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10-99005 - Robert Poyson v. Charles Ryan


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10-99005 - Robert Poyson v. Charles Ryan
March 22, 2013
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FILED OPINION (SIDNEY R. THOMAS, RAYMOND C. FISHER and SANDRA S. IKUTA) AFFIRMED. Judge: SRT Concurring & dissenting, Judge: RCF Authoring, FILED AND ENTERED JUDGMENT. [8560766]
November 7, 2013
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Filed order and amended opinion (SIDNEY R. THOMAS, RAYMOND C. FISHER and SANDRA S. IKUTA) (Chief Judge Kozinski dissents from denial of en banc rehearing) .Judge Thomas has voted to grant the petition for panel hearing and petition for rehearing en banc. Judges Fisher and Ikuta have voted to deny the petition for panel rehearing. Judge Ikuta has voted to deny the petition for rehearing en banc and Judge Fisher has so recommended. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(f). Appellant’s petition for panel rehearing and rehearing en banc, filed April 12, 2013, is denied. Chief Judge Kozinski’s dissent from denial of en banc rehearing is filed concurrently with this Order. [8853869]
April 2, 2014
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Filed Order for PUBLICATION (SIDNEY R. THOMAS, RAYMOND C. FISHER and SANDRA S. IKUTA) The order filed November 7, 2013 is AMENDED. The order, as amended, reads as follows: Judge Thomas has voted to grant the petition for rehearing en banc. Judge Ikuta has voted to deny the petition for rehearing en banc and Judge Fisher has so recommended. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(f). Appellant’s petition for rehearing en banc, filed April 12, 2013, is DENIED. Appellant’s petition for panel rehearing, filed April 12, 2013, remains pending. The panel will stay proceedings on the petition for panel rehearing pending resolution of en banc proceedings in McKinney v. Ryan, 730 F.3d 903 (9th Cir. 2013), rehearing en banc granted, 2014 WL 1013859 (Mar. 12, 2014). This opinion filed at 711 F.3d 1087 (9th Cir. 2013) is amended, and an Amended Opinion was filed concurrently with the original version of this Order. No further petitions will be entertained. The clerk shall stay the mandate. [9040544]
January 12, 2018
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Filed order and amended opinion (SIDNEY R. THOMAS, RAYMOND C. FISHER and SANDRA S. IKUTA). The petition for panel rehearing filed April 12, 2013 (Dkt. [8588799-2]), which remains pending pursuant to this court’s April 2, 2014 order (Dkt. [9040544-2]), is GRANTED. The opinion filed November 7, 2013, and reported at 743 F.3d 1183, is AMENDED. An amended opinion is filed concurrently with this order. No further petitions for rehearing may be filed. Poyson’s motion for reconsideration of our March 2013 order denying his motion for a remand under Martinez v. Ryan, 566 U.S. 1 (2012), is without merit. Our intervening decision to remand in Dickens v. Ryan, 740 F.3d 1302, 1320 (9th Cir. 2014) (en banc), did not change our holding in Sexton v. Cozner, 679 F.3d 1150, 1161 (9th Cir. 2012), that a remand is not required where, as here, the record is sufficiently complete for us to hold that counsel’s representation was not ineffective under Strickland v. Washington, 466 U.S. 668 (1984). The additional evidence Poyson offers does not show remand was necessary. That Dr. Robert Briggs was placed on and then removed from probation by the Arizona Board of Psychological Examiners does not change our previous conclusion that Poyson’s postconviction relief counsel reasonably relied on Dr. Briggs, the retained neuropsychological expert who was aware of Poyson’s exposure to drugs and alcohol in utero but did not advise counsel that Poyson suffered from fetal alcohol spectrum disorder. The motion (Dkt. [8960729-2]) is therefore DENIED.; REVERSED AND REMANDED. [10722758]