FILED
FOR PUBLICATION NOV 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
RICHARD DALE STOKLEY, No. 09-99004
Petitioner - Appellant, D.C. No. 4:98-CV-00332-FRZ
District of Arizona,
v. Tucson
CHARLES L. RYAN,
AMENDED ORDER
Respondent - Appellee.
Before: THOMAS, Circuit Judge and Capital Case and En Banc Coordinator
The full court has been advised of the petition for rehearing en banc.
Pursuant to the rules applicable to capital cases in which an execution date has
been scheduled, a deadline was set by which any judge could request a vote on
whether the panel's November 15, 2012 order should be reheard en banc. The
panel elected to amend its original order, and the full court was advised of the
planned amendment.
A judge requested a vote on whether to hear the panel's order en banc. A
majority of the active, non-recused judges eligible to vote on the en banc call did
not vote to rehear the panel order en banc. Therefore, the petition for rehearing en
banc is DENIED.
No further petitions for panel rehearing or rehearing en banc will be
entertained. En banc proceedings with respect to the original order and the
amended order are concluded.
The dissents from the denial of rehearing en banc follow this amended order.
2
FILED
NOV 27 2012
Stoµley v. Ryan, No. 09-99004 MOLLY C. DWYER, CLERK
U.S . CO UR T OF AP PE A LS
REINHARDT, Circuit Judge, joined by PREGERSON, WARDLAW, W.
FLETCHER, FISHER, PAEZ, and BERZON, Circuit Judges, dissenting from the
denial of en banc rehearing:
This is a death penalty case in which, due to the panel's perceived need to
resolve, all-too-hastily, several important issues arising out of the recently-decided
case of Maples v. Thomas, 132 S. Ct. 912 (2012), the majority, without proper
briefing, made a number of serious errors that warrant review by the en banc court.
So great was its perceived need for speed that the panel was still amending its
order and changing its rationale while the en banc process was underway. Stoµley,
the individual whose life was at staµe, was afforded little opportunity to explore
the issue that the majority of the panel raised sua sponte, and then held to be
dispositive. Nevertheless, a majority of the court voted to let the panel majority's
order stand. As a result of our failure to go en banc, an execution which is
scheduled for next weeµ will occur, in violation of fundamental constitutional
principles, absent intervention by the Supreme Court--the only remaining body
that can ensure that Stoµley receives his constitutional rights.
The case arises from Stoµley's motion for a stay of mandate and for a
remand to the district court in light of the Court's recent decision in Maples.1
1
The panel does not contest that this motion is properly raised as a motion to
stay the mandate. It had issued a published opinion before Maples was decided,
but there it addressed an entirely different underlying claim. Stoµley v. Ryan, 659
Stoµley claimed that, liµe Maples, he had been abandoned by his post-conviction
counsel, and that this abandonment constituted adequate cause to excuse his failure
to raise on state post-conviction review the claim that, on direct appeal, the
Arizona Supreme Court had violated Eddings v. Oµlahoma, 455 U.S. 104 (1982).
The panel does not, in its amended order, contest Stoµley's Maples claim, except to
hold that he suffered no prejudice as a result.
Eddings maµes clear that a defendant is entitled to rely on any mitigating
evidence that might maµe a fact-finder less liµely to impose a death
sentence--including evidence that does not have a causal connection to the crime
at issue. 445 U.S. at 114-15. The Arizona Supreme Court violated Eddings in its
decision affirming the death penalty imposed on Stoµley, by failing to consider
mitigating evidence that did not have a nexus to his crime.2 The panel majority
excuses the Arizona Supreme Court's violation of Eddings as merely harmless
error, thus deciding, sub silentio, that an Eddings error is subject to harmless error
analysis. It then holds that Stoµley is unable to demonstrate the prejudice
necessary to excuse the procedural default of his Eddings claim, and on that basis
denies his motion for a stay of mandate and for a remand to present his claim,
F.3d 802 (9th Cir. 2011).
2
See, e.g., State v. Stoµley, 898 P.2d 454, 473 (Ariz. 1995) (disregarding
evidence of 'chaotic and abusive childhood' because Stoµley 'failed to show how
this influenced his behavior on the night of the crimes').
under Maples, that he was abandoned by his attorney--and ultimately the right to a
proper review of his capital sentence by the Arizona Supreme Court under
standards consistent with the Constitution.3
We err in declining to convene en banc to address this capital case, for
several reasons. First, we should decide en banc the question of whether a court's
error under Eddings is structural or is subject to harmless error analysis. Second,
even if an Eddings error were not structural, we should decide en banc whether the
panel ought to have reached that issue--an issue that was not properly presented to
it--or should first have remanded it to the district court. Finally, even if the error
were not structural and if we were not required to remand as to prejudice, we
should have determined whether the state carried its burden of showing that the
error was harmless.
Whether a court's error under Eddings is structural or is subject to harmless
error analysis is an unresolved question of exceptional importance. The circuits
are divided on the question; the Fifth Circuit has held that such an error is
structural, while other circuits have held the opposite. Compare Nelson v.
Ïuarterman, 472 F.3d 287, 314-315 (5th Cir. 2006) (en banc), cert. denied, 551
3
Although the panel here erroneously found no prejudice, it did not rule on
the question of cause in its amended order, and a remand, on that question at least,
would be necessary.
-3-
U.S. 1141 (2007) with Bryson v. Ward, 187 F.3d 1193, 1205 (10th Cir. 1999)
(collecting cases applying harmless error review). Even our own court's decisions
appear divided on this issue. Compare Williams v. Ryan, 623 F.3d 1258, 1270-71
(9th Cir. 2010) (conducting no harmless error analysis) with Landrigan v. Stewart,
272 F.3d 1221, 1230 & n.9 (9th Cir. 2001). The Supreme Court has previously
granted certiorari to address this question, see Smith v. Texas, 549 U.S. 948 (2006)
(mem.), although it nevertheless eventually declined to address it, see Smith v.
Texas, 550 U.S. 297, 316 (2007) (Souter, J., concurring). A petition for certiorari
raising this precise question is currently pending before the Supreme Court. See
Thaler v. McGowen, No. 12-82 (U.S. filed July 17, 2012), available at 2012 WL
2992072.
The panel's hastily-reached decision, without adequate briefing, that such
error is not structural is simply inconsistent with the Supreme Court's precedents
regarding the importance, in capital cases, of permitting the fact-finding body to
properly weigh all mitigating factors. These precedents require that the fact-
finding body give meaningful weight to mitigating factors--a requirement that is
as much substantive as it is procedural. See Penry v. Lynaugh, 492 U.S. 302, 319
(1989) ('[I]t is not enough simply to allow the defendant to present mitigating
evidence to the sentencer. The sentencer must also be able to consider and give
-4-
effect to that evidence in imposing sentence.' (emphasis added)), abrogated on
other grounds by Atµins v. Virginia, 536 U.S. 304 (2002). Such an error cannot be
cured by this court, and particularly, given the deference due to the state court, by
this court sitting in habeas review. We should not engage in an independent
weighing of these factors, especially when the state court originally did so under a
mistaµen conception of its legal duty. Such an independent weighing creates the
substantial 'risµ that the death penalty will be imposed in spite of factors which
may call for a less severe penalty.' Penry, 492 U.S. at 328 (citing Locµett v. Ohio,
438 U.S. 586, 605 (1978)) (remanding for a re-determination of the aggravating
and mitigating factors). That risµ, as the Supreme Court has held, is 'unacceptable
and incompatible with the commands of the Eighth and Fourteenth Amendments.'
Id. Thus, not only should we go en banc, but we should conclude that the error is
structural, and that the Arizona Supreme Court should be given the opportunity to
apply the proper Constitutional standards.
Further, even were we to conclude that an Eddings violation is not structural,
the panel majority's decision to address the question of prejudice would constitute
error. The state made no mention of this question in its opposition to Stoµley's
motion for a stay of mandate, and the district court had had no opportunity to
consider Maples at all. The simplest course would have been to remand, to give
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both parties the opportunity to fairly address the issue and to obtain the views of
the district court. See, e.g., Maples, 132 S. Ct. at 927-28 (remanding for a
determination regarding prejudice); Martinez v. Ryan, 132 S. Ct. 1309, 1320-21
(2012) (same). The panel, however, did not remand--instead, it addressed the
issue of prejudice sua sponte, despite the state's failure to raise it. This is
particularly surprising, given that, if an Eddings error is not structural, the state
bears the burden of demonstrating that the error is harmless. See Hitchcocµ v.
Dugger, 481 U.S. 393, 399 (1987) (noting the state's duty to demonstrate that error
is harmless, and holding that '[i]n the absence of such a showing our cases hold
that the exclusion of mitigating evidence of the sort at issue here renders the death
sentence invalid.').
As it was, the first substantive discussion of prejudice in this case was in the
panel majority's original order denying Stoµley's motion--although prejudice was
simply an alternative basis for the order. The principal basis for the majority's
holding was that Stoµley had not been abandoned by his counsel, and thus that no
cause existed for the procedural default. Stoµley's first opportunity to brief the
issue of prejudice was in his petition for en banc rehearing, although he was
compelled to argue primarily that the panel erred in holding that he had not been
abandoned by counsel under Maples and that the he had not waived the issue of
-6-
prejudice. The panel majority paid little heed to Stoµley's briefing: a mere two
days after his petition for en banc rehearing was filed, this court denied it; later that
day, the panel majority amended its order--not to reflect Stoµley's limited briefing
regarding prejudice, but rather to render the issue of prejudice the sole basis of its
amended order (thus eliminating all discussion of the merits of Stoµley's Maples
claim), while leaving its discussion of prejudice largely unchanged.4
Finally, even if the Eddings violation in this case were subject to harmless
error review, and even if it were appropriate for the panel to reach the issue without
a remand to the district court, it is clear that the Eddings error in this case was
indeed prejudicial. If we are to determine whether there is harmless error here,
then the Court's decision in the Eddings line of cases must be our guide: the focus
of our inquiry ought to be whether there is a 'risµ that the death penalty will be
imposed in spite of factors which may call for a less severe penalty.' Penry, 492
U.S. at 328 (citing Locµett, 438 U.S. at 605 (1978)). Here, the comity and
4
The panel's original order was based, in part, on an alleged representation
by Stoµley's counsel that no remand was necessary on the issue of prejudice. See
Maj. Op. (Nov. 15, 2012) at 3 n.1 ('Stoµley's counsel . . . did not raise any issues
that required factual development through the requested evidentiary hearing.').
The recording of oral argument clearly conveys counsel's statement to the
contrary--that further development of the record was needed because 'there has
never really been a discussion of prejudice' and Stoµley's pleadings regarding the
issue were simply 'notice pleading.' The panel's amended opinion omits the
assertion that counsel has waived this issue.
-7-
federalism concerns that typically limit our inquiry when we sit in habeas review,
see Cullen v. Pinholster, 131 S. Ct. 1388, 1401 (2011), suggest that the Arizona
Supreme Court should be given an opportunity to re-weigh these factors when that
risµ is at least substantial, as it is here. This is particularly so given that the
Arizona Supreme Court undertaµes an independent and de novo weighing of
aggravating and mitigating factors in its initial review of every capital case
(including this one), and thus is uniquely situated to cure this error as well as being
already familiar with the facts of this case. See State v. Stoµley, 898 P.2d at 454.
Here, there clearly is a sufficient risµ that the death penalty will be imposed
in spite of factors that call for lenity. The Arizona Supreme Court permitted an
Eddings error to affect its consideration of at least three of the mitigating factors it
considered. See State v. Stoµley, 898 P.2d at 469 (substance abuse), 470 (head
injuries and impulse control), 473 (family history and childhood abuse). Although,
as the Arizona Supreme Court pointed out, these factors did not have a direct nexus
to the crime in question, the court's refusal to grant them weight undoubtedly
limited its ability to 'express[] its 'reasoned moral response' to that evidence in
rendering its sentencing decision.' Id. That this risµ exists is particularly liµely in
light of the fact that Stoµley's co-perpetrator--who actually instigated the
crime--received a sentence of only 20 years, and has already been released from
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prison. The facts of this crime, absent a consideration of Stoµley's particular
circumstances, thus do not inexorably lead to a finding that the death penalty
should have been imposed. Thus, were we to engage in a harmless error analysis,
we should hold that Stoµley had established the requisite prejudice with respect to
his Maples claim.5
For these reasons, I respectfully dissent.
5
The more proper body to undertaµe this analysis, however (if not the
Arizona Supreme Court), is the district court. The district court could maµe this
decision on remand with the benefit of a thorough examination of the full record
before the state court--examining the evidence and arguments made in support of
each aggravating and mitigating factor--as well as with full briefing and argument.
-9-
FILED
NOV 27 2012
Stoµley v. Ryan, No. 09-99004 MOLLY C. DWYER, CLERK
U .S . CO U RT OF AP PE A LS
W. FLETCHER, Circuit Judge, with whom Judges PREGERSON, REINHARDT,
WARDLAW, FISHER, PAEZ, and BERZON join, dissenting from the denial of en
banc rehearing:
I fully concur in the dissents of Judges Reinhardt and Watford from our
failure to taµe this case en banc. I add only the following.
In our haste, we have forgotten our role as an intermediate federal appellate
court. We have taµen the role of the federal district court, refusing to allow that
court to deal in the first instance with Stoµley's motion under Maples v. Thomas,
132 S. Ct. 912 (2012). And we have taµen the role of the Arizona Supreme Court,
refusing to allow that court to assess the importance of Stoµley's mitigating
evidence that was previously disregarded, in violation of Eddings v. Oµlahoma,
455 U.S. 104 (1982). Further, we have allowed a three-judge panel of this court to
decide, without briefing from the parties, that Eddings error is not structural,
despite cases in this circuit to the contrary, see Williams v. Ryan, 623 F.3d 1258
(9th Cir. 2010); Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008), and despite
suggestions from the Supreme Court that such error may indeed be structural. See
Smith v. Texas, 549 U.S. 948 (2006) (mem.); Smith v. Texas, 550 U.S. 297, 316
(2007) (Souter, J., concurring); Thaler v. McGowen, 2012 WL 2955935 (Nov. 26,
2012) (denying cert. in McGowen v. Thaler, 675 F.3d 482 (5th Cir. 2012), in which
-1-
Fifth Circuit held that Eddings error in jury instruction is structural).
There is no reason for such haste. Stoµley has asserted plausible claims
under Maples and Eddings. They may or may not prove to be winning claims. But
we should not allow the State of Arizona to µill Stoµley before they have been
properly considered.
-2-
FILED
Stoµley v. Ryan, No. 09-99004 NOV 27 2012
MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, joined by PREGERSON, WARDLAW, W. U.S . CO U RT OF AP PE A LS
FLETCHER, FISHER, PAEZ, BERZON, CHRISTEN, and NGUYEN, Circuit
Judges, dissenting from the denial of en banc rehearing:
I do not thinµ there is any question here that the Arizona Supreme Court
violated the rule established in Eddings v. Oµlahoma, 455 U.S. 104 (1982).
Assuming, as the panel majority does, that abandonment has been shown under
Maples v. Thomas, 132 S. Ct. 912 (2012), Stoµley has established cause for his
procedural default. There are two unresolved questions with respect to prejudice.
The first is whether this court must actually decide the merits of the underlying
Eddings claim or need only find that the claim is substantial, as in Martinez v.
Ryan, 132 S. Ct. 1309, 1318 (2012); the second is whether an Eddings violation is
structural error or is instead subject to harmless error review. These important and
unsettled issues should be resolved by the court sitting en banc.
FILED
Stoµley v. Ryan, No. 09-99004 NOV 27 2012
MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting from the denial of en banc rehearing:RT OF AP PE A LS
U.S . CO U
I concur in the dissents of Judge Reinhardt, Judge Fletcher, and Judge
Watford from our court's refusal to taµe Stoµley v. Ryan en banc.
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