                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.

                                    AMENDED 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 21, 2012
             Amended November 27, 2012

               Before: Sidney R. Thomas

                   Amended Order;
         Dissent to Order by Judge Reinhardt;
        Dissent to Order by Judge W. Fletcher;
         Dissent to Order by Judge Watford;
         Dissent to Order by Judge Pregerson
2                       STOKLEY V . RYAN

                           SUMMARY*


                Habeas Corpus/Death Penalty

    Judge Thomas, as Capital Case and En Banc Coordinator,
issued an amended order denying a petition for rehearing en
banc.

    Judge Reinhardt dissented from the denial of rehearing en
banc, joined by Judges Pregerson, Wardlaw, W. Fletcher,
Fisher, Paez and Berzon, because the panel, without proper
briefing, made a number of serious errors due to a perceived
need to resolve several important issues arising out of the
recently-decided Maples v. Thomas, 132 S. Ct. 912 (2012).
Judge Reinhardt would have granted en banc review to
decide: whether a court’s error under Eddings v. Oklahoma,
455 U.S. 104 (1982), is structural or is subject to harmless
error; even if an Eddings error were not structural, whether
the panel should have reached that issue–not properly
presented to it–or remanded to the district court; and, even if
the error were not structural and no remand was required,
whether the state carried its burden of showing that the error
was harmless.

    Judge W. Fletcher dissented from the denial of rehearing
en banc, joined by Judges Pregerson, Reinhardt, Wardlaw,
Fisher, Paez and Berzon. He wrote that the court has
forgotten its role as an intermediate federal appellate court,
and instead has taken the role of the federal district court and
the Arizona Supreme Court, and allowed a three-judge panel

  *
    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

to decide, without briefing from the parties, that Eddings
error is not structural despite circuit cases and Supreme Court
suggestions to the contrary. He would not allow the State of
Arizona to kill Stokley before his plausible claims under
Maples and Eddings have been properly considered.

    Judge Watford dissented from the denial of rehearing en
banc, joined by Judges Pregerson, Wardlaw, W. Fletcher,
Fisher, Paez, Berzon, Christen and Nguyen. He does not
think there is any question that the Arizona Supreme Court
violated Eddings. Assuming Maples error, as the panel
majority does, Stokley has established cause for his
procedural default. He would grant en banc review to
consider whether this court must actually decide the merits of
the underlying Eddings claim or find only that the claim is
substantial, and to consider whether an Eddings violation is
structural error or subject to harmless error review.

    Judge Pregerson dissented from the denial of rehearing en
banc. He concurred in the dissents of Judges Reinhardt, W.
Fletcher and Watford.
4                    STOKLEY V . RYAN

                         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.


                          ORDER

THOMAS, Circuit Judge and Capital Case Coordinator:

    The full court has been advised of the petition for
rehearing en banc. Pursuant to the rules applicable to capital
cases in which an execution date has been scheduled, a
deadline was set by which any judge could request a vote on
whether the panel’s November 15, 2012 order should be
reheard en banc. The panel elected to amend its original
order, and the full court was advised of the planned
amendment.

    A judge requested a vote on whether to hear the panel’s
order en banc. A majority of the active, non-recused judges
eligible to vote on the en banc call did not vote to rehear the
panel order en banc. Therefore, the petition for rehearing en
banc is DENIED.
                      STOKLEY V . RYAN                        5

    No further petitions for panel rehearing or rehearing en
banc will be entertained. En banc proceedings with respect
to the original order and the amended order are concluded.

    The dissents from the denial of rehearing en banc follow
this amended order.



REINHARDT, Circuit Judge, joined by PREGERSON,
WARDLAW, W. FLETCHER, FISHER, PAEZ, and
BERZON, Circuit Judges, dissenting from the denial of en
banc rehearing:

     This is a death penalty case in which, due to the panel’s
perceived need to resolve, all-too-hastily, several important
issues arising out of the recently-decided case of Maples v.
Thomas, 132 S. Ct. 912 (2012), the majority, without proper
briefing, made a number of serious errors that warrant review
by the en banc court. So great was its perceived need for
speed that the panel was still amending its order and changing
its rationale while the en banc process was underway.
Stokley, the individual whose life was at stake, was afforded
little opportunity to explore the issue that the majority of the
panel raised sua sponte, and then held to be dispositive.
Nevertheless, a majority of the court voted to let the panel
majority’s order stand. As a result of our failure to go en
banc, an execution which is scheduled for next week will
occur, in violation of fundamental constitutional principles,
absent intervention by the Supreme Court—the only
remaining body that can ensure that Stokley receives his
constitutional rights.
6                        STOKLEY V . RYAN

    The case arises from Stokley’s motion for a stay of
mandate and for a remand to the district court in light of the
Court’s recent decision in Maples.1 Stokley claimed that, like
Maples, he had been abandoned by his post-conviction
counsel, and that this abandonment constituted adequate
cause to excuse his failure to raise on state post-conviction
review the claim that, on direct appeal, the Arizona Supreme
Court had violated Eddings v. Oklahoma, 455 U.S. 104
(1982). The panel does not, in its amended order, contest
Stokley’s Maples claim, except to hold that he suffered no
prejudice as a result.

    Eddings makes clear that a defendant is entitled to rely on
any mitigating evidence that might make a fact-finder less
likely to impose a death sentence—including evidence that
does not have a causal connection to the crime at issue.
445 U.S. at 114–15. The Arizona Supreme Court violated
Eddings in its decision affirming the death penalty imposed
on Stokley, by failing to consider mitigating evidence that did
not have a nexus to his crime.2 The panel majority excuses
the Arizona Supreme Court’s violation of Eddings as merely
harmless error, thus deciding, sub silentio, that an Eddings
error is subject to harmless error analysis. It then holds that
Stokley is unable to demonstrate the prejudice necessary to
excuse the procedural default of his Eddings claim, and on
that basis denies his motion for a stay of mandate and for a

     1
    The panel does not contest that this motion is properly raised as a
motion to stay the mandate. It had issued a published opinion before
Maples was decided, but there it addressed an entirely different underlying
claim. Stokley v. Ryan, 659 F.3d 802 (9th Cir. 2011).

 2
  See, e.g., State v. Stokley, 898 P.2d 454, 473 (Ariz. 1995) (disregarding
evidence of “chaotic and abusive childhood” because Stokley “failed to
show how this influenced his behavior on the night of the crimes”).
                         STOKLEY V . RYAN                              7

remand to present his claim, under Maples, that he was
abandoned by his attorney—and ultimately the right to a
proper review of his capital sentence by the Arizona Supreme
Court under standards consistent with the Constitution.3

    We err in declining to convene en banc to address this
capital case, for several reasons. First, we should decide en
banc the question of whether a court’s error under Eddings is
structural or is subject to harmless error analysis. Second,
even if an Eddings error were not structural, we should decide
en banc whether the panel ought to have reached that
issue—an issue that was not properly presented to it—or
should first have remanded it to the district court. Finally,
even if the error were not structural and if we were not
required to remand as to prejudice, we should have
determined whether the state carried its burden of showing
that the error was harmless.

    Whether a court’s error under Eddings is structural or is
subject to harmless error analysis is an unresolved question
of exceptional importance. The circuits are divided on the
question; the Fifth Circuit has held that such an error is
structural, while other circuits have held the opposite.
Compare Nelson v. Quarterman, 472 F.3d 287, 314–15 (5th
Cir. 2006) (en banc), cert. denied, 551 U.S. 1141 (2007) with
Bryson v. Ward, 187 F.3d 1193, 1205 (10th Cir. 1999)
(collecting cases applying harmless error review). Even our
own court’s decisions appear divided on this issue. Compare
Williams v. Ryan, 623 F.3d 1258, 1270–71 (9th Cir. 2010)
(conducting no harmless error analysis) with Landrigan v.


 3
  Although the panel here erroneously found no prejudice, it did not rule
on the question of cause in its amended order, and a remand, on that
question at least, would be necessary.
8                     STOKLEY V . RYAN

Stewart, 272 F.3d 1221, 1230 & n.9 (9th Cir. 2001). The
Supreme Court has previously granted certiorari to address
this question, see Smith v. Texas, 549 U.S. 948 (2006)
(mem.), although it nevertheless eventually declined to
address it, see Smith v. Texas, 550 U.S. 297, 316 (2007)
(Souter, J., concurring). A petition for certiorari raising this
precise question is currently pending before the Supreme
Court. See Thaler v. McGowen, No. 12-82 (U.S. filed July
17, 2012), available at 2012 WL 2992072.

     The panel’s hastily-reached decision, without adequate
briefing, that such error is not structural is simply inconsistent
with the Supreme Court’s precedents regarding the
importance, in capital cases, of permitting the fact-finding
body to properly weigh all mitigating factors. These
precedents require that the fact-finding body give meaningful
weight to mitigating factors—a requirement that is as much
substantive as it is procedural. See Penry v. Lynaugh,
492 U.S. 302, 319 (1989) (“[I]t is not enough simply to allow
the defendant to present mitigating evidence to the sentencer.
The sentencer must also be able to consider and give effect to
that evidence in imposing sentence.” (emphasis added)),
abrogated on other grounds by Atkins v. Virginia, 536 U.S.
304 (2002). Such an error cannot be cured by this court, and
particularly, given the deference due to the state court, by this
court sitting in habeas review. We should not engage in an
independent weighing of these factors, especially when the
state court originally did so under a mistaken conception of
its legal duty. Such an independent weighing creates the
substantial “risk that the death penalty will be imposed in
spite of factors which may call for a less severe penalty.”
Penry, 492 U.S. at 328 (citing Lockett v. Ohio, 438 U.S. 586,
605 (1978)) (remanding for a re-determination of the
aggravating and mitigating factors). That risk, as the
                      STOKLEY V . RYAN                        9

Supreme Court has held, is “unacceptable and incompatible
with the commands of the Eighth and Fourteenth
Amendments.” Id. Thus, not only should we go en banc, but
we should conclude that the error is structural, and that the
Arizona Supreme Court should be given the opportunity to
apply the proper Constitutional standards.

    Further, even were we to conclude that an Eddings
violation is not structural, the panel majority’s decision to
address the question of prejudice would constitute error. The
state made no mention of this question in its opposition to
Stokley’s motion for a stay of mandate, and the district court
had had no opportunity to consider Maples at all. The
simplest course would have been to remand, to give both
parties the opportunity to fairly address the issue and to
obtain the views of the district court. See, e.g., Maples,
132 S. Ct. at 927–28 (remanding for a determination
regarding prejudice); Martinez v. Ryan, 132 S. Ct. 1309,
1320–21 (2012) (same). The panel, however, did not
remand—instead, it addressed the issue of prejudice sua
sponte, despite the state’s failure to raise it. This is
particularly surprising, given that, if an Eddings error is not
structural, the state bears the burden of demonstrating that the
error is harmless. See Hitchcock v. Dugger, 481 U.S. 393, 399
(1987) (noting the state’s duty to demonstrate that error is
harmless, and holding that “[i]n the absence of such a
showing our cases hold that the exclusion of mitigating
evidence of the sort at issue here renders the death sentence
invalid.”).

    As it was, the first substantive discussion of prejudice in
this case was in the panel majority’s original order denying
Stokley’s motion—although prejudice was simply an
alternative basis for the order. The principal basis for the
10                       STOKLEY V . RYAN

majority’s holding was that Stokley had not been abandoned
by his counsel, and thus that no cause existed for the
procedural default. Stokley’s first opportunity to brief the
issue of prejudice was in his petition for en banc rehearing,
although he was compelled to argue primarily that the panel
erred in holding that he had not been abandoned by counsel
under Maples and that he had not waived the issue of
prejudice. The panel majority paid little heed to Stokley’s
briefing: a mere two days after his petition for en banc
rehearing was filed, this court denied it; later that day, the
panel majority amended its order—not to reflect Stokley’s
limited briefing regarding prejudice, but rather to render the
issue of prejudice the sole basis of its amended order (thus
eliminating all discussion of the merits of Stokley’s Maples
claim), while leaving its discussion of prejudice largely
unchanged.4

    Finally, even if the Eddings violation in this case were
subject to harmless error review, and even if it were
appropriate for the panel to reach the issue without a remand
to the district court, it is clear that the Eddings error in this
case was indeed prejudicial. If we are to determine whether
there is harmless error here, then the Court’s decision in the
Eddings line of cases must be our guide: the focus of our


     4
      The panel’s original order was based, in part, on an alleged
representation by Stokley’s counsel that no remand was necessary on the
issue of prejudice. See Maj. Op. (Nov. 15, 2012) at 5 n.1 (“Stokley’s
counsel . . . did not raise any issues that required factual development
through the requested evidentiary hearing.”). The recording of oral
argument clearly conveys counsel’s statement to the contrary— that further
development of the record was needed because “there has never really
been a discussion of prejudice” and Stokley’s pleadings regarding the
issue were simply “notice pleading.” The panel’s amended opinion omits
the assertion that counsel has waived this issue.
                      STOKLEY V . RYAN                         11

inquiry ought to be whether there is a “risk that the death
penalty will be imposed in spite of factors which may call for
a less severe penalty.” Penry, 492 U.S. at 328 (citing Lockett,
438 U.S. at 605). Here, the comity and federalism concerns
that typically limit our inquiry when we sit in habeas review,
see Cullen v. Pinholster, 131 S. Ct. 1388, 1401 (2011),
suggest that the Arizona Supreme Court should be given an
opportunity to re-weigh these factors when that risk is at least
substantial, as it is here. This is particularly so given that the
Arizona Supreme Court undertakes an independent and de
novo weighing of aggravating and mitigating factors in its
initial review of every capital case (including this one), and
thus is uniquely situated to cure this error as well as being
already familiar with the facts of this case. See State v.
Stokley, 898 P.2d at 454.

    Here, there clearly is a sufficient risk that the death
penalty will be imposed in spite of factors that call for lenity.
The Arizona Supreme Court permitted an Eddings error to
affect its consideration of at least three of the mitigating
factors it considered. See State v. Stokley, 898 P.2d at 469
(substance abuse), 470 (head injuries and impulse control),
473 (family history and childhood abuse). Although, as the
Arizona Supreme Court pointed out, these factors did not
have a direct nexus to the crime in question, the court’s
refusal to grant them weight undoubtedly limited its ability to
“express[] its ‘reasoned moral response’ to that evidence in
rendering its sentencing decision.” Id. That this risk exists
is particularly likely in light of the fact that Stokley’s co-
perpetrator—who actually instigated the crime—received a
sentence of only 20 years, and has already been released from
prison. The facts of this crime, absent a consideration of
Stokley’s particular circumstances, thus do not inexorably
lead to a finding that the death penalty should have been
12                      STOKLEY V . RYAN

imposed. Thus, were we to engage in a harmless error
analysis, we should hold that Stokley had established the
requisite prejudice with respect to his Maples claim.5

     For these reasons, I respectfully dissent.



W. FLETCHER, Circuit Judge, with whom Judges
PREGERSON, REINHARDT, WARDLAW, FISHER,
PAEZ, and BERZON join, dissenting from the denial of en
banc rehearing:

    I fully concur in the dissents of Judges Reinhardt and
Watford from our failure to take this case en banc. I add only
the following.

    In our haste, we have forgotten our role as an intermediate
federal appellate court. We have taken the role of the federal
district court, refusing to allow that court to deal in the first
instance with Stokley’s motion under Maples v. Thomas,
132 S. Ct. 912 (2012). And we have taken the role of the
Arizona Supreme Court, refusing to allow that court to assess
the importance of Stokley’s mitigating evidence that was
previously disregarded, in violation of Eddings v. Oklahoma,
455 U.S. 104 (1982). Further, we have allowed a three-judge
panel of this court to decide, without briefing from the


 5
   The more proper body to undertake this analysis, however (if not the
Arizona Supreme Court), is the district court. The district court could
make this decision on remand with the benefit of a thorough examination
of the full record before the state court— examining the evidence and
arguments made in support of each aggravating and mitigating factor— as
well as with full briefing and argument.
                     STOKLEY V . RYAN                       13

parties, that Eddings error is not structural, despite cases in
this circuit to the contrary, see Williams v. Ryan, 623 F.3d
1258 (9th Cir. 2010); Styers v. Schriro, 547 F.3d 1026 (9th
Cir. 2008), and despite suggestions from the Supreme Court
that such error may indeed be structural. See Smith v. Texas,
549 U.S. 948 (2006) (mem.); Smith v. Texas, 550 U.S. 297,
316 (2007) (Souter, J., concurring); Thaler v. McGowen,
2012 WL 2955935 (Nov. 26, 2012) (denying cert. in
McGowen v. Thaler, 675 F.3d 482 (5th Cir. 2012), in which
Fifth Circuit held that Eddings error in jury instruction is
structural).

    There is no reason for such haste. Stokley has asserted
plausible claims under Maples and Eddings. They may or
may not prove to be winning claims. But we should not
allow the State of Arizona to kill Stokley before they have
been properly considered.



WATFORD, Circuit Judge, joined by PREGERSON,
WARDLAW, W. FLETCHER, FISHER, PAEZ, BERZON,
CHRISTEN, and NGUYEN, Circuit Judges, dissenting from
the denial of en banc rehearing:

    I do not think there is any question here that the Arizona
Supreme Court violated the rule established in Eddings v.
Oklahoma, 455 U.S. 104 (1982). Assuming, as the panel
majority does, that abandonment has been shown under
Maples v. Thomas, 132 S. Ct. 912 (2012), Stokley has
established cause for his procedural default. There are two
unresolved questions with respect to prejudice. The first is
whether this court must actually decide the merits of the
underlying Eddings claim or need only find that the claim is
14                    STOKLEY V . RYAN

substantial, as in Martinez v. Ryan, 132 S. Ct. 1309, 1318
(2012); the second is whether an Eddings violation is
structural error or is instead subject to harmless error review.
These important and unsettled issues should be resolved by
the court sitting en banc.



PREGERSON, Circuit Judge, dissenting from the denial of en
banc rehearing:

    I concur in the dissents of Judge Reinhardt, Judge W.
Fletcher, and Judge Watford from our court’s refusal to take
Stokley v. Ryan en banc.
