Issue: (1) Whether, by awarding a defendant an evidentiary hearing on diligence and a simultaneous hearing on the merits, despite his lack of diligence, the Ninth Circuit's opinion conflicts with Court precedent and the Anti-Terrorism and Effective Death Penalty Act (AEDPA); and (2) whether the Ninth Circuit's opinion conflicts with Court precedent and AEDPA, by remanding the case for an evidentiary hearing without analyzing whether a colorable ineffective assistance of counsel claim was presented or considering the claim on the merits, when the district court considered the claim in light of the new evidence the defendant presented and concluded it showed neither deficient performance nor prejudice.
Judgment: Granted, vacated and remanded on April 18, 2011. for further consideration in light of Cullen v. Pinholster, 563 U.S. ___ (2011). .
Holding: After a defendant was denied certiorari review by the Supreme Court, the Ninth Circuit abused its discretion by sua sponte construing the defendant’s earlier motion to stay a mandate as a motion to reconsider, and when it withheld its mandate.
Judgment: Reversed and remanded. in a per curiam opinion on June 24, 2013.