Scott D. Clabourne, Petitioner-Appellant,
Charles L. Ryan, Respondent-Appellee.
Jonathan Young, Williamson & Young PC, Tucson, Arizona,
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.
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
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
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.
Clifton and Ikuta have voted to deny the petition for panel
rehearing. Judge Berzon has voted to grant the petition for
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.
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.
petition for panel rehearing and the petition for rehearing