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, 

(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, 

(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 

. 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, 

, 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, 

, 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, 

, 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, 

, 1270-71

(9th Cir. 2010) (conducting no harmless error analysis) with Landrigan v. Stewart,

, 1230 & n.9 (9th Cir. 2001). The Supreme Court has previously

granted certiorari to address this question, see Smith v. Texas, 

(2006)

(mem.), although it nevertheless eventually declined to address it, see Smith v.

Texas, 

, 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 

.

      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, 

, 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, 

(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.' 

(citing Locµett v. Ohio,

, 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.'

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



                                          -5-
both parties the opportunity to fairly address the issue and to obtain the views of

the district court. See, e.g., 

(remanding for a

determination regarding prejudice); Martinez v. Ryan, 

, 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, 

, 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.' 

(citing 

(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, 

, 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. 

.

       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. 

(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.' 

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



                                            -8-
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,

(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,

(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, 

(9th Cir. 2010); Styers v. Schriro, 

(9th Cir. 2008), and despite

suggestions from the Supreme Court that such error may indeed be structural. See

Smith v. Texas, 

(2006) (mem.); Smith v. Texas, 

, 316

(2007) (Souter, J., concurring); Thaler v. McGowen, 

(Nov. 26,

2012) (denying cert. in McGowen v. Thaler, 

(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, 

(1982).

Assuming, as the panel majority does, that abandonment has been shown under

Maples v. Thomas, 

(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, 

, 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.




                                         -1-