Anthony Marshall SPEARS, Petitioner-Appellee, v. Terry STEWART, Director of the Arizona Department of Corrections, and Charles Goldsmith, Warden, Arizona State Prison-Eyman Complex, Respondents-Appellants, 283 F.3d 992

REINHARDT, Circuit Judge, with whom Circuit Judges HAWKINS, THOMAS, and PAEZ join dissenting and with whom Circuit Judge TASHIMA joins except as to

Part IV(as to which he withholds judgment); Circuit Judge RAWLINSON joins except as to Part JV.A; and Circuit Judges PREGERSON, WARDLAW, W. FLETCHER, FISHER, and BERZON join as to Parts I, II, & III: Opinion by Judge GRABER. ORDER The opinion filed September 24, 2001, is amended as follows: On slip opinion page 13530, footnote 2, change to: Specifically, the court held that

(1) July 17, 1998, was the relevant date for determining whether Arizona met the requirements of

Chapter 154 for the purpose of Petitioner’s case and that

(2) Arizona’s system provided (

a) for the payment of reasonable litigation expenses and (

b) adequate competency standards for appointed counsel. However, the court concluded that Arizona’s offer of counsel did not comply with 28 U.S.C. § 2261 in other respects. On slip opinion page 13551: delete footnote 19. On slip opinion page 13552, line 2: delete “substantially.” With these amendments, the panel has voted to deny the petitions for panel rehearing. Judges Graber and McKeown have voted to deny the petitions for rehearing en banc, and Judge Hill has taken no position. The full court was advised of the petitions for rehearing en banc.

A judge of the court 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. The petitions for rehearing and petitions for rehearing en banc are DENIED. The decision in this case is similar to that in Bush v. Gore — good for this case and this case only — except that here the decision is not even good for this case.

The three judge panel, consisting of two Ninth Circuit judges and one visiting judge, overrode the Chief District Judge for the District of Arizona (a former prosecutor with many years of experience in Arizona) and determined that although: (

a) the question whether Arizona had opted-in to the short-fuse habeas scheme provided in

Chapter 154 of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §§ 2261-66, was entirely irrelevant to the outcome of the case before it; (

b) the linchpin provision of the procedures by which Arizona had once sought to opt-in under

Chapter 154 had already been repealed by the state; (

c) the state did not even comply with its own procedures in the case before the panel; (

d) Arizona was unquestionably not in compliance with

Chapter 154 at the time the appeal was heard; (

e) in fact, the state had never at any time effectively complied with its short-lived procedures; and (

f) no other state in the nation has ever been held to have successfully opted-in under

Chapter 154, the panel would seize this opportunity to issue an advisory opinion stating that the no-longer-existent Arizona procedures were in compliance with

Chapter 154’s requirements. In doing so, it did not even mention that the critical Arizona provision underlying its “decision” had previously been repealed. Perhaps because the offending portion of the panel’s opinion was so patently advisory, affected neither the petitioner nor any other petitioner the panel has been able to identify, and will affect no future petitioners, the call to rehear this matter en banc failed to attract the affirmative votes of a majority of the active non-recused judges notwithstanding that both parties sought an en banc rehearing.

Unfortunately, as I have noted on several occasions in the past, our rules preclude us from advising the bar and the public whether there were actually more yes votes than no votes cast (although less than an absolute majority); whether half of the non-recused active judges voted to hear the case en banc, or a lesser number; or describe in any way the margin by which a vote may have failed.

In this case, as in all others, I believe the public has a right to know how close the vote was and how each of us exercised our judicial responsibilities; that information would surely be of interest to those concerned about the manner in which the courts and particularly our court functions. In any event, for the reasons set forth below, I disagree with the views of those of my colleagues who thought the case simply not deserving of en banc review, as well as any who may have agreed with the substance of the dicta propounded by the panel.

I do so because the fact that the opinion is advisory in nature may not be apparent on its face, and because I believe that the views the panel felt it necessary to express are erroneous. Were the issue not both so novel and so important, I might have agreed with those who concluded that an opinion that has no legal effect should simply be ignored and allowed to die a quiet death.

I fear, however, that the district courts of our circuit and other judges in other parts of the country may get the wrong impression of the status of this unprecedented opinion, and apply in other cases its erroneous views on what constitutes compliance with

Chapter 154, unless someone points out the lack of prec-edential or other legal effect. To put it bluntly, neither we, nor any other court is bound by the panel’s advisory declarations in this case. I. This is a case of exceptional importance THAT SHOULD HAVE BEEN RE HEARD EN BANC. The issue that the panel actually decided is routine and of no particular significance. As the panel concluded, Arizona did not appoint counsel for Spears in a timely manner under its own procedures; thus, Spears’s case was not subject to the abbreviated capital review procedures provided by

Chapter 154 of AEDPA. In other words, the panel held that Spears’s habeas proceeding is subject to the same rules and procedures as all other capital defendants’ throughout the country. This on its face is rather a mundane decision, not even worthy of publication. However, what the panel also purported to decide in the advisory portion of its opinion is both novel and highly consequential. The panel gratuitously proclaimed that Arizona had, as a general matter, opted-in to

Chapter 154 by establishing a “timeliness” procedure with which the state did not and could not as a practical matter comply, and by adopting some highly questionable, if not wholly inadequate, provisions regarding attorneys fees and attorney competency standards. The consequences of the panel’s unwarranted dictum, if adopted by this court or others in the future, would be enormous.

Chapter 154, to which no other state has yet successfully opted-in, provides for a short-fuse system of federal habeas review for capital prisoners for whom the state appoints counsel in accordance with the specific requirements of that Chapter. Under AEDPA, capital prisoners surrender significant post-conviction rights in exchange for what they should be entitled to in any event — competent counsel. What is even more extraordinary about

Chapter 154 is that it establishes short time periods within which federal courts must resolve capital habeas cases, regardless of their complexity and regardless of the difficulty courts or counsel may have in obtaining necessary evidence or other materials, including records of the oft-times voluminous state proceedings. The Congressionally-established time limits could well serve to disrupt the dockets, and the ordinary handling of civil and criminal cases, in jurisdictions that cover states that have large backlogs of capital cases, such as Arizona and California.

Moreover, the novel procedure raises significant constitutional questions, primarily with respect to the separation of powers between the legislative and judicial branches of government. Given all of the above, the first decision in the nation to announce, albeit in wholly improper dicta, that a state had succeeded in opting-in to

Chapter 154 is surely one of national importance that warrants en banc review. II. The panel’s DECISION that Arizona SUCCESSFULLY OPTED-IN TO THE ABBREVIATED CAPITAL REVIEW PROCEDURES OF

CHAPTER 154 CONSTITUTES AN ADVISORY OPINION. The panel’s statement that Arizona opted-in to

Chapter 154’s abbreviated capital review procedures is clearly unnecessary to its resolution of the case, does not affect its outcome in any manner, and constitutes an advisory opinion. The binding portion of the panel opinion holds that Spears is entitled to the one-year AEDPA statute of limitations rather than the abbreviated

Chapter 154 procedures because the appointment of counsel in his case did not meet the requirements set forth in the Arizona statutory scheme. Thus, whether or not the Arizona scheme satisfied the requirements of

Chapter 154 was entirely irrelevant to the outcome of Spears’s case. Spears was entitled to the normal habeas procedures regardless of whether Arizona’s now-defunct scheme met the standards for opting-in under that Chapter. Under these circumstances, the panel could and should have avoided the highly controversial question it unnecessarily reached out for and purported to decide. See Anderson v.

United States, 417 U.S. 211, 218, 94 S.Ct. 2258, 41 L.Ed.2d 20 (1974) (stating that it is “inadvisable ... to reach out in this fashion to pass on important questions of statutory construction when simpler, and more settled, grounds are available for deciding the case at hand”). The United States District Court for South Carolina, when faced with a similar situation, did precisely that. In Tucker v.

Moore, 56 F.Supp.2d 611, 614 (D.S.C.1999) (internal citations omitted), the court held that: If the Respondents did not follow their own procedures set forth in [South Carolina statutes] when appointing counsel for the Petitioner ... then the Respondents cannot invoke

Chapter 154 of the AEDPA against the Petitioner in this federal habeas action, even assuming [South Carolina statute] does satisfy 28 U.S.C. § 2261(

b) and (c). This Court is expressly not passing on the issue of whether [South Carolina statute] meets the requirements of 28 U.S.C. § 2261(

b) and (c), because it is not necessary to reach that issue. Because there was no reason for the panel to announce that Arizona had opted-in to

Chapter 154’s procedures in a case in which it made no difference whether the state had done so, the panel’s statements proclaiming its views on that point constitute an advisory opinion. See, e.g., Association of Mexican-American Educators v. California, 231 F.3d 572, 590(9th Cir.2000) (en banc) (declining to address the plaintiffs’ Title VI claim because it was unnecessary given the resolution of the identical claim under Title VII and therefore, anything written about the Title VI claim would constitute “an advisory opinion”). The contents of that portion of the panel opinion are entirely dicta.

See, e.g., United States v. Henderson, 961 F.2d 880, 882 (9th Cir.1992) (defining dicta as language that is “unnecessary to the court’s holding”); United States v. Crespo de Llano, 830 F.2d 1532, 1542 n. 2 (9th Cir.1987) (holding that the court’s previous statement that review of a district court determination of the voluntariness of a confession is for clear error was dictum because the court ultimately ruled that the confession in question was not involuntary under either a de novo or a clear error standard). III.

The panel’s decision that Arizona SUCCESSFULLY OPTED-IN TO AEDPA’s SHORT-FUSE CAPITAL REVIEW PROCEDURES IS PURELY ADVISORY BECAUSE IT RELIES ON A PORTION OF ARIZONA’S STATUTORY SCHEME THAT HAD ALREADY BEEN REPEALED. The panel’s decision to reach out and unnecessarily rule on Arizona’s opt-in status is particularly egregious because the opinion does not purport to rule that Arizona’s then-current (and now-current) system complies with

Chapter 154. Rather, the panel, without even mentioning that the Arizona procedure it purported to validate was no longer in effect, proceeded to announce that a statutory system that was once on its books, that did not affect the outcome of petitioner’s case, and that Arizona was effectively unable ever to comply with, satisfied

Chapter 154. Remarkably, the panel does not state in its opinion that, after the appointment of Spears’s counsel but before the panel decided his appeal, Arizona had removed from its statutory scheme the linchpin provision — the provision requiring that indigent capital prisoners receive post-conviction review counsel in a timely manner, specifically within 15 days of either the Supreme Court’s denial of certiorari or the expiration of the 90-day time period provided for seeking a writ of certiorari. Yet it is that very provision that the panel relied on to justify its view that Arizona’s statutory scheme provided for the timely appointment of post-conviction counsel, as required under

Chapter 154. See Spears v. Stewart, 267 F.3d 1026, 1089-41 (9th Cir.2001). The panel also fails to mention that Arizona’s statutory scheme was never truly implemented, and was a scheme in name only. When the 15-day appointment requirement was on the books, Arizona routinely violated it in capital cases. The district court opinion, in which Chief Judge McNamee ruled that Arizona’s statutory scheme was insufficient to permit it to opt in to

Chapter 154’s capital procedures, related undisputed evidence that protracted delays in the appointment of counsel were commonplace in the Arizona system. The panel ignored the overwhelming evidence of Arizona’s non-compliance with its statutory procedures and ipse dixit announced that the mere formal existence of the 15-day appointment requirement, implemented or not, was sufficient to allow Arizona to opt-in. See Spears, 267 F.3d at 1040-41.

At the time the opinion was issued, however, Arizona could no longer purport even to have a timeliness requirement on the books, because it had repealed the 15-day appointment provision with respect to death penalty cases. Thus, Arizona was indisputably not in compliance with AED-PA’s

Chapter 154 requirements when the panel issued its advisory opinion, and is indisputably not in compliance today. The timely appointment of counsel at the conclusion of direct review is an essential requirement in AEDPA’s opt-in structure. See id. at 1039. Because the abbreviated 180-day statute of limitations begins to run immediately upon the conclusion of direct review, time is of the essence. See id. The elimination of the 15-day appointment requirement left Arizona’s statutory scheme without any requirement for the timely appointment of counsel.

Thus, even if Arizona had once opted-in by virtue of having a paper scheme on the books,' — and I do not believe that it had — that status was revoked, in all likelihood retroactively, when it removed the 15-day appointment requirement. Without mentioning the repeal of that requirement, however, the panel relied on the defunct provision as the basis for its unnecessary and unwarranted conclusion that Arizona’s procedures complied with

Chapter 154 and that the state had therefore qualified for opt-in status. Aside from the fact that I believe the panel was wrong on the merits, I fail to understand why it felt compelled to endorse an illusory statutory scheme that the state itself had already abandoned because it was unable to comply with it, particularly in a case in which its advisory declaration did not affect the outcome of petitioner’s claim. IV. The panel’s decision is wrong on the MERITS, because ARIZONA’S FORMER STATUTORY SCHEME DID NOT SATISFY THE REQUIREMENTS OF

CHAPTER 154. Arizona’s now defunct statutory scheme did not comply with

Chapter 154’s requirements, not only because the state’s inability to comply with its own timeliness provisions rendered the procedure illusory at best, but also because Arizona’s rules did not require reasonable compensation for post-conviction review counsel and did not ensure that “competent” counsel would be appointed in capital cases. A. Arizona did not (and still does not) provide reasonable compensation standards for post-conviction review counsel.

The Arizona statutory scheme fails to establish a mechanism for the reasonable compensation of Arizona’s post-conviction capital attorneys, as required by 28 U.S.C. § 2261(b). See also Baker v. Corcoran, 220 F.3d 276, 285 (4th Cir.2000) (holding that a state must provide a mechanism for the payment of reasonable attorney’s fees in order to opt-in); Oken v. Nuth, 30 F.Supp.2d 877, 880 (D.Md.1998) (same). Arizona’s statute limits the compensation that attorneys may receive to no more than $100 per hour for “up to two hundred hours of work.” Ariz.Rev.Stat. § 13-4041(G).

It is only if an attorney shows “good cause” that he can be compensated for more than 200 hours. § 13-4041(H). Spears successfully argued before the district court that a 200-hour presumptive limit is facially insufficient for the work of a capital post-conviction attorney and that, therefore, the rule that requires counsel to prove good cause to exceed that threshold is unreasonable. See Spears v. Stewart, No. CV 00-1051-PHX-SMM, at 24-26 (D. Ariz. filed Nov. 21, 2000). Research studies show that state post-conviction proceedings in capital cases generally require far more than 200 hours of preparation.

See, e.g., Richard J. Wilson & Robert L. Spangenburg, State PosWConvietion Representation of Defendants Sentenced to Death, 72 Judicature 331, 336 (1989). The state did not provide evidence to the contrary even though, under Ashmus v. Woodford, 202 F.3d 1160, 1164 (9th Cir.2000), cert. denied, 531 U.S. 916, 121 S.Ct. 274, 148 L.Ed.2d 199 (2000) [hereinafter Ashmus V], the state has the burden of establishing that it satisfies each opt-in requirement. By fading to support its position that 200 hours is a reasonable threshold, the state failed to meet its burden.

Moreover, the Arizona statutory scheme does not provide a minimum hourly rate of compensation for capital post-conviction attorneys. In Baker, 220 F.3d at 285-86, the Fourth Circuit held that paying an attorney $35 an hour was insufficient compensation because “[a] compensation system that results in substantial losses to the appointed attorney or his firm simply cannot be deemed adequate.” Because the Arizona statutory scheme has no provision for a minimum hourly rate, it allows for unreasonably low compensation rates in violation of

Chapter 154’s requirement. The Spears opinion states that, if the court set an unreasonably low rate, “the statute provide[s] a remedy: a special action in the Arizona Supreme Court.” Spears, 267 F.3d at 1033. The fact that the unreasonable rate can be appealed, however, does not make it any less unreasonable.

Chapter 154 requires that the state’s statutory standards provide for reasonable compensation. Arizona’s statute does not so provide and the availability of a special remedy in the state supreme court in individual cases does not render the statutory standards adequate to comply with AEDPA. B. Arizona did not (and still does not) have mandatory and binding competency standards for post-conviction review counsel. In order to opt-in to the

Chapter 154 procedures, 28 U.S.C. § 2261 requires a state to establish a mechanism for the appointment of counsel for all indigent capital prisoners. Such appointments must be made in conformance with “mandatory and binding” competency standards that the state must establish by statute or rule. See Ashmus V, 202 F.3d at 1167. Arizona Rule of Criminal Procedure 6.8(d), however, provides an escape valve through which the state can bypass the state’s competency qualifications for counsel. Specifically, Rule 6.8(

d) provides that: In exceptional circumstances and with the consent of the Supreme Court, an attorney may be appointed who does not meet the qualifications set forth in sections (a)(1) and (2), (

b) and (

c) of this rule, providing that the attorney’s experience, stature, and record enable the Court to conclude that the attorney’s ability significantly exceeds the standards set forth in this rale and that the attorney associates with himself or herself a lawyer who does meet the standards set forth in this rale. Because this provision affords the state court the discretion to appoint counsel who do not possess the state-established competency qualifications, Arizona fails to meet the requirement that the competency standards for the appointment of counsel be “binding and mandatory.” Ashmus V, 202 F.3d at 1167.

We have held that “[t]he requirement of competent counsel at all stages of the proceedings would be eviscerated if the decision to follow the standards were left to the discretion of a court or guideline administrator.” Id. at 1168 (emphasis added). The panel states that there is no discretion here to bypass the competency requirements because (1) subsection (

d) of Rule 6.8 requires that the lawyer’s qualifications “significantly exceed[]” the standards provided and (2) the lawyer must associate with one who meets the qualifications listed. The requirement that the lawyer’s qualifications “significantly exceed[ ]” those listed in the rale vests in the court a vast discretion to weigh subjective factors in order to reach a determination of what it means to exceed significantly the listed qualifications, or, indeed, to exceed them at all.

Under the Arizona scheme the objective competency standards need not be met where the court concludes in its discretion that an attorney is qualified on the basis of some different and previously unannounced criteria. Because Arizona’s scheme affords the court a discretion to “take into consideration” various subjective factors — a discretion similar to that deemed insufficient to satisfy the AEDPA competency requirement in Wright v. Angelone, 944 F.Supp. 460, 466 (E.D.Va.1996) — it is contrary to Ashmus V.

Nor does the requirement of “association” with an attorney who meets the qualifications ensure that an indigent defendant will receive “competent” counsel. “Association” can ordinarily mean anything from merely lending one’s name to the pleadings to participating fully in the preparation of the petition, the briefs, and the oral argument. A more definitive provision than Arizona’s is required. Moreover, the Arizona statutory scheme permits the appointment of post-conviction lawyers with absolutely no experience handling capital cases on either direct appeal or post-conviction review.

While there have been very few federal cases addressing the meaning of the competency standard requirement in

Chapter 154, the importance* of having a capital experienced attorney has been emphasized. For example, in Wright, 944 F.Supp. at 467 & n. 5, the court held that Virginia’s statutory scheme was insufficient to allow Virginia to opt-in to the

Chapter 154 procedures. The court stated that, under the Virginia scheme, “there is no requirement that counsel have had any experience with capital cases” and further stated that “it is clear ... that capital cases are unique, not only in the punishment but in the habeas process.” Id.

The Arizona statutory scheme, rather than providing binding and mandatory standards for the appointment of competent counsel in all post-conviction review cases involving indigent capital prisoners, vests discretion in the court to appoint post-conviction review counsel who have no capital experience and whose competency is measured, not by the qualifications set forth in Arizona’s rules, but by whatever indicators of “experience, stature, and record” the court deems appropriate. Ariz. R.Crim. P. 6.8(d). V.

Conclusion The first court in the nation to publish an opinion announcing that a state had successfully opted-in to the capital punishment procedure under AEDPA, a procedure that substantially affects the rights of capital defendants and dramatically, and perhaps unconstitutionally, impinges on the normal operations of the federal courts, should at least await a case in which a resolution of the question is necessary to the determination of the controversy before it. It should not reach out to address the question in dictum when the answer is wholly irrelevant to the outcome of the case before it.

The panel’s overreaching is particularly egregious in this case because the linchpin provision on which it relied in pronouncing that Arizona had successfully opted-in to

Chapter 154’s short-fuse procedures had never been effectively implemented and had already been removed from the state’s statutory scheme — facts that the panel opinion does not even mention.

Not only has the panel reached out to address a novel, complex, and important issue in an advisory opinion based on a no-longer-existent provision of state law, Arizona’s statutory scheme failed (and continues to fail) to provide for the reasonable compensation of post-conviction counsel in capital cases and failed (and continues to fail) to establish a mechanism for the appointment of competent counsel for all indigent capital prisoners. Thus, Arizona did not (and still does not) have sufficient procedures to qualify for opt-in status under

Chapter 154. While the panel opinion does not purport to hold that Arizona’s current procedures entitle it to opt-in status (and clearly they do not), the dictum announced in the advisory portion of the opinion is capable of creating considerable confusion and uncertainty for future courts that may be asked to consider and apply it. For that reason and the others discussed above, I respectfully dissent from my colleagues refusal to rehear this case en banc. . 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). . See Ashmus v.

Woodford, 202 F.3d 1160, 1160 (9th Cir.2000), cert. denied, 531 U.S. 916, 121 S.Ct. 274, 148 L.Ed.2d 199 (2000) (California has not opted-in); Harris v. Bowersox, 184 F.3d 744, 748 (8th Cir.1999) (Missouri has not opted-in); Duvall v. Reynolds, 139 F.3d 768, 776 (10th Cir.1998) (Oklahoma has not opted-in); Hill v. Butterworth, 941 F.Supp. 1129, 1146-47 (N.D.Fla.1996), vacated on other grounds by 147 F.3d 1333 (11th Cir.1998) (Florida has not opted-in); Mata v. Johnson, 99 F.3d 1261, 1267(5th Cir.1996), vacated in part on other grounds, 105 F.3d 209 (5th Cir.1997) (Texas has not opted-in); Austin v.

Bell, 126 F.3d 843, 846 n. 3 (6th Cir.1997) (Tennessee has not opted-in); Holloway v. Horn, 161 F.Supp.2d 452, 478 n. 11 (E.D.Pa.2001) (Pennsylvania has not opted-in); Smith v. Anderson, 104 F.Supp.2d 773, 786 (S.D.Ohio 2000) (Ohio has not opted-in); Oken v. Nuth, 30 F.Supp.2d 877, 879 (D.Md. 1998) (Maryland has not opted-in); Tillman v. Cook, 25 F.Supp.2d 1245, 1253 (D.Utah 1998) (Utah has not opted-in); Weeks v. Angelone, 4 F.Supp.2d 497, 506 n. 4 (E.D.Va.1998) (Virginia has not opted-in); Ryan v. Hopkins, 1996 WL 539220, at *3-4 (D.Neb.1996) (Nebraska has not opted-in). . See, e.g., In re Silicon Graphics Inc.

Securities Litigation, 195 F.3d 521, 523-24 (9th Cir.1999)(Reinhardt, J., dissenting from denial of en banc review); United States v. Koon, 45 F.3d 1303, 1308-10 (9th Cir.1995) (Reinhardt, J., dissenting from denial of en banc review); Brewer v. Lewis, 997 F.2d 550, 556 (9th Cir.1993) (Reinhardt, J., dissenting from denial of en banc review); Elder v. Holloway, 984 F.2d 991, 1000 (9th Cir.1993) (Reinhardt, J., dissenting from denial of en banc review); Harris v. Vasquez, 949 F.2d 1497, 1539 (9th Cir.1990) (Reinhardt, J., dissenting from denial of en banc review). . But see Coleman v.

Thompson, 501 U.S. 722, 755, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (stating that habeas petitioners do not have a constitutional right to effective assistance of counsel); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir.1996) (same). . Specifically, although Arizona’s statutory scheme required the appointment of post-conviction counsel within 15 days of the completion of direct review proceedings, Spears’s counsel was appointed 1 year and 8 months after the conclusion of his direct appeal. Such non-compliance with the Arizona procedures was routine. See infra note 8. . See also Central Green Co. v.

United States, 531 U.S. 425, 431, 121 S.Ct. 1005, 148 L.Ed.2d 919 (2001); U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994); Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 121, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (Stevens, J., concurring); Boos v. Barry, 485 U.S. 312, 338, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (Brennan, J., concurring); United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 2185, 150 L.Ed.2d 292 (2001) (Scalia, J., dissenting); Hallstrom v.

Tillamook County, 493 U.S. 20, 34 n. *, 110 S.Ct. 304 (1990) (Marshall, J., dissenting); United States v. Enas, 204 F.3d 915, 920 (9th Cir.2000); Stewart v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143, 1154 n. 8 (9th Cir.2000); The Export Group v. Reef Industries, Inc., 54 F.3d 1466, 1472 (9th Cir.1995); United States v. Ramos, 39 F.3d 219, 221 (9th Cir.1994); Operating Engineers Pension Trust v. Charles Minor Equipment Rental, Inc., 766 F.2d 1301, 1307 (9th Cir.1985); McDaniel v. Sanchez, 452 U.S. 130, 141, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981); United States v.

Johnson, 256 F.3d 895, 920 (9th Cir.2001) (Tashima, J., concurring). While I appreciate the fact that the question certified to this court by the district court was whether Arizona opted-in to

Chapter 154, that is by no means dispositive here, because, as we -have previously held, "[o]ur jurisdiction [when entertaining interlocutory appeals] ... is not limited to deciding the precise question the district court certified to us. Rather, we ... may address any issue fairly included within[the question].” Lee v. American National Insurance Co., 260 F.3d 997, 1000 (9th Cir.2001); see also Tillema v. Long, 253 F.3d 494, 502 n. 11 (9th Cir.2001) (stating that "it is not arguments that are certified, it is issues and claims”).

Indisputably, a district court cannot compel this court to issue advisory opinions or even to engage in dicta simply by certifying questions that we either have no jurisdiction to, or should not properly, answer. In such cases, like all others, we follow the rules that generally govern our decision-making. ****** . At the time Spears's counsel was appointed, Arizona Rule of Criminal Procedure 32.4(

c) stated that "[u]pon the filing of a timely notice in a capital case, or the first notice in a non-capital case ... the presiding judge shall appoint counsel for the defendant within 15 days if requested and the defendant is determined to be indigent .... ” In 2000, Arizona amended Rule 32.4 and removed the 15-day appointment requirement. As it is currently written, Rule 32.4(

c) states:

(1) Capital Cases. Upon the filing of the notice by the clerk of the Supreme Court in a capital case, the Supreme Court, or if authorized by the Supreme Court, the presiding judge of the county from which the case originated, shall appoint counsel for the defendant pursuant to A.R.S. § 13-4041 and Rule 6.8 if the defendant is determined to be indigent ... Neither § 13-4041 nor Rule 6.8 requires that counsel be appointed within any particular time period.

Rather, § 13-4041 requires only that counsel be appointed "[a]fter the supreme court has affirmed a defendant's conviction and sentence in a capital case.” § 13-4041(B). Rule 6.8 refers to competency standards and not to the timing of counsel's appointment. Therefore, Arizona’s present statutory scheme does not ensure the timely appointment of counsel and is indisputably insufficient to permit the state to opt-in to

Chapter 154. . See Petitioner-Appellee's Response to Respondent-Appellant’s Petition for Rehearing and Petition for Rehearing En Banc at 10 (stating that Arizona had great difficulty finding counsel within 15 days); Respondents-Appellants’ Petition for Rehearing and Petition for Rehearing En Banc at 4-5 (same). .

Specifically, Charles Hedlund waited 2 years and 2 months for post-conviction counsel; Roger Murray waited 1 year and 10 months; Richard Hurles waited 2 years; Danny Jones waited 2 years and 5 months; Darrel Lee waited 1 year and 9 months; Michael Gallegos waited 2 years and 1 month; James McKinney waited 2 years and 6 months; Robert Towery waited 1 year and 10 months; Levi Jackson waited 1 year and 8 months; Kenneth Laird waited 2 years and 1 month; David Hyde waited 1 year and 10 months; Thomas Kemp waited 1 year and 10 months; and Kevin Miles waited 2 years and 1 month. See Spears v. Stewart, No.

CV 00-1051-PHX-SMM, at 14 (D. Ariz. filed Nov. 21, 2000). It was these facts, set forth in the district court opinion, that Chief Judge McNa-mee relied on as the basis for his finding that "Arizona has not complied with the timeliness requirement of [AEDPA].” See id. at 17. .

Arizona Rule of Criminal Procedure 6.8(c)(1) (1998) provides that: Alternatively, an attorney must have been lead counsel in the appeal of at least six felony convictions, at least two of which were appeals from first or second degree murder convictions, and lead counsel in at least two post-conviction proceedings that resulted in evidentiary hearings. It is clear from the statutory language used elsewhere in Arizona Rule of Criminal Procedure 6.8 that the legislature did not intend to require the "first or second degree murder convictions” to be in capital cases.

In the first sentence of Rule 6.8(c)(1), the statute refers to a "post-conviction proceeding in a case in which a death sentence was imposed.” See also Ariz. R.Crim. P. 6.8(b)(l)(ii) (referring to "capital murder” cases). When the legislature wanted to refer to capital cases, it did so explicitly.