                                                                            FILED
                               FOR PUBLICATION                               MAR 04 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



EDWARD HAROLD SCHAD,                             No. 07-99005

              Petitioner - Appellant,            D.C. No. CV-9702577-PHX-ROS
                                                 District of Arizona,
  v.                                             Phoenix

CHARLES L. RYAN, Arizona
Department of Corrections,                       AMENDED ORDER

              Respondent - Appellee.



Before: THOMAS, Circuit Judge and Capital Case Coordinator

       The full court has been advised of the petition for rehearing and rehearing en

banc. Pursuant to the rules applicable to capital cases in which an execution date

has been scheduled, a deadline was set by which any judge could request a vote on

whether the panel’s orders should be reheard en banc.

       A judge requested a vote on whether to hear the panel’s orders en banc, and

a vote was conducted. A majority of the active, non-recused judges eligible to vote

on the en banc call voted against rehearing the panel’s orders en banc. Therefore,

the petition for rehearing en banc is DENIED. No further petitions for panel

rehearing or rehearing en banc will be entertained. En banc proceedings with
respect to the orders are concluded. The panel will issue a separate order

concerning the petition for panel rehearing.




                                         -2-
                                                                            FILED
                              FOR PUBLICATION                                MAR 04 2013

                                                                        MOLLY C. DWYER, CLERK
Schad v. Ryan, No. 07-99005                                               U .S. C O U R T OF APPE ALS




Circuit Judge TALLMAN, with whom Chief Circuit Judge KOZINSKI and
Circuit Judges O’SCANNLAIN, BYBEE, CALLAHAN, BEA, M. SMITH and
IKUTA join, dissenting from the denial of rehearing en banc:


      The majority’s stay of execution and remand order in Schad openly defies

the Supreme Court’s directive in this very case and takes our habeas jurisprudence

down a road that has already been rejected.1 Judges Reinhardt and Schroeder,

writing for a divided panel, fail to appropriately apply the substantive Supreme

Court precedents in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), and Martinez v.

Ryan, 132 S. Ct. 1309 (2012). Their order needlessly adds years of additional

delay in carrying out the sentence imposed on a twice convicted murderer by

willfully ignoring the Supreme Court’s express guidance to apply Pinholster here

and by refusing to interpret Martinez, 132 S. Ct. at 1315, narrowly as the Court has

commanded. By failing to take this case en banc our court has unfortunately

allowed the majority to stretch Martinez beyond its limited scope, and permitted

Schad to bolster a previously exhausted Strickland claim with new federal habeas



      1
         Order, Schad v. Ryan, No. 07-99005 (9th Cir. Feb. 26, 2013), ECF No.
115 [hereinafter Majority Order]. Judge Graber dissented on the grounds that
Schad could not establish prejudice for his previously exhausted ineffective
assistance of counsel claim.

                                          1
evidence in clear violation of Pinholster.

      After the panel previously remanded this case to the district court for an

evidentiary hearing, the Supreme Court vacated the panel’s opinion, instructing it

to apply Pinholster. Ryan v. Schad, 131 S. Ct. 2092, 2092 (2011). In response, the

panel initially amended its opinion to apply Pinholster, correctly recognizing that

AEDPA forecloses a federal court’s ability to consider on the merits new facts not

raised before a state court. Schad v. Ryan, 671 F.3d 708, 722 (9th Cir. 2011) (per

curiam).

      In 2012, Schad again sought review of his case by filing a Motion to Vacate

and Remand in light of Martinez, and the same panel properly denied the motion.

Order, Schad v. Ryan, No. 07-99005 (9th Cir. July 27, 2012), ECF No. 91. Schad

then attempted to raise Martinez once more in a petition for certiorari, but the

Supreme Court denied review, Schad v. Ryan, 133 S. Ct. 432, 432 (2012), and he

unsuccessfully argued the Martinez IAC claim again on his motion for rehearing,

Schad v. Ryan, 133 S. Ct. 922, 922 (2013).2 Bereft of any legally significant

      2
         In his petition for certiorari, which was filed the same day that the panel
denied his Motion to Vacate and Remand, Schad relied on Martinez extensively
and specifically invoked his motion before the panel raising the same arguments,
noting that the panel had not yet “acted on the motion.” Petition for Writ of
Certiorari at i, iv, 14, Schad v. Ryan, 133 S. Ct. 432 (2012) (No. 12-5534), 2012
WL 6947825. In his reply brief, he again relied extensively on Martinez and noted
that he had “presented the [Martinez] issue to the lower court who declined to
consider it.” Reply to Brief in Opposition to Petition for a Writ of Certiorari at

                                             2
change of circumstances in the interim, the majority has now completely reversed

its prior ruling and has again remanded the case to the Arizona district court for a

second time, directing it to consider the “new” Martinez claim (which the majority

now characterizes as procedurally defaulted), while back-handedly dispatching

Pinholster in a mere footnote.

                                           I

       This panel should have stood by its original ruling; Pinholster properly

applies to this case, and it bars Schad from introducing new mitigating evidence in

federal court for a claim he has previously exhausted before the Arizona courts. In

Pinholster, the Supreme Court held that if a petitioner’s claim of ineffective

assistance of trial counsel has been adjudicated in a state court proceeding, federal

habeas review of that claim is restricted to the record that was before the state

court. 131 S. Ct. at 1398–1401. As the Court there explained, “[f]ederal courts

sitting in habeas are not an alternative forum for trying facts and issues which a

prisoner made insufficient effort to pursue in state proceedings.” Id. at 1401

(alteration in original).



2-4, Schad v. Ryan, 133 S. Ct. 432 (2012) (No. 12-5534), 2012 WL 6947823. In
his petition for rehearing, he once again asked the Court to “enter an order
remanding these proceedings to the court below for further consideration in light of
Pinholster . . . Martinez v. Ryan . . . and its progeny.” Petition for Rehearing at 11,
Schad v. Ryan, 133 S. Ct. 922 (2013) (No. 12-5534), 2012 WL 7006576.

                                           3
      Pinholster and Schad’s claims are, for all relevant purposes, factually

indistinguishable. Both filed petitions for post-conviction relief, arguing that their

trial counsel rendered ineffective assistance of counsel by failing to investigate and

present certain mitigating evidence at sentencing. Schad, 671 F.3d at 721;

Pinholster, 131 S. Ct. at 1396. Then in federal habeas proceedings, both

petitioners reasserted their initial claims of ineffective assistance of sentencing

counsel, attempting to bolster them with additional facts. Schad, 671 F.3d at

721–22; Pinholster, 131 S. Ct. at 1396–97.

      As in Pinholster, the legal basis for Schad’s ineffective assistance of counsel

claim is the same now as it was before the initial post-conviction state court, and

merely improving the evidentiary support does not provide a basis for a federal

court to overturn a state court’s reasoned opinion. We were reversed in Pinholster

for permitting the petitioner to do just that, and thus, we should have gone en banc

in this case to correct the majority’s failure to apply Supreme Court precedent and

to vacate the unwarranted stay of execution.

                                           II

      The majority attempts to circumvent the Supreme Court’s holding in

Pinholster by conjuring up a “new” Strickland claim, based on additional evidence

identified for the first time in federal habeas proceedings. The problem with the



                                           4
majority’s “new claim” theory is that there is nothing new about Schad’s current

claim. It attacks the sufficiency of the sentencing investigation by trial counsel by

alleging she was ineffective in not doing enough to show that Schad was a

sympathetic person due to his poor upbringing.

      In state post-conviction relief proceedings, Schad argued that his trial

counsel rendered ineffective assistance by failing to present certain mitigating

evidence at sentencing describing the psychological and physical abuse Schad

endured as a child. See Schad, 671 F.3d at 721. In federal habeas proceedings,

Schad claimed that his trial counsel was ineffective for failing to present additional

evidence of this abuse, including new declarations “discussing Schad’s childhood

and its effect on his mental health.” Id.

       At bottom, both claims are premised on trial counsel’s failure to present

mitigation evidence relating to the physical and psychological impact of the abuse

suffered by Schad.3 Pinholster could not be more clear on this point. Merely

bolstering the evidentiary basis for the claim does not transform Schad’s


      3
         Schad’s characterization of his former and current claim demonstrate their
singular origin. Schad describes the Strickland claim raised in post-conviction
relief proceedings as “not properly developed” and the Strickland claim he
currently advances as “completely developed.” Reply Brief for Petitioner-
Appellant at 7, Schad v. Ryan, No. 07-99005 (9th Cir. Jan. 11, 2013), ECF No.
100-1. Pinholster made the same argument regarding evidence of organic brain
impairment to try to excuse his horrendous crime.

                                            5
previously adjudicated Strickland claim into a novel claim not bound by Pinholster

or the state court record. See Pinholster, 131 S. Ct. at 1401. The majority

improperly concluded that Schad’s “new factual allegations” transformed Schad’s

exhausted Strickland claim, adjudicated on the merits in state courts, into a “new”

and procedurally defaulted claim. Majority Order at 12.

                                           III

      After declaring that Schad has advanced a “new” and procedurally defaulted

claim, the majority concluded that Schad may obtain review of his fully developed

Strickland claim, complete with the new evidence identified in federal habeas

proceedings. The majority relies on a tortured construction of the Supreme Court’s

opinion in Martinez to arrive at this astonishing conclusion.

      The Court in Martinez held that “a procedural default will not bar a federal

habeas court from hearing a substantial claim of ineffective assistance at trial if, in

the initial review collateral proceeding, . . . counsel in that proceeding was

ineffective.” Martinez, 132 S. Ct. at 1320. Purportedly applying this exception,

the majority stayed Schad’s execution date after concluding that Schad’s claim of

ineffective assistance of trial counsel was substantial. Majority Order at 15. The

majority remanded to the district court for determination of whether Schad’s post-

conviction counsel was ineffective. Id.



                                           6
      The majority’s reliance on Martinez is misguided and without basis.

Martinez is not applicable here because the Arizona state court previously

adjudicated Schad’s Strickland claim on the merits, and the district court did not

find Schad’s claim to be procedurally defaulted. The majority’s extraordinary

efforts to unilaterally declare that Schad’s current Strickland claim is procedurally

defaulted defy the Supreme Court’s instructions to apply Pinholster, and amount to

a transparent attempt to further delay Schad’s execution date. Schad cannot rely on

Martinez to obtain relief because there is no procedurally defaulted claim, and no

need to establish either cause or prejudice. The ephemeral default declared is only

in the mind of the panel majority. This case is controlled by Pinholster, not

Martinez.

      Furthermore, even if Martinez applied, Schad does not advance a substantial

ineffective assistance of trial counsel claim. See Majority Order at 17–18 (Graber,

J., dissenting). After an independent review of all evidence Schad offered in

federal habeas proceedings, the district court concluded that the new mitigation

evidence was “either cumulative or . . . contradictory to the portrait of Petitioner

that trial counsel presented at sentencing” and would not have altered the outcome.

Schad v. Schriro, 454 F. Supp. 2d 897, 944 (D. Ariz. 2006).

      As Judge Graber trenchantly concluded in her dissent, Schad cannot



                                           7
demonstrate prejudice under the applicable standard of Brecht v. Abrahamson, 507

U.S. 619 (1993). To establish prejudice, Schad “must establish not merely that the

[alleged error] . . . created a possibility of prejudice, but that [it] worked to his

actual and substantial disadvantage, infecting the entire proceeding with

constitutional error.” Stokley v. Ryan, 705 F.3d 401, 401 (9th Cir. 2012)

(alterations in original) (internal quotation marks omitted). This case did not meet

the threshold requirement of exceptional circumstances through either the lens of

Pinholster or the prejudice analysis articulated in Stokley. Majority Order at 17–18

(Graber, J., dissenting). Our mandate should have issued automatically following

the Supreme Court’s denial of Schad’s petition for certiorari which rejected his

Martinez argument. See Fed. R. App. P. 41; Beardslee v. Brown, 393 F.3d 899,

901 (9th Cir. 2004). A Martinez remand now only postpones proceedings without

any hope of altering the legitimate sentence imposed.

                                            IV

       If these continuing Martinez remands are routinely permitted, our circuit will

have failed to faithfully apply the heightened standard of review mandated by

AEDPA by permitting Schad and other capital defendants to pursue bolstered

versions of their previously exhausted Strickland claims. The majority’s order

simply encourages state prisoners to evade Pinholster by adding one or more



                                             8
factual allegations when re-pleading an ineffective assistance of counsel claim in

federal habeas proceedings. The finality of death penalty litigation will be

frustrated if courts view these embellished exhausted claims to be “new claims”

that were procedurally defaulted under Martinez, and endless remands and further

rounds of appeals will follow.4

      The majority’s order perversely incentivizes prisoners and their counsel to

locate additional, even cumulative, evidence during federal habeas proceedings.

Applying the majority’s logic, this evidence may then be found to have

fundamentally altered and transformed claims that were adjudicated during state

post-conviction relief proceedings into new claims not bound by Pinholster or the

state court record. Left unchecked, the majority’s conclusion contravenes the

Supreme Court’s instructions that “[i]t would be contrary to [the] purpose [of

AEDPA] to allow a petitioner to overcome an adverse state-court decision with


      4
        This was precisely the outcome predicted by Justices Scalia and Thomas in
their Martinez dissent:

      “I guarantee that an assertion of ineffective assistance of trial counsel
      will be made in all capital cases from this date on, causing (because of
      today’s holding) execution of the sentence to be deferred until either
      that claim, or the claim that appointed counsel was ineffective in
      failing to make that claim, has worked its way through the federal
      system.”

132 S. Ct. at 1324 (Scalia, J., dissenting).

                                               9
new evidence introduced for the first time in federal habeas court and reviewed by

that court in the first instance effectively de novo.” Pinholster, 131 S. Ct. at 1399.

      The majority’s decision to stay Schad’s execution date and remand to the

district court was erroneous. We should have reheard this case en banc and

corrected this unsupported order before the Supreme Court, for a second time,

admonishes us for not applying Pinholster.

      I respectfully dissent.




                                          10
                                                                            FILED
CALLAHAN, Circuit Judge, joined by KOZINSKI, Chief Circuit Judge, and 04 2013
                                                                   MAR
O’SCANNLAIN, TALLMAN, BYBEE, and M. SMITH, Circuit Judges,
                                                              MOLLY C. DWYER, CLERK
dissenting from the denial of rehearing en banc:               U .S. C O U R T OF APPE ALS




      On August 1, 1978, Lorimer Grove left his home in Bisbee, Arizona, driving

his new Cadillac to visit his sister in Everett, Washington. Schad v. Ryan, 671

F.3d 708, 711 (9th Cir. 2011) (per curiam). He never made it out of the state. His

body was found eight days later on the side of the road near Prescott. Id. Edward

Schad had strangled him – reducing the circumference of his neck by four inches

and breaking a bone in the process – and stolen his car, credit cards, and jewelry.

Id. at 712. Schad murdered Grove while on parole after serving 9½ years for his

role in the strangulation of another man, Clare Odell Mortensen, in Utah. See

Judith Acree, Judge Moves Schad Trial to Flagstaff, The Courier, May 2, 1985, at

1A.

      Schad was first convicted on October 5, 1979, and sentenced to death on

December 27, 1979. Schad v. Schriro, 454 F. Supp. 2d 897, 904 (D. Ariz. 2006).

Schad was convicted on retrial on June 27, 1985, and sentenced to death for a

second time, by a second judge, on August 29, 1985. Id.; Schad v. Arizona, 111 S.

Ct. 2491, 2491 (1991). Now, over 33 years after he was first convicted and after

the Supreme Court denied Schad’s petition for certiorari, the panel majority has

“reconsidered” its own prior decision, likely giving Schad another six years to


                                          1
live.1 For the reasons discussed by Judge Tallman, the panel majority’s legal basis

is unsound and, as the district court already concluded, Schad’s ineffective

assistance claim is meritless. See Schriro, 454 F. Supp. 2d at 940–44. The sole

point of this exercise was to buy Schad more time – the very thing he took from

Lorimer Grove and Clare Odell Mortensen. Victims have rights, too. The panel

majority’s decision here cavalierly disregards those rights in favor of a twice-

convicted murderer who has already had the benefit of 33 years of legal process. I

respectfully dissent.




      1
         Historically, it has taken capital habeas cases an average of 3.1 years to
resolve in federal district court. Nancy J. King et al., Executive Summary: Habeas
Litigation in U.S. District Courts 7 (2007), available at
https://www.ncjrs.gov/pdffiles1/nij/grants/219558.pdf (last visited Mar. 4, 2013).
In Arizona capital habeas cases, it has taken an average of 2.8 years from the date
of the district court’s decision until this court issues a decision, and it has generally
taken another 0.7 years before the Supreme Court issued a decision on a petition
for writ of certiorari. Peg Bortner & Andy Hall, Summary of Death Sentence
Process: Data Set I Research Report to Arizona Capital Case Commission 30
(2001), available at https://www.azag.gov/ccc/final-report (last visited Mar. 4,
2013).

                                            2
