                                                                          FILED
                               FOR PUBLICATION                             APR 08 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GRAHAM S. HENRY,                                 No. 09-99007

              Petitioner - Appellant,            D.C. No. 2:02-CV-00656-SRB
                                                 District of Arizona,
  v.                                             Phoenix

CHARLES L. RYAN,
                                                 ORDER
              Respondent - Appellee.



Before: FISHER, TALLMAN, and CALLAHAN, Circuit Judges.

       The Supreme Court has stated that “finality and comity concerns, based in

principles of federalism, demand that federal courts accord the appropriate level of

respect to state judgments.” Ryan v. Schad, 133 S. Ct. 2548, 2551 (2013) (internal

quotation marks omitted). In this case, finality is long overdue.

       The panel issued its opinion in June 2013. It then proceeded to give Henry

two extensions of time in which to file petitions for panel rehearing and rehearing

en banc. Upon finally receiving the petitions, ordering a response, and allowing

ample time for their consideration, no judge requested a vote on whether to rehear

the matter en banc. Consequently, on November 1, 2013, the panel filed an order
that denied the petition for rehearing en banc and expressed the panel’s unanimous

will to deny panel rehearing.

      Nearly five months later, after Henry delayed Supreme Court consideration

by requesting (and receiving) an extension of time in which to file his petition for

certiorari, this court granted rehearing en banc in a different, yet arguably related

case, McKinney v. Ryan, 730 F.3d 903 (9th Cir. 2013), rehearing en banc granted,

2014 WL 1013859 (Mar. 12, 2014). As a result, a fortnight before his certiorari

deadline, Henry filed an “Expedited Motion for Full-Court Reconsideration” of our

November 1, 2013, order denying rehearing en banc. Judge Thomas denied that

motion as non-cognizable under our Circuit’s en banc rules. Then Henry filed a

timely petition for certiorari with the Supreme Court. See Ninth Circuit Dkt. No.

100, Supreme Court No. 13-9512.

      Now, with one foot through the Supreme Court’s front door, Henry invites

the panel to reconsider its November 1, 2013, order denying the petition for panel

rehearing. We decline.

      Henry’s ghastly crimes are almost twenty-eight years old. And we will not

permit Supreme Court review to wait any longer while other cases move through

the system. Henry had his shot before the Ninth Circuit, and it is time to move on.

We previously found that the Arizona courts committed no reversible error because


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they “already considered Henry’s intoxication at the time of the murder as a

mitigating factor” and so “[g]iven the similar nature of the mitigation, the

additional evidence of Henry’s historical alcoholism would have had minimal

mitigating value.”1 Henry v. Ryan, 720 F.3d 1073, 1090 (9th Cir. 2013). We went

on to observe that “[i]f the state courts concluded that intoxication with a causal

connection to the crime was not sufficient to call for leniency, it is highly doubtful

that they would have considered alcoholism without a causal connection to be

sufficient.” Id. And we concluded that “even assuming the state courts committed

causal nexus error, the error did not have a substantial and injurious effect or

influence in determining the sentence.”2 Id. at 191.

      If the error Henry alleges is truly structural, the swiftest and most efficient

means of addressing it is already at hand—Supreme Court review. Henry has

raised the structural-error argument in his petition for certiorari, where he names at

least 16 other Arizona capital cases currently “in the pipeline” that would be

affected by a Supreme Court disposition in his case. Petition for cert., at *17–20



      1
         In addition, the Arizona Supreme Court also concluded that there was
insufficient evidence of historical substance abuse. See State v. Medrano, 914 P.2d
225, 228–29 (Ariz. 1996).
      2
          Our assumption allowed us to avoid determining whether there was any
error at all, permitting us to preserve a unanimous panel.

                                           3
(U.S. Mar. 31, 2014) (No. 13-9512) (quoting Poyson v. Ryan, 743 F.3d 1185, 1188

(9th Cir. 2013) (Kozinski, C.J., dissenting from denial of rehearing en banc)). He

identifies a circuit split on whether Eddings error is structural and notes that

several circuits waver between structural and harmless error. Id. at 15–17. For all

these reasons, the Supreme Court is precisely where Henry’s question ought to

remain.

      Just last year we were chided for holding on to a death penalty case for too

long. See Schad, 133 S. Ct. at 2551. In the process, we were told that “[s]tates

have an ‘interest in the finality of convictions that have survived direct review

within the state court system.’” Id. (quoting Bell v. Thompson, 545 U.S. 794, 813

(2005)). We need not be told again.

      We recognize that because the panel in Poyson v. Ryan decided to withdraw

its prior denial of Poyson’s petition for panel rehearing pending the en banc

decision in McKinney (exactly what Henry requests), our decision here may be

viewed as inequitable. But the “profound interests in repose” require us to

relinquish this case. Schad, 133 S. Ct. at 2551 (quoting Calderon v. Thompson,

523 U.S. 538, 550 (1998)).




                                           4
      For the foregoing reasons, we deny Henry’s untimely motion to reconsider

our November 1, 2013, order denying the petition for panel rehearing. The

perceived friendlier waters of the Ninth Circuit cannot harbor all boats indefinitely.

      DENIED.




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                                                                            FILED
Henry v. Ryan, No. 09-99007                                                  APR 08 2014

                                                                         MOLLY C. DWYER, CLERK
FISHER, Circuit Judge, dissenting:                                        U.S. COURT OF APPEALS



      I respectfully dissent from the court’s order. There are two reasons to hold

Henry’s appeal in abeyance until McKinney v. Ryan, 730 F.3d 903 (9th Cir. 2013),

reh’g en banc granted, 2014 WL 1013859 (9th Cir. Mar. 12, 2014), is decided.

First, as the majority notes, our court has taken similar action in Poyson v. Ryan,

No. 10-99005 (9th Cir. Apr. 2, 2014), and it would be inequitable to deny Henry

the same relief we have afforded Poyson, a similarly situated capital habeas

petitioner. Second, our denial of habeas relief in Henry’s case was based on our

application of harmless error review to Henry’s claim of unconstitutional causal

nexus error. See Henry v. Ryan, 720 F.3d 1073, 1089-91 (9th Cir. 2013). If

McKinney holds that error under Eddings v. Oklahoma, 455 U.S. 104 (1982), is

structural, our denial of habeas relief would no longer constitute good law.

Although there may be times when getting the right answer should yield to the

interest in finality, this is not one of them. The mandate in Henry’s capital habeas

appeal has not yet issued, and “[u]ntil the mandate issues, we retain jurisdiction,

and we are capable of modifying or rescinding [our] opinion.” Mariscal-Sandoval

v. Ashcroft, 370 F.3d 851, 856 (9th Cir. 2004) (citation omitted). Henry’s appeal

should be stayed until McKinney is resolved. If McKinney holds that Eddings error

                                           1
is structural, we should withdraw our opinion and address whether Henry is

entitled to habeas relief.

       These steps, of course, are all the more appropriate given that this is a death

penalty case, and a life hangs in the balance. See Mayfield v. Woodford, 270 F.3d

915, 933 (9th Cir. 2001) (en banc) (Gould, J., concurring) (a capital defendant, “for

whom life or death hangs in the balance, deserves the benefit of the doubt”); see

also Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (Scalia, J.) (“Proportionality

review is one of several respects in which we have held that ‘death is different,’

and have imposed protections that the Constitution nowhere else provides.”). And

the path Henry has proposed, and that we have taken in Poyson, serves the interests

in judicial economy by staying Supreme Court proceedings while our own law, and

potentially the outcome in Henry’s appeal itself, remain in flux.

       I agree with the majority that the Supreme Court ought to decide whether

Eddings error is structural. But the Court has so far declined to address that issue.

See Ben Cheng, Petition of the day, SCOTUSblog (Sept. 21, 2012, 10:55 PM),

http://www.scotusblog.com/2012/09/petition-of-the-day-340/ (“Issue: Whether

Eighth Amendment harmless-error review applies when a capital-sentencing jury is

precluded from considering relevant mitigating evidence.”), McGowen v. Thaler,

675 F.3d 482, 496 (5th Cir. 2012), cert. denied, 133 S. Ct. 648 (2012). Given that

                                           2
Supreme Court review is discretionary, see Sup. Ct. R. 10, Henry appropriately

relies not only on his petition for certiorari but also on our en banc process in

McKinney to address his structural error argument.




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