, Circuit Judge, Hon. Harlington Wood, Jr., Circuit Judge, Hon. Richard D. Cudahy, Circuit Judge, Hon. Jesse E. Eschbach, Circuit Judge, Hon. Richard A. Posner, Circuit Judge, Hon. John L. Coffey, Circuit Judge, Hon. Joel M. Flaum, Circuit Judge, Hon. Luther M. Swygert, Senior Circuit Judge.
On June 27, 1983, petitioner-appellant John Stephan Parisie filed a motion for reconsideration of the court's en banc decision entered on March 28, 1983. A majority of the members of the court voting on the motion have voted not to grant the motion. The motion for reconsideration is therefore DENIED.*fn*
CUDAHY, Circuit Judge, with whom WOOD and FLAUM, Circuit Judges, concur, dissenting from the denial of the petition for reconsideration:
Parisie seeks reconsideration of our en banc decision by which a majority of the court found that (1) we had jurisdiction of the appeal and (2) the petition for writ of habeas corpus should be denied on the merits. I think there are grave questions of due process in a procedure whereby an en banc rehearing was granted only on the issue of jurisdiction, the court decided for the defendant on this issue and then went on to decide against him on the merits. At the en banc rehearing Chief Judge Cummings clearly confirmed from the bench that only jurisdiction was in issue. I see nothing fair about a procedure where the decision is made on a basis specifically excluded before argument from consideration.
I therefore respectfully dissent from denial of the petition for reconsideration.
SWYGERT, Senior Circuit Judge, dissenting from the denial of the petition for reconsideration:
I join fully in Judge Cudahy's dissent, but write separately to stress an additional reason why reconsideration would be appropriate. The district court below denied Parisie's habeas petition, and a panel of this court reversed, finding one of the several arguments for granting the relief dispositive. When this court rejected that argument on rehearing en banc, it affirmed the district court without considering Parisie's additional arguments. As I noted in my dissent from the en banc decision on the merits, Parisie was thus denied complete review. Parisie v. Greer, 705 F.2d 882, 902-03 (7th Cir. 1983). If it were proper for the court to consider the merits (which Judge Cudahy persuasively demonstrates was not the case), it should have done so completely. I therefore dissent from the denial of reconsideration.
IT IS FURTHER ORDERED THAT: Judge Posner's separate opinion is amended as follows: add at end of slip opinion p. 24 the following new paragraph:
"Apart from the issue of evidence of homosexual panic, Parisie's appeal from the denial of his petition for habeas corpus raises a number of other issues. A glance at the panel's opinion, however, will show that the panel, correctly in my view, dismissed most of the alleged errors as harmless. Two, however, it dismissed as moot in view of its reversal of the district court's denial of the petition for habeas corpus on the homosexual-panic publicity and the quality of the assistance of counsel that Parisie received at his trial. The appeal briefs persuade me that the ...