MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY

In December, 2003, a jury unanimously found that defendant Gary Sampson should be sentenced to death for the two carjackings resulting in death to which he had pled guilty. Under the Federal Death Penalty Act, if even one juror had found that the death penalty was not justified, Sampson could not be executed. After denying Sampson's motion for a new sentencing hearing, in January, 2004, the court sentenced Sampson to be executed. The First Circuit denied Sampson's appeal and the Supreme Court declined to review his case.

Sampson subsequently timely exercised his right to seek a new sentencing hearing in this 28 U.S.C. § 2255 proceeding. He alleged, among other things, that his constitutional right to an impartial jury had been violated. After substantial briefing and three evidentiary hearings, this court found that Sampson's contention was correct. See United States v. Sampson, 820 F.Supp.2d 151 (D.Mass.2011) (Memorandum and Order on Jury Claim). In essence, the court concluded that during the jury selection process a juror had persistently committed perjury concerning important questions relating to her ability to be impartial in deciding whether Sampson should be executed, and if she had answered those questions honestly and accurately, she would have been excused for cause. Therefore, the court found that pursuant to the Supreme Court's decision in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), Sampson's death sentence must be vacated and a second hearing to determine his sentence must be conducted.

Sampson asserts that, as the Third and Fourth Circuits have found, an order in a § 2255 proceeding requiring a new hearing to determine whether the death penalty is justified is not a final order and, therefore, is not appealable until after that hearing is concluded. See United States v. Hammer, 564 F.3d 628, 632-36 (3rd Cir.2009); United States v. Stitt, 459 F.3d 483, 484-86 (4th Cir.2006). The government disagrees and intends to seek immediate review by the First Circuit of the jury claim decision as a final order pursuant to 28 U.S.C. § 1291.

The government also asks that this court certify questions concerning its decision for possible immediate review under 28 U.S.C. § 1292(b), which authorizes interlocutory appeals of orders in civil cases in limited circumstances. Sampson contends that the instant § 2255 proceeding is not a civil case eligible for interlocutory appeal under § 1292(b) and, in any event, that the standards for certification under § 1292(b) have not been met.

As explained in this Memorandum, this court is not required to decide whether this § 2255 proceeding is a civil case within the meaning of § 1292(b) and has not done so. However, in the unique circumstances of this case, the court finds that if § 1292(b) applies, its requirements are satisfied and that the court should exercise its discretion to allow the First Circuit to consider the full range of issues that the government wishes to present.

Among other things, a second hearing to determine whether Sampson should live or die will be lengthy, expensive, and anguishing for the families of Sampson's victims. It is, therefore, appropriate to give the First Circuit the opportunity to decide whether the decision that a second sentencing hearing is legally required is now appealable; if it is, whether the First Circuit wishes to exercise its discretion to decide the merits of the government's claims now; and, if it does, whether this court correctly stated the McDonough test in finding that Sampson's death sentence must be vacated and a second sentencing hearing must be conducted.

Accordingly, the two questions defined in § IV of this Memorandum and Order are being certified for possible interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and proceedings before this court are being stayed until the First Circuit resolves the government's appeal.

II. HISTORY OF THE CASE

In October, 2001, Sampson was charged with two counts of carjacking resulting in the deaths of Philip McCloskey and Jonathan Rizzo. The government exercised its discretion to seek the death penalty. Sampson pled guilty to the charges against him. Nevertheless, he was entitled to have a jury decide whether he should be sentenced to death.

In 2003, hundreds of potential jurors answered, in writing and under oath, seventy-seven questions designed to elicit information about whether they could be impartial and decide whether Sampson should be executed based solely on the evidence presented in court. About 140 potential jurors not disqualified based on their written responses were individually questioned over fifteen days by the court and the parties for this purpose. Twelve jurors, including one who has been publicly identified as "C," were empaneled, with six alternates. Two of the original jurors were excused during trial when it was discovered that they had not answered voir dire questions truthfully.

The jury heard evidence for about six weeks. It then unanimously found that the death penalty was justified. Accordingly, in January, 2004, the court sentenced Sampson to be executed. See United States v. Sampson, 300 F.Supp.2d 278, 284 (D.Mass.2004); United States v. Sampson, 300 F.Supp.2d 275 (D.Mass. 2004).

The First Circuit affirmed the death sentence on May 7, 2007. See United States v. Sampson, 486 F.3d 13, 52 (1st Cir.), reh'g and reh'g on banc denied, 497 F.3d 55 (1st Cir.2007). On May 12, 2008, the Supreme Court denied Sampson's petition for a writ of certiorari. See Sampson v. United States, 553 U.S. 1035, 128 S.Ct. 2424, 171 L.Ed.2d 234 (2008).

On May 11, 2009, Sampson filed a Motion for a New Trial and to Vacate, Set Aside, and Correct Conviction and Death Sentence Made Pursuant to 28 U.S.C. § 2255 and/or Rule 33 of the Federal Rules of Criminal Procedure, seeking relief from his conviction and sentence. A First Amended Motion under § 2255 and Rule 33 was filed on March 29, 2010 (the "Motion"). The 250-page Motion raised eight distinct claims for relief (referred to here and in the October 20, 2011 Memorandum and Order on Summary Dismissal as Claims III-X), several of which had multiple subclaims. The Motion included claims that Sampson's counsel had been ineffective in their advice to Sampson about his guilty plea, in their investigation of mitigating evidence, and during the sentencing hearing; a claim that the inaccurate answers of three jurors during voir dire deprived Sampson of his constitutional right to an impartial jury; and a claim that Sampson cannot constitutionally be executed because he is severely mentally impaired, as well as several other claims. The government requested summary dismissal of all of Sampson's claims.

The court received hundreds of pages of briefing and held three days of hearings on the request for summary dismissal in August and September, 2010. In addition, after concluding that Sampson's claim that he was deprived of his right to an impartial jury (Claim IV) could not be summarily dismissed, the court held an evidentiary hearing on November 18, 2010, at which three jurors implicated in Sampson's claim testified about their answers during the jury selection process. One of these jurors, C, testified further at evidentiary hearings held on March 18, 2011, and August 8, 2011.

On October 20, 2011, the court issued the Memorandum and Order on Jury Claim. See Sampson, 820 F.Supp.2d 151. The court held that Sampson was entitled to a new hearing to determine whether he should be sentenced to death because repeated perjury by C during jury selection deprived the court of important information that would have prompted it to excuse her for cause and, therefore, Sampson had been deprived of his Sixth Amendment right to have the question of whether he would live or die decided by twelve impartial jurors—jurors "`capable and willing to decide the case solely on the evidence before [them].'" Id. at 159, 188 (quoting McDonough, 464 U.S. at 554, 104 S.Ct. 845).

In summarizing some of its extensive factual findings, the court wrote that:

Sampson, 820 F.Supp.2d at 158.

The court also analyzed the Supreme Court's decision in McDonough and subsequent cases applying that decision. See id. at 170-181. It summarized as follows the holding of McDonough and its understanding of what Sampson had to prove in order to show that C's perjury entitled him to a new trial pursuant to McDonough:

Id.

Sampson, 820 F.Supp.2d at 158-59.

This formulation of the McDonough test does not require proof of either of the two types of bias that were recognized before McDonough—"actual bias," meaning bias in fact, or "implied bias," meaning bias which is presumed as a matter of law. See id. at 162-64, 169-70, 174-75. Instead, the court concluded that it is sufficient to obtain relief under McDonough to prove that a juror intentionally provided a false answer to a material question, the motive for the juror's dishonesty related to the juror's ability to be impartial, and discovery of the deliberately concealed information before trial would have actually resulted in the juror's excusal for cause based on a third type of bias that the Second Circuit has characterized as "inferable" or "inferred" bias. See id. at 165-66, 180-81 (quoting United States v. Torres, 128 F.3d 38, 46-47 (2d Cir.1997) and United States v. Greer, 285 F.3d 158, 171 (2d Cir.2002)). "`Inferable' or `inferred' bias exists `when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias.'" Sampson, 820 F.Supp.2d at 165 (quoting Greer, 285 F.3d at. 171 (quoting Torres, 128 F.3d at 47)). This court found that the McDonough test would be met if Sampson proved inferable bias that would have provided the court the discretion to excuse C for cause prior to trial, and that the court would in fact have done so. See Sampson, 820 F.Supp.2d at 159, 175 (citing Dall v. Coffin, 970 F.2d 964, 970 (1st Cir. 1992)).

As fully explained in the Memorandum and Order on Jury Claim, the McDonough test recognizes the unique connection between deliberately dishonest answers and the likely partiality of a potential juror. Sampson, 820 F.Supp.2d at 171. McDonough creates a special test that applies when it is proven that a potential juror has deliberately answered a material question falsely. "If the McDonough test required a showing of actual or implied bias in addition to a showing of dishonesty, the test Justice Rehnquist stated for the majority would be superfluous." Sampson, 820 F.Supp.2d at 176. The court noted that in Amirault v. Fair, 968 F.2d 1404, 1405-06 & n. 2 (1st Cir.1992), the First Circuit held that if relief under McDonough is unavailable, a court must still consider whether a juror has been shown to be actually or impliedly biased. Sampson, 820 F.Supp.2d at 176. In doing so, the First Circuit implicitly recognized that there are three distinct tests for determining whether a party is entitled to a new trial because of juror bias—actual bias, implied bias, and the McDonough test. See id. As the court also explained, its conclusion that actual and implied bias are not required is supported by Dall, 970 F.2d at 970, in which the First Circuit stated that relief under McDonough would be available where correct responses to the voir dire questions would have "required or resulted in" the juror's disqualification for cause. Id. This language is significant because while actual and implied bias require a juror's disqualification, inferable bias does not require disqualification, but provides the judge the discretion to excuse a juror for cause. See id. at 176-77.

The court applied the facts it had found to this understanding of McDonough and summarized its analysis as follows:

Id. at 159.1

In his submissions relating to his jury claim, Sampson asserted that an order requiring a new hearing to determine whether the death penalty is justified would not be appealable until after that hearing was concluded. See Hammer, 564 F.3d at 632-36; Stitt, 459 F.3d at 484-86; see also Andrews v. United States, 373 U.S. 334, 339-40, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). The government had not addressed this issue. Therefore, the court deferred entering an order implementing its decision on the jury claim until the parties had an opportunity to confer and brief the issue of whether that decision is immediately appealable. See United States v. Sampson, 820 F.Supp.2d 249 (D.Mass.2011) (Memorandum and Procedural Order).

In a separate order also issued on October 20, 2011, the court decided that the government was entitled to summary dismissal of many, but not all, of Sampson's claims that did not relate to the jury. See United States v. Sampson, 820 F.Supp.2d 202, 213 (D.Mass.2011) (Memorandum and Order on Summary Dismissal). The court summarized the surviving non-jury claims as follows:

Id. In addition, the court deferred decision on Sampson's claim that he is so severely brain damaged that his execution would be unconstitutional. See id. at 249. Pursuant to the Memorandum and Order on Summary Dismissal, all of the claims which challenged the validity of Sampson's guilty plea are subject to summary dismissal.2

It was not clear to the court whether the claims that survived summary dismissal would be moot if a new hearing to determine Sampson's sentence was conducted. Nor was it clear whether the court should decide whether to issue a certificate of appealability on any of the dismissed claims before a new sentencing proceeding was conducted, and whether Sampson would request a stay to pursue an appeal concerning any of the dismissed claims. See Sampson, 820 F.Supp.2d at 250-51 (Memorandum and Procedural Order). The court ordered the parties to confer and address these issues too. See id.

On February 1, 2012, the parties responded in a joint report. The report notified the court of the government's intention to seek review of the court's decision on the jury claim as soon as an order was entered requiring a new sentencing proceeding, and the defendant's position that no appeal could now be taken. More specifically, the government asserted that an order implementing the court's decision on the jury claim and requiring a new sentencing hearing would be final and automatically appealable under 28 U.S.C. § 1291, which gives courts of appeals jurisdiction over appeals "from all final decisions of the district courts of the United States." The government stated that it would pursue such an appeal as soon as the court entered an order directing that a new sentencing hearing be conducted. However, acknowledging the decisions holding that an order requiring a resentencing in a § 2255 proceeding is interlocutory rather than final, the government also stated its intention to seek certification from this court for an interlocutory appeal under 28 U.S.C. § 1292(b), which permits such appeals in civil cases that meet certain standards. Sampson reported his position that an order granting the defendant a new sentencing hearing would not now be appealable under either § 1291 or § 1292(b).

Both parties agreed that a stay of proceedings before this court pending resolution of any appeal by the government would be appropriate. They proposed a briefing schedule relating to the government's request that this court make the findings necessary to authorize an interlocutory appeal under § 1292(b).

The parties also reported their agreement that the decision to dismiss summarily certain of Sampson's claims would not now be appealable, and that Sampson's remaining claims challenging the validity of his death sentence would be moot if a new hearing to determine his sentence were conducted.

The court adopted the parties' proposed briefing schedule and stayed the remainder of the case. The parties have now submitted memoranda addressing the questions: (1) whether an interlocutory appeal of the court's decision on the jury claim is authorized by § 1292(b); and (2) if so, whether the requirements for an interlocutory appeal under § 1292(b) have been met.

III. ANALYSIS

The parties dispute whether it is permissible to use § 1292(b) to obtain interlocutory appeal of an order vacating a death sentence and ordering a new sentencing hearing in a § 2255 proceeding. Arguing that the government cannot now appeal this court's grant of a new sentencing hearing, Sampson relies on Andrews, in which the Supreme Court found that in a § 2255 proceeding, a district court's order mandating a new sentencing was "interlocutory not final," and that it was "obvious that there could be no final disposition of the § 2255 proceedings until the petitioners were resentenced." 373 U.S. at 339-40, 83 S.Ct. 1236. In Andrews, the Court concluded that the government did not have the right to appeal the order requiring resentencing, and the Court of Appeals lacked jurisdiction to review it, until the resentencing had occurred. Id. at 337, 339, 83 S.Ct. 1236. Although Andrews was not a capital case and, therefore, did not involve a resentencing before a jury, two circuits have concluded that an appellate court does not have jurisdiction over the government's appeal of a district court's order vacating a death sentence but denying relief as to all claims concerning guilt. See Hammer, 564 F.3d at 634 (3d Cir.); Stitt, 459 F.3d at 485-86 (4th Cir.). Applying Andrews, the Third and Fourth Circuits held that a § 2255 proceeding is not final until after a new sentencing hearing occurs and, therefore, an order requiring such a hearing is not subject to appeal. See Hammer, 564 F.3d at 634; Stitt, 459 F.3d at 485-86. Andrews, Hammer, and Stitt did not, however, address the possibility of interlocutory appeal pursuant to § 1292(b).

Although recognizing that the Supreme Court's decision in Andrews has been interpreted by the Third and Fourth Circuits to mean that an order requiring a new sentencing hearing in a capital case is not final or appealable prior to the resentencing, the government intends to appeal this court's decision immediately to the First Circuit on the theory that the decision is final and appealable as of right under § 1291. As requested by the parties, this court will stay the proceedings until that appeal is resolved. Therefore, an appeal to the First Circuit will be taken and there will be an associated delay in the proceedings before this court.

The issue now being decided is whether this court should make the findings necessary to allow the government to present to the First Circuit the additional questions of whether its decision on the jury claim is eligible for interlocutory appeal under § 1292(b); if so, whether the requirements of § 1292(b) have been met; and, if so, whether the First Circuit should exercise its discretion to decide the merits of the jury claim decision before a new sentencing hearing is conducted.

Section 1292 provides courts of appeals with jurisdiction to review certain interlocutory orders, including orders granting or refusing to grant injunctions, and orders appointing receivers. See 28 U.S.C. § 1292(a). As relevant here, § 1292 also provides courts of appeals with the discretion to permit interlocutory appeals in certain other circumstances, with the agreement of the district court. Specifically, § 1292(b) states that:

(Emphasis added).

By its terms, § 1292(b) applies only to civil cases. To obtain certification from the district court, the moving party must show that the matter involves: (1) a "controlling question of law;" (2) "as to which there is substantial ground for difference of opinion;" and (3) "an immediate appeal from the order may materially advance the ultimate termination of the litigation." § 1292(b); see Caraballo-Seda v. Municipality Of Hormigueros, 395 F.3d 7, 9 (1st Cir.2005); see also Bank of New York v. Hoyt, 108 F.R.D. 184, 190 (D.R.I. 1985) (Selya, J.) ("[t]he movant has the obligation of showing that the § 1292(b) criteria are met" (citing Fisons Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir.), cert. denied, 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 581 (1972))). If it makes these findings in a civil case, the district court is permitted, but not required, to authorize an interlocutory appeal. See Swint v. Chambers County Comm'n, 514 U.S. 35, 47, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) ("Congress thus chose to confer on district courts first line discretion to allow interlocutory appeals."); Nat'l Asbestos Workers Med. Fund v. Philip Morris, Inc., 71 F.Supp.2d 139, 145-46 (E.D.N.Y. 1999) (Weinstein, J.). Therefore, "[d]istrict courts . . . have independent and `unreviewable' authority to deny certification even where the three statutory criteria are met." Nat'l Asbestos, 71 F.Supp.2d at 146 (quoting Executive Software N. Am., Inc. v. U.S. Dist. Court, 24 F.3d 1545, 1550 (9th Cir.1994)); see also Hoyt, 108 F.R.D. at 190 ("As the legislative history indicates, the appeal is discretionary rather than a matter of right. It is discretionary in the first instance with the district judge.'" (quoting S. Rep. 2434, 85th Cong., 2d Sess., 1958, reprinted in 1958 U.S.Code Cong. & Admin. News 5255, 5257)).

If this court makes the necessary findings and certifies its decision on Sampson's jury claim for interlocutory appeal, the First Circuit may have to decide three questions. First, it will have to resolve the dispute as to whether a § 2255 proceeding is a "civil action" from which an interlocutory appeal can be taken under § 1292(b). See Francisco Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 9 (1st Cir.2009) (court of appeals has duty to inquire into its own jurisdiction). If the First Circuit finds that § 1292(b) applies, it will have to decide independently whether the three § 1292(b) criteria are satisfied. See Caraballo-Seda, 395 F.3d at 9 (analyzing § 1292(b) requirements and concluding two were not satisfied); In re Heddendorf, 263 F.2d 887, 889 (1st Cir.1959) (in evaluating whether § 1292(b) requirements are satisfied, court of appeals should "weigh the asserted need for the proposed interlocutory appeal with the policy in the ordinary case of discouraging `piecemeal' appeals"); White v. Nix, 43 F.3d 374, 376-78 (8th Cir.1994). The issue of whether § 1292(b) applies is a pure matter of law and will determine the First Circuit's jurisdiction if the jury claim decision is not appealable under § 1291 or some other statutory provision. Whether the requirements of § 1292(b) have been met has at times been characterized as jurisdictional as well. See Couch v. Telescope, Inc., 611 F.3d 629, 633 (9th Cir.2010) ("the requirements of § 1292(b) are jurisdictional" (internal quotations omitted)). If § 1292(b) applies and its requirements are met, the First Circuit will have "to decide whether, in the exercise of discretion granted . . . by the statute, [it] want[s] to accept jurisdiction." In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir.1982), aff'd, 459 U.S. 1990, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983).

Therefore, this court is, in effect, a gatekeeper. If it declines to make the findings necessary to permit interlocutory review under § 1292(b), the First Circuit will only decide if the jury claim decision can be appealed as a final order under § 1291. See Rivera-Jimenez v. Pierluisi, 362 F.3d 87, 92 (1st Cir.2004). If the court does make the required findings, the First Circuit will have the opportunity to decide the full range of § 1292(b) issues presented to this court. For the reasons described below, in the unique circumstances of this case, it is appropriate to provide the First Circuit that opportunity.

Whether a § 2255 proceeding is a "civil action" for the purpose of § 1292(b) is a challenging question. The Supreme Court has recently noted that in some contexts "there has been some confusion over whether § 2255 proceedings are civil or criminal in nature." Wall v. Kholi, 562 U.S. 545, 131 S.Ct. 1278, 1289 n. 7, 179 L.Ed.2d 252 (2011). However, the Court did not clarify that question. See id.

Sampson asserts that the decision on the jury claim is not an order in a "civil action" eligible for a possible interlocutory appeal under § 1292(b). He argues that the Advisory Committee Notes to the Rules Governing Section 2255 Proceedings for the United States District Courts (the "Notes") characterize proceedings under § 2255 as a "continuation of the criminal case." See Note to Rule 1 ("a motion under § 2255 is a further step in the movant's criminal case and not a separate civil action"); Note to Rule 11 ("a § 2255 action is a continuation of the criminal case").3 Sampson observes that there is a strong policy against piecemeal appeals. See Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) ("[S]ince appeals of right have been authorized by Congress in criminal cases, as in civil cases, there has been a firm congressional policy against interlocutory or `piecemeal' appeals and courts have consistently given effect to that policy."). Section 2255(d) states only that "[a]n appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for write of habeas corpus."; see also 28 U.S.C. § 2253(a) ("In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held."). Sampson contends, therefore, that § 2255 occupies the field and makes no provision for extraordinary, interlocutory appeals. Sampson asserts that in Hammer and Stitt, the government implicitly recognized this by not contending that § 1292(b) was a vehicle for obtaining review. Indeed, it appears that the government has never made such a claim in any § 2255 case.

However, there are factors that favor the government's position that decisions in § 2255 proceedings are eligible for interlocutory review under § 1292(b). Arguably, § 2255 proceedings are hybrids, which in some contexts should be considered criminal actions and in other contexts should be considered civil actions. In certain contexts the First Circuit has characterized § 2255 proceedings as civil in nature. See Trenkler v. United States, 536 F.3d 85, 94 (1st Cir.2008) ("Section 2255 proceedings, like classic petitions for habeas corpus, are generally treated as civil in nature."); Rogers v. United States, 180 F.3d 349, 352 n. 3 (1st Cir.1999) ("Motions under § 2255 have often been construed as civil actions, much like habeas corpus proceedings."). Sections 2253(a) and 2255(d) directly address how a final order in such a proceeding may be appealed, but do not state that interlocutory appeals are prohibited. The Supreme Court has held that "appeals from orders denying motions under Section 2255 are governed by the civil rules applicable to appeals from final judgment in habeas corpus actions." United States v. Hayman, 342 U.S. 205, 209 n. 4, 72 S.Ct. 263, 96 L.Ed. 232 (1952). Moreover, Rule 11(b) of the Rules Governing § 2255 Proceedings provides that Rule 4(a) of the Federal Rules of Appellate Procedure, which establishes the time to appeal in civil cases, "governs the time to appeal an order entered under these rules." In addition, although without discussion of the implications of Andrews or any other analysis, courts have occasionally allowed interlocutory appeals under § 1292(b) in § 2255 actions. See United States v. Pelullo, 399 F.3d 197, 202 (3d Cir.2005); United States v. Barron, 127 F.3d 890, 892 (9th Cir.1997), rev'd on other grounds on rehearing on Banc, 172 F.3d 1153 (9th Cir.1999) (en bane).

In view of the foregoing, reasonable judges might differ on whether § 1292(b) applies to the decision on the jury claim in this case. While § 1292(b) requires that this court state its opinion on certain issues, it does not require that this court decide whether a § 2255 proceeding is a "civil action" for the purpose of § 1292(b). For the reasons described below, the court concludes that the requirements of § 1292(b) are satisfied and it is in the interest of justice to give the First Circuit the opportunity to decide the full range of issues raised by the government. Therefore, the court is not deciding whether or not § 1292(b) applies to its decision on the jury claim, but is making the findings necessary to provide the First Circuit the opportunity to decide that issue, and others if it determines that it has jurisdiction.

In finding that the requirements of § 1292(b) have been met, the court understands that interlocutory certification "should be used sparingly and only in exceptional circumstances, and where the proposed immediate appeal presents one or more difficult and pivotal questions of law not settled by controlling authority." Caraballo-Seda, 395 F.3d at 9 (internal quotations omitted); see McGillicuddy v. Clements, 746 F.2d 76, 76 n. 1 (1st Cir.1984). Certification under §1292(b) must be rare because appellate review is generally limited to final decisions precisely in order to "avoid piecemeal litigation, promote judicial efficiency, reduce the cost of litigation, and eliminate the delays caused by interlocutory appeals." Appeal of Licht & Semonoff, 796 F.2d 564, 569 (1st Cir. 1986); see also In re Clark-Franklin-Kingston Press, Inc., C.A. 90-11231-WF, 1993 WL 160580, *2 (D.Mass.1993) ("appeals of interlocutory orders result in piecemeal litigation, causing delay"). Therefore, "the party seeking interlocutory appeal under § 1292(b) bears the heavy burden of persuading the court that exceptional circumstances warrant `departure from the basic policy of postponing appellate review until after entry of final judgment.'" Clark-Franklin-Kingston, 1993 WL 160580 at *2 (quoting Hoyt, 108 F.R.D. at 190); see also Vimar Seguros Y Reaseguros, S.A. v. M/V Sky Reefer, C.A. 91-13345-WF, 1993 WL 137483, *6 (D.Mass.1993), aff'd, 29 F.3d 727 (1st Cir. 1994), aff'd, 515 U.S. 528, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995).

However, as Professors Wright, Miller, and Cooper have written:

16 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3930 (2d ed.1996), at 415.4 In the instant case, the § 1292(b) factors, viewed together, indicate that it is permissible and appropriate that this court authorize an interlocutory appeal of its decision on Sampson's jury claim.

The court's decision on the jury claim involves a "controlling question of law" within the meaning of § 1292(b). That issue is the question of whether a litigant seeking to obtain relief under McDonough is required to prove, among other things, actual or implied bias. As explained earlier, this court found that actual and implied bias are not required to be proven to obtain relief under McDonough, see Sampson, 820 F.Supp.2d at 174-75, and that neither was proven with regard to C. Id. at 188, 192. If this court is found to be incorrect in its holding that McDonough provides a third basis for obtaining relief—distinct from actual bias and implied bias—or incorrect in some material respect concerning its statement of the McDonough test, then its decision that a new hearing to determine Sampson's sentence is required will be reversed or remanded. Therefore, a "controlling question of law" is implicated in the proposed interlocutory appeal. See In re Heddendorf, 263 F.2d at 890.

With regard to the second § 1292(b) factor, "[t]he level of uncertainty required to find a substantial ground for difference of opinion should be adjusted to meet the importance of the question in the context of the specific case." 16 Wright, Miller & Cooper, Federal Practice and Procedure § 3930, at 422. In certain circumstances, "certification may be justified at a relatively low threshold of doubt." Id.

This court continues to find that it has correctly interpreted McDonough. As indicated earlier, "if the McDonough test required a showing of actual or implied bias in addition to a showing of dishonesty," as the government contends, "the test Justice Rehnquist stated for the majority would be superfluous." Sampson, 820 F.Supp.2d at 176. Moreover, this court's interpretation of McDonough is consistent with the First Circuit's most relevant decisions, Amirault and Dall. See Sampson, 820 F.Supp.2d at 176-77.

However, in McDonough two Justices concurred only in the judgment because they had "difficulty understanding the import of the legal standard adopted by the Court." 464 U.S. at 557, 104 S.Ct. 845 (Brennan, J., concurring). In addition, "[a]s the Sixth Circuit has noted, the case law reflects some confusion concerning the meaning of McDonough." Sampson, 820 F.Supp.2d at 177 (citing Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir.1995)). This confusion is manifest in certain cases from other jurisdictions that are inconsistent with this court's interpretation of McDonough and incorrect for the reasons explained in the Memorandum and Order on Jury Claim. See Sampson, 820 F.Supp.2d at 179-80 nn. 16-18. Moreover, as this court wrote, its:

Id. at 177.

In essence, the court believes that in reaching its conclusions, the court harmonized the three opinions in McDonough, well-reasoned decisions from several Courts of Appeals, and language in several First Circuit cases whose analysis was less extensive. However, in recognition of the lack of binding First Circuit authority concerning the meaning of McDonough and the confusion that is manifest in some decisions in other circuits, the court finds that there is a "substantial ground for difference of opinion" regarding its conclusion that McDonough is satisfied without proof of actual or implied bias if the trial judge would have had the discretion to excuse for cause a juror who answered a material question dishonestly, and would in fact have excused her. See Sampson, 820 F.Supp.2d at 159.

Finally, "immediate appeal from the [jury claim] order may materially advance the ultimate termination of the litigation." § 1292(b). If the court's decision on Sampson's jury claim is reversed on interlocutory appeal, it is possible that a new sentencing hearing will not be necessary. The court will still have to decide the claims not involving the jury that have not been summarily dismissed. Discovery will be necessary and evidentiary hearings may be required. It is not now possible to predict whether any of Sampson's remaining claims will prove to be meritorious. However, it is possible that they will not justify a new sentencing hearing.

If this court's decision on the jury claim is affirmed, the issues concerning Sampson's other claims that were not summarily dismissed will be moot. The government will then have to decide whether it is now possible and appropriate to conduct another long, expensive, and exhausting sentencing hearing. An affirmance may cause the government to conclude that it is in the interests of justice to try to reach an agreement to resolve this matter with Sampson, who previously offered to accept a sentence of life in prison without possibility of parole rather than face possible execution. Such an agreement would expedite the termination of this case. See Clark-Franklin-Kingston, 1993 WL 160580 at *3 ("interlocutory appeals should be granted where resolution of the issues on appeal might lead to settlement"). Therefore, while inherently uncertain, the conclusion of this § 2255 proceeding before this court "may" be facilitated by an interlocutory appeal. See § 1292(b).

While the court is of the opinion that each of the § 1292(b) factors has been adequately established, it still must decide whether to exercise its discretion to allow the First Circuit to consider whether interlocutory appeal of the jury claim decision is legally permissible and, if so, justified. See Swint, 514 U.S. at 47, 115 S.Ct. 1203; Nat'l Asbestos, 71 F.Supp.2d at 145-46; Hoyt, 108 F.R.D. at 190. It is, at this point, particularly appropriate "to consider the probable gains and losses of immediate appeal." 16 Wright, Miller & Cooper, Federal Practice and Procedure § 3930, at 416.

The instant case is truly an "exceptional" case. See Caraballo-Seda, 395 F.3d at 9 (internal quotations omitted). It is the only case in the First Circuit in which a person has been sentenced to be executed under the Federal Death Penalty Act. A resentencing hearing in this case will be far more complicated and consume far more resources than a resentencing in a non-capital case such as Andrews. See Stitt, 459 F.3d at 487 (Williams, J., concurring). It will also be agonizing for the families of the victims. If meritorious, an immediate appeal of the jury claim decision may keep these costs from being incurred.

Interlocutory review of the jury claim decision may also promote confidence in the administration of justice. If there is not an immediate appeal and a second jury finds that Sampson should be sentenced to death, this court's jury claim decision will probably never be reviewed and there will be no appellate determination of whether the second capital sentencing proceeding was necessary. If the jury at a second sentencing hearing finds that Sampson should not be executed, the court's decision on Sampson's jury claim will be final and ripe for appellate review. The First Circuit will then be required to decide whether Sampson should be executed despite a more recent jury determination that the death penalty is not justified. This situation may raise additional, unprecedented appellate issues. In any event, a decision to allow Sampson to be executed despite a more recent finding that the death sentence is not justified would foreseeably prompt public confusion and controversy. An interlocutory appeal and determination of the merits of the jury claim decision would reduce these risks and also assure that the expense and anguish of any second sentencing hearing is, as this court has found, legally required to provide Sampson "the fair process that the Constitution guarantees every man no matter how despicable his conduct." Sampson, 820 F.Supp.2d at 160.

As described earlier, the instant case will be stayed pending the government's attempt to appeal the decision vacating Sampson's death sentence as a final order under § 1291. Therefore, there will be some piecemeal litigation and delay in any event. Certification of an interlocutory appeal will only provide the First Circuit the opportunity to consider a fuller range of issues concerning the jury claim decision. Thus, the delay caused by authorizing an interlocutory appeal in this case is not as significant a factor weighing against certification as delay is in the usual case. Cf. Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 866-67 (2d Cir.1996) (certification under § 1292(b) was improvidently granted where appeal would delay rather than advance termination of litigation); Nat'l Asbestos, 71 F.Supp.2d at 167 ("The lengthy delay of trial court proceedings pending the appeal, the probability that an interlocutory appeal will require lengthy appellate consideration on an incomplete record, and the likelihood that continued district court proceedings might moot the issues now sought to be appealed, . . . counsel against interlocutory review at this stage."); Clark-Franklin-Kingston, 1993 WL 160580 at *3 (denying leave to bring interlocutory appeal of order of Bankruptcy Court where appeal would delay the action's progress towards a trial).

In view of the foregoing, the, court concludes that it is permissible and most appropriate to certify for interlocutory review, pursuant to § 1292(b), the questions of: (1) whether McDonough requires proof of actual bias or implied bias to obtain relief; and, if not, (2) whether this court correctly stated the McDonough test in its Memorandum and Order on Jury Claim.

As explained earlier, the First Circuit may decide as a matter of law that an interlocutory appeal is not permissible or may conclude that this is not one of the rare cases in which an interlocutory appeal should be granted as an exercise of its discretion. However, it serves the interests of justice for this court to allow the First Circuit to make those decisions.

IV. ORDER

Therefore, for the reasons explained in this Memorandum and in the October 20, 2011 Memorandum and Order on Jury Claim, it is hereby ORDERED that:

1. Claim IV of the Motion (Docket No. 1035) is ALLOWED and Sampson's death sentence is VACATED.

2. The Government's Request for Summary Dismissal of the First Amended 2255 Petition (Docket No. 1055) is DENIED as to Claim IV, the jury claim.

3. Assuming, without finding, that 28 U.S.C. § 1292(b) is applicable, the government's Motion to Certify Interlocutory Appeal Under 28 U.S.C. § 1292(b) and for Stay (Docket No. 1235) is ALLOWED as to the questions of: (1) whether McDonough requires proof of actual bias or implied bias to obtain relief; and, if not, (2) whether this court correctly stated the McDonough test in its Memorandum and Order on Jury Claim.

4. A separate Order concerning the claims to be dismissed pursuant to the October 20, 2011 Memorandum and Order on Summary Dismissal shall enter.

5. This case shall continue to be STAYED pending a resolution of the government's appeal by the First Circuit.