Schad v. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EDWARD HAROLD SCHAD, No. 13-16895
Petitioner-Appellant,
D.C. No.
v. 2:97-cv-02577-
ROS
CHARLES L. RYAN, Director,
Arizona Department of Corrections,
Respondent-Appellee. OPINION

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

Submitted October 1, 2013*
San Francisco, California

Filed October 4, 2013

Before: Mary M. Schroeder, Stephen Reinhardt,
and Susan P. Graber, Circuit Judges.

Opinion by Judge Schroeder;
Concurrence by Judge Graber;
Dissent by Judge Reinhardt

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 SCHAD V. RYAN

SUMMARY**

Habeas Corpus/Death Penalty

The panel affirmed the district court’s dismissal of a Fed.
R. Civ. P. 60(b) motion as a second or successive petition.

Petitioner filed a Rule 60(b) motion for relief, seeking to
reopen the district court’s previous denial of his original
28 U.S.C. § 2254 habeas corpus petition challenging his
murder conviction and capital sentence. Petitioner contended
that he wished to bring a new but procedurally defaulted
claim (ineffective assistance of counsel in failing to present
mitigating evidence of the effect of childhood abuse on his
mental condition), and that the default was excused under
Martinez v. Ryan, 132 S. Ct. 1309 (2012). The panel held
that the district court properly denied the Rule 60(b) motion
because petitioner’s claim was essentially the same as the
claim he brought in his original petition.

Judge Graber concurred in the majority opinion, but
would deny the Rule 60(b) motion for a second, independent
reason: that the law of the case doctrine applies.

Dissenting, Judge Reinhardt would hold that the
allegation of petitioner’s mental illness at the time he
committed the offense constitutes a new ineffective assistance
claim that satisfies the standard for relief from judgment
under Rule 60(b).

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

before carrying out a sentence of death under the questionable COUNSEL
circumstances present here.2
Kelley J. Henry, Assistant Federal Public Defender,
Nashville, Tennessee; and Denise Irene Young, Law Office
of Denise I. Young, Tucson, Arizona, for Petitioner-
Appellant.

Jon Anderson and Jeffrey A. Zick, Assistant Attorneys
General, Arizona Attorney General’s Office, Phoenix,
Arizona, for Respondent-Appellee.

OPINION

SCHROEDER, Senior Circuit Judge:

Edward Harold Schad is scheduled to be executed by the
State of Arizona on October 9, 2013. He was convicted in
1985 of first degree murder in the strangling death of Lorimer
Grove. Federal habeas proceedings began in 1997 and in the
intervening years have traversed every twist and turn in the
path of federal habeas. The case reached Supreme Court
2
Judge Graber suggests in her concurring opinion that law of the case review for the third time last summer. The history of the
doctrine provides an independent reason to affirm the district court. I litigation is summarized in its opinion, Ryan v. Schad,
disagree. In the case that she cites, the Supreme Court addressed only
whether “extraordinary circumstances” justified a delay in issuing the
133 S. Ct. 2548, 2549–50 (2013) (per curiam). We set forth
mandate under Federal Rule of Appellate Procedure 41(d)(2)(D). See a somewhat fuller time line here.
Ryan v. Schad, 133 S. Ct. 2548, 2552 (2013). The Supreme Court said
nothing about the substance of Schad’s argument. Although it did note December 14, 1978 - Schad is indicted for
that we had previously denied Schad’s request to vacate the judgment, we first degree murder in Arizona.
did so only on procedural grounds in an order consisting of a single
sentence. See Schad v. Ryan, No. 07-99005, Docket Entry No. 90 (“The
petitioner-appellant’s Motion to Vacate Judgment and Remand to the June 27 – August 29, 1985 - Schad is
District Court is DENIED.”). Neither our one sentence order nor the convicted of first degree murder and
Supreme Court’s recitation of the procedural history of our case while sentenced to death.
addressing an entirely different issue constitutes law of the case that
controls this Rule 60(b) appeal.
4 SCHAD V. RYAN SCHAD V. RYAN 17

December 14, 1989 - Schad’s conviction and The majority bases its argument almost entirely on a few
sentence are affirmed on direct appeal. State references to the lack of investigation into Schad’s
v. Schad, 788 P.2d 1162 (Ariz. 1989). psychiatric status. In context, however, these statements refer
to evaluations of how his traumatic experiences affected
June 21, 1991 - After granting certiorari (on Schad as a youth and relate solely to the sympathy-based
instruction issues), the Supreme Court mitigation argument described above. See, e.g., id. at 720
affirms. Schad v. Arizona, 501 U.S. 624 (noting that counsel failed to obtain “first-hand descriptions
(1991). of the abuse Schad suffered as a child” or “a psychiatric
evaluation to assess the negative effects of that abuse”). At
December 16, 1991 - Schad files for habeas no point in our prior opinion did we say anything at all about
relief in Arizona state court. a connection between Schad’s youth and his commission of
the crime or about his multi-faceted mental illness at the time
June 21, 1996 - The state court dismisses he did so. Ultimately, the majority errs in concluding that
Schad’s petition for habeas relief that claimed because Schad’s childhood trauma may be relevant to both
ineffective assistance at sentencing. ineffective assistance claims, those two claims must
constitute a single claim. In fact, the new claim relies upon
December 16, 1997 - Schad files for habeas that childhood evidence only to provide an explanation of the
relief in the district of Arizona. background conditions that led to the development of Schad’s
serious mental ailments. It does not seek mitigation because
September 28, 2006 - The district court of Schad’s abusive childhood. To the contrary, it seeks
denies Schad’s petition for habeas relief, mitigation because of the serious mental illness that marked
Schad v. Schriro, 454 F. Supp. 2d 897 Schad’s adult life.
(D. Ariz. 2006), holding Schad was not
diligent in state court and denying on the It is clear that Schad’s new claim bears little resemblance
merits with respect to evidence presented in to his old one and, therefore, cannot be said to be the same
federal court. claim that was adjudicated on the merits by the state post-
conviction court. The majority errs in reaching a contrary
January 12, 2010 - This court reverses the conclusion. That error leads it to mistake Schad’s
district court and remands to determine procedurally proper Rule 60(b) motion for a second or
whether Schad had been diligent in presenting successive habeas petition. Because Schad’s Rule 60(b)
evidence regarding his mental health to the motion satisfies all other requirements for relief, I would
state court. Schad v. Ryan, 595 F.3d 907, remand to the district court to review his new ineffective
922–23 (9th Cir. 2010). assistance claim on the merits. That is the least we should do
16 SCHAD V. RYAN SCHAD V. RYAN 5

failed to give proper weight to mitigating evidence of his April 18, 2011 - The Supreme Court grants
troubled family background,” and pointed out that his Arizona’s petition for certiorari and remands
supplemental state petition included “a general claim that back to this court to reconsider its decision in
Schad’s sentencing counsel was ineffective for failing to light of the Supreme Court’s opinion in
discover and present mitigating evidence regarding Schad’s Cullen v. Pinholster, 131 S. Ct. 1388 (2011).
family background.” Schad v. Ryan, 671 F.3d 708, 720–21 Ryan v. Schad, 131 S. Ct. 2092 (2011) (per
(9th Cir. 2011). Turning to his federal petition, we added: curiam).

By the start of federal habeas proceedings in November 10, 2011 - This court affirms the
1998, Schad’s counsel had obtained a great district court’s denial of Schad’s habeas
deal more information about his early and petition on the merits. Schad v. Ryan,
abusive childhood experiences. Schad 671 F.3d 708, 722 (9th Cir. 2011) (per
asserted that he received ineffective assistance curiam).
of counsel at the penalty phase of trial when
his attorney, Shaw, failed to investigate and July 27, 2012 - This court denies Schad’s
present mitigating evidence regarding Schad’s Motion to Vacate Judgment and Remand in
troubled childhood, and instead relied on the light of Martinez v. Ryan, 132 S. Ct. 1309
brief discussion of Schad’s childhood (2012). No. 07-99005(CA9), Docs. 88, 91.
contained in the psychiatrist’s testimony and
in the presentence report. During proceedings October 9, 2012 - The Supreme Court denies
before the district court, Schad sought an Schad’s certiorari petition. Schad v. Ryan,
evidentiary hearing in order to present a 133 S. Ct. 432 (2012).
significant amount of evidence regarding his
abusive childhood, which he contends his February 1, 2013 - This court denies Schad’s
sentencing counsel should have presented at “Emergency Motion to Continue Stay of the
the sentencing hearing. Mandate Pending En Banc Proceedings in
Dickens v. Ryan,” and construes it as a motion
Id. at 721 (emphasis added). The unmistakable point of our to reconsider its prior denial of his Motion to
opinion was that Schad based his old ineffective assistance Vacate Judgment and Remand in light of
claim on failure to present mitigation evidence consisting of Martinez. No. 07-99005(CA9), Doc. 102, pp.
his abusive childhood experiences. We said nothing 1–2.
whatsoever about ineffective assistance in failing to seek or
obtain evidence of Schad’s mental illness as an adult. February 26, 2013 - This court grants
Schad’s Motion to Vacate Judgment and
6 SCHAD V. RYAN SCHAD V. RYAN 15

Remand. Schad v. Ryan, No. 07-99005, 2013 Schad’s mental state at the time of the murder and to obtain
WL 791610 (9th Cir. Feb. 26, 2013). a full social history in support of such a claim. Finally, it
turns on a different legal theory. The new claim, unlike the
June 24, 2013 - The Supreme Court grants old one, is not concerned with inadequacies in painting Schad
certiorari, reverses, and remands back to this as a sympathetic individual by virtue of his difficult
court to issue the mandate. Ryan v. Schad, childhood. It is not based on counsel’s failure to develop
133 S. Ct. 2548, 2552 (2013) (per curiam). evidence that Schad’s abusive upbringing constituted a
mitigating circumstance that outweighed the case for death.
September 4, 2013 - This court issues its Rather, it attempts to establish that counsel was ineffective
mandate affirming the district court’s 2006 for failing to investigate and present evidence of serious
denial of habeas relief in all respects pursuant mental illness as an adult that might have been responsible,
to its third amended opinion of November 10, at least in part, for Schad’s commission of the violent act of
2011. No. 07-99005(CA9), Doc. 137, p. 1. intentionally killing Grove. Without this evidence, Schad’s
crime appears to be nothing but the act of a ruthless and cold
September 19, 2013 - The district court blooded killer. This was especially true in light of the other
dismisses Schad’s motion for relief under evidence at sentencing, which strongly suggested that Schad
Federal Rule of Civil Procedure 60(b) as an was of sound mind at the time that he committed the offense.
unauthorized second or successive petition. Schad’s new claim thus relies on new and different factual
Schad v. Ryan, No. CV-97-02577-PHX-ROS, allegations, a new and different account of the alleged
2013 WL 5276407 (D. Ariz. Sept. 19, 2013). deficiency in sentencing counsel’s performance, and a new
and different legal theory of why sentencing counsel rendered
Schad now appeals the district court’s dismissal of his ineffective assistance.
Rule 60(b) motion seeking to reopen the district court’s 2006
denial of his original federal habeas petition. Underlying The majority nonetheless treats the two claims as one. Its
both this proceeding, and the attempts to stay the mandate insistence that Schad’s claim has always been based on the
that led to the Supreme Court’s decision earlier this year, is link between childhood abuse and his mental condition at the
Schad’s claim that he received ineffective assistance of time of the offense, however, is simply not correct. In our
counsel in his state court sentencing, because his counsel earlier opinion, relied upon by the majority, we revealed our
failed to present mitigating evidence of the effect that his awareness that Schad’s claim was focused almost exclusively
childhood abuse had on his mental condition at the time he on his childhood. We quoted at length from the pre-sentence
committed the crime. report’s discussion of “Schad’s childhood,” noted that
counsel “did not present additional evidence regarding
Federal court consideration of evidence or claims not Schad’s troubled childhood,” observed that Schad’s
presented in the state court is generally barred. See Cullen v. preliminary state habeas petition “argued the sentencing court
14 SCHAD V. RYAN SCHAD V. RYAN 7

Obsessive-Compulsive Disorder; Schizoaffective Disorder; Pinholster, 131 S. Ct. 1388 (2011), see also Ryan v. Schad,
Several of the anxiety disorders; Dissociative disorders; 131 S. Ct. 2092 (2011). The Supreme Court later held,
Adjustment disorders.” In his report, Sanislow concludes: however, in Martinez v. Ryan, 132 S. Ct. 1309 (2012), that
ineffective assistance of post-conviction counsel in some
[Schad’s] behavior is consistent with mental circumstances can establish cause for lifting the procedural
illness in the affective spectrum, specifically bar to a claim not pursued in state court proceedings. Schad
some type of bipolar affective illness. contends that his ineffectiveness claim can now be considered
Throughout his life, he had often exhibited under Martinez.
symptoms of paranoia, anxiety, and mania,
and his presentation is complicated by his When this ineffectiveness contention was presented to us
history of trauma. Signs of a thought in 2012 as a motion to remand, we originally denied it. We
disturbance are at times present in his speech reconsidered the denial in light of intervening authority from
patterns; he perseverates, displays our court. Schad v. Ryan, No. 07-99005, 2013 WL 791610,
impoverished speech, and has a limited range at *1 (9th Cir. Feb. 26, 2013). After we attempted to remand
of affect. The passive-dependent traits that the matter to the district court to decide whether Schad’s
[an earlier expert] described in her claim came within the Supreme Court’s holding in Martinez,
psychological evaluation are likely however, the Supreme Court ruled that there were no
accompaniments to chronic mental illness but extraordinary circumstances justifying our reconsideration of
do not capture the complete diagnostic our earlier ruling. Schad, 133 S. Ct. at 2552. Thus, we then
picture. In addition to manic symptoms, he issued the mandate for our November 2011 decision and
displays classic signs of chronic depression Schad was barred from litigating his ineffectiveness of
including a foreshortened sense of future. counsel claim under Martinez.

This new evidence stands in stark contrast to the pre- Schad has now attempted to accomplish the same purpose
sentencing report, relied on heavily by the sentencing court, by filing a Rule 60(b) motion to vacate the district court’s
which stated that “[Schad] has not suffered from any mental 2006 denial of habeas relief and thus reopen his original
health problems.” habeas petition. He wants to show that his state post-
conviction counsel was ineffective in failing adequately to
The new claim differs from the old claim in every respect present a claim relating to his mental condition at the time of
that matters. It relies heavily on new and different evidence sentencing. He offers some evidence, principally an affidavit
relating to Schad’s mental illness at the time he committed of a medical expert about the effect of his childhood abuse on
the crime, notably including Sanislow’s report. It points to his adult mental condition, that he has asked the federal
different deficiencies on the part of counsel than those courts to consider since these habeas proceedings began, and
identified in the old claim, principally the failure to examine
8 SCHAD V. RYAN SCHAD V. RYAN 13

which we in 2011 effectively ruled was barred by Pinholster, condition as an adult. Rather, the old claim simply alleged an
following the Supreme Court’s remand. incompetent investigation of Schad’s background—an
investigation that resulted in an inability to present a
The district court in denying the Rule 60(b) motion complete picture of a person that could have helped humanize
recognized that Schad had already raised in state court habeas Schad before the sentencer. In short, the old claim related
proceedings a claim that trial counsel was ineffective in only to deficiencies with respect to counsel’s failure to
failing to investigate his childhood abuse. The district court investigate Schad’s childhood and family environment,
also recognized that the claim now being made, i.e., the including his failure to examine records from Schad’s youth
failure of trial counsel to develop more evidence, is the same and to follow up with mitigation experts. Ultimately, the old
as it had rejected earlier. The district court therefore claim was based on the legal theory that counsel rendered
concluded that it had already ruled on Schad’s claim and that ineffective assistance by failing to investigate or present
there was no separate procedurally defaulted claim that could substantial evidence that would have painted a human picture
be the basis for applying Martinez. of Schad—a picture that might have prompted a reasonable
judge to feel sympathy and spare the defendant’s life. See
In this appeal, Schad’s principal contention is that the Ainsworth v. Woodford, 268 F.3d 868, 876–77 (9th Cir. 2001)
district court erred because he is presenting a different (emphasizing the “essential importance of developing the
ineffective assistance claim than that presented in state court. background and character of a defendant in order to make an
He is now contending that the federal claim of counsel individualized assessment of the appropriateness of the death
ineffectiveness with respect to the effect of childhood abuse penalty.”).
is somehow distinct from the earlier claim of ineffectiveness
in failing to investigate the childhood abuse itself. The two On federal habeas, in support of the “new” claim, Schad
cannot be so easily separated, however, because the relevant introduced substantial new factual evidence pertaining to his
mitigating factor in sentencing was always the effect of the mental condition as an adult. He argued that counsel
childhood abuse on his adult mental state. As we explained provided ineffective assistance by failing to investigate and
in an earlier opinion, the point of presenting new evidence of present evidence that Schad suffered from serious mental
Schad’s dismal childhood was to show its effect on his adult illness at the time of the crime. One of his doctors, Dr.
mental health. See Schad v. Ryan, 671 F.3d 708 (9th Cir. Sanislow, offered expert opinions regarding Schad’s
2011). For example, we wrote: “cognitive and psychological development and his behavioral
functioning as an adult.” Sanislow’s extremely thorough
At the sentencing hearing, defense counsel . . . review of Schad’s history notes that his early (pre-crime)
[did not] seek a comprehensive psychiatric documented behavior was consistent with “several major
evaluation to assess the negative effects of mental disorders, apparently none of which was ever
that abuse. [Id. at 720.] considered previously.” These disorders include “Bipolar
Disorder; Major Depression or other depressive disorders;
12 SCHAD V. RYAN SCHAD V. RYAN 9

To be sure, the line between a new claim and an old claim The expert [whose affidavit counsel attached]
bolstered by more evidence is not always clear.1 Wherever recommended that a comprehensive
that line is drawn, however, Schad’s claim is most certainly psychological evaluation be performed . . . .
a new one. An examination of the new evidence that he has [Id. at 721.]
presented on federal habeas, and his legal theories supporting
a finding of ineffective assistance, demonstrate that Schad has Schad sought to present mitigating evidence
advanced two separate claims, only one of which was . . . , including extensive mental health records
presented to and adjudicated by the state post-conviction of [family members], as well as several
court. declarations discussing Schad’s childhood and
its effect on his mental health. The first
Schad’s initial claim was that “sentencing counsel was declaration . . . provided an extremely detailed
ineffective for failing to discover and present mitigating discussion of the psychological impact of
evidence regarding Schad’s family background.” Schad v. Schad’s abusive childhood. [Id. at 721–22
Ryan, 671 F.3d 708, 721 (9th Cir. 2011). This “old” claim (emphasis added).]
did not purport to raise the question of Schad’s mental
The claim presented here is thus not new. It is essentially
the same as the claim he brought in his original habeas
1
Dickens v. Ryan, a case currently pending before the en banc court, petition. There is no separate procedurally defaulted
involves a similar fact pattern and presents a similar question to that which ineffectiveness claim.
we are forced to address hastily in Schad’s case. See 688 F.3d 1054 (9th
Cir. 2012), vacated, 704 F.3d 816 (9th Cir. 2013). The panel that
originally decided Dickens concluded that a petitioner’s factual allegations We do not need to decide whether Rule 60(b) can ever be
regarding mitigation evidence in federal court may amount to a new an appropriate vehicle for bringing a Martinez argument with
ineffective assistance claim, even where that petitioner has already alleged respect to a procedurally defaulted claim. The district court
a more general ineffective assistance claim based on failure to investigate. in this case correctly held that “[p]etitioner’s Rule 60(b)
See id. at 1067–70. It is to be expected that the en banc court will address motion does not present a new claim; rather, he seeks a
that question and offer guidance on how to determine when new
allegations generate a new claim. In almost any other circumstance, second chance to have the merits determined favorably.”
because a hasty resolution of this complicated issue runs a high risk of Schad v. Ryan, No. CV-97-02577-PHX-ROS, 2013 WL
error, we would await the en banc ruling in Dickens. As Justice Douglas 5276407, at *6 (D. Ariz. Sept. 19, 2013) (internal quotation
once said, “It is . . . important that before we allow human lives to be marks omitted). The district court correctly dismissed the
snuffed out we be sure—emphatically sure—that we act within the law.”
Rule 60(b) motion as a second or successive petition.
Rosenberg v. United States, 346 U.S. 273, 321 (1953) (Douglas, J.,
dissenting). Although under the presently controlling case law, we are
required to act quickly and without due time for reflection, Justice AFFIRMED.
Douglas’s maxim counsels in favor of a liberal reading of the law
governing what qualifies as a “new claim” so that we may avoid making
a decision that we may regret in a matter of days or weeks.
10 SCHAD V. RYAN SCHAD V. RYAN 11

GRABER, Circuit Judge, concurring: REINHARDT, Circuit Judge, dissenting.

I concur in the majority opinion but would deny the Rule I would hold that the allegation of Schad’s serious mental
60(b) motion for a second, independent reason. illness at the time he committed his offense constitutes a new
ineffective assistance of counsel claim. In reaching a
The Supreme Court emphasized that our court already contrary result, the majority adopts an erroneous view of how
denied Schad’s Martinez-based request to vacate the Schad’s new allegation relates to his old ineffective
judgment and remand the case.1 “The Ninth Circuit denied assistance claim—and thus misses the fundamental difference
[Schad’s] motion on July 27, 2012.” Ryan v. Schad, between Schad’s two claims. This error leads the majority to
133 S. Ct. 2548, 2549–50 (2013) (per curiam). The Supreme dismiss Schad’s motion by deeming it a second or successive
Court then denied a petition for certiorari and a petition for petition. Because Schad in fact presents a new claim that
rehearing. Id. at 2550. “Further, there is no doubt that the satisfies the standard for relief from judgment under Federal
arguments presented in the rejected July 10, 2012, motion Rule of Civil Procedure 60(b), I dissent.
were identical to those accepted by the Ninth Circuit the
following February.” Id. at 2552. Both motions sought a My disagreement with the majority turns on an
Martinez remand on the ground that post-conviction counsel assessment of the proper interpretation of the scope of
should have developed more evidence to support the claim of Schad’s old and new claims. When Schad presented new
ineffective assistance of counsel at sentencing. Id. The Court evidence on federal habeas regarding the failure of sentencing
went on to suggest that Schad was not diligent in developing counsel to investigate the state of his serious mental illness as
this claim. See, e.g., id. at 2550 n.2, 2552 n.3. of the time of the crime, he advanced a new claim distinct
from his earlier one that counsel should have investigated
I take those statements to instruct, or at least strongly Schad’s history of childhood abuse. See Valerio v. Crawford,
suggest, that the law of the case doctrine applies. 306 F.3d 742, 768 (9th Cir. 20002) (en banc). Although the
Accordingly, I would deny the Rule 60(b) motion on this majority blends the two claims into a single argument, each
ground as well. of these claims relies basically on different evidence, invokes
a different legal basis for mitigation, and results from a
different kind of deficiency in counsel’s investigation and
presentation of mitigation evidence. Those considerations
dictate the conclusion that Schad’s claim based on recently-
obtained evidence is a new and different one.

1
I question the relevance of Martinez v. Ryan, 132 S. Ct. 1309 (2012),
because the district court did not rely on a procedural default that could be
excused. The court examined the issue on the merits.