Graham S Henry v. Charles Ryan
Filed Order for PUBLICATION (RAYMOND C. FISHER, RICHARD C. TALLMAN and CONSUELO M. CALLAHAN) (Dissent by RCF) 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. (SEE ORDER FOR FULL TEXT) 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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UNITED STATES COURT OF APPEALS
APR 08 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRAHAM S. HENRY,
Petitioner - Appellant,
D.C. No. 2:02-CV-00656-SRB
District of Arizona,
CHARLES L. RYAN,
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
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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
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).
Our assumption allowed us to avoid determining whether there was any
error at all, permitting us to preserve a unanimous panel.
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(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
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)).
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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.
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