Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding D.C. No. CV-9702577-PHX-ROS District of Arizona, Phoenix
The opinion of the court was delivered by: Thomas, Circuit Judge and Capital Case Coordinator
Argued and Submitted May 14, 2009--San Francisco, California
Amended Order; Dissent to Order by Judge Tallman; Dissent to Order by Judge Callahan
Habeas Corpus/Death Penalty
Judge Thomas, as Capital Case and En Banc Coordinator, issued an order denying a petition for rehearing en banc, stated that no further petitions for panel rehearing or rehearing en banc will be entertained, that en banc proceedings are concluded, and that the panel will issue a separate order on the petition for panel rehearing.
Judge Tallman dissented, joined by Chief Judge Kozinski and Judges O'Scannlain, Bybee, Callahan, Bea, M. Smith, and Ikuta. In an unpublished opinion, the panel stayed petitioner Schad's execution pending remand for the district court to consider whether counsel's ineffective assistance established cause and prejudice to excuse the procedural default of Schad's claims of ineffective assistance at sentencing. Judge Tallman dissented because the panel failed to appropriately apply Cullen v. Pinholster, 131 S. Ct. 1388 (2011), and Martinez v. Ryan, 132 S. Ct. 1309 (2012), and that this court's failure to take this case en banc has allowed the majority to stretch Martinez beyond its limited scope and permitted Schad to bolster a previously unexhausted ineffective assistance of counsel claim with new federal habeas evidence in violation of Pinholster.
Judge Callahan dissented, joined by Chief Judge Kozinski and Judges O'Scannlain, Tallman, Bybee, and M. Smith. In addition to agreeing with Judge Tallman's dissent, she observed that the panel majority's decision disregards the victims' rights in favor of a twice-convicted murderer who has already had the benefit of 33 years of legal process.
The full court has been advised of the petition for rehearing and 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 orders should be reheard en banc.
A judge requested a vote on whether to hear the panel's orders en banc, and a vote was conducted. A majority of the active, non-recused judges eligible to vote on the en banc call voted against rehearing the panel's orders en banc. Therefore, the petition for rehearing en banc is DENIED. No further petitions for panel rehearing or rehearing en banc will be entertained. En banc proceedings with respect to the orders are concluded. The panel will issue a separate order concerning the petition for panel rehearing.
TALLMAN, Circuit Judge, joined by KOZINSKI, Chief Judge, and O'SCANNLAIN, BYBEE, CALLAHAN, BEA, M. SMITH, and IKUTA, Circuit Judges, dissenting ...