SUPREME COURT OF THE UNITED STATES
CHARLES L. RYAN, DIRECTOR, ARIZONA DEPART-MENT
OF CORRECTIONS, PETITIONER
v. EDWARD HAROLD SCHAD
on petition for writ of certiorari to the
united states court of appeals for the ninth circuit
No. 12–1084. Decided June 24,
2013
Per Curiam.
Respondent Edward Schad was convicted of
first-degree murder and sentenced to death. After an extensive
series of state- and federal-court proceedings concluded with this
Court’s denial of respondent’s petitions for certiorari
and for rehearing, the Ninth Circuit declined to issue its mandate
as normally required by Federal Rule of Appellate Procedure
41(d)(2)(D). The Ninth Circuit instead,
sua sponte,
construed respondent’s motion to stay the mandate pending the
Ninth Circuit’s decision in a separate en banc case as a
motion to reconsider a motion that it had denied six months
earlier. Based on its review of that previously rejected motion,
the court issued a stay a few days before respondent’s
scheduled execution. Even assuming, as we did in
Bell v.
Thompson,
545 U.S.
794 (2005), that Rule 41(d)(2)(D) admits of any exceptions, the
Ninth Circuit did not demonstrate that exceptional circumstances
justified withholding its mandate. As a result, we conclude that
the Ninth Circuit’s failure to issue its mandate constituted
an abuse of discretion.
I
In 1985, an Arizona jury found respondent
guilty of first-degree murder for the 1978 strangling of
74-year-old Lorimer Grove.[
1]
The court sentenced respondent to death. After respondent’s
conviction and sentence were affirmed on direct review, see
State v.
Schad, 163 Ariz. 411,
788 P.2d 1162 (1989), and
Schad v.
Arizona,
501 U.S.
624 (1991), respondent again sought state habeas relief,
alleging that his trial counsel rendered ineffective assistance at
sentencing by failing to discover and present sufficient mitigating
evidence. The state courts denied relief.
In August 1998, respondent sought federal habeas
relief. He again raised a claim of ineffective assistance at
sentencing for failure to present sufficient mitigating evidence.
The District Court denied respondent’s request for an
evidentiary hearing to present new mitigating evi- dence,
concluding that respondent was not diligent in developing the
evidence during his state habeas proceedings.
Schad v.
Schriro, 454 F. Supp. 2d 897 (Ariz. 2006). The District
Court alternatively held that the proffered new evidence did not
demonstrate that trial counsel’s performance was deficient.
Id., at 940–947. The Ninth Circuit affirmed in part,
reversed in part, and remanded to the District Court for a hearing
to determine whether respondent’s state habeas counsel was
diligent in developing the state evidentiary record.
Schad
v.
Ryan, 606 F.3d 1022 (2010). Arizona petitioned for
certiorari. This Court granted the petition, vacated the Ninth
Circuit’s opinion, and remanded for further proceedings in
light of
Cullen v.
Pinholster, 563 U. S. ___
(2011). See
Ryan v.
Schad, 563 U. S. ___ (2011).
On remand, the Ninth Circuit affirmed the District Court’s
denial of habeas relief.
Schad v.
Ryan, 671 F.3d 708,
726 (2011). The Ninth Circuit subsequently denied a motion for
rehearing and rehearing en banc on February 28, 2012.
On July 10, 2012, respondent filed in the Ninth
Circuit the first motion directly at issue in this case. This
motion asked the court to vacate its judgment and remand to the
District Court for additional proceedings in light of this
Court’s decision in
Martinez v.
Ryan, 566 U.S. 1
(2012).[
2] The Ninth Circuit
denied respondent’s motion on July 27, 2012. Respondent then
filed a petition for certiorari. This Court denied the petition on
October 9, 2012, 568 U. S. ___, and denied a petition for
rehearing on January 7, 2013. 568 U. S. ___.
Respondent returned to the Ninth Circuit that
day and filed a motion requesting a stay of the mandate in light of
a pending Ninth Circuit en banc case addressing the interaction
between
Pinholster and
Martinez. The Ninth Circuit
denied the motion on February 1, 2013, “de- clin[ing] to
issue an indefinite stay of the mandate that would unduly interfere
with Arizona’s execution process.” Order in No.
07–99005, Doc. 102, p. 1. But instead of issuing the
mandate, the court decided
sua sponte to construe
respondent’s motion “as a motion to reconsider our
prior denial of his Motion to Vacate Judgment and Remand in light
of
Martinez,” which the court had denied on July 27,
2012.
Id., at 2. The court ordered briefing and, in a
divided opinion, remanded the case to the District Court to
determine whether respondent could establish that he received
ineffective assistance of postconviction counsel un- der
Martinez, whether he could demonstrate prejudice as a
result, and whether his underlying claim of ineffective assistance
of trial counsel had merit. No. 07–99005 (Feb. 26, 2013),
App. to Pet. for Cert. A–13 to A–15, 2013 WL 791610,
*6. Judge Graber dissented based on her conclusion that respondent
could not show prejudice.
Id., at A–16 to A–17,
2013 WL 791610, *7. Arizona set an execution date of March 6, 2013,
which prompted respondent to file a motion for stay of execution on
February 26, 2013. The Ninth Circuit panel granted the motion on
March 1, 2013, with Judge Graber again noting her dissent.
On March 4, 2013, Arizona filed a petition for
rehearing and rehearing en banc with the Ninth Circuit. The court
denied the petition the same day, with eight judges dissenting in
two separate opinions. 709 F.3d 855 (2013).
On March 4, Arizona filed an application to
vacate the stay of execution in this Court, along with a petition
for certiorari. This Court denied the application, with Jus- tices
Scalia and Alito noting that they would grant it. 568 U. S.
___ (2013). We now consider the petition.
II
Federal Rule of Appellate Procedure
41(d)(2)(D) sets forth the default rule that “[t]he court of
appeals
must issue the mandate immediately when a
copy of a Supreme Court order denying the petition for writ of
certiorari is filed.” (Emphasis added.) The reason for this
Rule is straightforward: “[T]he stay of mandate is entered
solely to allow this Court time to consider a petition for certio-
rari.”
Bell, 545 U. S.
, at 806. Hence,
once this Court has denied a petition, there is generally no need
for further action from the lower courts. See
ibid.
(“[A] decision by this Court denying discretionary review
usually signals the end of litigation”). In
Bell,
Tennessee argued that Rule 41(d)(2)(D) “admits of no
exceptions, so the mandate should have issued on the date”
the Court of Appeals received notice of the Supreme Court’s
denial of certiorari.
Id., at 803. There was no need to
resolve this issue in
Bell because we concluded that the
Sixth Circuit had abused its discretion even if Rule 41(d)(2)(D)
authorized a stay of the mandate after denial of certiorari.
Id., at 803–804. As in
Bell, we need not
resolve this issue to determine that the Ninth Circuit abused its
discretion here.
Bell recognized that when state-court
judgments are reviewed in federal habeas proceedings,
“finality and comity concerns,” based in principles of
federalism, demand that federal courts “accord the
appropriate level of respect to” state judgments by allowing
them to be enforced when federal proceedings conclude.
Id.,
at 812–813. As we noted, States have an
“ ‘ “interest in the finality of
convictions that have survived direct review within the state court
system.” ’ ”
Id., at 813
(quoting
Calderon v.
Thompson,
523 U.S.
538, 555 (1998), in turn quoting
Brecht v.
Abrahamson,
507 U.S.
619, 635 (1993)). Elsewhere, we explained that
“ ‘the profound interests in repose’
attaching to the mandate of a court of appeals” dictate that
“the power [to withdraw the mandate] can be exercised only in
extraordinary circumstances.”
Calderon,
supra,
at 550 (quoting 16 C. Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure §3938, p. 712 (2d ed. 1996)). Deviation
from normal mandate procedures is a power “of last resort, to
be held in reserve against grave, unforeseen contingencies.”
Calderon,
supra, at 550. Even assuming a court of
appeals has authority to do so, it abuses its discretion when it
refuses to issue the mandate once the Supreme Court has acted on
the petition, unless extraordinary circumstances justify that
action.
Applying this standard in
Bell, we found
no extraordinary circumstances that could constitute a miscarriage
of justice. There, a capital defendant unsuccessfully alleged in
state postconviction proceedings that his trial counsel had been
ineffective by failing to introduce sufficient mitigating evidence
in the penalty phase of trial. 545 U. S., at 797. On federal
habeas review, he made the same argument.
Id., at 798. After
the Sixth Circuit affirmed, the defendant filed a petition for
rehearing that “placed substantial emphasis” on his
argument that the Sixth Circuit had overlooked new psychiatrist
evidence.
Id., at 800
. While the Sixth Circuit denied
the petition, it stayed the issuance of its mandate while the
defendant sought certiorari and, later, rehearing from the denial
of the writ.
Ibid.
When this Court denied the petition for
rehearing, the Sixth Circuit did not issue its mandate. Instead,
the Sixth Circuit waited five months (and until two days before the
scheduled execution) to issue an amended opinion that va- cated the
District Court’s denial of habeas and remanded for an
evidentiary hearing on the ineffective-assistance- of-counsel
claim.
Id., at 800–801. This Court reversed that
decision, holding that the Sixth Circuit had abused its discretion
due to its delay in issuing the mandate without notifying the
parties, its reliance on a previously rejected argument, and its
disregard of comity and federalism principles.
In this case, the Ninth Circuit similarly abused
its discretion when it did not issue the mandate. As in
Bell, the Ninth Circuit here declined to issue the mandate
based on an argument it had considered and rejected months earlier.
And, by the time of the Ninth Circuit’s February 1, 2013,
decision not to issue its mandate, it had been over 10 months since
we decided
Martinez and nearly 7 months since respondent
unsuccessfully asked the Ninth Circuit to reconsider its decision
in light of
Martinez.[
3]
Further, there is no doubt that the arguments
presented in the rejected July 10, 2012, motion were identical to
those accepted by the Ninth Circuit the following February.
Respondent styled his July 10 motion a “Motion to Vacate
Judgment and Remand to the District Court for Additional
Proceedings in Light of
Martinez v.
Ryan.” No.
07–99005 (CA9), Doc. 88, p. 1. As its title suggests,
the only claim presented in that motion was that respondent’s
postconviction counsel should have developed more evidence to
support his ineffective-assistance-of-trial-counsel claim. Here, as
in
Bell, respondent’s July 10 motion “pressed
the same arguments that eventually were adopted by the Court of
Appeals.” 545 U. S.
, at 806. These ar- guments
were pressed so strongly in the July 10 motion that “[i]t is
difficult to see how . . . counsel could have been
clearer.”
Id., at 808. The Ninth Circuit had a full
“opportunity to consider these arguments” but declined
to do so,
id., at 806, which “support[s] our
determination that the decision to withhold the mandate was in
error.”
Id., at 806–807. We presume that the
Ninth Circuit carefully considers each motion a capital defendant
presents on habeas review. See
id., at 808 (rejecting the
notion that “judges cannot be relied upon to read past the
first page of a petition for rehearing”). As a result, there
is no indication that there were any extraordinary circumstances
here that called for the court to revisit an argument
sua sponte that it already explicitly rejected.
Finally, this case presents an additional issue
not present in
Bell. In refusing to issue the mandate, the
Ninth Circuit panel relied heavily upon
Beardslee v.
Brown,
393 F.3d 899, 901 (CA9 2004) (
per curiam),
Beardslee, which precedes our
Bell decision by more
than six months, asserts the Ninth Circuit’s inherent
authority to withhold a mandate. See App. to Pet. for Cert.
A–3 to A–4, 2013 WL 791610, *1. But
Beardslee
was based on the Sixth Circuit’s decision in
Bell,
which we reversed. See
Beardslee,
supra, at 901
(citing
Thompson v.
Bell,
373 F.3d 688, 691–692 (2004)). That opinion, thus,
provides no support for the Ninth Circuit’s decision.
In light of the foregoing, we hold that the
Ninth Circuit abused its discretion when it neglected to issue its
mandate. The petition for a writ of certiorari and
respondent’s motion to proceed
in forma pauperis are
granted. The Ninth Circuit’s judgment is reversed, the stay
of execution is vacated, and the case is remanded with instructions
to issue the mandate immediately and without any further
proceedings.
It is so ordered.