UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 21-55464 STEPHEN MORELAND REDD, individually and on behalf of all D.C. No. 2:16-cv- others similarly situated 01540-DMG-PJ Plaintiff-Appellant, ORDER v. PATRICIA GUERRERO, Chief Justice of California; KIMBERLY MENNINGER, Judge of the Superior Court of California, County of Orange

Defendants-Appellees.

Filed December 11, 2024

Before: Marsha S. Berzon, Richard C. Tallman, and Morgan Christen, Circuit Judges.

Order; Statement by Judge Berzon; Dissent by Judge Bennett 2 REDD V. GUERRERO

SUMMARY *

Procedural Due Process/Prisoner Civil Rights

The panel issued an order granting appellees’ request to dismiss this appeal as moot, denying appellant’s motion for substitution of a party, denying appellees’ request to vacate the panel’s decision, and denying as moot appellees’ petition for panel rehearing and rehearing en banc. Stephen Redd, a California state prisoner sentenced to death, alleged that state officials violated his procedural due process rights by failing to appoint postconviction relief counsel as required by California law. In October 2023, the panel issued an opinion holding that Redd had been deprived of a protected property interest—the right under state law to representation in habeas proceedings—for over a quarter century, and so had stated a plausible procedural due process claim for declaratory relief. Redd died two months after the opinion issued. The panel, in its discretion, declined to vacate its opinion. Respecting the denial of rehearing en banc, Judge Berzon, joined by Judges Wardlaw, W. Fletcher, Paez, Tallman, and Christen, stated that the court correctly declined to take this case en banc for the sole purpose of vacating the panel’s opinion. First, vacating a decision after the death of a litigant based on disagreement with the merits amounts to deciding a moot case, which is constitutionally forbidden. Second, in improperly addressing the merits of the Redd panel opinion, the dissent mischaracterizes the * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. REDD V. GUERRERO 3

holding of the panel opinion, misreads California law, exaggerates the practical consequences of letting the opinion stand, and dramatically recasts the panel’s ordinary procedural due process analysis as “an affront to the principles of federalism.” Dissenting from the denial of rehearing en banc, Judge Bennett, joined by Judges R. Nelson, Collins, Lee, Bress, Bumatay, and VanDyke, stated that this case should have been taken en banc to vacate the panel’s opinion, which is plainly wrong and presents an affront to the principles of federalism. The question presented to the panel was purely one of state law: whether California law guarantees appointment of habeas counsel within a certain time frame. Thus, the panel should have determined how the California Supreme Court would have answered the question. Had it done so, the panel would have been compelled to conclude that California law does not guarantee appointment of habeas counsel within a certain time.

ORDER

Appellees’ request to dismiss this appeal as moot is GRANTED. The appeal is dismissed. Appellant’s motion for substitution of a party is DENIED. Appellees’ request to vacate the panel’s opinion is also DENIED. Appellees’ petition for rehearing is DENIED as moot. Judge Christen voted to deny Appellees’ petition for rehearing en banc as moot, and Judges Berzon and Tallman so recommended. A judge requested a v