Tuesday, March 11, 2014

Dickens v. Ryan, No. 08-99017 (9th Cir. Mar. 11, 2014) (per curiam order from the en banc court)
[Ed. note -- this is an Arizona FPD case] --- This is a death-penalty habeas appeal.  Before the en banc court, the petitioner lost his argument that he could not be executed because he was not the actual killer, but won a remand to the district court to show cause and prejudice under Martinez v. Ryan, 132 S. Ct. 1309 (2012), to excuse the procedural default of a penalty-phase ineffective-assistance claim.  Then the petitioner committed suicide, which prompted the state to ask the court to vacate the published en banc opinion.  The en banc court denied the state's motion.  The court undoubtedly had jurisdiction when the opinion came out, the precedent is a valuable one that will affect many individuals (including a significant number on death row in Arizona), and only the state would be prejudiced if the decision were to remain as precedent.  Though the panel included members from the left, center, and right wings of the court in as equal numbers as possible (4, 4, and 3, respectively), only Judge Callahan dissented from the order.  She argued that the opinion should be vacated because the Supreme Court cannot review it in light of the petitioner's death.

The order is here:



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