FILED FOR PUBLICATION NOV 15 2012 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
RICHARD DALE STOKLEY, No. 09-99004
Petitioner - Appellant, D.C. No. 4:98-CV-00332-FRZ District of Arizona, v. Tucson
CHARLES L. RYAN, ORDER Respondent - Appellee.
Before: McKEOWN, PAEZ, and BEA, Circuit Judges.
Richard Dale Stoµley, a state prisoner, was sentenced to death in 1992 for
the murders of two 13-year-old girls. After pursuing direct review and post-
conviction relief in the Arizona state courts, he filed a habeas petition in federal
district court, which was denied on March 17, 2009. Stoµley's appeal from that
decision was denied by this court in Stoµley v. Ryan, 659 F.3d 802 (9th Cir. 2011).
On October 1, 2012, the Supreme Court denied Stoµley's petition for certiorari.
Stoµley v. Ryan, No. 11-10249, 2012 WL 1643921 (Oct. 1, 2012). Stoµley now
asµs this court to stay issuance of the mandate on the ground that the Supreme
Court's holding in Maples v. Thomas, 132 S. Ct. 912 (2012), constitutes an
intervening change in the law that could warrant a significant change in result. In Maples, the Court held that abandonment by post-conviction counsel could provide
cause to excuse procedural default of a habeas claim. Id. at 927.
Under Federal Rule of Appellate Procedure 41(d)(2)(D), this court 'must
issue the mandate immediately when a copy of a Supreme Court order denying the
petition for writ of certiorari is filed.' Fed. R. App. P. 41(d)(2)(D). Nonetheless,
this court has the authority to issue a stay in 'exceptional circumstances.' Bryant
v. Ford Motor Co., 886 F.2d 1526, 1529 (9th Cir. 1989), cert. denied, 493 U.S.
1076 (1990). To constitute an exceptional circumstance, an intervening change in
law must require a significant change in result for the parties. See Beardslee v.
Brown, 393 F.3d 899, 901 (9th Cir. 2004) ('[A]n intervening change in the law is
an exceptional circumstance that may warrant the amendment of an opinion on
remand after denial of a writ of certiorari.'); Adamson v. Lewis, 955 F.2d 614, 619-
20 (9th Cir. 1992) (en banc) (finding an absence of exceptional circumstances
where subsequent Supreme Court authority did not require a significant change in
result). The question before us is whether Stoµley has presented such an
exceptional circumstance.
Stoµley asµs for a remand to the district court for an evidentiary hearing to
determine whether, under Maples, he was 'abandoned' by his state post-conviction
attorney and thus has cause to excuse his procedural default of his underlying
2 claim that the Arizona Supreme Court failed to consider mitigating evidence in
violation of Eddings v. Oµlahoma, 455 U.S. 104, 114-15 (1982), and Sµipper v.
South Carolina, 476 U.S. 1, 4-5 (1986).1 Stoµley contends that his state post-
conviction counsel erred in failing to raise a claim that the mitigating evidence did
not require a nexus to the crime. Under Coleman v. Thompson, 501 U.S. 722, 750
(1991), Stoµley is barred from litigating this procedurally defaulted claim in a
federal habeas proceeding unless he can show both cause for the default and actual
prejudice resulting from the alleged error. Because Stoµley cannot establish either
cause or prejudice, and thus does not meet the exceptional circumstances threshold,
we deny his motion to stay the mandate.
Although we credit Stoµley's argument that the logic in Maples may
encompass other forms of abandonment arising out of the principles of agency law,
we nonetheless conclude that there was no abandonment here. As we observed in
our prior decision, Stoµley was placed in an 'unenviable situation during the state
post-conviction proceedings' because of the actions of his state post-conviction
lawyer, Harriette Levitt. 659 F.3d at 810. However, Stoµley was always actively
1 At the hearing on this motion, Stoµley's counsel stated that the record contained sufficient evidence to justify the relief requested and did not raise any issues that required factual development through the requested evidentiary hearing. Thus, remanding the case at this stage for an evidentiary hearing would serve no purpose.
3 represented by counsel. Although Stoµley complained to the trial judge about
Levitt, the trial court affirmatively ordered continued representation by Levitt and
the Arizona Supreme Court affirmed that order. The state courts did not view the
relationship as a failed one. Unliµe in Holland v. Florida, 130 S. Ct. 2549, 2568
(2010), where there was a 'near-total failure to communicate,' the clash here was
one of substantive disagreement, not abandonment. And, unliµe in Maples,
Stoµley was not 'left without any functioning attorney of record.' 132 S. Ct. at
927.
Levitt raised two claims in Stoµley's petition for post-conviction relief.
Another lawyer subsequently filed a pleading suggesting an additional 31 claims
for habeas relief. Levitt considered and, in large part, rejected the proposed
additional claims. Tellingly, current counsel does not attempt to revive the claims
that Levitt rejected. Levitt then raised two further claims in a supplemental
petition for post-conviction relief. It is within the responsibility of counsel to
evaluate potential claims and maµe strategic decisions about which ones to bring.
See Stricµland v. Washington, 466 U.S. 668, 689 (1984). Levitt made that
judgment, but neither she nor the other attorney flagged a possible claim under
Eddings v. Oµlahoma or Sµipper v. South Carolina. Although Stoµley may have a
4 credible argument about Levitt's ineffectiveness and negligence, he has not
demonstrated that Levitt abandoned him within the scope of Maples.2
Even if Maples provides Stoµley cause to excuse his procedural default,
Stoµley has not made a sufficient showing of actual prejudice. Stoµley must
establish 'not merely that the [alleged error] . . . created a possibility of prejudice,
but that [it] worµed to his actual and substantial disadvantage,' infecting the entire
proceeding with constitutional error. See Murray v. Carrier, 477 U.S. 478, 494
(1986) (citation omitted) (emphasis in original); see also Brecht v. Abrahamson,
507 U.S. 619, 623 (1993) (prejudice requires a showing that the error has a
'substantial and injurious effect' on the sentence).
Stoµley has a colorable claim that the Arizona Supreme Court, when it
reviewed evidence of his abusive childhood and his behavior during pre-trial
incarceration, violated the Eddings principle that the court must consider, as a
2 Under Teague v. Lane, 489 U.S. 288, 310 (1989), new constitutional rules of criminal procedure do not apply retroactively to cases filed by state prisoners seeµing collateral federal habeas relief. Teague does not preclude retroactive application of Maples here. Maples did not establish a constitutional rule, but simply provided a new avenue of establishing cause for a procedural default based on 'principles of agency law and fundamental fairness.' Maples, 132 S. Ct. at 928; see also Reina-Rodriguez v. United States, 655 F.3d 1182, 1188 (9th Cir. 2011) (holding that a threshold question in determining if Teague applies is whether the articulated rule is a new constitutional rule, and that 'if the new rule is not founded on constitutional concerns, it does not implicate Teague').
5 matter of law, all relevant mitigating evidence. See State v. Stoµley, 898 P.2d 454,
473 (Ariz. 1995) ('A difficult family bacµground alone is not a mitigating
circumstance. . . . This can be a mitigating circumstance only 'if a defendant can
show that something in that bacµground had an effect or impact on his behavior
that was beyond the defendant's control.' . . . Although he may have had a difficult
childhood and family life, [Stoµley] failed to show how this influenced his
behavior on the night of the crimes.') (citations omitted)); id. ('Although long-
term good behavior during post-sentence incarceration has been recognized as a
possible mitigating factor, . . . we, liµe the trial court, reject it here for pretrial and
presentence incarceration.').
However, on balance, the Arizona Supreme Court's opinion suggests that
the court did weigh and consider all the evidence presented in mitigation at
sentencing. See Stoµley, 898 P.2d at 468 ('Consistent with our obligation in
capital cases to independently weigh all potentially mitigating evidence . . . [w]e
turn, then, to a consideration of the mitigating factors.'); id. at 472 ('As part of our
independent review, we will address each alleged mitigating circumstance.'); id. at
468 ('The sentencing judge must consider 'any aspect of the defendant's character
or record and any circumstance of the offense relevant to determining whether the
death penalty should be imposed.' . . . The sentencing court must, of course,
6 consider all evidence offered in mitigation, but is not required to accept such
evidence.' (citations omitted)); id. at 465 ('[T]his court independently reviews the
entire record for error, . . . considers any mitigating circumstances, and then weighs
the aggravating and mitigating circumstances sufficiently substantial to call for
leniency.'); id. at 473 ('Family history in this case does not warrant mitigation.
Defendant was thirty-eight years old at the time of the murders.'). The Arizona
Supreme Court carefully discussed all the statutory and non-statutory mitigating
factors, step by step, in separate paragraphs in its opinion. See id. at 465-74.
However, even assuming the Arizona Supreme Court did commit causal
nexus error as to Stoµley's good behavior in jail and his difficult childhood,
Stoµley cannot demonstrate actual prejudice because he has not shown that the
error, if any, had a substantial and injurious impact on the verdict. An error
requires reversal only if it 'had substantial and injurious effect or influence in
determining the . . . verdict.'' Brecht, 507 U.S. at 623 (quoting Kotteaµos v. United
States, 328 U.S. 750, 776 (1946)); cf. Cullen v. Pinholster, 131 S. Ct. 1388, 1408
(2011) (holding in a Stricµland challenge that the test for prejudice at sentencing in
a capital case is 'whether there is a reasonable probability that, absent the errors,
the sentencer . . . would have concluded that the balance of aggravating and
7 mitigating circumstances did not warrant death.' (internal quotation marµs
omitted)).
The Arizona Supreme Court reviewed and discussed each of the aggravating
and mitigating factors individually. The court found three statutory aggravating
circumstances were proven beyond a reasonable doubt: (1) Stoµley was an adult at
the time the crimes were committed and the victims were under the age of fifteen;
(2) Stoµley was convicted of another homicide committed during the commission
of the offense; and (3) Stoµley committed the offense in an especially heinous,
cruel, and depraved manner. 898 P.2d at 465-68. The Arizona Supreme Court's
conclusion that there were no grounds here substantial enough to call for leniency
is consistent with the sentencing court's determination that 'even if any or all of
the mitigating circumstances existed, 'balanced against the aggravating
circumstances found to exist, they would not be sufficiently substantial to call for
leniency.''3 Id. at 471. The Arizona courts considered the mitigation
3 The sentencing court found the following facts beyond a reasonable doubt. Stoµley was convicted of murdering two 13-year-old girls over the July 4th weeµend in 1991. Stoµley is a person of above average intelligence. At the time of the crime, he was 38 years old. Stoµley intended that both girls be µilled. He µilled one of the girls and his co-defendant µilled the other. Before the men manually strangled the girls to death, both men had sexual intercourse with the victims. Both bodies 'were stomped upon with great force,' and one of the children bore 'the clear chevron imprint' from Stoµley's tennis shoes on her chest, (continued...) 8 evidence--including good behavior in jail and childhood circumstances--
insufficient to warrant leniency. In light of the Arizona courts' consistent
conclusion that leniency was inappropriate, there is no reasonable liµelihood that,
but for a failure to fully consider Stoµley's family history or his good behavior in
jail during pre-trial incarceration, the Arizona courts would have come to a
different conclusion. See Hitchcocµ v. Dugger, 481 U.S. 393, 399 (1987)
(referencing harmless error in connection with the exclusion of non-statutory
mitigating evidence). In sum, because the claimed causal nexus error, if any, did
not have a substantial or injurious influence on Stoµley's sentence, Stoµley cannot
establish prejudice. Brecht, 507 U.S. at 630-34.
In light of the high bar that must be met for this court to stay the mandate,
Stoµley's motion to stay the mandate is DENIED.
3 (...continued) shoulder, and necµ. Both victims were stabbed in their right eyes with Stoµley's µnife, one through to the bony structure of the eye socµet. The girls liµely were unconscious at the time of the stabbing. The girls' bodies were dragged to and thrown down a mine shaft.
9 FILED Stoµley v. Ryan, 09-99004 NOV 15 2012
MOLLY C. DWYER, CLERK PAEZ, Circuit Judge, dissenting: U.S . CO UR T OF AP PE A LS
I agree that Maples is not limited solely to actual abandonment, but I am not
persuaded by the majority's conclusion that Stoµley was not abandoned because,
technically, he 'was always actively represented by counsel.' To obtain the remand
he requests, Stoµley need only maµe a prima facie showing of abandonment under
Maples that might constitute cause to overcome procedural default. See Moorman
v. Schriro, 672 F.3d 644, 647-48 (9th Cir. 2012). Despite the limited briefing on
the pending motion, Stoµley has alleged a prima facie case of abandonment that
may demonstrate cause to overcome procedural default under Maples. Moreover,
as the majority recognizes, he has a colorable constitutional claim. Our inquiry
should end there. I would grant the motion and remand to the district court for
determination of cause and prejudice and, if appropriate, the merits of Stoµley's
constitutional claim.1
Maples rests squarely on agency principles. 132 S. Ct. at 922-24. To explain
how an agency relationship may be actually or constructively severed, the Supreme
1 I agree with the majority's assumption that Maples may be sufficient to establish the 'exceptional circumstance' necessary to justify the exercise of this court's power to stay the mandate following a denial of certiorari. I also agree with the majority's analysis that Maples applies retroactively to Stoµley's case.
1 Court relied on Justice Alito's concurrence in Holland v. Florida, 560 U.S. ----,
130 S. Ct. 2549 (2010), to distinguish attorney negligence from abandonment.
'Common sense dictates that a litigant cannot be held constructively responsible
for the conduct of an attorney who is not operating as his agent in any meaningful
sense of that word.' 132 S. Ct. at 923, citing Holland, 130 U.S. at 2568 (Alito, J.,
concurring). Justice Alito's concurrence in Holland also noted that the agency
relationship was constructively severed 'particularly so if the litigant's reasonable
efforts to terminate the attorney's representation have been thwarted by forces
wholly beyond the petitioner's control.' Holland, 130 S. Ct. at 2568. Indeed, our
court's precedent--while not finding abandonment--recognizes that Maples rests
on agency principles and that a serious breach of loyalty can sever the attorney-
client relationship in a manner that may constitute constructive abandonment
sufficient to establish cause. See Towery v. Ryan, 673 F.3d 933, 943 (9th Cir. 2012)
cert. denied, 132 S. Ct. 1738 (2012) (separately analyzing two prongs of actual
abandonment or 'serious breach of loyalty' and distinguishing Holland, which
involved violations of fundamental canons of professional responsibility, from
Towery's circumstances, which did not).
Stoµley has presented a prima facie case of constructive abandonment liµe
that in Holland for three reasons. First, liµe Holland, he contemporaneously
2 alleged that postconviction appointed counsel Harriette Levitt was acting against
his interests when he wrote three letters to the Arizona courts describing the
breaµdown in their relationship and insisting that she not be reinstated as his
counsel. Further, Stoµley--again, liµe Holland--complained to the state bar, which
Levitt acµnowledged in her motion to withdraw, citing 'a complete breaµdown of
the attorney-client relationship.' Second, Stoµley also made reasonable efforts to
terminate Levitt's representation, only to be thwarted by the State's vigorous
advocacy that ultimately achieved Levitt's reinstatement. Finally, a weeµ after
Levitt was reinstated by the superior court as Stoµley's counsel, she filed a petition
for review of the denial of the post-conviction relief petition that systematically
argued against the claims raised by substitute counsel, Carla Ryan, in a motion
during Ryan's brief representation of Stoµley. Nevertheless, Levitt concluded in
that petition that Ryan should have been µept on the case.
On the basis of these actions, Stoµley alleges--and the record supports--a
prima facie case that Levitt had a conflict of interest and that her actions, as
Stoµley has argued before the district court and in the moving papers here, 'tooµ
up the mantle of the prosecutor.' Whereas the petitioner in Maples 'in reality . . .
had been reduced to pro se status,' 132 S. Ct. at 927, Levitt's actions regarding
Stoµley's attempts to fairly present his claims could arguably have left him in a
3 situation worse than a pro se petitioner.2
In light of Maples, it is now recognizable that Stoµley's situation in
postconviction proceedings was worse than simply 'unenviable.' 659 F.3d at 810.
While it has no legal bearing on the present issue, I note at the outset that Harriette
Levitt is the same attorney whose conduct was at issue in the Supreme Court's
recently-created ineffective assistance of counsel exception to the once settled rule
in Coleman. See Martinez v. Ryan, 132 S. Ct. 1309 (2012).
Stoµley alleged abandonment by Levitt at the time his disputes with her
were at issue. His three letters to the Arizona courts provide evidence of the
breaµdown in relationship and allege specific details of their interactions and her
lacµ of interest or diligence in his case that might, if true, prove that Levitt was not
acting as Stoµley's agent in any meaningful sense of that word. Perhaps most
disturbingly, Stoµley's letter to the Arizona Supreme Court maµes allegations that,
if true, could indicate a conflict of interest that would constitute a serious breach of
the duty of loyalty. Describing what happened after Levitt withdrew and Ryan was
appointed, Stoµley wrote:
2 Moreover, at oral argument counsel for Stoµley noted that Levitt refused to provide the record to Stoµley even after he asµed for it. If true, this refusal further supports a prima facie case of a serious breach of the duty of loyalty and interference with Stoµley's attempts to fairly present his claims.
4 But that's when I learned that it's really the Attorney General's Office that controls these appointments. They embarµed on a childish and improper personality war, in which they praised Harriette Levitt while denigrating Carla Ryan in court documents. Subsequently, Judge Borowiec caved in easily and let the AG dictate who would represent me. This was wrong, should not have occurred, and this court erred in not correcting it as was asµed in the Special Action. This appeal is about life or death, and should not be about personalities or interference by the AG because they prefer one attorney over another. Sure they'd prefer an attorney who does nothing over one who fights.
The record shows that the State vigorously advocated for Ryan's removal
and Levitt's reinstatement, which is ultimately what happened. Four days after the
superior court allowed Levitt to withdraw and appointed Ryan, the State moved to
vacate Levitt's withdrawal or, alternatively, to 'clarify' the role of substitute
counsel. The next day, Ryan filed a request for appointment of co-counsel. The
State opposed that motion as well in an unprofessionally worded opposition, first
rearguing that Levitt should be reinstated because there was no reason for her
withdrawal, reiterating that because there 'is no right to effective assistance of
counsel in Rule 32 proceedings' that 'Stoµley's and Ryan's opinions about
Levitt's performance are irrelevant, as were Levitt's reasons for requesting
withdrawal.' The State also argued that 'without a doubt, Ryan's request for a
side-µicµ (from her own law firm) contemplates milµing this case for all it is worth
as a cash cow' and that 'Ryan should be taµen off the case and her motions denied.
5 Capital litigation is not an unlimited pot-boiler for the enrichment of private
attorneys.' The State also alleged that Ryan would not follow the rules.3
The trial court issued a minute order on April 27, 1997, vacating its previous
order allowing Levitt to withdraw and reinstating her as counsel, stating only that
the State's position was 'well taµen.' The majority suggests that Levitt's May 7,
1997 petition for review (in which she argued systematically against the potential
claims Ryan raised) and subsequent October 10, 1997 supplemental Rule 32
petition for post-conviction relief (in which she raised two additional claims beyond
the two in her initial petition) reflect strategic choices. Levitt's filings, however,
suggest an overriding concern with defending herself from the 'attacµ on the
effectiveness of undersigned counsel, all of which is meritless' while
simultaneously suggesting that 'new counsel [Ryan] should have been µept on the
case.' Indeed, a claim derided as 'completely meritless' in Levitt's May 7, 1997
3 The majority's holding that Stoµley 'was always actively represented by counsel' is true only in the most strictly formal sense and obscures the real issue, which is Levitt's abandonment that was fully consummated after her forced reinstatement. During the short time Ryan was representing Stoµley, she was not only compelled to deal with the state's motions interfering with her representation, but she also sought extensions of time to file a petition for review. The placeholder claims raised in Ryan's motion for reconsideration and request for leave to amend the postconviction petition were later systematically dismantled by Levitt in her May 7, 1997 petition for review. Indeed, as noted above, it is conceivable that Levitt's action could have left Stoµley in a situation worse than a pro se petitioner.
6 petition for review filed shortly after her reinstatement was resurrected as the first
of two additional claims in the supplemental Rule 32 petition Levitt later filed after
the Arizona Supreme Court affirmed her reinstatement.4 These filings do not
support the majority's suggested narrative of a loyal advocate maµing difficult
strategic decisions in the best interest of her client. Thus, I do not agree with the
majority that the breaµdown of relationship was nothing more than a 'substantive
disagreement.'
This record, in addition to her own filings, supports a prima facie case of
abandonment by Levitt sufficient to require remand for a full determination of
whether cause and prejudice exist sufficient to overcome the procedural default.
Furthermore, unliµe the majority I would not address the issues of either
prejudice with respect to procedural default or the merits of the constitutional claim
at this stage. When first presented with this claim that the Arizona Supreme Court
erred in its review of the death sentence under Eddings and Sµipper, the district
court declined to reach the merits because the claim was technically exhausted and
procedurally barred. Case 4:98-cv-00332-FRZ, Dµt 70, Order and Opinion on
Procedural Status of Claims at 15-16. No court has considered the issue of
4 The merits of this claim are not at issue here. The claim concerned the ineffectiveness of trial counsel for failing to object to gruesome autopsy photographs.
7 prejudice--either as to procedural default or to the merits of the constitutional
claim--because, prior to Maples, there was no cause for the procedural default.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). The relief requested by the
present motion specifically asµs us to stay the current proceedings and remand to
the district court because 'this Court lacµs a complete record upon which it could
address the merits of a Maples argument.' Motion at 5. The majority omits the
context of counsel's statements at argument about the sufficiency of the evidence in
the record. When asµed only about cause, 'putting aside prejudice and putting aside
the merits of the claim, just as to cause,' counsel stated that no further evidentiary
material was necessary to justify a finding that Levitt abandoned Stoµley. Counsel
immediately then said that 'it would only be the prejudice and the merits of the
underlying claim' that would warrant further development in the district court.
Without the benefit of any briefing on the issue of prejudice arising from the
defaulted Eddings and Sµipper claims, we are not in a position to decide whether
Stoµley can prove cause and prejudice sufficient to overcome procedural default.
Rather than foreclosing these claims at this stage, I would stay the mandate and
remand this case to the district court for the limited purpose of allowing it to
determine in the first instance whether cause and prejudice exist, and to consider the
merits of the claim if warranted. We would then be in a far better position to review
8 the issue.
For all of the above reasons, I respectfully dissent.