UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ DONALD RAY MIDDLEBROOKS, │ Plaintiff-Appellant, │ > No. 20-5419 │ v. │ │ TONY PARKER, in his official capacity as Tennessee’s │ Commissioner of Correction; TONY MAYS, in his │ official capacity as Warden of Riverbend Maximum │ Security Institution, │ Defendants-Appellees. │ ┘

On Petition for Rehearing En Banc United States District Court for the Middle District of Tennessee at Nashville. No. 3:19-cv-01139—William Lynn Campbell, Jr., District Judge.

Decided and Filed: January 13, 2022

Before: MOORE, CLAY, and WHITE, Circuit Judges.

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COUNSEL ON PETITION FOR REHEARING EN BANC: Miranda Jones Scott Sutherland, Rob Mitchell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON RESPONSE: Richard Lewis Tennent, Kelley J. Henry, Amy D. Harwell, Katherine Dix, Marshall Jensen, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellant. ON AMICUS BRIEF: Jeffrey C. Mando, Claire E. Parsons, ADAMS LAW, PLLC, Covington, Kentucky, D. Barry Stilz, KINKEAD & STILZ, Lexington, Kentucky, for Amicus Curiae.

MOORE, CLAY, and WHITE, JJ., the original panel of the court, issued an order denying the petition for rehearing en banc and a statement in support. THAPAR, J. (pp. 4–14), issued a separate statement respecting the denial of rehearing en banc. No. 20-5419 Middlebrooks v. Parker, et al. Page 2

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ORDER _________________

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied. No. 20-5419 Middlebrooks v. Parker, et al. Page 3

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STATEMENT IN SUPPORT _____________________________

MOORE, CLAY, and WHITE, Circuit Judges.

The panel offers three observations in support of the denial of the petition for rehearing en banc.

First, as the Order denying en banc review makes clear, “no judge” of this court “requested a vote on the suggestion for rehearing en banc.” Order at 2 (emphasis added).

Second, the panel’s opinion simply applied binding Supreme Court precedent to reverse the district court’s dismissal of Middlebrooks’s facial challenge and remanded the case to the district court for further proceedings. Middlebrooks v. Parker, 15 F.4th 784, 797 (6th Cir. 2021).

Third, Judge Thapar’s statement does not suggest that the panel improperly applied any Supreme Court or Sixth Circuit precedent. (Perhaps that is why he did not request a vote on