RICHARD STOKLEY V. CHARLES RYAN, No. 09-99004 (9th Cir. 2012)

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Court Description: Habeas Corpus/Death Penalty. The panel withdrew the order issued on November 15, 2012, filed an amended order, and denied a petition for panel rehearing. In its amended order, the panel denied a motion to stay the mandate by Richard Stokley, a state prisoner who was sentenced to death. Stokley moved to stay the mandate on the ground that Maples v. Thomas, 132 S. Ct. 912 (2012) (holding that abandonment by post-conviction counsel could provide cause to excuse procedural default of a habeas claim), constitutes an intervening change in the law that could warrant a significant change in result. The panel assumed without deciding that there was Maples error, but held that Stokley cannot establish actual prejudice. Judge Paez dissented. He would stay the mandate and remand this case to the district court for it to determine if cause and prejudice exist, and to consider the merits of the claim if warranted.

This opinion or order relates to an opinion or order originally issued on September 26, 2011.

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FILED NOV 21 2012 FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT RICHARD DALE STOKLEY, Petitioner - Appellant, v. No. 09-99004 D.C. No. 4:98-CV-00332-FRZ District of Arizona, Tucson CHARLES L. RYAN, ORDER Respondent - Appellee. Before: McKEOWN, PAEZ, and BEA, Circuit Judges. The Order issued on November 15, 2012, is withdrawn and an Amended Order is filed concurrently with this order. With that amendment, Judges McKeown and Bea vote to deny Stokley's petition for panel rehearing and Judge Paez votes to grant the petition. No further petitions for panel rehearing will be entertained.