Richard Stokley v. Charles Ryan

Order; Amended Order; Dissent by Judge PAEZ.

ORDER

The Order issued on November 15, 2012, is withdrawn and an Amended Order is filed concurrently with this order. With that amendment, Judges McKeown and Bea vote to deny Stokley’s petition for panel rehearing and Judge Paez votes to grant the petition. No further petitions for panel rehearing will be entertained.

AMENDED ORDER

Richard Dale Stokley, a state prisoner, was sentenced to death in 1992 for the murders of two 13-year-old girls. After pursuing direct review and post-conviction relief in the Arizona state courts, he filed a habeas petition in federal district court, which was denied on March 17, 2009. Stokley’s appeal from that decision was *403 denied by this court in Stokley v. Ryan, 659 F.3d 802 (9th Cir.2011). On October 1, 2012, the Supreme Court denied Stok-ley’s petition for certiorari. Stokley v. Ryan, — U.S. -, 133 S.Ct. 134 , 184 L.Ed.2d 65 (2012). Stokley now asks this court to stay issuance of the mandate on the ground that the Supreme Court’s holding in Maples v. Thomas, — U.S. -, 132 S.Ct. 912 , 181 L.Ed.2d 807 (2012), constitutes an intervening change in the law that could warrant a significant change in…

dissenting:

Maples changed the law. Stokley asks us not for habeas relief, but to stay the mandate in light of this change and remand for full consideration of whether he can overcome procedural default on his colorable Eddings and Skipper claims that were not raised because Harriette Levitt abandoned him. The only analysis we should do here is to determine whether he has made a prima facie case for abandonment under Maples to establish cause, and shown that his prejudice argument has some merit in that he does not raise a frivolous claim. His claim that the Arizona Supreme Court committed causal nexus error in declining to consider mitigating evidence is anything but frivolous. It is a constitutional claim and one that this court should not extend itself to decide on the merits before it was briefed or argued by either party.

The majority assumes without deciding that there was a Maples error. Respectfully, that was the only question before this court. The majority brushes it aside to get to the final end game, but further confuses our law on prejudice and standards for error review in the process. Because I cannot agree with the majority’s approach, I strongly dissent.

I…

FILED

FOR PUBLICATION NOV 21 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

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: McKEOWN, PAEZ, and BEA, Circuit Judges.

Richard Dale Stokley, a state prisoner, was sentenced to death in 1992 for

the murders of two 13-year-old girls. After pursuing direct review and post-

conviction relief in the Arizona state courts, he filed a habeas petition in federal

district court, which was denied on March 17, 2009. Stokley’s appeal from that

decision was denied by this court in Stokley v. Ryan, 659 F.3d 802 (9th Cir. 2011).

On October 1, 2012, the Supreme Court denied Stokley’s petition for certiorari.

Stokley v. Ryan, No. 11-10249, 2012 WL 1643921 (Oct. 1, 2012). Stokley now

asks this court to stay issuance of the mandate on the ground that the Supreme

Court’s holding in Maples v. Thomas, 132 S.…