                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


EDWARD HAROLD SCHAD ,                No. 07-99005
       Petitioner-Appellant,
                                      D.C. No.
             v.                 CV-9702577-PHX-ROS
                                 District of Arizona,
CHARLES L. RYAN , Arizona              Phoenix
Department of Corrections,
       Respondent-Appellee.       AMENDED ORDER


     Appeal from the United States District Court
              for the District of Arizona
      Roslyn O. Silver, District Judge, Presiding

                Argued and Submitted
       May 14, 2009—San Francisco, California

                   Filed March 4, 2013

              Before: Sidney R. Thomas

                   Amended Order;
          Dissent to Order by Judge Tallman;
          Dissent to Order by Judge Callahan
2                         SCHAD V . RYAN

                           SUMMARY*


                Habeas Corpus/Death Penalty

    Judge Thomas, as Capital Case and En Banc Coordinator,
issued an order denying a petition for rehearing en banc,
stated that no further petitions for panel rehearing or
rehearing en banc will be entertained, that en banc
proceedings are concluded, and that the panel will issue a
separate order on the petition for panel rehearing.

    Judge Tallman dissented, joined by Chief Judge Kozinski
and Judges O’Scannlain, Bybee, Callahan, Bea, M. Smith,
and Ikuta. In an unpublished opinion, the panel stayed
petitioner Schad’s execution pending remand for the district
court to consider whether counsel’s ineffective assistance
established cause and prejudice to excuse the procedural
default of Schad’s claims of ineffective assistance at
sentencing. Judge Tallman dissented because the panel failed
to appropriately apply Cullen v. Pinholster, 131 S. Ct. 1388
(2011), and Martinez v. Ryan, 132 S. Ct. 1309 (2012), and
that this court’s failure to take this case en banc has allowed
the majority to stretch Martinez beyond its limited scope and
permitted Schad to bolster a previously unexhausted
ineffective assistance of counsel claim with new federal
habeas evidence in violation of Pinholster.

   Judge Callahan dissented, joined by Chief Judge Kozinski
and Judges O’Scannlain, Tallman, Bybee, and M. Smith. In
addition to agreeing with Judge Tallman’s dissent, she

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       SCHAD V . RYAN                        3

observed that the panel majority’s decision disregards the
victims’ rights in favor of a twice-convicted murderer who
has already had the benefit of 33 years of legal process.


                         COUNSEL

Kelley J. Henry, Tucson, Arizona, for Petitioner-Appellant.

Jon G. Anderson, Assistant Attorney General, Capital
Litigation Section, Phoenix, Arizona, for Respondents-
Appellees.


                          ORDER

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
4                        SCHAD V . RYAN

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.



TALLMAN, Circuit Judge, joined by KOZINSKI, Chief
Judge, and O’SCANNLAIN, BYBEE, CALLAHAN, BEA,
M. SMITH, and IKUTA, Circuit Judges, 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 evidence in clear violation of Pinholster.


 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.
                            SCHAD V . RYAN                                  5

    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 change of


  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 W L 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 W rit of Certiorari at 2-4, Schad v.
Ryan, 133 S. Ct. 432 (2012) (No. 12-5534), 2012 W L 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 W L 7006576.
6                      SCHAD V . RYAN

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).

    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.
                       SCHAD V . RYAN                          7

    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
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
8                          SCHAD V . RYAN

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 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

    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 N o. 100-1. Pinholster made the same argument
regarding evidence of organic brain impairment to try to excuse his
horrendous crime.
                       SCHAD V . RYAN                         9

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.

    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).
10                      SCHAD V . RYAN

    As Judge Graber trenchantly concluded in her dissent,
Schad cannot 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 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
                            SCHAD V . RYAN                            11

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 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



   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).
12                      SCHAD V . RYAN

order before the Supreme Court, for a second time,
admonishes us for not applying Pinholster.

     I respectfully dissent.



CALLAHAN, Circuit Judge, joined by KOZINSKI, Chief
Circuit Judge, and O’SCANNLAIN, TALLMAN, BYBEE,
and M. SMITH, Circuit Judges, dissenting from the denial of
rehearing en banc:

    On August 1, 1978, Lorimer Grove left his home in
Bisbee, Arizona, driving his new Cadillac to visit his sister in
Everett. 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
                            SCHAD V . RYAN                                13

panel majority has “reconsidered” its own prior decision,
likely giving Schad another six years to 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).
