                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GREGORY DICKENS,                           No. 08-99017
            Petitioner-Appellant,
                                            D.C. No.
                 v.                        CV-01-757-
                                           PHX-NVW
CHARLES RYAN,
            Respondent-Appellee.             ORDER


                 Filed March 11, 2014

Before: Alex Kozinski, Chief Judge, and Harry Pregerson,
Kim McLane Wardlaw, Marsha S. Berzon, Jay S. Bybee,
Consuelo M. Callahan, Sandra S. Ikuta, N. Randy Smith,
Mary H. Murguia, Morgan Christen and Paul J. Watford,
                    Circuit Judges.

                        Order;
               Dissent by Judge Callahan
2                        DICKENS V. RYAN

                           SUMMARY*


                Habeas Corpus/Death Penalty

    The en banc court denied a motion to stay the mandate, to
vacate the opinion filed on January 23, 2014, and to dismiss
a 28 U.S.C. § 2254 habeas corpus petition as moot due to
petitioner’s death four days after the opinion was published.

    Judge Callahan dissented. She would exercise discretion
to vacate the en banc opinion.


                            COUNSEL

Robin C. Konrad and Dale A. Baich, Assistant Federal Public
Defenders, Federal Public Defender’s Office, Phoenix,
Arizona, for Petitioner-Appellant.

John P. Todd, Assistant Attorney General, Capital Litigation
Section, Arizona Attorney General’s Office, Phoenix,
Arizona, for Respondent-Appellee.




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

                               ORDER

    Gregory Scott Dickens appealed the district court’s denial
of his 28 U.S.C. § 2254 habeas corpus petition. In a divided
en banc opinion, we affirmed in part, vacated in part, and
remanded the district court’s judgment. See Dickens v. Ryan,
740 F.3d 1302, 1322 (9th Cir. 2014) (en banc). The court
was later advised that Dickens died on January 27,
2014—four days after the publication of our opinion. On
January 29, 2014, the state of Arizona moved to stay the
mandate, vacate the filed opinion, and dismiss the petition as
moot. Because the state has failed to “demonstrate . . .
equitable entitlement to the extraordinary remedy of vacatur,”
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18,
26 (1994), we deny the state’s motion.

    No party disputes that we had jurisdiction at the time we
decided this case. The untimely death of Dickens after our
decision had been rendered does not “deprive [this] court of
jurisdiction retroactively.” Armster v. U.S. Dist. Court for the
Cent. Dist. of Cal., 806 F.2d 1347, 1353 (9th Cir. 1986).1 “In
these circumstances, while we are not precluded from
exercising article III power, we are likewise not prohibited
from dismissing the case post hoc.” Id. at 1355. The
decision whether to vacate a filed opinion based on post hoc
mootness “is within our discretion based on equity.” United
States v. Payton, 593 F.3d 881, 885 (9th Cir. 2010).

   In exercising our discretion, the lack of prejudice weighs
heavily in favor of denying the motion. Both parties’ claims
have been subjected to en banc review. Neither party is

  1
    “The fact that the ministerial act of issuing the mandate remains . . .
does not affect our conclusion.” Armster, 806 F.2d at 1355 n.9.
4                         DICKENS V. RYAN

entitled to additional appellate review, because the decision
to grant a petition for certiorari is discretionary. Dickens will
not receive the hearing to which he would otherwise have
been entitled, see Dickens 740 F.3d 1321–22, but only the
defense—who opposes vacatur—will be prejudiced by that
result.2

    Furthermore, judicial precedents “are not merely the
property of private litigants,” but are “valuable to the legal
community as a whole.” U.S. Bancorp Mortg. Co., 513 U.S.
at 26. The precedent set by the en banc panel in this case will
undoubtedly affect cases now pending before this court. We
see no reason to undo this precedent and force future panels
to duplicate our efforts by re-deciding issues we have already
resolved within the contours of article III.

        The state’s motion is DENIED.



CALLAHAN, Circuit Judge, dissenting:

    I agree that the decision whether to vacate our en banc
opinion is addressed to our discretion, but I would exercise
that discretion to grant the motion. I have serious questions
concerning the merits and practical consequences of

    2
    The state cites two cases in which we vacated a published opinion
based on post hoc mootness. See Farmer v. McDaniel, 692 F.3d 1052 (9th
Cir. 2012); Griffey v. Lindsey, 349 F.3d 1157 (9th Cir. 2003). In both
cases, the mootness arose prior to any en banc proceedings. Furthermore,
because the decision whether to vacate is “within our discretion,” Payton,
593 F.3d at 885, our decision to vacate in those cases does not compel
vacatur here. See Armster 806 F.2d at 1355 (“In this case, however, we
have not been presented with a sufficient justification for the exercise of
that limited, discretionary power.” (emphasis added)).
                    DICKENS V. RYAN                       5

the majority’s broad reading of Martinez v. Ryan, 132 S. Ct.
1309 (2012), and believe that the Supreme Court would have
provided necessary guidance. The en banc court divided on
the Martinez issue and on another major issue, each of which
might have received Supreme Court attention, neither of
which will now.
