Richard Stokley v. Charles Ryan

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…

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, —U.S. -, 132 S.Ct. 912 , 181 L.Ed.2d 807 (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. Stokley, the individual whose life was at stake, 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 week will occur, in violation of fundamental constitutional principles, absent intervention by the Supreme Court—the only remaining body that can ensure that Stokley receives his constitutional rights.

The…

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 take this case en banc. I add only the following.

In our haste, we have forgotten our role as an intermediate federal appellate court. *1015 We have taken the role of the federal district court, refusing to allow that court to deal in the first instance with Stokley’s motion under Maples v. Thomas, — U.S. -, 132 S.Ct. 912 , 181 L.Ed.2d 807 (2012). And we have taken the role of the Arizona Supreme Court, refusing to allow that court to assess the importance of Stokley’s mitigating evidence that was previously disregarded, in violation of Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (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…

*1011 AMENDED ORDER

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.