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Clabourne v. Ryan

United States Court of Appeals, Ninth Circuit

August 1, 2017

Scott D. Clabourne, Petitioner-Appellant,
v.
Charles L. Ryan, Respondent-Appellee.

         D.C. No. 4:03-cv-00542-RCC

          S. Jonathan Young, Williamson & Young PC, Tucson, Arizona, for Petitioner-Appellant.

          Jeffrey A. Zick (argued), Jacinda A. Lanum, and Amy Pignatella Cain, Assistant Attorneys General; Lacey Stover Gard and Kent Cattani, Capital Litigation Section Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Tucson, Arizona; for Respondent-Appellee.

          Before: Marsha S. Berzon, Richard R. Clifton, and Sandra S. Ikuta, Circuit Judges.

         SUMMARY[*]

         Habeas Corpus/Death Penalty

         The panel filed an order denying a petition for panel rehearing and, on behalf of the court, a petition for rehearing en banc in an appeal from the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition in a death penalty case.

         Concurring in the denial of rehearing, Judges Clifton and Ikuta wrote that the panel's assessment of what the Arizona Supreme Court did in resolving the petitioner's appeal remained correct.

         Dissenting from the denial of rehearing, Judge Berzon wrote that, in light of McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc) (holding that the Supreme Court of Arizona applied an unconstitutional causal nexus test for nonstatutory mitigation), the panel was obligated to rehear the case and grant the habeas petition with regard to the penalty phase of trial.

          ORDER

         Judges Clifton and Ikuta have voted to deny the petition for panel rehearing. Judge Berzon has voted to grant the petition for panel rehearing.

         Judge Ikuta has voted to deny the petition for rehearing en banc, and Judge Clifton so recommends. Judge Berzon has voted to grant the petition for rehearing en banc.

         The full court has been advised of the suggestion for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

         The petition for panel rehearing and the petition for rehearing ...


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