March 29, 2011
As promised, the government filed a petition for rehearing en banc in the Fifth Circuit in the Burks case. The filing has one wrinkle that differs from the numerous other recent filings on this issue. The petition claims an intracircuit conflict as a basis for rehearing en banc, arguing that the panel’s decision conflicts with Phinney v. Chambers, 392 F.2d 680 (5th Cir. 1968), a case that the panel had found distinguishable. See our previous report on the Burks decision here.