*1 оf 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. оr phone as the used an ESN long
so
orders. This distinc-
specified
IMSI
States v.
tion is immaterial. See United
Cir.1999).
Duran,
As
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is withdrawn and an Amended Order is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
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 оne 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 investigatiоn, 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.
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 bе 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 сonnection 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.