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Don't Monkey With The Mandate

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From today's per curiam reversal of the Ninth Circuit in Ryan v. Schad, No. 12-1084.

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.)
What part of "must" does the Ninth Circuit not understand?
Edward Schad was convicted and sentenced to death in 1985 for strangling 74-year-old Lorimer Grove.  The U.S. Supreme Court accepted the case for review and affirmed in 1991.  The state courts spent another seven years reviewing the case on state habeas corpus.

After another 13 years, including another trip to the Supreme Court, the Ninth Circuit finally denied federal habeas corpus in 2011.  The case is finally over, and long-overdue justice can finally be carried out, right?  After all, that is what Congress intended when it clamped down hard on successive petitions in the Antiterrorism and Effective Death Penalty Act of 1996.  Defendants get the extraordinary benefit of a third review of their cases on federal habeas corpus, but once that review is over the case is supposed to be truly over, with the exception requiring a strong showing of actual innocence.

Instead, courts have entertained a variety of ways to evade Congress's strict limit by reopening the first petition instead of filing a second.  One of the ways is to delay issuing the mandate.  This is a simple document that normally follows as a matter of course after an appeals court decides, officially sending the case back to the trial court.

After Martinez v. Ryan was decided, Schad asked the Ninth Circuit to reconsider based on that decision.  The Ninth said no, and the Supreme Court denied certiorari.  Okay, now the case is really over, right?

Nope.  The day after the Supreme Court said no, Schad went back to the Ninth and asked for a stay of the mandate and yet another reconsideration.  The Ninth then sent the case back to the District Court to reconsider in light of Martinez, exactly the relief it had denied before.

What is the authority to delay issuing a mandate despite the seemingly clear language of the rule?

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.
Terrific.  Rely on a precedent ultimately based on one already reversed by the Supreme Court.  Don't they have Shepard's at the Ninth?

If the rule mandating prompt issuance of the mandate has any exceptions at all (an issue the Supreme Court does not resolve), it would have to be for truly extraordinary circumstances, and this case doesn't come close.

Once again, summarily and without dissent, the Supreme Court reverses the Ninth Circuit in a capital habeas case. 

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