                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RICHARD DALE STOKLEY ,                   No. 09-99004
         Petitioner - Appellant,
                                          D.C. No.
               v.                   4:98-CV-00332-FRZ
                                    District of Arizona,
CHARLES L. RYAN ,                          Tucson
        Respondent - Appellee.

                                      ORDER AND
                                    AMENDED ORDER


      Appeal from the United States District Court
               for the District of Arizona
    Frank R. Zapata, Senior District Judge, Presiding

              Argued and Submitted
         November 5, 2012—Portland, Oregon

              Filed November 15, 2012
             Amended November 21, 2012

   Before: M. Margaret McKeown, Richard A. Paez,
           and Carlos T. Bea, Circuit Judges.

                         Order;
                   Amended Order;
                 Dissent by Judge Paez
2                       STOKLEY V . RYAN

                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel withdrew the order issued on November 15,
2012, filed an amended order, and denied a petition for panel
rehearing.

    In its amended order, the panel denied a motion to stay
the mandate by Richard Stokley, a state prisoner who was
sentenced to death. Stokley moved to stay the mandate on the
ground that Maples v. Thomas, 132 S. Ct. 912 (2012)
(holding that abandonment by post-conviction counsel could
provide cause to excuse procedural default of a habeas claim),
constitutes an intervening change in the law that could
warrant a significant change in result. The panel assumed
without deciding that there was Maples error, but held that
Stokley cannot establish actual prejudice.

    Judge Paez dissented. He would stay the mandate and
remand this case to the district court for it to determine if
cause and prejudice exist, and to consider the merits of the
claim if warranted.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     STOKLEY V . RYAN                      3

                        COUNSEL

Jennifer Yolanda Garcia (argued), Federal Public Defender’s
Office, Phoenix, Arizona; Amy Krauss, Law Office of Amy
B. Krauss, Tucson, Arizona; Cary Sandman, Federal Public
Defender’s Office, Tucson, Arizona; Jon M. Sands, Federal
Public Defender’s Office, Phoenix, Arizona, for the
Petitioner-Appellant.

Thomas C. Horne, Arizona State Attorney General; Jonathan
Bass (argued), Assistant Attorney General Criminal
Appeals/Capital Litigation Division, for the Respondent-
Appellee.


                         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 denied by this court
in Stokley v. Ryan, 659 F.3d 802 (9th Cir. 2011). On October
4                    STOKLEY V . RYAN

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. Ct. 912 (2012),
constitutes an intervening change in the law that could
warrant a significant change in result. In Maples, the Court
held that abandonment by post-conviction counsel could
provide cause to excuse procedural default of a habeas claim.
Id. at 927.

    Under Federal Rule of Appellate Procedure 41(d)(2)(D),
this court “must issue the mandate immediately when a copy
of a Supreme Court order denying the petition for writ of
certiorari is filed.”      Fed. R. App. P. 41(d)(2)(D).
Nonetheless, this court has the authority to issue a stay in
“exceptional circumstances.” Bryant v. Ford Motor Co., 886
F.2d 1526, 1529 (9th Cir. 1989), cert. denied, 493 U.S. 1076
(1990). To constitute an exceptional circumstance, an
intervening change in law must require a significant change
in result for the parties. See Beardslee v. Brown, 393 F.3d
899, 901 (9th Cir. 2004) (“[A]n intervening change in the law
is an exceptional circumstance that may warrant the
amendment of an opinion on remand after denial of a writ of
certiorari.”); Adamson v. Lewis, 955 F.2d 614, 619-20 (9th
Cir. 1992) (en banc) (finding an absence of exceptional
circumstances where subsequent Supreme Court authority did
not require a significant change in result). The question
before us is whether Stokley has presented such an
exceptional circumstance.

    Stokley asks for a remand to the district court for an
evidentiary hearing to determine whether, under Maples, he
was “abandoned” by his state post-conviction attorney and
                      STOKLEY V . RYAN                        5

thus has cause to excuse his procedural default of his
underlying claim that the Arizona Supreme Court failed to
consider mitigating evidence in violation of Eddings v.
Oklahoma, 455 U.S. 104, 114-15 (1982), and Skipper v. South
Carolina, 476 U.S. 1, 4-5 (1986). Under Coleman v.
Thompson, 501 U.S. 722, 750 (1991), Stokley is barred from
litigating this procedurally defaulted claim in a federal habeas
proceeding unless he can show both cause for the default and
actual prejudice resulting from the alleged error. Because
Stokley cannot establish prejudice and thus does not meet the
exceptional circumstances threshold, we deny his motion to
stay the mandate.

    We assume without deciding that there was a Maples
error. But regardless of whether Maples provides Stokley
cause to excuse his procedural default, Stokley has not made
a sufficient showing of actual prejudice. Stokley must
establish “not merely that the [alleged error] . . . created a
possibility of prejudice, but that [it] worked to his actual and
substantial disadvantage,” infecting the entire proceeding
with constitutional error. See Murray v. Carrier, 477 U.S.
478, 494 (1986) (citation omitted) (emphasis in original); see
also Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)
(prejudice requires a showing that the error has a “substantial
and injurious effect” on the sentence).

   Stokley has a colorable claim that the Arizona Supreme
Court, when it reviewed evidence of his abusive childhood
and his behavior during pre-trial incarceration, violated the
Eddings principle that the court must consider, as a matter of
law, all relevant mitigating evidence. See Arizona v. Stokley,
898 P.2d 454, 473 (Ariz. 1995) (“A difficult family
background alone is not a mitigating circumstance. . . . This
can be a mitigating circumstance only ‘if a defendant can
6                      STOKLEY V . RYAN

show that something in that background had an effect or
impact on his behavior that was beyond the defendant’s
control.’ . . . Although he may have had a difficult childhood
and family life, [Stokley] failed to show how this influenced
his behavior on the night of the crimes.”) (citations omitted);
id. (“Although long-term good behavior during post-sentence
incarceration has been recognized as a possible mitigating
factor, . . . we, like the trial court, reject it here for pretrial
and presentence incarceration.”).

    However, on balance, the Arizona Supreme Court’s
opinion suggests that the court did weigh and consider all the
evidence presented in mitigation at sentencing. See Stokley,
898 P.2d at 468 (“Consistent with our obligation in capital
cases to independently weigh all potentially mitigating
evidence . . . [w]e turn, then, to a consideration of the
mitigating factors.”); id. at 472 (“As part of our independent
review, we will address each alleged mitigating
circumstance.”); id. at 468 (“The sentencing judge must
consider ‘any aspect of the defendant’s character or record
and any circumstance of the offense relevant to determining
whether the death penalty should be imposed.’ . . . The
sentencing court must, of course, consider all evidence
offered in mitigation, but is not required to accept such
evidence.” (citations omitted)); id. at 465 (“[T]his court
independently reviews the entire record for error, . . .
considers any mitigating circumstances, and then weighs the
aggravating and mitigating circumstances sufficiently
substantial to call for leniency.”); id. at 473 (“Family history
in this case does not warrant mitigation. Defendant was
thirty-eight years old at the time of the murders.”). The
Arizona Supreme Court carefully discussed all the statutory
and non-statutory mitigating factors, step by step, in separate
paragraphs in its opinion. See id. at 465-74.
                      STOKLEY V . RYAN                         7

     However, even assuming the Arizona Supreme Court did
commit causal nexus error as to Stokley’s good behavior in
jail and his difficult childhood, Stokley cannot demonstrate
actual prejudice because he has not shown that the error, if
any, had a substantial and injurious impact on the verdict. An
error requires reversal only if it “had substantial and injurious
effect or influence in determining the . . . verdict.’” Brecht,
507 U.S. at 623 (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)); cf. Cullen v. Pinholster, 131 S. Ct. 1388,
1408 (2011) (holding in a Strickland challenge that the test
for prejudice at sentencing in a capital case is “whether there
is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.” (internal quotation marks omitted)).

    The Arizona Supreme Court reviewed and discussed each
of the aggravating and mitigating factors individually. The
court found three statutory aggravating circumstances were
proven beyond a reasonable doubt: (1) Stokley was an adult
at the time the crimes were committed and the victims were
under the age of fifteen; (2) Stokley was convicted of another
homicide committed during the commission of the offense;
and (3) Stokley committed the offense in an especially
heinous, cruel, and depraved manner. 898 P.2d at 465-68.
The Arizona Supreme Court’s conclusion that there were no
grounds here substantial enough to call for leniency is
consistent with the sentencing court’s determination that
“even if any or all of the mitigating circumstances existed,
‘balanced against the aggravating circumstances found to
exist, they would not be sufficiently substantial to call for
8                         STOKLEY V . RYAN

leniency.’”1 Id. at 471. And, the sentencing court noted as to
Stokley’s childhood that “[t]he evidence, at best, is
inconsistent and contradictory.”        The Arizona courts
considered the mitigation evidence—including good behavior
in jail and childhood circumstances— insufficient to warrant
leniency. In light of the Arizona courts’ consistent
conclusion that leniency was inappropriate, there is no
reasonable likelihood that, but for a failure to fully consider
Stokley’s family history or his good behavior in jail during
pre-trial incarceration, the Arizona courts would have come
to a different conclusion. See Hitchcock v. Dugger, 481 U.S.
393, 399 (1987) (referencing harmless error in connection
with the exclusion of non-statutory mitigating evidence). In
sum, because the claimed causal nexus error, if any, did not
have a substantial or injurious influence on Stokley’s
sentence, Stokley cannot establish prejudice. Brecht, 507 U.S.
at 630-34.

    In light of the high bar that must be met for this court to
stay the mandate, Stokley’s motion to stay the mandate is
DENIED.


    1
    The sentencing court found the following facts beyond a reasonable
doubt. Stokley was convicted of murdering two 13-year-old girls over the
July 4th weekend in 1991. Stokley is a person of above average
intelligence. At the time of the crime, he was 38 years old. Stokley
intended that both girls be killed. He killed one of the girls and his
co-defendant killed the other. Before the men manually strangled the girls
to death, both men had sexual intercourse with the victims. Both bodies
“were stomped upon with great force,” and one of the children bore “the
clear chevron imprint” from Stokley’s tennis shoes on her chest, shoulder,
and neck. Both victims were stabbed in their right eyes with Stokley’s
knife, one through to the bony structure of the eye socket. The girls likely
were unconscious at the time of the stabbing. The girls’ bodies were
dragged to and thrown down a mine shaft.
                      STOKLEY V . RYAN                         9

PAEZ, Circuit Judge, 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 first address why Maples error exists in this case. Then
I turn to the majority’s incorrect and unrestrained analysis of
prejudice.

I. Stokley has shown abandonment

    Maples is not limited solely to actual abandonment. To
obtain the remand he requests, Stokley need only make a
prima facie showing of abandonment under Maples that
10                      STOKLEY V . RYAN

might constitute cause to overcome procedural default. See
Moorman v. Schriro, 672 F.3d 644, 647-48 (9th Cir. 2012).
Despite the extremely limited briefing on the pending motion,
Stokley has made such a prima facie case of abandonment.
Moreover, as the majority recognizes, he has a colorable
underlying constitutional claim. Our inquiry should end there.
I would grant the motion and remand to the district court for
determination of cause and prejudice and, if appropriate, the
merits of Stokley’s constitutional claim.1

     Maples rests squarely on agency principles. 132 S. Ct. at
922-24. To explain how an agency relationship may be
actually or constructively severed, the Supreme Court relied
on Justice Alito’s concurrence in Holland v. Florida, 560
U.S. ––––, 130 S. Ct. 2549 (2010), to distinguish attorney
negligence from abandonment. “Common sense dictates that
a litigant cannot be held constructively responsible for the
conduct of an attorney who is not operating as his agent in
any meaningful sense of that word.” 132 S. Ct. at 923 (citing
Holland, 130 U.S. at 2568 (Alito, J., concurring)). Justice
Alito’s concurrence in Holland also noted that the agency
relationship is constructively severed “particularly so if the
litigant’s reasonable efforts to terminate the attorney’s
representation have been thwarted by forces wholly beyond
the petitioner’s control.” Holland, 130 S. Ct. at 2568. Indeed,
our court’s precedent—while not finding
abandonment—recognizes that Maples rests on agency
principles and that a serious breach of loyalty can sever the
attorney-client relationship in a manner that may constitute


 1
    I agree with the majority’s assumption that Maples may be sufficient
to establish the “exceptional circumstance” necessary to justify the
exercise of this court’s power to stay the mandate following a denial of
certiorari.
                      STOKLEY V . RYAN                       11

constructive abandonment sufficient to establish cause. See
Towery v. Ryan, 673 F.3d 933, 942-43 (9th Cir. 2012) cert.
denied, 132 S. Ct. 1738 (2012) (separately analyzing two
prongs of actual abandonment or “serious breach of loyalty”
and distinguishing Holland, which involved violations of
fundamental canons of professional responsibility, from
Towery’s circumstances, which did not).

     In light of Maples, it is now recognizable that Stokley’s
situation in postconviction proceedings was worse than
simply “unenviable.” 659 F.3d at 810. Here, the attorney-
client relationship was irrevocably broken. Further, the record
demonstrates that, once the state was successful in forcing it
to be put back together, postconviction counsel Harriette
Levitt actively undermined the work of Stokley’s replacement
counsel and prevented Stokley from investigating and raising
his own claims. While it has no legal bearing on the present
issue, I note at the outset that Harriette Levitt is the same
attorney whose conduct was at issue in the Supreme Court’s
recently-created ineffective assistance of counsel exception
to the once settled rule in Coleman. Martinez v. Ryan, 132 S.
Ct. 1309 (2012). Whereas the petitioner in Maples “in reality
. . . had been reduced to pro se status,” 132 S. Ct. at 927,
Levitt’s actions regarding Stokley’s attempts to fairly present
his claims arguably left him in a situation worse than a pro se
petitioner. If there were ever a case for constructive
abandonment under Maples, this is it.

    Levitt filed her first post-conviction petition eight months
after being assigned to the case. During these eight months,
she initiated no contact with Stokley. The only
communication she had with Stokley was a twenty-minute
collect phone call he placed to her. Levitt did not conduct any
independent investigation during this period, other than a few
12                    STOKLEY V . RYAN

telephone calls lasting less than a total of two hours.
According to Stokley, Levitt did not even receive the trial
transcripts until more than six months after her appointment,
and after the deadline for filing Stokley’s petition had passed.

    When Levitt finally filed Stokley’s petition, she raised
only two claims and wrote only three and a half pages of legal
argument. Levitt’s billing records indicate that, aside from
reviewing Stokley’s file and transcript, she spent no more
than ten hours researching and writing his petition for post-
conviction relief. Stokley immediately recognized the
inadequacy of the petition and called Levitt to object. Levitt
told him that his “trial attorneys didn’t make any mistakes”
and that he would “probably be executed in 2 or 3 years.”

    Stokley then took every action he could think of to object
to Levitt’s continued representation. He wrote a letter to the
Superior Court judge, expressing his concerns about the
brevity of the petition and Levitt’s lack of interest and
diligence. He wrote that he found it “evident that my present
appeal has been handled with a lick and a promise, rather than
being given the conscientious analysis and preparation which
should be applied.” He asked the court to “appoint an
attorney who will apply his or her self and try to do a
competent job in this matter.” He sent a similar letter to the
Arizona Capital Representation Project asking for help. The
Superior Court forwarded Stokley’s letter to Levitt but took
no other action.

    Stokley also filed a complaint with the State Bar of
Arizona protesting Levitt’s handling of his case. The Bar
overlooked the posture of Stokley’s case and responded that
his complaint could be dealt with in post-trial proceedings,
noting that “[i]f there [was] a judicial determination that the
                      STOKLEY V . RYAN                        13

lawyer acted improperly, [the Bar] would review the matter
at that time.”

    Not surprisingly, the Superior Court denied Levitt’s two-
claim petition. Levitt then filed a motion to withdraw as
Stokley’s counsel, citing the Bar complaint filed against her.
She wrote that “[t]here has . . . been a complete breakdown of
the attorney-client relationship.” The court granted the
request and appointed Carla Ryan as replacement counsel.

     The state immediately moved to reinstate Levitt as
Stokley’s counsel. The state argued that the initial petition
had already been denied, and so there was “no valid reason
for . . . paying yet another defense attorney to review the
voluminous record for the first time.” The state argued in the
alternative for the court to limit the scope of Ryan’s
representation, arguing that, if replacement counsel were
appointed, she should be forbidden to “supplement the
already-adjudicated petition in some manner,” because
Arizona rules “do not allow for any such thing.” Notably,
however, the Arizona Supreme Court eventually did permit
Levitt to file a supplemental Rule 32 petition, specifically
allowing her to “raise any issue . . . even though it may not
have been included in her first petition for post-conviction
relief.” The state also objected to Ryan’s request for co-
counsel in an unprofessionally worded opposition, arguing
that Ryan was requesting a “side-kick” to “milk[] this case for
all it is worth as a cash cow. . . . Capital litigation is not an
unlimited pot-boiler for the enrichment of private attorneys.”
The Superior Court ordered Levitt reinstated, over the
objections of both Levitt and Stokley.

    Ryan was Stokley’s attorney for only one month. During
that month, she spent much of her time responding to the
14                   STOKLEY V . RYAN

state’s attempt to have her removed as counsel. Ryan also
moved for reconsideration of the denial of Stokley’s post-
conviction petition, and sought to amend the petition. Her
proposed amended petition included a list of thirty-one new
possible claims for relief. Ryan included a claim regarding
the ineffectiveness of Levitt. She argued that “the substance
of the Petition is deficient” and noted misstatements of law
prejudicial to Stokley. Ryan specifically noted that she had
not had an opportunity to do a full investigation, and that
“other issues may need to be raised.”

    After one month, Ryan was removed and Levitt was
reinstated. Once reinstated, Levitt actively moved to defend
herself and undermine Stokley’s case. Levitt systematically
argued against the claims raised by Ryan. She noted that
some were “already raised,” others “relate[d] to strategic
decisions by the respective attorneys,” others were “contrary
to well-established caselaw,” and still others were “not
supported by the facts of the case.” Unexplainably, one of the
claims Levitt derided as completely meritless was resurrected
as the first of two additional claims in the supplemental Rule
32 petition. Thus, Levitt’s petition for review and later
supplemental filing suggest an overriding concern with
defending herself from the “attack on the effectiveness of
undersigned counsel, all of which is meritless” rather than
any loyal advocacy.

    After Levitt was reinstated, Stokley wrote a letter to the
Arizona Supreme Court asking for the reappointment of
Ryan. This request was denied. Stokley then attempted to
prepare his own claims and asked Levitt for a copy of the
record. Levitt refused to give it to him. By failing to do so,
she interfered with Stokley’s attempts to fairly present his
claims.
                      STOKLEY V . RYAN                       15

    The record shows that (1) both Stokley and his counsel
agreed that their relationship had completely broken down;
(2) Stokley took numerous steps to try to terminate the
relationship and to obtain new counsel; (3) Levitt was
reinstated as counsel over Stokley’s and her own objections;
(4) Levitt was the subject of a Bar complaint; and (5) after
she was reinstated as Stokley’s attorney, Levitt’s primary
concern was to defend herself against misconduct charges.
She disavowed and undermined the work Ryan had done on
Stokley’s behalf, and refused Stokley access to his case file
which limited his ability to marshal evidence and raise his
own claims. Levitt ultimately came to the point where she
was actively working against Stokley.

    Stokley did everything in his power to sever his
relationship with Levitt. The state vigorously advocated to
make sure that Levitt was reinstated as his counsel. After the
state prevailed, Levitt in effect worked in the state’s interest
rather than in her client’s. As Stokley has argued before the
district court and in the moving papers here, Levitt “took up
the mantle of the prosecutor.” It is hard to imagine a clearer
case for constructive abandonment.

    The touchstone for understanding the Court’s decision in
Maples is Justice Alito’s concurrence in Holland, which the
Court relies upon in explaining the meaning of
“abandonment.” Holland, 130 S.Ct. at 2568. Justice Alito was
not describing what happened in Stokley’s case. But he might
as well have been.
16                       STOKLEY V . RYAN

II. Stokley’s colorable Eddings claim is sufficient
    prejudice to obtain remand.

    Addressing prejudice at this stage is inconsistent with our
prior precedent. Nevertheless, I feel compelled to respond to
the majority’s argument.

    The majority first states that, while Stokley’s causal nexus
claim is colorable, the Arizona Supreme Court committed no
actual error. This is incorrect. The majority goes on to assume
that, even if the Arizona Supreme Court committed causal
nexus error, the error was harmless. I address the second issue
first, where the majority conflates structural and harmless
error in a manner that confuses our prior case law and,
without analysis, potentially closes an open and important
question in the habeas law of our circuit.2 Whatever the
ultimate outcome in Stokley’s case might have been had we
remanded, by conflating structural and harmless error the
majority creates tension with our prior case law and in my
view sets a bad precedent.



  2
     As I understand it, the Supreme Court has not addressed whether
Eddings error is structural nor has this court squarely examined the issue.
Compare Landrigan v. Stewart, 272 F.3d 1221, 1230 & n.9 (9th Cir.
2001) (applying harmless error review to the state court’s failure to
consider the defendant’s alleged intoxication and past history of drug use
as a nonstatutory mitigating factor), adopted by Landrigan v. Schriro, 501
F.3d 1147, 1147 (9th Cir. 2007) (en banc) (order), with Williams v. Ryan,
623 F.3d 1258, 1270-71 (9th Cir. 2010) (granting habeas relief for an
Eddings violation without conducting a harmless error analysis), and
Styers v. Schriro, 547 F.3d 1026, 1035-36 (9th Cir. 2008) (same). Other
circuits are split on the issue. Compare Bryson v. Ward, 187 F.3d 1193,
1205 (10th Cir. 1999) (collecting cases applying harmless error review),
with Nelson v. Quarterman, 472 F.3d 287, 314 (5th Cir. 2006) (en banc)
(declining to apply harmless error review).
                     STOKLEY V . RYAN                       17

     Our prior cases have treated Eddings error as structural.
We have consistently reversed and remanded Eddings cases
to the Arizona courts for resentencing, without inquiring as to
the likelihood of a different sentencing result. See, e.g.,
Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010); Styers v.
Schriro, 547 F.3d 1026 (9th Cir. 2008). If an Eddings error is
structural, as our cases suggest, prejudice is per se.

     Citing Hitchcock v. Dugger, 481 U.S. 393, 399 (1987),
the panel concludes that Eddings errors are subject to
harmless error review under Brecht v. Abrahamson, 507 U.S.
619 (1993). Even assuming Eddings error is nonstructural, the
panel appears to have erred in applying Brecht here because
the state did not argue harmlessness in this court (until its
response to the petition for rehearing), an issue on which the
state bears the burden. See Hitchcock, 481 U.S. at 399
(“Respondent has made no attempt to argue that this error
was harmless, or that it had no effect on the jury or the
sentencing judge. In 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 best I can
tell, after finding Eddings error on habeas review, we have
never engaged in harmless error review of the sort engaged in
here.

    Turning back to the majority’s finding that no Eddings
violation occurred, I am unpersuaded by the panel’s analysis.
Here, the Arizona Supreme Court did precisely what the
Eighth Amendment prohibits—it treated mitigating evidence
of Stokley’s abusive childhood as nonmitigating as a matter
of law merely because it lacked a causal connection to the
crime. The state court said:
18                   STOKLEY V . RYAN

       According to a clinical psychologist,
       defendant had a chaotic and abusive
       childhood, never knowing his father and
       having been raised by various family
       members. A difficult family background alone
       is not a mitigating circumstance. State v.
       Wallace, 773 P.2d 983, 986 (1989), cert.
       denied, 494 U.S. 1047 (1990). This can be a
       mitigating circumstance only “if a defendant
       can show that something in that background
       had an effect or impact on his behavior that
       was beyond the defendant’s control.” Id. . . .
       Although [Stokley] may have had a difficult
       childhood and family life, he failed to show
       how this influenced his behavior on the night
       of the crimes.

State v. Stokley, 898 P.2d 454, 473 (Ariz. 1995) (emphasis
added).

    This is a clear-cut Eddings violation, and the panel
majority’s failure to recognize it cannot be squared with
circuit precedent. We cannot avoid finding an Eddings
violation, as the panel majority suggests, merely because the
Arizona Supreme Court said it considered all mitigating
evidence. See Styers, 547 F.3d at 1035. When a state court
“considers” mitigating evidence, but deems it irrelevant or
nonmitigating as a matter of law because of the absence of a
causal connection to the crime, the court has not considered
the evidence in any meaningful sense. See Penry v. Lynaugh,
492 U.S. 302, 319 (1989), abrogated on other grounds by
Atkins v. Virginia, 536 U.S. 304 (2002).
                     STOKLEY V . RYAN                       19

    Unlike the majority I would not reach the issues of either
prejudice with respect to procedural default or the merits of
the constitutional claim at this stage. When first presented
with this claim that the Arizona Supreme Court erred in its
review of the death sentence under Eddings and Skipper, the
district court declined to reach the merits because the claim
was technically exhausted and procedurally barred. Case
4:98-cv-00332-FRZ, Dkt 70, Order and Opinion on
Procedural Status of Claims at 15-16. No court has
considered the issue of prejudice—either as to procedural
default or to the merits of the constitutional claim—because,
prior to Maples, there was no cause for the procedural default.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). All that is
required for prejudice at this stage is that the claim has some
merit. Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012).

    Without the benefit of any briefing or lower court
consideration on the issue of prejudice arising from the
defaulted Eddings and Skipper claims, we are not in a
position to do what the majority does here. Rather than
foreclosing these claims at this stage, I would stay the
mandate and remand this case to the district court for the
limited purpose of allowing it to determine in the first
instance whether cause and prejudice exist, and to consider
the merits of the claim if warranted. We would then be in a
far better position to review the issue.

   For all of the above reasons, I respectfully dissent.
