Graham S Henry v. Charles Ryan
766 F.3d 1059
9th Cir.2014Background
- Panel denied habeas relief in Henry v. Ryan; Eddings error assumed but deemed harmless under Brecht; no panel rehearing or en banc call at that time.
- Henry later sought en banc review related to McKinney v. Ryan (Eddings error structural question); panel denied stay/reconsideration, then en banc call was initiated.
- En banc call occurred on April 10 after a panel decision denying stay; majority voted to reconsider en banc the panel’s denial of Henry’s motion.
- Henry argued for a stay pending resolution of McKinney and referenced similar stays in Poyson; the en banc process would allow orderly resolution.
- Dissent contends the en banc call violated internal rules and Rule 41 procedures, potentially delaying appellate mandate and undermining finality.
- Rule-based framework shifted from Bell/Schad extraordinary-circumstances standard to Rule 41(b) analysis due to ongoing en banc proceedings and purposes beyond certiorari timing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether en banc rehearing was properly invoked under FRAP 35 and General Orders | Henry | Henry's petition ignored timing rules; improper call | Unclear from excerpt; en banc proceeded despite timing concerns |
| Whether Rule 41(b) authorizes a stay or delay of mandate here | Henry | Court acted under Rule 41(b) to stay mandate | Rule 41(b) applicable; extraordinary-circumstance standard in Bell/Schad not controlling |
| Effect on comity and finality by delaying mandate pending McKinney | Henry would benefit from delay to await McKinney | Delay undermines finality and orderly processes | Court defends delay as proper under Rule 41(b) given ongoing proceedings |
Key Cases Cited
- Bell v. Thompson, 545 U.S. 794 (U.S. 2005) (default rule on mandate when stay is for certiorari)
- Schad v. Arizona, 133 S. Ct. 2550 (U.S. 2013) (exceptional-circumstances standard for stays)
- First Gibraltar Bank, FSB v. Morales, 42 F.3d 895 (5th Cir. 1995) (rare stays after certiorari denial for pre-existing reasons)
- Alphin v. Henson, 552 F.2d 1033 (4th Cir. 1977) (rare stays after certiorari denial for pre-existing reasons)
- McKinney v. Ryan, 745 F.3d 963 (9th Cir. 2014) (en banc consideration for Eddings structural issue)
- Poyson v. Ryan, 743 F.3d 1185 (9th Cir. 2013) (panel stay pending McKinney; en banc denied in Poyson)
- Henry v. Ryan, 720 F.3d 1073 (9th Cir. 2013) (Eddings issue assumed; Brecht harmless error; panel denial)