*1 of a cellular tele- interception phone STOKLEY, Richard Dale Petitioner- “roving a wire- necessarily

phone is Appellant, the terms comport not with tap”—does statute. wiretap purposes or

Id. at 403. RYAN, Respondent- Charles L. Appellee. be- distinguish would Goodwin

Oliva appear there to have applications cause the No. 09-99004. phone particular a with a limited to been Appeals, Court of United States ESN, particular phone number and Ninth Circuit. affidavits and or-

whereas the surveillance number, any phone here extended to ders Nov. 2012. or phone as the used an ESN long

so orders. This distinc- specified IMSI States v. tion is immaterial. See United Cir.1999). Duran, As 189 F.3d 1071 case, orders in this the surveillance interception authorized Duran number, used long phone so as the phone order. specified an ESN or IMSI (authorization applied at See id. telephone assigned number “any changed the same electronic telephone to a with telephone target as the serial number” number). that under specifically held We order, statutory preconditions to “the satisfied,” id. at judicial authorization were government had not noting that n. sought roving wiretap. See id. Accordingly, we hold that the similar 7. case, upon affidavits orders in this and the based, the stan- they which were satisfied provisions intercept specification dard wire 2518(l)(b)(ii) (4)(b), reject § and we they constituted de argument Oliva’s wiretaps. roving facto AFFIRMED. *2 (argued),

Jennifer Yolanda Garcia Fed- Office, Phoenix, AZ; eral Public Defender’s ’ Krauss, Amy Amy Law Office of B. Krauss, AZ; Tucson, Sandman, Cary Fed- Office, Phoenix, AZ, eral Defender’s Public Petitioner-Appellant. for the Horne, Thomas Attor- C. State General; ney (argued), Jonathan Bass As- Attorney Ap- sistant General Criminal Division, Tucson, Litigation peals/Capital AZ, Respondent-Appellee. for the McKEOWN, Before: M. MARGARET PAEZ, RICHARD A. T. CARLOS BEA, Judges. Circuit Order; Order; by Amended Dissent Judge PAEZ.

ORDER 15, 2012,

The Order issued on November is withdrawn and an Amended Order is concurrently filed with this order. With amendment, Judges McKeown and deny Stokley’s Bea vote to petition for panel rehearing Judge Paez votes to grant petition. petitions No further panel rehearing will be entertained. AMENDED ORDER Stokley, Richard Dale prisoner, state was sentenced to death 1992 for the 13-year-old girls. murders of two After pursuing direct post-conviction review and courts, relief the Arizona state he filed court, habeas in federal district which was denied on March 2009. Stokley’s appeal from that decision was whether, by Maples, this court in determine under he was denied Cir.2011). post-conviction “abandoned” his state On October 659 F.3d 802 attorney and thus has cause to excuse his denied Stok- underlying default of his claim Stokley v. ley’s petition for certiorari. *3 — -, 134, Supreme that the Arizona Court failed to 184 U.S. 133 S.Ct. (2012). mitigating consider evidence in violation Stokley now asks this L.Ed.2d 65 Oklahoma, 104, Eddings v. 114- 455 U.S. stay court to issuance of mandate 15, 869, (1982), 102 71 1 S.Ct. L.Ed.2d ground Supreme that the Court’s hold- — Carolina, Thomas, -, 1, 4-5, v. Skipper South 476 U.S. ing Maples in v. (1986). 1669, 912, (2012), 106 1 S.Ct. 90 L.Ed.2d Un- 132 S.Ct. 181 L.Ed.2d 807 722, Thompson, in der Coleman v. 501 U.S. intervening change constitutes an 750, 2546, 115 L.Ed.2d significant change law that could warrant a 640 (1991), Stokley litigating is barred from Maples, in In held that result. Court procedurally claim in defaulted a fed- post-conviction abandonment counsel proceeding eral habeas unless he can show provide procedural could cause to excuse prej- both cause for the default and actual default of a habeas claim. Id. at 927. resulting udice from the alleged error. Appellate Under Federal Rule of Stokley Because cannot establish 41(d)(2)(D), Procedure this court “must is exceptional and thus does not meet the immediately copy a sue the mandate when threshold, deny circumstances we his mo- Supreme denying of a Court order stay tion to the mandate. for writ of certiorari is filed.” deciding We assume without that 41(d)(2)(D). Nonetheless, P. R.App. Fed. regardless there was a error. But stay authority this court has the to issue a Maples provides Stokley of whether cause “exceptional Bryant in circumstances.” v. default, Stokley to excuse his (9th Co., 1526, Ford Motor 886 F.2d 1529 showing has not made a sufficient of actual denied, 1076, Cir.1989), cert. 493 U.S. prejudice. Stokley must establish “not (1990). 1126, 107 L.Ed.2d To merely [alleged that the ... created error] circumstance, an an exceptional constitute possibility prejudice, a but that [it] require in law a intervening change must to his actual and substantial disad worked significant change parties. in result for the vantage,” infecting proceeding the entire Brown, 899, Beardslee v. 393 F.3d See Murray error. See with constitutional Cir.2004) (“[A]n in intervening change Carrier, 478, 494, 2639, 477 U.S. exceptional the law is an circumstance that (1986) (citation omitted) 91 L.Ed.2d 397 may opinion the amendment of an warrant in Brecht v. (emphasis original); see also on remand after denial of a writ of certio Abrahamson, 619, 623, 113 S.Ct. rari.”); Lewis, Adamson v. 955 F.2d (prejudice (9th Cir.1992) (en banc) (finding 619-20 an showing that has a requires a error exceptional absence circumstances injurious effect” on the “substantial subsequent Supreme authori where sentence). ty require significant change not in did Stokley a colorable claim that the has result). question The us is whether before Court, Supreme when it reviewed Arizona Stokley an presented exceptional has such childhood and his evidence of his abusive circumstance. incarceration, vi- during pre-trial behavior that the court Stokley Eddings principle to the olated the asks for remand consider, law, a matter of all rele- evidentiary hearing to must as district court for murders.”). Supreme Arizona v. The mitigating evidence. See vant statutory all carefully Ariz. 898 P.2d 473 Court discussed Stokley, 182 (1995) (“A factors, family background non-statutory mitigating step difficult mitigating circumstance.... in by step, separate paragraphs opin- alone is not a its circumstance mitigating This can be a ion. id. at 465-74. See something ‘if a defendant can show However, Ari assuming even impact background had an effect or commit causal zona Court did beyond the defen- on his behavior that Stokley’s good nexus error as to behavior Although may he have dant’s control.’ childhood, jail and his difficult life, family had a difficult childhood *4 prejudice cannot demonstrate actual be influ- [Stokley] failed to show how this error, he has not that the if cause shown night on the enced his behavior any, injurious impact had a substantial and (“Al- crimes.”) (citations omitted); id. An requires on the verdict. error reversal long-term good during though behavior injurious if it “had substantial and post-sentence incarceration has been rec- ... determining effect or influence in factor, ... ognized possible mitigating as a ” Brecht, at verdict.’ 507 U.S. 113 we, court, reject trial it like the here for (quoting 1710 Kotteakos v. United incarceration.”). presentence pretrial and States, 750, 776, However, balance, the Arizona Su- (1946)); L.Ed. 1557 Cullen v. Pinhol cf. opinion suggests that preme Court’s —ster, --, weigh court did and consider all the evi- (2011) (holding in a in presented mitigation dence at sentenc- challenge prej that Strickland the test for (“Consis- ing. Stokley, P.2d at 468 See sentencing capital udice at case is obligation capital tent with our cases to probability “whether there is a reasonable weigh all miti- independently potentially that, errors, absent the the sentencer ... turn, then, ... gating evidence to a [w]e wpuld have concluded that the of balance factors.”); mitigating consideration of the aggravating mitigating and circumstances (“As part independent id. at 472 of our (internal quotation did not warrant death.” review, alleged we will each miti- address omitted)). marks (“The circumstance.”); gating id. at 468 Supreme The Arizona Court reviewed sentencing ‘any must judge consider as- and each of aggravating discussed and pect of the defendant’s character or record mitigating individually. factors The court any and of circumstance the offense rele- statutory aggravating found three circum- determining vant whether death beyond stances proven were reasonable penalty imposed.’ should be ... The sen- (1) Stokley doubt: was an adult at time must, course, tencing court of consider all the crimes were committed and the victims in mitigation, evidence offered but is not fifteen; were under age (cita- required to accept such evidence.” (“[T]his was convicted another homicide commit- omitted)); tions id. at 465 offense; during ted the commission of the independently reviews the entire record (3) Stokley error, and committed the offense in for any mitigating considers cir- heinous, cruel, cumstances, especially depraved and weighs aggrava- and then at manner. 898 P.2d 465-68. The Arizona ting mitigating circumstances suffi- that ciently leniency.”); Supreme to call Court’s conclusion there substantial grounds at were no here (“Family history enough id. in this case substantial mitigation. leniency does not warrant to call for is with the Defendant consistent thirty-eight years sentencing was old at the time of court’s determination that light cir- mandate in mitigating change if or all of the and re- “even existed, against ‘balanced the mand for full cumstances consideration of whether he exist, circumstances found to aggravating can overcome default on his sufficiently be substantial they would not Eddings Skipper colorable claims that ”1 And, leniency.’ at 471. to call for Id. were not raised because Harriette Levitt sentencing court noted as to only analysis abandoned him. The we evidence, best, is “[t]he childhood determine should do here is to whether he contradictory.” The Ari- inconsistent and prima has made a facie case for abandon- mitigation zona courts considered the evi- cause, ment under to establish dence—including good jail behavior shown that his argument has childhood circumstances—insufficient to some merit in that he does not raise a leniency. light warrant In of the Arizona frivolous claim. His claim that the Ari- leniency courts’ consistent conclusion zona Court committed causal inappropriate, there is no reasonable declining nexus error in to consider miti- that, fully likelihood but for a failure to gating evidence anything but frivolous. Stokley’s family history consider or his It is a constitutional claim and one that *5 in good jail during pre-trial behavior incar this court should not extend itself to decide ceration, the Arizona courts would have on the merits before it was or briefed come to a different conclusion. Hitch See argued party. either 393, 399,107 v. Dugger, cock S.Ct. majority The deciding assumes without (1987) (referencing 95 L.Ed.2d 347 that there a Maples Respect- was error. in harmless error connection with the ex fully, that only question was the before non-statutory mitigating clusion of evi court. majority this The brushes it aside dence). sum, In because the claimed caus get game, to to the final end but further error, any, al nexus if did not have a confuses our law prejudice on and stan- injurious substantial or influence on Stok- in process. dards for error review the Be- sentence, ley’s Stokley cannot establish I agree majority’s cause cannot with the Brecht, 630-34, prejudice. 507 I approach, strongly dissent. 1710. S.Ct. why I Maples first address error exists light high In bar that must be met majority’s in this I turn case. Then to the mandate, stay court to Stok- analysis incorrect and unrestrained of ley’s stay motion DE- the mandate is prejudice. NIED. PAEZ, Stokley I. has shown abandonment Judge, dissenting: Circuit Maples solely Maples changed Stokley the law. asks is not limited to actual relief, stay us not for habeas but to he abandonment. To obtain the remand sentencing following stomped upon great 1. The court found the bodies “were with beyond force,” Stokley facts doubt. reasonable was "the and one of children bore murdering 13-year-old girls convicted of two imprint” Stokley’s clear chevron from tennis July Stokley over the 4th weekend in 1991. chest, shoulder, and neck. Both shoes on her person average intelligence. At of above right eyes were in their with victims stabbed crime, years the time of the he was 38 old. knife, Stokley's through bony one to the struc- Stokley girls intended be killed. He that both eye girls likely ture of the socket. The were girls killed one of the and his co-defendant stabbing. at the time of the The unconscious manually killed the other. Before the men girls' dragged and thrown bodies were death, strangled girls both men had a mine shaft. down sexual intercourse with the victims. Both may constitute constructive abandonment Stokley prima need make a requests, Towery sufficient to establish cause. See of abandonment under Ma showing facie Cir.2012) (9th F.3d 942-43 v. constitute cause to over ples might -—(cid:127) denied, U.S.-, rt. default. See Moornann come ce Schriro, (separately 672 F.3d 647-48 Cir. 2012). prongs actual analyzing two abandon extremely limited Despite the loyalty” motion, ment or “serious breach pending briefing on the Holland, distinguishing which involved vio prima has made such a facie case of aban profes canons of Moreover, lations of fundamental majority as the rec donment. cir responsibility, sional from underlying ognizes, he has a colorable Tower/s not). cumstances, which did inquiry claim. Our should constitutional grant there. I would the motion and end light Maples, recogniz- In it is now remand to the district court for determi Stokley’s postconvic- able that situation and, ap if nation of cause and proceedings simply worse than tion was propriate, Stokley’s the merits of constitu Here, “unenviable.” 659 F.3d at 810. claim.1 tional attorney-client relationship irrevoca- Further, bly broken. the record demon- squarely agency princi- rests on that, strates once the state was successful ples. explain at 922-24. To how put together, post- it to be forcing back agency relationship may actually be or conviction counsel Harriette Levitt active- severed, constructively ly undermined the work of re- relied Justice Alito’s concurrence *6 placement prevented Stokley counsel and Florida, -, Holland v. investigating raising from and his own (2010), to dis- legal bearing claims. it has no While attorney tinguish negligence from aban- issue, I present the note at the outset that a donment. “Common sense dictates that attorney Harriette Levitt is the same litigant constructively cannot be held re- conduct whose was issue the Su- sponsible attorney for the conduct of an preme recently-created Court’s ineffective operating agent any who is not as his exception assistance of counsel to the once meaningful sense of that word.” 132 S.Ct. settled rule in Coleman. Martinez v. Holland, (citing at 923 130 S.Ct. at 2568 — U.S.-, J., (Alito, concurring)). Justice Alito’s con- (2012). petition- L.Ed.2d 272 Whereas currence Holland also noted that the reality er in “in ... Maples had been agency relationship constructively sev- status,” pro reduced to se 132 S.Ct. at “particularly litigant’s ered so if the rea- regarding Stokley’s Levitt’s actions at- attorney’s to sonable efforts terminate the fairly present argu- to claims tempts his representation have been thwarted ably him in a than left situation worse a wholly beyond petitioner’s forces con- pro petitioner. se If there were ever a Holland, Indeed, trol.” at 2568. case for constructive abandonment under precedent—while finding our court’s not Maples, this is it. abandonment—recognizes that principles that a agency rests on and seri- post-conviction peti- Levitt filed her first loyalty being assigned ous breach of can sever the attor- tion eight months after to months, ney-client relationship During eight in a manner that these she case. agree majority’s assumption power stay 1. I with the the exercise of this court’s to Maples may be sufficient to the "ex- establish following a denial mandate of certiorari. ceptional necessary justify circumstance" Stokley. The the posture Stokley’s initiated no contact with of case respond- and Stokley she had with only communication complaint ed that his could be dealt with in twenty-minute phone collect call he post-trial proceedings, noting that “[i]f any to her. Levitt did not conduct placed judicial there [was] determination that independent investigation during peri- lawyer improperly, acted [the Bar] od, telephone lasting other than a few calls would review the matter at that time.” than a two According less total of hours. Not surprisingly, Superior Court de- Stokley, Levitt did not even receive the nied petition. Levitt’s two-claim Levitt transcripts trial until more than six then filed a motion to withdraw as Stok- after her and appointment, months after counsel, ley’s citing the Bar complaint filed filing Stokley’s petition the deadline for against her. She wrote has “[t]here passed. had complete been a breakdown of the finally Stokley’s peti- Levitt filed When attorney-client relationship.” The court tion, she raised two claims and wrote granted the request appointed Carla only three a half pages legal argu- Ryan replacement as counsel. billing ment. Levitt’s records indicate that, reviewing Stokley’s aside from file immediately The state moved to rein- transcript, spent she no more than ten state Levitt as counsel. The researching writing petition hours his argued state that the initial had post-conviction Stokley relief. immedi- denied, already been and so there was “no ately recognized inadequacy pe- valid ... paying yet reason for another object. tition and called Levitt to Levitt attorney defense to review the voluminous attorneys told him that his “trial didn’t record for the first time.” The state ar- make mistakes” and that he would gued in the alternative for “probably be in 2 years.” executed or 3 Ryan’s limit the scope representation, every then took action he could that, arguing if replacement counsel were object think of to to Levitt’s continued appointed, she should be forbidden to *7 representation. He wrote a letter to the “supplement already-adjudicated peti- Superior judge, expressing Court his con- manner,” tion in some because Arizona brevity cerns about petition and any rules “do not allow for such thing.” Levitt’s lack of diligence. interest and He however, Notably, the Arizona that my wrote he found it “evident that eventually permit Court did Levitt to file a present appeal has been handled with a supplemental petition, Rule specifically promise, lick and a than being given rather allowing her to “raise issue even analysis preparation the conscientious though may it not have been included applied.” which should be He asked the petition post-conviction her first for relief.” “appoint attorney to who will objected Ryan’s request The state also to apply try his or her self and to ado unprofessionally for co-counsel in an word- competent job in this matter.” He sent a opposition, arguing Ryan ed that was re- similar Capital Rep- letter to the Arizona questing a to this ease “milk[ ] “side-kick” Project asking help. resentation for The all it Capi- for is worth as a cash cow.... Superior Stokley’s forwarded letter litigation pot-boiler tal is not an unlimited to Levitt but took no other action. private attorneys.” for the enrichment of

Stokley Superior The rein- complaint also filed with the Court ordered Levitt stated, objections State Bar of protesting Levitt’s over the of both Levitt handling of his case. The Bar Stokley. overlooked and so, Stokley’s she interfered with attorney to do Stokley’s

Ryan fairly present his claims. attempts to month, spent she During that one month. to the state’s responding time much of her (1) Stokley record shows that both The removed as counsel. attempt to have her agreed counsel that their relation- and his for reconsideration of Ryan also moved (2) down; ship completely had broken petition, Stokley’s post-conviction denial of steps try to Stokley took numerous petition. Her sought to amend relationship and to obtain terminate a list petition (3) included proposed counsel; amended Levitt was reinstated as new for relief. possible objec- new claims her own thirty-one Stokley’s counsel over tions; subject a Bar regarding claim the inef- Levitt was the Ryan included a (5) after she was reinstated complaint; argued of Levitt. She fectiveness Stokley’s attorney, primary Levitt’s as is deficient” “the substance of the Petition against herself mis- concern was to defend prejudicial misstatements of law and noted un- charges. conduct She disavowed and Stokley. Ryan specifically noted Ryan the work had done on dermined a full opportunity had not had an to do she behalf, Stokley’s Stokley and refused ac- may and that “other issues investigation, his abili- cess to his case file which limited need to be raised.” ty to marshal evidence and raise his own month, Ryan was removed After one ultimately came to the claims. Levitt Once reinstat- and Levitt was reinstated. actively working point where she was ed, actively moved to defend herself Levitt against Stokley. sys- case. Levitt and undermine power Stokley everything did his tematically argued against claims relationship with Levitt. The sever his by Ryan. noted that some were raised She to make sure vigorously state advocated raised,” “already others to stra- “relate[d] that Levitt was as his counsel. reinstated respective attor- tegic decisions prevailed, Levitt in effect After the state “contrary to well-estab- neys,” others were in the state’s interest rather than worked easelaw,” lished and still others were “not argued in her client’s. As has supported by the facts of the case.” moving before the district court and one the claims Levitt Unexplainably, here, papers up Levitt “took the mantle of was resur- completely derided as meritless imagine It hard to prosecutor.” rected as the first of two additional claims for constructive abandonment. clearer case supplemental petition. in the Rule 32 understanding the The touchstone for Thus, Levitt’s for review and later *8 Ali- decision in is Justice Court’s supplemental filing suggest overriding an Holland, to’s concurrence in which the . from the defending concern with herself upon explaining the mean- Court relies undersigned “attack the effectiveness of on Holland, 130 S.Ct. ing of “abandonment.” counsel, rather all of which is meritless” describing Alito was not at 2568. Justice any loyal advocacy. than happened Stokley’s case. But he what reinstated, Stokley might as well have been. After Levitt was Supreme wrote a letter to the Arizona Stokley’s Eddings claim is II. colorable asking reappointment Court for the prejudice to obtain re- sufficient Ryan. request This was denied. mand. prepare then his own claims attempted copy Addressing prejudice stage Levitt for a of the record. at this is and asked By failing prior precedent. it him. inconsistent with our give Levitt refused to Nevertheless, I compelled feel to respond view Abrahamson, under Brecht v.

to majority’s 619, argument. 113 S.Ct. (1993). Even assuming Eddings error is majority that, The first states while nonstructural, panel appears to have colorable, causal nexus claim is erred in applying Brecht here because the Supreme Arizona Court committed no state did not argue harmlessness actual error. This is incorrect. The ma- (until court response its to the jority goes that, on to assume even if the rehearing), issue on which the state Arizona Supreme Court committed causal bears Hitchcock, the burden. See error, nexus the error was I harmless. 107 S.Ct. 1821 (“Respondent has first, address the second issue where the made attempt no argue that this error majority conflates structural and harmless harmless, or that it had no effect on in a error manner that confuses our prior the jury or the judge. sentencing In the and, law without analysis, case potentially absence of such a our showing cases hold open closes an important question in that the exclusion of mitigating evidence of habeas law of circuit.2 our Whatever the sort at issue here renders the death the ultimate outcome in Stokley’s case invalid.”). sentence tell, As I best can might remanded, have been had we by after finding Eddings error habeas re- conflating structural and harmless error view, we have engaged never in harmless majority creates tension with our prior error review the sort engaged in here. my case law and in view sets a bad prece- Turning back to the majority’s finding dent. Eddings no occurred, violation I am prior Our cases have treated Eddings unpersuaded panel’s analysis. error as structural. We have consistently Here, Supreme the Arizona pre- did reversed and remanded Eddings cases to cisely Eighth what the pro- Amendment courts for resentencing, with- hibits—-it treated mitigating evidence of inquiring out as to the likelihood of a Stokley’s abusive childhood as nonmitigat- different sentencing See, result. e.g., ing as a matter of merely law it because Williams v. Ryan, 623 F.3d 1258 Cir. lacked a causal connection to the crime. 2010); Schriro, Styers v. 547 F.3d 1026 The state said: (9th Cir.2008). If an Eddings error is According to a clinical psychologist, de- structural, suggest, as our cases fendant had a chaotic and abusive child- se. per hood, never knowing his father and Citing Hitchcock v. Dugger, 481 U.S. having been raised by family various 393, 399, L.Ed.2d A members. family back- difficult (1987), panel concludes that Eddings ground alone is not a mitigating cir- errors are subject to harmless re- Wallace, error cumstance. State v. 160 Ariz. it, 2. As I understand Court has Williams (9th F.3d 1270-71 V. *9 not Eddings addressed Cir.2010) whether error is struc- (granting habeas relief for an squarely tural nor has this court Eddings examined the conducting violation without a harm Stewart, Compare Landrigan issue. Schriro, v. 272 analysis), less and Styers error v. 547 1221, (9th Cir.2001) 1026, F.3d 1230 & (apply- (9th n. 9 Cir.2008) (same). F.3d 1035-36 ing harmless error review to the state court’s split Other are Compare circuits on the issue. Ward, failure to consider 1193, the alleged Bryson defendant's in- v. 187 F.3d 1205 past history 1999) toxication and drug of as a (collecting use Cir. applying cases harmless factor), nonstatutory mitigating review), adopted by Quarterman, error with Nelson v. 472 Schriro, 1147, Landrigan 287, v. (5th Cir.2006) (en 501 F.3d banc) (de 1147 F.3d 314 (9th Cir.2007) (en banc) (order), clining apply review). with to harmless error 410 prejudice—either of the issue (1989), de considered 983, cert. 986

424, P.2d 773 merits of or to the default 1513, procedural as to 1047, 108 110 S.Ct. nied, 494 U.S. claim—because, to prior mit constitutional (1990). can be a the This 649 L.Ed.2d proce the cause for was no there Maples, circumstance igating defen “if 501 Thompson, v. in that Coleman something dural default. show that can dant 2546, 115 L.Ed.2d 750, on 111 impact or had an background effect (1991). preju for required All that beyond the 640 his behavior defen claim has the Although stage is at this Id. dice control.” dant’s — U.S. v. child Martinez a difficult merit. may have had some [Stokley] 1309, 1318, 182 272 L.Ed.2d -, life, to show family he and hood failed on the (2012). his behavior how this influenced the crimes.

night or any briefing of of the benefit Without P.2d Ariz. Stokley, 182 of v. on the issue State consideration court lower added). (emphasis Ed- the defaulted arising from prejudice claims, in a not we are Skipper and violation, dings and Eddings a clear-cut This is here. majority does do the position to what recognize it to majority’s failure panel the at claims foreclosing these than Rather precedent. circuit squared with cannot be stay the mandate I would stage, this Eddings viola- finding an avoid cannot We the district court case to remand mere- majority suggests, tion, panel as the allowing it to deter- of purpose limited the Supreme Court Arizona ly because cause whether in the first instance mine mitigating all evidence. it considered said exist, and to consider prejudice at 1035. When Styers, 547 F.3d See if We warranted. merits of the claim evi- mitigating “considers” state court position far be in a better then would dence, or nonmiti- it irrelevant deems but issue. review of the law because a matter gating as to the connection of a causal absence reasons, respect- I For all of the above considered crime, not court has fully dissent. See meaningful sense.

evidence 302, 319, 109 492 U.S. Penry Lynaugh, v. (1989), abro- 106 L.Ed.2d Virgi- v. by Atkins grounds gated other 2242, nia, 304, 122 S.Ct. (2002). L.Ed.2d America, STATES UNITED reach Plaintiff-Appellant, I not majority would Unlike respect with either issues of the or the merits default SCOTT, Defendant- Mark Lomando stage. When claim this constitutional Appellee. claim that with this presented first 11-10529. No. in its review Court erred Eddings and under sentence death Appeals, Court of States United declined the district Skipper, Circuit. Ninth the claim was reach merits because 11, 2012. Sept. Argued Submitted procedurally technically exhausted 26, 2012. Filed Nov. 4:98-cv-00332-FRZ, Dkt. Case barred. *10 Procedural Sta- Opinion Order has No court tus of Claims 15-16.