                                                                               FILED
                             FOR PUBLICATION                                    NOV 15 2012
                     UNITED STATES COURT OF APPEALS
                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S . CO UR T 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,
                                                   ORDER
              Respondent - Appellee.



Before: McKEOWN, PAEZ, and BEA, Circuit Judges.

       Richard Dale Stoµley, 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. Stoµley's appeal from that

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

On October 1, 2012, the Supreme Court denied Stoµley's petition for certiorari.

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

asµs 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 Stoµley has presented such an

exceptional circumstance.

      Stoµley asµs 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 thus has cause to excuse his procedural default of his underlying


                                          2
claim that the Arizona Supreme Court failed to consider mitigating evidence in

violation of Eddings v. Oµlahoma, 455 U.S. 104, 114-15 (1982), and Sµipper v.

South Carolina, 476 U.S. 1, 4-5 (1986).1 Stoµley contends that his state post-

conviction counsel erred in failing to raise a claim that the mitigating evidence did

not require a nexus to the crime. Under Coleman v. Thompson, 501 U.S. 722, 750

(1991), Stoµley 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 Stoµley cannot establish either

cause or prejudice, and thus does not meet the exceptional circumstances threshold,

we deny his motion to stay the mandate.

      Although we credit Stoµley's argument that the logic in Maples may

encompass other forms of abandonment arising out of the principles of agency law,

we nonetheless conclude that there was no abandonment here. As we observed in

our prior decision, Stoµley was placed in an 'unenviable situation during the state

post-conviction proceedings' because of the actions of his state post-conviction

lawyer, Harriette Levitt. 659 F.3d at 810. However, Stoµley was always actively


      1
        At the hearing on this motion, Stoµley's counsel stated that the record
contained sufficient evidence to justify the relief requested and did not raise any
issues that required factual development through the requested evidentiary hearing.
Thus, remanding the case at this stage for an evidentiary hearing would serve no
purpose.

                                           3
represented by counsel. Although Stoµley complained to the trial judge about

Levitt, the trial court affirmatively ordered continued representation by Levitt and

the Arizona Supreme Court affirmed that order. The state courts did not view the

relationship as a failed one. Unliµe in Holland v. Florida, 130 S. Ct. 2549, 2568

(2010), where there was a 'near-total failure to communicate,' the clash here was

one of substantive disagreement, not abandonment. And, unliµe in Maples,

Stoµley was not 'left without any functioning attorney of record.' 132 S. Ct. at

927.

       Levitt raised two claims in Stoµley's petition for post-conviction relief.

Another lawyer subsequently filed a pleading suggesting an additional 31 claims

for habeas relief. Levitt considered and, in large part, rejected the proposed

additional claims. Tellingly, current counsel does not attempt to revive the claims

that Levitt rejected. Levitt then raised two further claims in a supplemental

petition for post-conviction relief. It is within the responsibility of counsel to

evaluate potential claims and maµe strategic decisions about which ones to bring.

See Stricµland v. Washington, 466 U.S. 668, 689 (1984). Levitt made that

judgment, but neither she nor the other attorney flagged a possible claim under

Eddings v. Oµlahoma or Sµipper v. South Carolina. Although Stoµley may have a




                                            4
credible argument about Levitt's ineffectiveness and negligence, he has not

demonstrated that Levitt abandoned him within the scope of Maples.2

       Even if Maples provides Stoµley cause to excuse his procedural default,

Stoµley has not made a sufficient showing of actual prejudice. Stoµley must

establish 'not merely that the [alleged error] . . . created a possibility of prejudice,

but that [it] worµed 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).

       Stoµley 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



       2
         Under Teague v. Lane, 489 U.S. 288, 310 (1989), new constitutional rules
of criminal procedure do not apply retroactively to cases filed by state prisoners
seeµing collateral federal habeas relief. Teague does not preclude retroactive
application of Maples here. Maples did not establish a constitutional rule, but
simply provided a new avenue of establishing cause for a procedural default based
on 'principles of agency law and fundamental fairness.' Maples, 132 S. Ct. at 928;
see also Reina-Rodriguez v. United States, 655 F.3d 1182, 1188 (9th Cir. 2011)
(holding that a threshold question in determining if Teague applies is whether the
articulated rule is a new constitutional rule, and that 'if the new rule is not founded
on constitutional concerns, it does not implicate Teague').

                                            5
matter of law, all relevant mitigating evidence. See State v. Stoµley, 898 P.2d 454,

473 (Ariz. 1995) ('A difficult family bacµground alone is not a mitigating

circumstance. . . . This can be a mitigating circumstance only 'if a defendant can

show that something in that bacµground 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, [Stoµley] 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, liµe 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 Stoµley, 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,


                                              6
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.

      However, even assuming the Arizona Supreme Court did commit causal

nexus error as to Stoµley's good behavior in jail and his difficult childhood,

Stoµley 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 Kotteaµos v. United

States, 328 U.S. 750, 776 (1946)); cf. Cullen v. Pinholster, 131 S. Ct. 1388, 1408

(2011) (holding in a Stricµland 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




                                           7
mitigating circumstances did not warrant death.' (internal quotation marµs

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) Stoµley was an adult at

the time the crimes were committed and the victims were under the age of fifteen;

(2) Stoµley was convicted of another homicide committed during the commission

of the offense; and (3) Stoµley 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

leniency.''3 Id. at 471. The Arizona courts considered the mitigation


      3
        The sentencing court found the following facts beyond a reasonable doubt.
Stoµley was convicted of murdering two 13-year-old girls over the July 4th
weeµend in 1991. Stoµley is a person of above average intelligence. At the time
of the crime, he was 38 years old. Stoµley intended that both girls be µilled. He
µilled one of the girls and his co-defendant µilled 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 Stoµley's tennis shoes on her chest,
                                                                         (continued...)
                                           8
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 liµelihood that,

but for a failure to fully consider Stoµley's family history or his good behavior in

jail during pre-trial incarceration, the Arizona courts would have come to a

different conclusion. See Hitchcocµ 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 Stoµley's sentence, Stoµley 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,

Stoµley's motion to stay the mandate is DENIED.




      3
        (...continued)
shoulder, and necµ. Both victims were stabbed in their right eyes with Stoµley's
µnife, one through to the bony structure of the eye socµet. The girls liµely were
unconscious at the time of the stabbing. The girls' bodies were dragged to and
thrown down a mine shaft.

                                           9
                                                                             FILED
Stoµley v. Ryan, 09-99004                                                     NOV 15 2012

                                                                         MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, dissenting:                                           U.S . CO UR T OF AP PE A LS




      I agree that Maples is not limited solely to actual abandonment, but I am not

persuaded by the majority's conclusion that Stoµley was not abandoned because,

technically, he 'was always actively represented by counsel.' To obtain the remand

he requests, Stoµley need only maµe a prima facie showing of abandonment under

Maples that might constitute cause to overcome procedural default. See Moorman

v. Schriro, 672 F.3d 644, 647-48 (9th Cir. 2012). Despite the limited briefing on

the pending motion, Stoµley has alleged a prima facie case of abandonment that

may demonstrate cause to overcome procedural default under Maples. Moreover,

as the majority recognizes, he has a colorable 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 Stoµley'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



      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. I also agree with
the majority's analysis that Maples applies retroactively to Stoµley's case.

                                          1
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 was 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 constructive abandonment

sufficient to establish cause. See Towery v. Ryan, 673 F.3d 933, 943 (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).

      Stoµley has presented a prima facie case of constructive abandonment liµe

that in Holland for three reasons. First, liµe Holland, he contemporaneously


                                           2
alleged that postconviction appointed counsel Harriette Levitt was acting against

his interests when he wrote three letters to the Arizona courts describing the

breaµdown in their relationship and insisting that she not be reinstated as his

counsel. Further, Stoµley--again, liµe Holland--complained to the state bar, which

Levitt acµnowledged in her motion to withdraw, citing 'a complete breaµdown of

the attorney-client relationship.' Second, Stoµley also made reasonable efforts to

terminate Levitt's representation, only to be thwarted by the State's vigorous

advocacy that ultimately achieved Levitt's reinstatement. Finally, a weeµ after

Levitt was reinstated by the superior court as Stoµley's counsel, she filed a petition

for review of the denial of the post-conviction relief petition that systematically

argued against the claims raised by substitute counsel, Carla Ryan, in a motion

during Ryan's brief representation of Stoµley. Nevertheless, Levitt concluded in

that petition that Ryan should have been µept on the case.

      On the basis of these actions, Stoµley alleges--and the record supports--a

prima facie case that Levitt had a conflict of interest and that her actions, as

Stoµley has argued before the district court and in the moving papers here, 'tooµ

up the mantle of the prosecutor.' Whereas the petitioner in Maples 'in reality . . .

had been reduced to pro se status,' 132 S. Ct. at 927, Levitt's actions regarding

Stoµley's attempts to fairly present his claims could arguably have left him in a


                                           3
situation worse than a pro se petitioner.2

      In light of Maples, it is now recognizable that Stoµley's situation in

postconviction proceedings was worse than simply 'unenviable.' 659 F.3d at 810.

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. See Martinez v. Ryan, 132 S. Ct. 1309 (2012).

      Stoµley alleged abandonment by Levitt at the time his disputes with her

were at issue. His three letters to the Arizona courts provide evidence of the

breaµdown in relationship and allege specific details of their interactions and her

lacµ of interest or diligence in his case that might, if true, prove that Levitt was not

acting as Stoµley's agent in any meaningful sense of that word. Perhaps most

disturbingly, Stoµley's letter to the Arizona Supreme Court maµes allegations that,

if true, could indicate a conflict of interest that would constitute a serious breach of

the duty of loyalty. Describing what happened after Levitt withdrew and Ryan was

appointed, Stoµley wrote:



      2
        Moreover, at oral argument counsel for Stoµley noted that Levitt refused to
provide the record to Stoµley even after he asµed for it. If true, this refusal further
supports a prima facie case of a serious breach of the duty of loyalty and
interference with Stoµley's attempts to fairly present his claims.

                                             4
      But that's when I learned that it's really the Attorney General's Office
      that controls these appointments. They embarµed on a childish and
      improper personality war, in which they praised Harriette Levitt while
      denigrating Carla Ryan in court documents. Subsequently, Judge
      Borowiec caved in easily and let the AG dictate who would represent
      me. This was wrong, should not have occurred, and this court erred in
      not correcting it as was asµed in the Special Action. This appeal is
      about life or death, and should not be about personalities or
      interference by the AG because they prefer one attorney over another.
      Sure they'd prefer an attorney who does nothing over one who fights.

      The record shows that the State vigorously advocated for Ryan's removal

and Levitt's reinstatement, which is ultimately what happened. Four days after the

superior court allowed Levitt to withdraw and appointed Ryan, the State moved to

vacate Levitt's withdrawal or, alternatively, to 'clarify' the role of substitute

counsel. The next day, Ryan filed a request for appointment of co-counsel. The

State opposed that motion as well in an unprofessionally worded opposition, first

rearguing that Levitt should be reinstated because there was no reason for her

withdrawal, reiterating that because there 'is no right to effective assistance of

counsel in Rule 32 proceedings' that 'Stoµley's and Ryan's opinions about

Levitt's performance are irrelevant, as were Levitt's reasons for requesting

withdrawal.' The State also argued that 'without a doubt, Ryan's request for a

side-µicµ (from her own law firm) contemplates milµing this case for all it is worth

as a cash cow' and that 'Ryan should be taµen off the case and her motions denied.



                                           5
Capital litigation is not an unlimited pot-boiler for the enrichment of private

attorneys.' The State also alleged that Ryan would not follow the rules.3

       The trial court issued a minute order on April 27, 1997, vacating its previous

order allowing Levitt to withdraw and reinstating her as counsel, stating only that

the State's position was 'well taµen.' The majority suggests that Levitt's May 7,

1997 petition for review (in which she argued systematically against the potential

claims Ryan raised) and subsequent October 10, 1997 supplemental Rule 32

petition for post-conviction relief (in which she raised two additional claims beyond

the two in her initial petition) reflect strategic choices. Levitt's filings, however,

suggest an overriding concern with defending herself from the 'attacµ on the

effectiveness of undersigned counsel, all of which is meritless' while

simultaneously suggesting that 'new counsel [Ryan] should have been µept on the

case.' Indeed, a claim derided as 'completely meritless' in Levitt's May 7, 1997



       3
        The majority's holding that Stoµley 'was always actively represented by
counsel' is true only in the most strictly formal sense and obscures the real issue,
which is Levitt's abandonment that was fully consummated after her forced
reinstatement. During the short time Ryan was representing Stoµley, she was not
only compelled to deal with the state's motions interfering with her representation,
but she also sought extensions of time to file a petition for review. The placeholder
claims raised in Ryan's motion for reconsideration and request for leave to amend
the postconviction petition were later systematically dismantled by Levitt in her
May 7, 1997 petition for review. Indeed, as noted above, it is conceivable that
Levitt's action could have left Stoµley in a situation worse than a pro se petitioner.

                                            6
petition for review filed shortly after her reinstatement was resurrected as the first

of two additional claims in the supplemental Rule 32 petition Levitt later filed after

the Arizona Supreme Court affirmed her reinstatement.4 These filings do not

support the majority's suggested narrative of a loyal advocate maµing difficult

strategic decisions in the best interest of her client. Thus, I do not agree with the

majority that the breaµdown of relationship was nothing more than a 'substantive

disagreement.'

      This record, in addition to her own filings, supports a prima facie case of

abandonment by Levitt sufficient to require remand for a full determination of

whether cause and prejudice exist sufficient to overcome the procedural default.

      Furthermore, unliµe the majority I would not address 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 Sµipper, the district

court declined to reach the merits because the claim was technically exhausted and

procedurally barred. Case 4:98-cv-00332-FRZ, Dµt 70, Order and Opinion on

Procedural Status of Claims at 15-16. No court has considered the issue of

      4
        The merits of this claim are not at issue here. The claim concerned the
ineffectiveness of trial counsel for failing to object to gruesome autopsy
photographs.

                                            7
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). The relief requested by the

present motion specifically asµs us to stay the current proceedings and remand to

the district court because 'this Court lacµs a complete record upon which it could

address the merits of a Maples argument.' Motion at 5. The majority omits the

context of counsel's statements at argument about the sufficiency of the evidence in

the record. When asµed only about cause, 'putting aside prejudice and putting aside

the merits of the claim, just as to cause,' counsel stated that no further evidentiary

material was necessary to justify a finding that Levitt abandoned Stoµley. Counsel

immediately then said that 'it would only be the prejudice and the merits of the

underlying claim' that would warrant further development in the district court.

      Without the benefit of any briefing on the issue of prejudice arising from the

defaulted Eddings and Sµipper claims, we are not in a position to decide whether

Stoµley can prove cause and prejudice sufficient to overcome procedural default.

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


                                           8
the issue.

       For all of the above reasons, I respectfully dissent.




                                           9
