                     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 April 8, 2014

      Before: Raymond C. Fisher, Richard C. Tallman,
        and Consuelo M. Callahan, Circuit Judges.


                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel denied an untimely motion to reconsider its
previous order denying a petition for panel rehearing of its
decision affirming the denial of a 28 U.S.C. § 2254 habeas
corpus petition challenging a conviction and capital sentence
for murder and related offenses.


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

   Judge Fisher dissented. He would hold this appeal in
abeyance pending resolution of en banc proceedings in
McKinney v. Ryan, 730 F.3d 903 (9th Cir. 2013), reh’g en
banc granted, 2014 WL 1013859 (9th Cir. Mar. 12, 2014).



                          ORDER

    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
                          HENRY V. RYAN                                 3

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 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




 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).
4                       HENRY V. RYAN

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 (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”



  2
    Our assumption allowed us to avoid determining whether there was
any error at all, permitting us to preserve a unanimous panel.
                      HENRY V. RYAN                          5

require us to relinquish this case. Schad, 133 S. Ct. at 2551
(quoting Calderon v. Thompson, 523 U.S. 538, 550 (1998)).

    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.



FISHER, Circuit Judge, dissenting:

    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
6                     HENRY V. RYAN

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 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 Supreme Court review is
discretionary, see Sup. Ct. R. 10, Henry appropriately relies
                      HENRY V. RYAN                          7

not only on his petition for certiorari but also on our en banc
process in McKinney to address his structural error argument.
