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