               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GRAHAM S. HENRY,                     No. 09-99007
          Petitioner-Appellant,
                                        D.C. No.
              v.                  2:02-CV-00656-SRB

CHARLES L. RYAN,
          Respondent-Appellee.           ORDER


               Filed September 4, 2014

           Order by Chief Judge Kozinski;
          Concurrence by Judge W. Fletcher;
             Dissent by Judge Tallman
2                         HENRY V. RYAN

                           SUMMARY*


                Habeas Corpus/Death Penalty

    The court ordered that the case be reheard en banc.

    Concurring in the grant of rehearing en banc, Judge W.
Fletcher wrote that the court can stay proceedings in this
capital case, just as the court has in Poyson v. Ryan, 743 F.3d
1185 (9th Cir. 2014), and Clabourne v. Ryan, 745 F.3d 362
(9th Cir. 2014), to allow for the orderly and fair
administration of justice, where a potentially dispositive issue
in McKinney v. Ryan, 730 F.3d 903 (9th Cir. 2013), to be
reheard en banc Dec. 15, 2014 – whether an Eddings error by
the state court is structural – is potentially dispositive in this
case.

    Dissenting from the grant of rehearing en banc, Judge
Tallman, joined by Judges O’Scannlain, Callahan, Bea, and
Ikuta, wrote that by taking this capital habeas case en banc
now – after certiorari has been denied by the Supreme Court
and well after the deadline for en banc review by this court
has passed – this court violates the Federal Rules of Appellate
Procedure and the court’s own General Orders, and ignores
recent Supreme Court authority that has reversed this court
for doing the same thing in the past.




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

                         ORDER

KOZINSKI, Chief Judge:

     Upon the vote of a majority of nonrecused active judges,
it is ordered that this case be reheard en banc pursuant to
Federal Rule of Appellate Procedure 35(a) and Circuit Rule
35-3. The April 8, 2014, three-judge panel order denying
Henry’s motion to reconsider the panel’s November 1, 2013,
order denying the petition for panel rehearing shall not be
cited as precedent by or to any court of the Ninth Circuit.

    Judges Murguia and Friedland did not participate in the
deliberations or vote in this case.



Judge W. FLETCHER, concurring in the grant of rehearing
en banc:

    On June 19, 2013, a three-judge panel of our court
unanimously denied habeas relief in this capital case. Henry
v. Ryan, 720 F.3d 1073 (9th Cir. 2013). Among other things,
Henry claimed that the Arizona courts had committed an
error under Eddings v. Oklahoma, 455 U.S. 104 (1982). The
panel assumed without deciding that the Arizona courts had
committed an Eddings error. 720 F.3d at 1091. It
nonetheless denied relief on the ground that any error was
harmless under the standard of Brecht v. Abrahamson,
507 U.S. 619 (1993). The panel did not apply a structural
error standard. Id. at 1089. On November 1, the panel denied
Henry’s petition for rehearing. No member of our court
called the case en banc.
4                      HENRY V. RYAN

    On March 12, 2014, our court granted en banc review of
McKinney v. Ryan, 730 F.3d 903 (9th Cir. 2013). A central
question before the en banc court in McKinney will be
whether Eddings error is structural. On March 14, two days
after we granted en banc review in McKinney, Henry moved
for full-court reconsideration of the denial of his petition for
rehearing en banc in light of McKinney. On March 27, the
judge of our court who serves as en banc coordinator entered
an order, on behalf of the court, denying the motion as
procedurally improper.

    Then, in a motion for reconsideration addressed to the
three-judge panel, Henry sought a stay of proceedings in light
of the grant of en banc rehearing in McKinney and the grant
of a stay in Poyson v. Ryan, 743 F.3d 1185 (9th Cir. 2014).
Poyson is a separate Eddings case in which the three-judge
panel had denied habeas relief and in which an en banc call
had failed. Noting that the panel in Poyson had stayed
proceedings to await the outcome in McKinney, Henry wrote
in his motion:

       Mr. Henry is similarly situated to Mr. Poyson:
       Mr. Henry and Mr. Poyson both raised a
       causal-nexus issue in their petitions for
       rehearing, and their petitions for rehearing
       were denied within one week of each other.
       Mr. Poyson’s panel has now amended its
       order denying panel rehearing and is instead
       staying the case pending the resolution of
       McKinney. [If the panel denies Mr. Henry’s
       motion,] [t]he prejudice to Mr. Henry will be
       great—he will be executed, while Mr.
       McKinney or Mr. Poyson may be spared.
                      HENRY V. RYAN                          5

Motion at 7. Henry therefore asked the panel to “stay the
proceedings pending the resolution of the en banc
proceedings in McKinney.” Id. at 8.

    On April 8, the panel denied Henry’s motion on the
merits. Two of the panel judges joined in a published per
curiam order. The third judge, the author of the panel opinion
that had denied habeas relief, dissented, contending that the
panel should stay proceedings to await McKinney. Two days
later, on April 10, a judge of our court called en banc the
panel’s order. After an exchange of memoranda arguing for
and against the en banc call, in accordance with our usual
practice, a majority of the active judges on our court voted to
reconsider en banc the panel’s order denying the stay.

    Some of our colleagues now dissent from our court’s
decision to rehear en banc the panel’s order. They do not
dispute that a potentially dispositive issue in McKinney—
whether an Eddings error by the state court is structural—is
also potentially dispositive in Henry. They nonetheless
contend that we should not reconsider en banc the panel’s
order. With respect, our dissenting colleagues are mistaken.

    Our dissenting colleagues’ first contention may be
disposed of fairly quickly. They contend that our court has
acted improperly under our own internal procedures in voting
to reconsider en banc the panel’s order. They contend that
the call came too late. If the calling judge had called en banc
on April 10 the panel’s decision denying habeas relief in
Henry’s case, the dissenters would be correct. But the calling
judge did not do that. Rather, the calling judge called en banc
the panel’s April 8 order denying Henry’s request to stay
proceedings to await McKinney.
6                     HENRY V. RYAN

    Federal Rule of Appellate Procedure 35(a)(1) provides
that en banc reconsideration is appropriate when “necessary
to secure or maintain uniformity of the court’s decisions.”
Ninth Circuit Rule 27-10(b) specifically contemplates that
orders issued in response to motions may be reheard en banc,
as does our General Order 6.11. Our long-standing and
consistent practice has been to allow en banc calls of orders,
see, e.g., Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001)
(en banc) (en banc rehearing of a panel order denying a stay
of removal), even when those orders have been entered after
the panel’s decision on the merits of a case. See, e.g., Garcia
v. Google, Inc., No. 12-57302, Docket Entry No. 46 (9th Cir.
Mar. 6, 2014) (order issued by our en banc coordinator
notifying the parties that an order of the three-judge panel
“denying a stay of the panel’s prior orders” had been called
en banc, and noting that “[t]he en banc call is confined to the
stay order only, and the parties should address only the order
in the briefing”).

   Our dissenting colleagues’ other contentions deserve
more sustained attention.

     Our dissenting colleagues contend that because the
Supreme Court has denied certiorari, Federal Rule of
Appellate Procedure 41(d)(2)(D) requires immediate issuance
of the mandate. Dissent at 25–27. The language upon which
they rely provides, “The court of appeals must issue the
mandate immediately when a copy of a Supreme Court order
denying the petition for writ of certiorari is filed.” If taken
out of context, this language means what the dissenters want
it to mean. But if taken in context, it does not.
                    HENRY V. RYAN                       7

In relevant part, Rule 41 provides as follows:

   (b) When Issued. The court’s mandate must
   issue 7 days after the time to file a petition for
   rehearing expires, or 7 days after entry of an
   order denying a timely petition for panel
   rehearing, petition for rehearing en banc, or
   motion for stay of mandate, whichever is
   later. The court may shorten or extend the
   time.

   ...

   (d) Staying the Mandate.

         (1) On Petition for Rehearing or
         Motion. The timely filing of a petition
         for panel rehearing, petition for rehearing
         en banc, or motion for stay of mandate,
         stays the mandate until disposition of the
         petition or motion, unless the court orders
         otherwise.

         (2) Pending Petition for Certiorari.

            (A) A party may move to stay the
            mandate pending the filing of a
            petition for a writ of certiorari in the
            Supreme Court. The motion must be
            served on all parties and must show
            that the certiorari petition would
            present a substantial question and that
            there is good cause for a stay.
8                     HENRY V. RYAN

               (B) The stay must not exceed 90 days,
               unless the period is extended for good
               cause or unless the party who obtained
               the stay files a petition for the writ and
               so notifies the circuit clerk in writing
               within the period of the stay. In that
               case, the stay continues until the
               Supreme Court’s final disposition.

               ...

               (D) The court of appeals 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 (emphasis added).

    The Supreme Court has not read Rule 41(d)(2)(D) in the
way our dissenting colleagues want to read it. The Court
reads it to apply only to stays of mandate entered for the sole
purpose of allowing the Supreme Court to consider a petition
for certiorari. When a stay of mandate is entered for some
other purpose, Rule 41(b) applies.

    Our Circuit Rule 22-2(e) provides, “When the panel
affirms a denial or reverses a grant of a first petition or
motion [in a capital case], it shall enter an order staying the
mandate pursuant to FRAP 41(b).” Acting on behalf of the
panel, the clerk’s office in this case stayed the mandate
pursuant to Rule 41(b), as it routinely does in all capital
cases. That stay remains in effect.
                      HENRY V. RYAN                         9

    In Bell v. Thompson, 545 U.S. 794 (2005), and Ryan v.
Schad, 133 S. Ct. 2548 (2013), the Supreme Court held that
the mandate should have been issued after a denial of
certiorari. But the Court made clear in both Bell and Schad
that Rule 41(d)(2)(D) is the “default rule” applicable only to
stays entered solely for the purpose of allowing time for the
Supreme Court to consider a petition for certiorari. The
Court wrote in Bell:

       In the typical case, where the stay of mandate
       is entered solely to allow this Court time to
       consider a petition for certiorari, Rule
       41(d)(2)(D) provides the default: “The court
       of appeals must issue the mandate
       immediately when a copy of a Supreme Court
       order denying the petition for writ of certiorari
       is filed.”

545 U.S. at 806 (emphasis added). The Court quoted this
language from Bell in Schad. See 133 S. Ct. at 2550. In
Schad, the Court explained the reason for Rule 41(d)(2)(D):

       Federal Rule of Appellate Procedure
       41(d)(2)(D) sets forth the default rule that
       “[t]he court of appeals must issue the mandate
       immediately when a copy of a Supreme Court
       order denying the petition for writ of certiorari
       is filed.” (Emphasis added.) The reason for
       this Rule is straightforward: “[T]he stay of
       mandate is entered solely to allow this Court
       time to consider a petition for certiorari.”
       Bell, 545 U.S.[ ]at 806[.]
10                    HENRY V. RYAN

133 S. Ct. at 2550 (first and second alterations in original)
(second emphasis added).

    The Court’s explanation of the reason for the “default
rule” makes plain the scope of Rule 41(d)(2)(D). When a
stay of mandate is entered “solely” for the purpose of
allowing the Court to consider a petition for certiorari, the
stay has served its purpose as soon as the Court denies
certiorari. In that case, the mandate must issue immediately.
But there is a negative pregnant in the Court’s explanation.
When a stay of mandate serves a purpose other than allowing
the Court time to consider a petition for certiorari, the
“default rule” does not apply.

    If a stay is not entered for the sole purpose of allowing
time for the Court to consider a petition for certiorari, the
governing language is in Rule 41(b): “The court may shorten
or extend the time.” Immediately before the passage from
Bell, quoted above, the Court wrote, with respect to Rule
41(b):

       While Rule 41(b) may authorize a court to
       stay the mandate after certiorari is denied, the
       circumstances where such a stay would be
       warranted are rare. See, e.g., First Gibraltar
       Bank, FSB v. Morales, 42 F.3d 895 (CA5
       1995); Alphin v. Henson, 552 F.2d 1033 (CA4
       1977).

545 U.S. at 806.

    In First Gibraltar and Alphin, cited with approval in Bell
as examples of “rare” cases in which a stay was appropriate,
the courts of appeals stayed the mandate after the Court
                       HENRY V. RYAN                         11

denied certiorari. In both cases, there was a reason for the
stay independent of the Supreme Court’s consideration of the
petition for certiorari, based on something that had occurred
before the filing of the Court’s denial. In First Gibraltar, the
Fifth Circuit had stayed the mandate before the Court’s denial
of certiorari not only to allow time for the Court to consider
the petition for certiorari. It had also stayed the mandate “for
a reason independent of the petition for certiorari”—“to
permit an en banc poll.” 42 F.3d at 897–98. In Alphin, the
Fourth Circuit had stayed the mandate in order to allow the
Court to consider a petition for certiorari. Four days after the
Court denied certiorari, but before the order denying
certiorari was received by the Fourth Circuit, that court stayed
the mandate in order to decide the plaintiffs’ motion for leave
to file a second petition for rehearing. 552 F.2d at 1034.

    In the case now before us, we have both of these
circumstances. We have continued to stay the mandate,
despite the denial of certiorari, in order “to permit an en banc
poll” (First Gibraltar), and we have done so in order to
decide a motion for reconsideration (Alphin). The Court
wrote in Bell that cases such as First Gibraltar and Alphin are
“rare.” But they do exist, and First Gibraltar and Alphin
demonstrate that the case now before us is one of them.

    Our dissenting colleagues also contend that Henry has not
satisfied the “extraordinary circumstances” test of Bell and
Schad. See Dissent at 27–29. We do not believe that the
“extraordinary circumstances” test of Bell and Schad applies
to this case. In Bell and Schad, the only basis for the stay was
Rule 41(d)(2). The fact that there are reasons to stay
proceedings other than for the purpose of allowing the
Supreme Court to consider Henry’s petition for certiorari
means that this case is governed instead by Rule 41(b), with
12                     HENRY V. RYAN

the result that “extraordinary circumstances” within the
meaning of Bell and Schad are not required. Our dissenting
colleagues nonetheless contend that “extraordinary
circumstances” are required, and that Bell and Schad compel
us to issue the mandate.

    In Bell, the Court reversed the Sixth Circuit, which had
withheld its mandate “without entering a formal order” for
more than five months after denial of a petition for rehearing
of a denial of certiorari by the Court. 545 U.S. at 796, 804.
After having previously affirmed the district court’s denial of
habeas relief in a capital case, the Sixth Circuit issued a new
opinion vacating the district court’s decision and remanding
for an evidentiary hearing two days before a scheduled
execution and more than five months after the Court had
denied the petition for rehearing of its denial of certiorari.
Bell, 545 U.S. at 799, 801; Schad, 133 S. Ct. at 2551. The
Court held that the Sixth Circuit had abused its discretion for
three interrelated reasons.

    The Court first emphasized that the Sixth Circuit had not
informed the parties that it was reconsidering its decision. On
the assumption that the mandate had issued, the State of
Tennessee scheduled an execution date, which, “in turn, led
to various proceedings in state and federal court to determine
Thompson’s present competency to be executed.” 545 U.S.
at 805. The Court wrote, “The Court of Appeals could have
spared the parties and the state judicial system considerable
time and resources if it had notified them that it was
reviewing its original panel decision.” Id. Further, the Court
noted that the Sixth Circuit had very little basis for reversing
itself and issuing a new opinion. Id. at 806–13. Finally, the
Court concluded that the Sixth Circuit had not accorded
sufficient respect to the state court judgment. The Court
                      HENRY V. RYAN                         13

wrote, “By withholding the mandate for months—based on
evidence that supports only an arguable constitutional
claim—while the State prepared to carry out Thompson’s
sentence, the Court of Appeals did not accord the appropriate
level of respect to that judgment.” Id. at 813; see also Schad,
133 S. Ct. at 2551 (summarizing the three reasons given in
Bell).

    In Schad, decided eight years later, the Court denied
certiorari. After the Court’s denial, Schad moved in our court
to stay the mandate to await the result of a pending en banc
case. Id. at 2550. We declined to issue a stay on that ground.
Id. Instead, on February 1, 2013, one month before the state
ultimately planned to execute Schad, we sua sponte construed
Schad’s motion as a motion to reconsider our prior denial of
his motion to remand to the district court in light of Martinez
v. Ryan, 132 S. Ct. 1309 (2012). Id. We then granted the
motion, as we had sua sponte construed it, and remanded to
the district court for proceedings under Martinez. Id.

     The Court in Schad described Bell, and then wrote that we
had “similarly” abused our discretion in Schad. Id. at 2551.
The Court pointed out that “months earlier,” in July 2012, we
had denied a motion to remand to the district court to address
the Martinez issue. Id. at 2250–51. The Court wrote that
arguments made in favor of remand in February 2013 were
“identical” to arguments we had rejected in July 2012. Id. at
2252. Further, when we decided in February 2013 not to
issue the mandate, it had been ten months since the Court’s
decision in Martinez, and nearly seven months since we had
initially rejected Schad’s Martinez request. Id. at 2251–52.

   The circumstances in this case are very different.
14                     HENRY V. RYAN

    First, when the Court denied certiorari in Bell and Schad,
there were no ongoing proceedings in the court of appeals of
which the parties had notice. In Bell, one judge on the Sixth
Circuit had decided to reread the record and had found
evidence that had previously been overlooked. Based on that
evidence, the three-judge panel reversed its prior denial of
habeas and issued a new opinion two days before the
scheduled execution. See Bell, 545 U.S. at 801; Schad, 133 S.
Ct. at 2551. More than five months had elapsed between the
Court’s final disposition of the petition for certiorari and the
Sixth Circuit’s issuance of the new opinion. It is unclear
precisely when the Sixth Circuit judge reread the record. But
the important point, emphasized by the Court, was that during
the entire more-than-five-month period after the Court’s
denial of the petition for rehearing of the denial of certiorari,
no party was aware that the court of appeals was
reconsidering its previous denial of habeas. Likewise, in
Schad, the Court emphasized that there were no ongoing
proceedings in our court when it denied certiorari. After the
Court denied certiorari, the petitioner moved for a stay of the
mandate, and we then remanded to the district court for a
Martinez hearing.

    By contrast, there were ongoing proceedings in this case,
of which the parties were well aware, when the Supreme
Court denied certiorari. We granted en banc rehearing in
McKinney on March 12, 2014. Based on our grant of en banc
rehearing in McKinney, Henry promptly moved for
reconsideration of the panel’s previous denial of his petition
for rehearing, seeking a stay to await the result in McKinney.
The panel denied the motion on April 8. A judge of our court
called the panel’s decision en banc on April 10, and the
parties were made aware of the call. The State was asked to
                       HENRY V. RYAN                         15

provide a response to Henry’s motion, which it did on May 2.
The Supreme Court denied certiorari on June 9.

     Second, there was substantial detrimental reliance in Bell,
based on the lack of notice by the court that it was
considering further action. The Court in Bell was sharply
critical of the Sixth Circuit because its failure to enter a
formal stay after the denial of certiorari misled the state into
thinking that it could go forward with its scheduled execution
date. On the assumption that there was no stay of the
mandate, the parties conducted hearings in both state and
federal court concerning the petitioner’s competency to be
executed. 545 U.S. at 805. By contrast, there has been no
detrimental reliance based on lack of notice here. The state
has been aware, from the beginning, of Henry’s desire for
reconsideration in light of our grant of en banc rehearing in
McKinney.

    Third, there were substantial and unexcused delays in Bell
and Schad. In Bell, more than five months passed between
the Court’s final denial of certiorari and the issuance of the
Sixth Circuit’s new opinion, with no notice to the parties. In
Schad, we remanded to the district court to address the
Martinez issue ten months after Martinez was decided, and
seven months after we had initially denied a motion for a
Martinez remand. By contrast, Henry moved promptly for a
stay after en banc rehearing was granted in McKinney. The
panel’s order denying Henry’s motion was called en banc two
days after the order was entered. The parties were notified
the following day. The Supreme Court did not deny certiorari
until nearly two months later.

    Fourth, there were no new facts or arguments in either
Bell or Schad that justified the courts’ changes of heart. In
16                     HENRY V. RYAN

Bell, the court had made a mistake by overlooking evidence,
and one judge investigated and evaluated the case anew based
on evidence that had been previously submitted in a motion
to supplement the record. 545 U.S. at 799–800. In Schad, we
had already denied a Martinez motion, and no new Martinez-
based argument caused the court to change its mind and grant
the motion it had previously denied. By contrast, the
argument made in Henry’s motion was a new argument,
based on the grant of en banc rehearing in McKinney. Henry
argued that consistency in the application of law required that
we await the outcome of our en banc rehearing in McKinney.
This consistency argument had not been made previously.
Indeed, it could not have been because en banc rehearing had
not yet been granted.

     Fifth, the relief awarded in Bell and Schad interrupted
imminent executions. In Bell, the Sixth Circuit’s opinion
reversing its denial of habeas relief was issued two days
before the scheduled execution. Schad, 133 S. Ct. at 2551.
In Schad, our order remanding to the district court for a
Martinez hearing was entered just over a month before the
state ultimately planned to execute Schad. Id. at 2550. In
both cases, the relief interrupted, at a late date, an orderly
process that was then underway. By contrast, there is no
scheduled execution in Henry, and a stay of the mandate
would not interrupt an orderly process. Indeed, the converse
is true. If a stay of the mandate is not granted, the orderly en
banc process that is now underway would be interrupted.

    In short, this case is nothing like Bell or Schad. We did
not stay the mandate for five months following the Supreme
Court’s denial of a petition for rehearing of a denial of
certiorari “without entering a formal order,” with no notice to
the parties. See Bell, 545 U.S. at 796, 805. We did not, after
                      HENRY V. RYAN                         17

five months of such silence, issue a new opinion reversing
course. See id. at 801. We are not considering “identical”
arguments that we had previously rejected. See Schad, 133
S. Ct. at 2552; see also Bell, 545 U.S. at 806 (noting that the
court of appeals had already rejected “the same arguments”
that it later adopted). We are not, at the last minute,
disrupting a scheduled execution in which the state has
already invested considerable time and resources in
preparation. See Schad, 133 S. Ct. at 2551.

    Instead, there were ongoing proceedings in Henry, of
which the parties were well aware and in which they were
fully involved, when the Supreme Court denied certiorari.
There have been no substantial, unexcused delays: Henry
moved for reconsideration shortly after en banc rehearing was
granted in McKinney. The panel’s order denying Henry’s
motion was called en banc two days after the panel’s denial.
The argument made in Henry’s motion for reconsideration
was a new argument, based on the grant of en banc rehearing
in McKinney—an argument that had not, and could not have,
been made previously. Finally, no orderly execution process
has been scheduled that we are disrupting at the last minute.
If anything, if a stay of mandate is not continued, the orderly
en banc process currently pending would be interrupted.

    Because the relevant rule is Rule 41(b) rather than Rule
41(d)(2)(D), the “extraordinary circumstances” test of Bell
and Schad does not apply to this case. The vast difference
between the circumstances in Bell and Schad and those in this
case demonstrate that those cases do not control. Instead,
First Gibraltar and Alphin, both cited with approval in Bell,
indicate that we properly exercised our authority under Rule
41(b).
18                     HENRY V. RYAN

                             ***

    A denial of a motion for reconsideration is, in ordinary
circumstances, utterly routine. But the circumstances here
are far from ordinary. A critical issue in Henry is whether an
Eddings error is structural, requiring automatic reversal. This
issue is common to a number of pending Arizona capital
cases. The Henry panel treated an Eddings error as non-
structural. The panel was unanimous, holding that any
Eddings error was harmless under Brecht. Henry, 720 F.3d
at 1089–91. No one called the panel’s decision en banc.

    But then the landscape changed. We narrowly decided
not to rehear en banc a second Eddings case, Poyson v. Ryan.
We then voted to take en banc a third Eddings case,
McKinney v. Ryan. McKinney was originally scheduled to be
heard en banc in June, but we postponed the hearing until we
could decide whether to take en banc yet a fourth Eddings
case, Hedlund v. Ryan, 750 F.3d 793 (9th Cir. 2014).

    If we hold in McKinney that Eddings error is structural, it
is possible, perhaps even likely, that Henry will be entitled to
a new sentencing hearing. Panels in three other Arizona
Eddings cases have stayed proceedings to await McKinney.
Despite the fact that in Poyson the en banc call failed, the
Poyson panel has stayed proceedings. The panel in Hedlund
has now stayed proceedings. A separate panel has stayed
proceedings in Clabourne v. Ryan, 745 F.3d 362 (9th Cir.
2014).

   The only panel that has not stayed proceedings is the
Henry panel. If the panel’s order stands, Henry will be
executed. He will be executed even if we hold en banc in
McKinney that an Eddings error is structural. That is, Henry
                       HENRY V. RYAN                         19

will be executed even if our law, established in McKinney,
says that he should not be. There is an easy and procedurally
proper way to avoid this result. We can stay proceedings in
Henry, as we have in Poyson and Clabourne, to allow for the
orderly and fair administration of our system of justice.



Judge TALLMAN, with whom Judges O’SCANNLAIN,
CALLAHAN, BEA, and IKUTA join, dissenting from the
grant of rehearing en banc:

    If one is remembered for the rules one breaks, then our
court must be unforgettable. By taking this capital habeas
case en banc now—after certiorari has been denied by the
Supreme Court and well after the deadline for en banc review
by our court has passed—we violate the Federal Rules of
Appellate Procedure and our own General Orders. We also
ignore recent Supreme Court authority that has reversed us
for doing the same thing in the past. No circuit is as routinely
reversed for just this type of behavior. We ought to know
better.

                               I

    Here’s what happened: The panel issued its unanimous
opinion denying federal habeas relief to Henry on June 19,
2013. Henry v. Ryan, 720 F.3d 1073 (9th Cir. 2013). Henry
sought panel rehearing and rehearing en banc. The warden
filed a response. No judge called for a vote to take the case
en banc, so the panel filed a unanimous order denying panel
rehearing and rehearing en banc on November 1, 2013.
20                         HENRY V. RYAN

    The mandate should have issued on November 8, 2013,
pursuant to the clear text of Federal Rule of Appellate
Procedure 41(b): “The court’s mandate must issue . . . 7 days
after entry of an order denying a timely petition for panel
rehearing, petition for rehearing en banc, or motion for stay
of mandate, whichever is later.” Although the court may
extend the time, Henry did not request a stay and none was
granted.

    The concurrence states that the Clerk’s office, “[a]cting
on behalf of the panel,” stayed the mandate pursuant to Ninth
Circuit Rule 22-2(e).1 But no order staying the mandate was
ever entered by the panel or by the Clerk’s office.
Withholding issuance of the mandate is not the same as
entering a stay order. Had the parties been told a stay was
entered, the State surely would have asked the Supreme Court
to vacate it once certiorari was denied.

    Regardless, even if a stay had been entered pursuant to
the Circuit Rule, Henry’s case still should have mandated
within 90 days. Federal Rule of Appellate Procedure
41(d)(2)(B) states: “The stay must not exceed 90 days, unless
the period is extended for good cause or unless the party who
obtained the stay files a petition for the writ and so notifies
the circuit clerk in writing within the period of the stay. In
that case, the stay continues until the Supreme Court’s final
disposition.” But Henry did not request and was not granted
a stay extension for good cause. And he did not file a petition


 1
   Ninth Circuit Rule 22-2(e) states: “When the panel affirms a denial or
reverses a grant of a first petition or motion [in a capital case], it shall
enter an order staying the mandate pursuant to FRAP 41(b).” But this
language appears under the heading “Stays of Execution” and is itself
ambiguous.
                          HENRY V. RYAN                               21

for writ of certiorari within 90 days. Instead, he delayed even
further by requesting and receiving a two-month extension of
time from the Supreme Court.

    Some five months after the denial of the petition for
rehearing en banc—well after the deadline for en banc review
had passed—Henry asked for full-court reconsideration.
Henry’s request was based on McKinney v. Ryan, 745 F.3d
963 (9th Cir. 2014), which had subsequently gone en banc.
He hoped (and still hopes) that McKinney will change the
circuit’s law in such a way as to nullify his death sentence.
His motion was denied.

    Henry next petitioned for certiorari. But he was not quite
done with us. He filed a third motion for reconsideration, this
time seeking relief from the panel.2           Although the
concurrence repeatedly characterizes this motion as a request
to stay proceedings in light of McKinney, the motion was not
a request for a stay. The motion was titled “Motion for Panel
Reconsideration of Order Denying Petition for Panel
Rehearing in Light of McKinney v. Ryan and Poyson v. Ryan”
and it requested “reconsideration of the denial of [Henry’s]




 2
    In addition to violating principles of comity, the motion was untimely
under Ninth Circuit Rule 27-10(a)(1). It was also improper because it
amounted to Henry’s third motion to reconsider the panel decision, which
is prohibited under Ninth Circuit Rule 27-10(b).
22                         HENRY V. RYAN

petition for panel rehearing.”3 The motion was properly
denied.4 Henry v. Ryan, 748 F.3d 940 (9th Cir. 2014).

    Then things went wrong. A judge called for a vote on
whether to take the order denying the motion for
reconsideration en banc. I believe that the call was improper.
The court should have rejected it. It didn’t.

     Then, before the vote, on June 9, 2014, the Supreme
Court denied Henry’s petition for certiorari. See Henry v.
Ryan, No. 13-9512, 2014 WL 1324640 (June 9, 2014)
(denying certiorari). We received notice the next day.
Accordingly, our mandate should have issued immediately.
It didn’t. We held our mandate (and hold it still).

      The vote proceeded and was successful. Here we are.

                                   II

    Under our General Orders, we cannot take a case en banc
the way we have taken this case en banc. There are only
seven paths to an en banc vote. Each path is described in our
General Orders. First, the panel that originally receives the
case may call for an en banc vote. G.O. 5.2(b). This is the
only path that does not have a deadline. The next five each


 3
    The closest Henry came to requesting a stay in the body of the motion
is the following sentence: “[T]he Court’s recent decision in Poyson that
amended its previous denial of panel rehearing and stayed the case
pending resolution in McKinney provides support for this panel to do the
same.” In his conclusory “wish list,” he expressed his desire that the
panel, after granting the motion to reconsider, would vacate his petition
for panel rehearing and grant a stay pending McKinney.
 4
     One judge dissented from the order denying the motion.
                       HENRY V. RYAN                         23

involve an event that triggers a countdown of some limited
number of days for an interested judge to call for an en banc
vote. Those five triggering events are:

   ! The receipt of notification that a party has petitioned
     for the case to be heard en banc initially. G.O. 5.2(a).

   ! The denial by the panel of a petition for rehearing en
     banc. G.O. 5.4(b)(2) & (c)(1).

   ! The denial by the panel of a petition for rehearing by
     the panel. G.O. 5.4(b)(3).

   ! Entry of an order by the panel publishing a previously
     unpublished disposition. G.O. 5.4(c)(3).

   ! The panel’s substantive amendment of its previous
     disposition. G.O. 5.3(a).

Finally, there is a catch-all provision—General Order
5.4(c)(3). Under that provision, even when none of the five
listed events occur, a judge can sua sponte call for an en banc
vote, so long as the call is made within “seven days of the
expiration of the time for filing a petition for panel rehearing
or rehearing en banc.” G.O. 5.4(c)(3).

    Per our General Orders, these are the only seven paths to
take a case en banc. This case took none of them: it was not
a panel call; it was too late to fall under the catch-all
provision; and the event that triggered the call here isn’t any
of the five triggering events described in the General Orders.
Rather, it was the panel’s denial of Henry’s third motion to
reconsider. Put simply, the call came too late. The clock had
run. And our rules don’t permit us to extend the en banc
24                    HENRY V. RYAN

window to resurrect the opportunity by taking en banc the
denial of an improper motion to reconsider.

    In an effort to justify the propriety of the call, the
concurrence relies on General Order 6.11 and Ninth Circuit
Rule 27-10(b). But neither rule is availing. By its express
terms, General Order 6.11 applies only to orders issued by
motions panels. See G.O. 6.11 (“Any motion or petition
seeking en banc review of an order issued by a motions panel
shall be processed as a motion for reconsideration en banc.”).
It does not expressly permit en banc review of orders, like the
one here, that are issued by merits panels. Nor does it appear
that Ninth Circuit Rule 27-10(b) applies to motions for
reconsideration of merits panel orders. See Ninth Circuit
Rule 27-10(b) (“The rule applies to any motion seeking
review of a motions panel order . . .”). Even if it did, Henry
is only entitled to one motion for reconsideration under the
Rule. See id. (“A party may file only one motion for
clarification or reconsideration of a panel order.”). This is
Henry’s third. This court cannot call en banc an order
denying a motion Henry was not even permitted to make.

    The concurrence also relies on Federal Rule of Appellate
Procedure 35(a)(1) to assert that en banc reconsideration is
appropriate when “necessary to secure or maintain uniformity
of the court’s decisions.” While true, the concurrence does
not contend, nor does the Rule provide, that we can call
orders issued by a merits panel en banc.

    My reading of these rules may call into question the
propriety of how the court has treated some past cases. Until
Henry, the complications of the position promoted by the
concurrence were not clear. These potential complications
are glaring. If the en banc panel is only permitted to revisit
                       HENRY V. RYAN                         25

the challenged order, as the concurrence contends, then its
authority would be limited to forcing the three-judge panel to
reconsider its prior denial of panel rehearing. That isn’t
likely to achieve much; reversing the panel order denying
reconsideration doesn’t allow the en banc court to reach what
the concurrence contends is the “critical issue” of “whether
an Eddings error is structural, requiring automatic reversal.”
To reach that issue, it must do more. It must change the
underlying panel opinion or go beyond the motion that
triggered the call and grant Henry a stay—exceeding the
concurrence’s self-proclaimed and unenforceable limits as to
the scope of its review. Instead, the veiled purpose of this en
banc call, at least through the eyes of the concurrence, is to
revisit the panel’s opinion after McKinney is decided. But
that clock has long since run.

    Let’s label this en banc challenge for what it is: An
untimely and improper attack on the panel disposition. By
taking the case en banc, we break our own rules in a way that
threatens our ability to process cases. See Hollingsworth v.
Perry, 558 U.S. 183, 196–97 (2010) (noting that a court’s
failure to comply with neutral rules and principles can
“compromise the orderly, decorous, rational traditions that
courts rely upon to ensure the integrity of their own
judgments”).

    Critically, there is no need for such exceptional action.
Contrary to the concurrence’s representation, our denial of
Henry’s untimely petition would not necessarily result in his
execution. The Supreme Court of Arizona would still have to
issue a warrant of execution. That court might wait for our en
banc decision in McKinney. Even if the warrant issued,
Henry would be entitled to seek a stay and other relief from
the Arizona courts, and if that failed, from the federal courts,
26                    HENRY V. RYAN

including ours. Granting an untimely petition for rehearing
based on potential future changes in the law in unrelated
cases interferes with the ordinary processes for habeas
petitions, which provide adequate alternatives for a defendant
to raise meritorious issues.

                             III

     Our General Orders aren’t our only victim. We have also
completely ignored controlling Supreme Court authority that
tells us what we are obligated to do.

    “The court of appeals 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). Even the author of the concurrence himself has
previously acknowledged in the AEDPA context that the
“initial” denial of certiorari is the “effective” and “final”
denial of certiorari. See United States v. Buckles, 647 F.3d
883, 887 (9th Cir. 2011) (Fletcher, J.) (“Finality attaches
when [the Supreme Court] . . . denies a petition for a writ of
certiorari.” (quoting Clay v. United States, 537 U.S. 522, 527
(2003))). The Supreme Court denied Henry’s certiorari
petition on June 9, 2014. Henry v. Ryan, No. 13-9512, 2014
WL 1324640 (June 9, 2014). Now, nearly three months later,
we still withhold the mandate.

     And by doing so, we defy the rule of law. Our defiance
is well and recently practiced. Just last year, in Ryan v.
Schad, the Supreme Court held that we abused our discretion
by doing what we repeat now—failing to issue the mandate
in a death penalty case following the denial of certiorari.
133 S. Ct. 2548, 2551–52 (2013). The sting of that rebuke
still lingers, yet we act as though we cannot feel it.
                       HENRY V. RYAN                          27

    The concurrence asserts that Rule 41(b) provides an initial
avenue around our obligation to issue the mandate in this
case. It doesn’t. Although that rule permits the court to
“shorten or extend the time” to issue the mandate, it is not a
carte blanche to withhold the mandate indefinitely or to
ignore more specific rules that apply here. The ability to
“shorten or extend the time” is permissive. Fed. R. App. P.
41(b) (using the word “may”). A court must take affirmative
action to avoid the default one-week time frame for issuance
of the mandate. See id. To the degree that the concurrence
contends that the court entered a stay, it misconstrues the
record. No stay was ever entered here. Indeed, we have
never issued any order concerning our mandate in this case.
The default rule should have been applied with the mandate
issuing on November 8, 2013.

     Moreover, the concurrence cannot be correct even under
its own theory that Rule 41(d)(2)(D) only applies when a stay
is entered for the sole purpose of permitting Supreme Court
review. This theory requires the court to have stayed the
mandate pending the denial of certiorari and to again have
stayed the mandate pending the en banc vote on whether to
take the order denying reconsideration en banc. See, e.g.,
First Gibraltar Bank, FSB v. Morales, 42 F.3d 895, 896–98
(5th Cir. 1995) (per curiam) (involving entry of an actual
stay); Alphin v. Henson, 552 F.2d 1033, 1035–36 (4th Cir.
1977) (per curiam) (same). But no stays were ever entered.
So, if the concurrence’s legal position is right, the mandate
still should have issued. The concurrence’s position
essentially boils down to the principle that by doing nothing
(e.g., by failing to enter a stay as well as failing to issue the
mandate), the court can do whatever it wants.
28                          HENRY V. RYAN

    And Rule 41(d)(2)(D) itself does not provide an out by
way of an unwritten exception for “extraordinary
circumstances.” The Supreme Court has twice declined to
adopt that exception. Schad, 133 S. Ct. at 2549–51; Bell v.
Thompson, 545 U.S. 794, 803 (2005). Instead, it has twice
assumed that the exception exists, but then found its high
standard unmet. Schad, 133 S. Ct. at 2550–51; Bell, 545 U.S.
at 803–04. And it would have to be a high standard:
“Deviation from normal mandate procedures is a power ‘of
last resort, to be held in reserve against grave, unforeseen
contingencies.’” Schad, 133 S. Ct. at 2551 (quoting Calderon
v. Thompson, 523 U.S. 538, 550 (1998)).5

    It is hard to imagine how Henry’s case could meet this
standard given that it was unmet in Schad and Bell. Those
cases—both capital—demonstrate that a death sentence alone
does not satisfy the extraordinary circumstances standard.
See id. at 2550; Bell, 545 U.S. at 803. And circuit law is no
help. The few circuit cases that have arguably found
extraordinary circumstances were not even habeas cases. See
Bryant v. Ford Motor Co., 886 F.2d 1526, 1529–30 (9th Cir.
1989) (involving a change in statutory law that occurred
before the denial of certiorari); First Gibraltar Bank, 42 F.3d
at 896–98 (same); Alphin, 552 F.2d at 1035–36 (same). So
they didn’t involve the same “finality and comity concerns”
at issue in Schad and Bell. See, e.g., Schad, 133 S. Ct. at
2551 (“[F]inality and comity concerns, based in principles of
federalism, demand that federal courts accord the appropriate


  5
    In Thompson, we were reversed for sua sponte recalling our mandate
in a capital case to revisit the merits of an earlier three-judge panel opinion
denying habeas relief. The Supreme Court held that an appellate court
abuses its discretion unless it acts to avoid a miscarriage of justice as
defined in Supreme Court habeas corpus jurisprudence. 523 U.S. at 558.
                           HENRY V. RYAN                                29

level of respect to state judgments.” (internal quotation marks
omitted)).

    Moreover, they all share something that Henry’s case
lacks—they all involved a change in statutory law that
occurred before the denial of certiorari. See Bryant, 886 F.2d
at 1529–30; First Gibraltar Bank, 42 F.3d at 896–98; Alphin,
552 F.2d at 1035–36. Those changes gave rise to
extraordinary circumstances. Here, the law hasn’t changed at
all. Presumably, my colleagues who voted for further delay
merely foresee or perhaps hope that, with McKinney, it will.6

     Never before has any court deemed such a hope
sufficiently extraordinary. And it can’t be. The law changes
all the time.7 Nothing so ordinary could be extraordinary. So
our court, by voting to rehear this case ultra vires, is bold
indeed. Not only do we ignore Schad and Bell, but we also
extend extraordinary circumstances beyond any previous
authority.



  6
    Of course, this hope assumes that Henry’s case will be controlled by
the en banc court’s decision in McKinney. However, there are a number
of factors that distinguish the two cases. Contrary to the concurrence’s
suggestion, the panel majority does not believe that there was Eddings
error at all in Henry’s case. But we will leave that discussion for another
day.
  7
    The concurrence asserts that “Henry’s motion was a new argument.”
But it was not. Henry raised his Eddings claim in his brief, in his petition
for rehearing en banc, and in his petition for certiorari. The only “new”
development was our decision to grant rehearing en banc in McKinney and
the panel’s decision to stay proceedings in Poyson. But these
developments in unrelated cases do not justify our retention of this appeal
after Henry’s petition for rehearing en banc has been denied and the
Supreme Court has denied certiorari.
30                      HENRY V. RYAN

                               IV

    Moreover, unless the en banc panel issues a formal stay
of the mandate, our unorthodox actions might very well evade
Supreme Court review. If the en banc panel issues such a
stay, then Arizona could seek Supreme Court review of the
stay. If it doesn’t, then our failure to issue the mandate may
escape review for an indeterminate period of time while we
await oral argument and a decision from the en banc panel in
McKinney many months from now.

                               V

   Our court has succumbed to the temptation to hold this
case, already in its third decade, even longer. Some of us
may be driven by opposition to the death penalty. Or some
may feel that Henry should get the benefit, if any, of
McKinney because a third capital defendant, Poyson, was
granted a stay pending McKinney’s resolution. Poyson v.
Ryan, 743 F.3d 1186, 1187 (9th Cir. 2013).

    Whatever they are, motivations are beside the point. We
should follow the law. Instead, we lay flame to orderly case-
processing rules, comity due to state court judgments, and
principles of finality. “[Fire’s] real beauty is that it destroys
responsibility and consequences. A problem gets too
burdensome, then into the fire with it.” Ray Bradbury,
Farenheit 451 109 (Simon & Schuster 2012). We should be
more cautious.

     I respectfully dissent.
