On June 24, 2013, the Supreme Court issued a per curium decision in Ryan v. Schad, 12-1084, ruling that the Ninth Circuit abused its discretion by withholding issuance of its mandate in Edward Schad’s habeas case after the appeals court had affirmed the denial of habeas relief and the Supreme Court had denied certiorari review and a request for rehearing.
In Schad’s federal habeas proceedings, the district court had denied his request for an evidentiary hearing on his claim of ineffective assistance of counsel at sentencing, finding that Schad had not been diligent in developing the supporting evidence while in state court. In the alternative, the district court held that even considering the proffered new evidence, Schad had failed to establish that trial counsel performed deficiently. On appeal, the Ninth Circuit affirmed in part and reversed in part, remanding the case to the district court for an evidentiary hearing to determine whether state habeas counsel had been diligent in developing the state evidentiary record. The Supreme Court granted the warden’s certiorari petition, vacated the judgment, and remanded for further proceedings in light of Cullen v. Pinholster. On remand, the Ninth Circuit affirmed the district court’s denial of relief. On February 28, 2012, the Ninth Circuit denied Schad’s petition for rehearing and rehearing en banc.
On July 10, 2012, Schad filed in the Ninth Circuit a motion to vacate its judgment and remand the case to the district court for additional proceedings in light of Martinez v. Ryan, 566 U.S. 1 (2012). The motion was denied on July 27, 2012. Schad then filed a certiorari petition which was denied on October 9, 2012. Schad’s rehearing petition was denied on January 7, 2013. That same day, Schad returned to the Ninth Circuit and requested a stay of the mandate in light of a pending Ninth Circuit en banc case addressing the interaction between Pinholster and Martinez. On February 1, 2013, the Ninth Circuit declined to issue an indefinite stay of the mandate but, rather than issue the mandate, the appeals court sua sponte decided to construe Schad’s motion as a request for reconsideration of the court’s denial of Schad’s July 10, 2012 motion. After ordering briefing, on February 26, 2013, a divided panel of the Ninth Circuit remanded the case to the district court for a determination of whether post-conviction counsel was ineffective under Martinez, whether Schad could establish resulting prejudice, and whether his underlying ineffective assistance of trial counsel claim had merit. Arizona then set an execution date of March 6, 2013, and Schad sought a stay in the Ninth Circuit. A divided panel granted the stay request on March 1, 2013. The warden’s petition for rehearing en banc was denied on March 4, 2013, with eight judges dissenting in two separate opinions. Also on March 4, 2013, the warden filed a certiorari petition and an application to vacate the stay of execution. The application was denied with Justices Scalia and Alito noting they would grant it. The certiorari petition is the basis for this per curiam decision.
Federal Rule of Appellate Procedure 41(d)(2)(D) states that an appeals court "must" issue its mandate "immediately" after a copy of an order by the Supreme Court denying a certiorari petition is filed. The Supreme Court here, as in the past, declined to decide whether this rule permits an appeals court to nevertheless stay issuance of the mandate. Instead, the Supreme Court ruled that even assuming that an appeals court has authority to deviate from normal mandate procedures, it abuses its discretion in doing so absent extraordinary circumstances. In finding an abuse of discretion by the Ninth Circuit, the Supreme Court pointed to the fact that the appeals court declined to issue its mandate based on the identical argument it had considered and rejected months before and that by that time it had been over 10 months since the Supreme Court had issued its decision in Martinez and nearly 7 months since the Ninth Circuit had rejected Schad’s request for reconsideration based on Martinez. The Supreme Court also observed that the Ninth Circuit, in refusing to issue its mandate, had relied heavily on circuit precedent that in turn had been based on a Sixth Circuit decision that was reversed by the Supreme Court.
The Supreme Court reversed the Ninth Circuit’s judgment, vacated the stay of execution, and remanded "with instructions to issue the mandate immediately and without any further proceedings."