                  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


      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

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

                          Order;
                  Dissent by Judge Paez
2                       STOKLEY V . RYAN

                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel denied a motion to stay the mandate in an
appeal by a capital prisoner who also sought a remand for an
evidentiary hearing in the district court to determine whether
abandonment by post-conviction counsel constituted cause to
excuse a procedural default under Maples v. Thomas, 132 S.
Ct. 912 (2012).

    The panel previously affirmed the district court’s denial
of petitioner Stokley’s 28 U.S.C. § 2254 habeas corpus
petition challenging a conviction and capital sentence for
murder. Stokley then moved to stay the mandate on the
ground that Maples constituted an intervening change in the
law that could warrant a significant change in result. He
sought a remand to the district court for an evidentiary
hearing to determine whether, under Maples, his
abandonment       by his state post-conviction attorney
constituted cause to excuse the procedural default of his
underlying claim–that the Arizona Supreme Court failed to
consider mitigating evidence and that counsel should have
raised a claim that the state court erroneously required a
nexus to the crime.

    The panel held that, even if Maples may encompass
multiple forms of abandonment arising out of agency law,
there was no such abandonment here that excused the default.
The panel further held that there was no actual prejudice

  *
    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

because the Arizona Supreme Court’s opinion suggests that
it weighed and considered all evidence and, even if it
erroneously required a nexus between the mitigating evidence
and the crime, Stokely has not shown that the error had a
substantial and injurious impact on the verdict.

    Judge Paez dissented. He agreed that Maples is not
limited solely to actual abandonment, but was not persuaded
by the majority’s conclusion that Stokley was not abandoned.
Judge Paez would grant the motion to stay the mandate and
remand to the district court for a determination of cause and
prejudice and, if appropriate, the merits of the underlying
claim, because Stokley has alleged a prima facie case of
abandonment that might constitute cause to overcome
procedural default. Judge Paez would not address the issue
of prejudice with respect to the procedural default or the
merits of the underlying claim, because the court lacks a
complete record.


                        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.
4                    STOKLEY V . RYAN

                         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
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
                         STOKLEY V . RYAN                                5

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
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).1 Stokley 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), 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
either cause or prejudice, and thus does not meet the
exceptional circumstances threshold, we deny his motion to
stay the mandate.

    Although we credit Stokley’s argument that the logic in
Maples may encompass other forms of abandonment arising
out of the principles of agency law, we nonetheless conclude


 1
    At the hearing on this motion, Stokley’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.
6                     STOKLEY V . RYAN

that there was no abandonment here. As we observed in our
prior decision, Stokley 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, Stokley was always actively
represented by counsel. Although Stokley 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. Unlike 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, unlike in
Maples, Stokley was not “left without any functioning
attorney of record.” 132 S. Ct. at 927.

    Levitt raised two claims in Stokley’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 make strategic decisions about
which ones to bring. See Strickland 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. Oklahoma or Skipper v. South Carolina. Although Stokley
may have a credible argument about Levitt’s ineffectiveness
                           STOKLEY V . RYAN                                  7

and negligence, he has not demonstrated that Levitt
abandoned him within the scope of Maples.2

    Even if 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 State 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


 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 seeking 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.” M aples, 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”).
8                      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                         9

     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
10                        STOKLEY V . RYAN

leniency.’”3 Id. at 471. 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.




  3
    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                             11

PAEZ, Circuit Judge, dissenting:

    I agree that Maples is not limited solely to actual
abandonment, but I am not persuaded by the majority’s
conclusion that Stokley was not abandoned because,
technically, he “was always actively represented by counsel.”
To obtain the remand he requests, Stokley need only make 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, Stokley
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 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


  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 Stokley’s case.
12                    STOKLEY V . RYAN

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).

    Stokley has presented a prima facie case of constructive
abandonment like that in Holland for three reasons. First, like
Holland, he contemporaneously alleged that postconviction
appointed counsel Harriette Levitt was acting against his
interests when he wrote three letters to the Arizona courts
describing the breakdown in their relationship and insisting
that she not be reinstated as his counsel. Further,
Stokley—again, like Holland—complained to the state bar,
which Levitt acknowledged in her motion to withdraw, citing
“a complete breakdown of the attorney-client relationship.”
Second, Stokley 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 week after Levitt was reinstated by
the superior court as Stokley’s counsel, she filed a petition for
review of the denial of the post-conviction relief petition that
                          STOKLEY V . RYAN                               13

systematically argued against the claims raised by substitute
counsel, Carla Ryan, in a motion during Ryan’s brief
representation of Stokley. Nevertheless, Levitt concluded in
that petition that Ryan should have been kept on the case.

    On the basis of these actions, Stokley alleges—and the
record supports—a prima facie case that Levitt had a conflict
of interest and that her actions, as Stokley has argued before
the district court and in the moving papers here, “took 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 Stokley’s attempts to fairly
present his claims could arguably have left him in a situation
worse than a pro se petitioner.2

    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. 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).

    Stokley 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 breakdown in
relationship and allege specific details of their interactions


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

and her lack of interest or diligence in his case that might, if
true, prove that Levitt was not acting as Stokley’s agent in
any meaningful sense of that word. Perhaps most
disturbingly, Stokley’s letter to the Arizona Supreme Court
makes 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, Stokley wrote:

     But that’s when I learned that it’s really the Attorney
     General’s Office that controls these appointments.
     They embarked 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 asked 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
                         STOKLEY V . RYAN                              15

that because there “is no right to effective assistance of
counsel in Rule 32 proceedings” that “Stokley’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-kick
(from her own law firm) contemplates milking this case for
all it is worth as a cash cow” and that “Ryan should be taken
off the case and her motions denied. 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 taken.” 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


 3
   The majority’s holding that Stokley “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 Stokley, 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 M ay 7, 1997 petition for review. Indeed, as noted above, it is
conceivable that Levitt’s action could have left Stokley in a situation
worse than a pro se petitioner.
16                       STOKLEY V . RYAN

concern with defending herself from the “attack on the
effectiveness of undersigned counsel, all of which is
meritless” while simultaneously suggesting that “new counsel
[Ryan] should have been kept on the case.” Indeed, a claim
derided as “completely meritless” in Levitt’s May 7, 1997
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 making difficult strategic decisions in the best
interest of her client. Thus, I do not agree with the majority
that the breakdown 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, unlike 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
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


 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.
                      STOKLEY V . RYAN                       17

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 asks us to stay
the current proceedings and remand to the district court
because “this Court lacks 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 asked 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 Stokley.
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 Skipper
claims, we are not in a position to decide whether Stokley 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 the issue.

   For all of the above reasons, I respectfully dissent.
