In January 2013, the Ninth Circuit granted a petition for rehearing en banc in a capital habeas case called Dickens v. Ryan. According to the Ninth Circuit's en banc page, the en banc argument will be calendared the week of June 24 in Seattle, Washington.
This case poses a really interesting situation. Petitioner lost on his main claim, that the death penalty could not be imposed on him because he was not a major participant in the murder, but obtained a remand to the district court for that court to consider a Martinez cause argument based on a procedurally-defaulted IAC claim.
Petitioner was the one who sought and obtained rehearing en banc. (ed. - see below) Petitioner's petition sought rehearing on the "major participant" issue. The Martinez issue was not mentioned at all in the petition or even in the State's opposition (ed. - but see below).
The order granting the petition states:
The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.
It's standard. But what now happens to the Martinez issue? (ed. - see below) Is that part of the panel decision no longer binding? (ed. - yes - see below) Is everything now up for grabs on rehearing? (ed. - yes - see below) Can the State ask the en banc court to revisit the Martinez claim? (ed. - yes - see below)
I don't know the answer to these questions. (ed. - Well, the update gives answers to these questions, see below) It would be a shame for a petitioner to get rehearing on an issue on which he lost, and then have the en banc court take away the relief on the issue on which he won. (ed. - that would be a shame, but not applicable here) Particularly where the State did not even seek rehearing on that issue. Is this a risk that a petitioner takes when he seeks en banc review? I am really curious about this.
UPDATE/EDIT: I did not have all of the information about the en banc rehearing when I wrote the post. I guess that I should not have relied exclusively on the Ninth Circuit's en banc page which only linked to the habeas petitioner's en banc petition.
It turns out that the State separately sought rehearing on the Martinez issue. Although the order granting en banc doesn't specify, it would appear that both petitions were granted. So the whole thing is getting reviewed. I guess that answers most of the questions I had above. One question does remain unanswered (does a petitioner face the risk of giving up a partial win when seeking en banc review on the parts on which he lost). But that only applies to the hypothetical situation where both sides don't seek rehearing en banc in a "split" decision. I am still curious about that, but it's just not relevant here.
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