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-
CHARLES L. RYAN,* Arizona ROS
Department of Corrections, ORDER AND
Respondent-Appellee. AMENDED
OPINION
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 September 11, 2009
Amended January 12, 2010
Before: Mary M. Schroeder, Stephen Reinhardt and
Pamela Ann Rymer, Circuit Judges.
Per Curiam Opinion;
Partial Concurrence and Partial Dissent by Judge Rymer
* Charles L. Ryan is substituted for his predecessor Dora B. Schriro as
Director of the Arizona Department of Corrections. See Fed. R. App. P.
43(c)(2).
805
SCHAD v. RYAN 809
COUNSEL
Kelley J. Henry, Nashville, Tennessee, for the petitioner-
appellant.
Jon G. Anderson, Phoenix, Arizona, for the respondent-
appellee.
ORDER
The opinion filed September 11, 2009 is hereby amended.
The amended opinion and dissent are filed concurrently with
this order.
The petition for rehearing and rehearing en banc filed on
September 23, 2009 remains pending.
Absent further order of the court, no further petitions for
rehearing or rehearing en banc will be considered.
OPINION
PER CURIAM:
I. Overview
Edward Harold Schad was convicted in Arizona state court
in 1979 of the murder of Lorimer Grove, and sentenced to
death. After his first conviction and sentence were reversed by
the Arizona Supreme Court on collateral review, Schad was
re-tried in 1985, and was again convicted of first-degree mur-
810 SCHAD v. RYAN
der and sentenced to death. His direct appeal and state habeas
proceedings from his second trial lasted for the next twelve
years, and his federal habeas proceedings in district court for
nine years after that. After the district court denied Schad’s
federal habeas petition on all grounds, he filed this appeal in
2007.
Schad’s appeal raises seven principal contentions. Three
pertain to his conviction and four to the imposition of the
death sentence. The challenges to the conviction include a
claim of a Brady violation in the state’s failure to disclose
impeachment material relating to the credibility of a prosecu-
tion witness; a claim of ineffective assistance during the guilt
phase of trial; and a challenge to the sufficiency of the evi-
dence in support of first-degree murder.
Schad’s four challenges to the sentence include claims of
ineffective assistance during the penalty phase, application of
an unconstitutionally narrow standard for determining the
admissibility of mitigating evidence, improper use of a prior
conviction to establish two aggravating factors, and insuffi-
ciency of the evidence underlying a third aggravating factor.
With respect to the conviction, the important issue involves
the state’s admitted failure to produce letters written in 1979
by a detective and a prosecutor to assist the state’s witness,
Duncan, in an unrelated California prosecution. With respect
to the sentence, the key issue is whether the district court
erred by denying the claim of ineffective assistance of counsel
at the penalty phase without holding an evidentiary hearing to
consider substantial additional mitigating evidence. The dis-
trict court ruled Schad failed to exercise diligence in bringing
the new evidence out during his state habeas proceedings, but
it did so without appropriate consideration of the many rea-
sons Schad offered for his inability to produce the mitigating
evidence during the state proceedings.
We affirm the district court’s denial of habeas relief for the
conviction. With respect to sentencing, we conclude that the
SCHAD v. RYAN 811
district court applied the wrong diligence standard to deny
Schad an evidentiary hearing on his sentencing ineffective-
ness claim. We vacate the district court’s denial of habeas
relief and remand for the court, using the correct diligence
standard, to determine whether an evidentiary hearing is war-
ranted on Schad’s claim of ineffective assistance at the pen-
alty phase of his trial for failure to present material mitigating
evidence.
II. Facts and Procedural Background
This is a case with strong circumstantial evidence pointing
to the defendant’s guilt and to no one else’s. The victim,
Lorimer Grove, a 74-year-old resident of Bisbee, Arizona,
was last seen on August 1, 1978, when he left Bisbee driving
his new Cadillac, coupled to a trailer, to visit his sister in
Everett, Washington. Grove may have been carrying up to
$30,000 in cash.
On August 9, 1978, Grove’s body was discovered in thick
underbrush down a steep embankment off the shoulder of
U.S. Highway 89, several miles south of Prescott, Arizona.
The medical examiner determined that the cause of death was
ligature strangulation accomplished by means of a sash-like
cord, still knotted around the victim’s neck. According to the
medical examiner, Grove had been strangled using a signifi-
cant amount of force, resulting in breaking of the hyoid bone
in his neck and the reduction of his neck circumference by
approximately four inches. The time of death was estimated
to be four to seven days prior to discovery of the body.
No physical evidence at the crime scene implicated Schad
in Grove’s murder, and there was no evidence of a prior con-
nection between the two men. There was, however, ample
evidence establishing Schad’s presence in Arizona at the time
of the crime and his possession, after the date Grove was last
seen, of Grove’s property, including his Cadillac, credit cards
and jewelry.
812 SCHAD v. RYAN
On August 3, 1978, two days after Grove left Bisbee, and
six days before his body was discovered, an Arizona highway
patrolman found an abandoned Ford Fairmont sedan along-
side Highway 89, approximately 135 miles north of where
Grove’s body was discovered. The Ford was unlocked, except
for the trunk, and its license plates were missing. A check of
the Fairmont’s VIN revealed that Schad had rented the car
from a Ford dealership in Utah in December 1977, had failed
to return it, and that the dealership had reported it as stolen.
According to Schad’s girlfriend, Wilma Ehrhardt, she and
Schad, along with Ehrhardt’s children, had driven the car
from Utah to New York, Florida, and Ohio between Decem-
ber 1977 and July 1978. In late July, Schad told Ehrhardt he
was going to look for work and left Ohio with the Ford. Ehr-
hardt and the children remained in Ohio, but later returned to
Utah.
When police impounded the Ford on August 3, 1978, they
found in it, among other things, three Arizona newspapers
dated July 31 and August 1, 1978, the days just before the
estimated date of Grove’s murder, as well as a special mirror
device later identified by witnesses as an object Grove
invented to help him couple his trailer to his Cadillac.
According to credit card records, on August 2, 1978, Schad
began driving the Cadillac from Arizona eastward, using
Grove’s credit cards to make purchases in numerous cities
along the way. On August 2, Schad used Grove’s credit card
to purchase gasoline in Benson, Arizona. On August 3, Schad
used the card to purchase gas in Albuquerque, New Mexico.
For approximately the next month, Schad continued traveling
the country in the Cadillac and using Grove’s credit card.
Schad also used Grove’s checkbook to forge a check to him-
self from Grove’s account, which he cashed on August 7,
1978, in Des Moines, Iowa.
In New York state on September 3, 1978, Schad, still driv-
ing Grove’s Cadillac, was stopped for speeding by a New
SCHAD v. RYAN 813
York state highway trooper. Schad told the trooper he was
delivering the car to New York on behalf of a “rather elderly”
man named Larry Grove. Schad could not produce the car’s
registration, and instead gave the trooper the registration for
Grove’s trailer. The trooper issued Schad a citation and let
him go.
Schad then drove back across the country, reuniting with
Ehrhardt in Salt Lake City, Utah, on September 7, 1978. A
man who was living with Ehrhardt at the time, John Duncan,
contacted Salt Lake City police the same day to report that
Schad had told him the Cadillac was stolen. Schad was
arrested in Salt Lake City on September 8.
After Schad’s arrest, Salt Lake City police impounded and
searched the Cadillac. From the Cadillac’s title application,
found in the car, the police learned that the vehicle belonged
to Grove. Schad told police that he had obtained the Cadillac
four weeks before in Norfolk, Virginia, after meeting “an
elderly gentleman who was with a young girl” and who asked
Schad to trade vehicles temporarily so that he and the girl
would not be recognized. Schad also told the Utah police that
he “was supposed to leave [the Cadillac] at the New York
City port of entry at a later date for the man to pick up.”
Police found in the Cadillac’s trunk a set of Utah license
plates issued to Ehrhardt. Schad had previously installed these
plates on the stolen Ford. He left the Cadillac’s original plates
on the car while he was driving it across the country.
After Schad’s arrest, Ehrhardt went to the Salt Lake City
jail and retrieved Schad’s wallet. Duncan then searched the
wallet and found the credit card receipts and the New York
traffic citation. He again contacted the Salt Lake City police.
When Detective Halterman came to Ehrhardt’s home to col-
lect the wallet and the documents, Ehrhardt also handed over
a diamond ring she said her daughter had found in the glove
compartment of the Cadillac. Witnesses later identified the
ring as belonging to Grove. Duncan also visited Schad in jail.
814 SCHAD v. RYAN
Duncan testified that during the visit Schad talked about lying
about his presence in Arizona at the time of the crime and
destroying evidence of the crime.
On October 5, 1979, the jury found Schad guilty of first-
degree murder, and the court sentenced Schad to death. The
Arizona Supreme Court affirmed the conviction and death
sentence. State v. Schad, 633 P.2d 366, 383 (Ariz. 1981). The
United States Supreme Court denied Schad’s petition for cer-
tiorari. Schad v. Arizona, 455 U.S. 983 (1982). Schad then
petitioned for habeas relief in the state courts and obtained a
reversal of his conviction on the ground that the trial court
improperly instructed the jury on the elements of felony mur-
der. State v. Schad, 691 P.2d 710, 711-12 (Ariz. 1984).
In Schad’s 1985 retrial, he was again convicted of first-
degree murder on materially the same evidence, and sen-
tenced to death. The Arizona Supreme Court again affirmed
on direct appeal. State v. Schad, 788 P.2d 1162, 1174 (Ariz.
1989). The United States Supreme Court granted certiorari to
resolve two questions: (1) whether a first-degree murder con-
viction is unconstitutional when it does not require the jury to
agree on whether the murder was premeditated murder or fel-
ony murder; and (2) whether capital defendants are entitled to
jury instructions on all lesser included offenses. Schad v. Ari-
zona, 501 U.S. 624 (1991). The Court answered both ques-
tions in the negative and affirmed the conviction and
sentence. Id.
Schad again sought collateral review in state court. The
trial court denied the state habeas petition after four years in
which Schad’s counsel sought repeated extensions to file his
supplemental petition detailing his claims, particularly with
respect to mitigating sentencing evidence. The Arizona
Supreme Court denied review.
Schad filed his federal habeas petition in the District of Ari-
zona in August 1998, raising nearly thirty claims. In a pub-
SCHAD v. RYAN 815
lished opinion dated September 28, 2006, the district court
denied habeas relief. Schad v. Schriro, 454 F. Supp. 2d 897
(D. Ariz. 2006). With respect to the challenges to the convic-
tion, the court ruled that the state’s failure to disclose
impeachment material had not resulted in prejudice, that
counsel was not ineffective at the guilt phase, and that the evi-
dence was sufficient to support the conviction. With respect
to sentencing, the court denied Schad’s request for an eviden-
tiary hearing to present new mitigating evidence in support of
his claim of ineffective assistance at the penalty phase, find-
ing that Schad was not entitled to a hearing because he was
not diligent in developing the evidence in question during
state habeas proceedings. Id. at 955-56. The district court also
said that the evidence presented in district court did not render
trial counsel’s performance deficient because the evidence did
not support the strategy of presenting the positive image that
trial counsel had pursued at trial. Id. at 941-44. This appeal
followed.
III. The Three Challenges to the Conviction
A. State’s failure to disclose exculpatory material
[1] John Duncan, a principal witness for the state, had a
lengthy criminal history. As part of its efforts to gain his
cooperation in the first trial, in 1979, the prosecution prom-
ised to assist Duncan with a pending, unrelated California
criminal proceeding. In impeaching Duncan’s credibility, the
defense was able to question him at length about his criminal
record and the prosecution’s promises of assistance, but the
defense did not know that a prosecutor and detective in 1979
had actually written letters on Duncan’s behalf to California
authorities. Schad’s most significant challenge to his convic-
tion is the prosecution’s failure to disclose these letters as
impeachment material. Schad asserts that the state’s actions
violated his due process rights as set forth in Brady v. Mary-
land, 373 U.S. 83 (1963) and Napue v. Illinois, 360 U.S. 264
(1959).
816 SCHAD v. RYAN
The state has conceded that it should have disclosed the let-
ters under Brady, so the Brady issue is whether Schad was
prejudiced by the omission. We agree with the district court
that the omission does not justify habeas relief because it
resulted in little or no prejudice, given the extensive impeach-
ment material already available to the defense.
Duncan eventually testified in both trials that while Schad
was being detained prior to trial in 1979, Duncan visited him
to talk about the theft of the Cadillac, and Schad made several
incriminating statements: he asked Duncan to destroy Grove’s
credit cards, and said that he “would deny being in any area
of Arizona or the state of Arizona, particularly Tempe, Ari-
zona and Prescott, Arizona.”
In order to obtain Duncan’s testimony and assistance with
the Schad investigation, an investigative officer, Detective
Halterman, had told Duncan he would write a letter to the
judge presiding over Duncan’s pending California criminal
case. Moreover, the day before Duncan was set to testify at
Schad’s first trial in 1979, the prosecutor at that trial wrote to
the California Community Release Board, stating that Duncan
was “an extremely important witness for the State of Arizona”
who had been “very cooperative” and “deserve[d] any consid-
eration that can be given, including an early release, if possi-
ble.” The prosecutor wrote a similar letter a few weeks later
to the California judge presiding over Duncan’s prosecution,
stating that Duncan was “an important witness who was of
material assistance to the prosecution” in Schad’s case, and
requesting that Duncan’s “sentence be reviewed and if possi-
ble, his sentence be modified in light of his contribution to
criminal justice.”
Before the second trial in 1985, defense counsel unsuccess-
fully moved to suppress Duncan’s testimony. Duncan testified
at that trial that Detective Halterman promised to write a letter
on his behalf, but stated he did not know whether Halterman
actually sent one. Halterman testified that he did offer to write
SCHAD v. RYAN 817
a letter on Duncan’s behalf, but stated he did not remember
whether he actually sent a letter. Duncan further testified that
he did not ask the prosecutor in Schad’s first trial for any spe-
cial treatment, although he did tell the prosecutor he knew of
“people in the state prison that have been released early due
to the fact of a state prisoner being a witness in a major or
semi major crime.” Duncan stated that he did not receive
early release or any other lenient treatment in exchange for his
testimony at Schad’s first trial. At the close of the second
trial, the prosecution still had not disclosed the letters so the
defense could use them to impeach Duncan.
The defense was, however, able to impeach Duncan’s cred-
ibility with other evidence of his lengthy criminal history,
including the fact that he was currently serving a sentence for
theft. Duncan admitted the advantages he asked for and some
he obtained in exchange for his involvement in the Schad
investigation. Detective Halterman stated on cross that
although he could not remember whether he sent a letter to
California authorities on Duncan’s behalf, he recalled promis-
ing to do so, and “probably” did send a letter, further
impeaching Duncan’s credibility. Through this impeachment,
the defense established Duncan had a motivation to testify
falsely. The letters themselves would have provided some
documentation of his motivation, but would not have pro-
vided a new or further motivation.
It is not now disputed that the letters could have been used
to impeach Duncan. The prosecution’s duty to disclose mate-
rial, potentially exculpatory evidence — including impeach-
ment evidence — to a criminal defendant was established in
Brady, 373 U.S. at 86. The state violates its obligations under
Brady, and denies a criminal defendant due process of law,
where the following three elements are met: (1) the evidence
in question was favorable to the defendant, meaning that it
had either exculpatory or impeachment value; (2) the state
“willfully or inadvertently” suppressed the evidence; and (3)
818 SCHAD v. RYAN
the defendant was prejudiced by the suppression. Strickler v.
Greene, 527 U.S. 263, 281-82 (1999).
The sole dispute here concerns the question of prejudice.
The state’s failure to disclose the letters written on Duncan’s
behalf was prejudicial to Schad if “there [was] a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been differ-
ent.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (citation
omitted).
[2] We conclude the state’s admitted failure to turn over the
letters was not prejudicial. In the first place, the letters pro-
vided no independent basis for impeaching Duncan. We are
less likely to find the withholding of impeachment material
prejudicial in cases in which the undisclosed materials would
not have provided the defense with a new and different form
of impeachment. In Barker v. Fleming, 423 F.3d 1085 (9th
Cir. 2005), for example, we held that the prosecution’s failure
to disclose evidence of a witness’s four prior convictions was
not prejudicial because the undisclosed evidence was duplica-
tive of impeachment already pursued at trial. We explained
that the evidence would not have “provide[d] ‘the defense
with a new and different ground of impeachment.’ ” Id. at
1097 (quoting Silva v. Brown, 416 F.3d 980, 989 (9th Cir.
2005)).
We have also applied that test to grant relief where the
undisclosed evidence would have provided a new basis for
impeachment. In Horton v. Mayle, 408 F.3d 570 (9th Cir.
2005), we held that the prosecution’s failure to disclose an
immunity deal with its key witness did prejudice the defen-
dant, where the impeachment pursued at trial went to the wit-
ness’s criminal history and participation as a getaway driver
in the defendant’s offense. The undisclosed Brady informa-
tion was that the key witness had received immunity for his
testimony; this provided an independent motive for the wit-
ness to lie and would have made his critical, uncontroverted
SCHAD v. RYAN 819
testimony less credible. Id. at 580. We held that the undis-
closed promise of immunity was material, and therefore prej-
udicial, because it constituted “a wholly different kind of
impeachment evidence” from the lines of impeachment pur-
sued by the defense at trial. Id.
[3] This case is like Barker, where the undisclosed evi-
dence related to the same motives to lie as evidence already
known to and utilized by the defense. Here the jury knew that
the prospect of obtaining assistance with the California case
provided an incentive to lie. Moreover, Duncan was also
impeached by his extensive criminal record, apart from the
California case.
In addition, in this case each of the three letters was written
in connection with Duncan’s assistance at Schad’s first trial
in 1979, so that the letters would have shed little light on
Duncan’s motivation to testify at the second trial six years
later. Duncan had already enjoyed any benefit the letters
prompted, and did not receive any further assistance for his
testimony in 1985.
[4] Finally, and most important, the circumstantial evidence
demonstrating Schad’s guilt was powerful, and Schad did not
offer any significant evidence to rebut the strong inference of
guilt arising from that evidence. In light of the evidence
against Schad, any additional impeachment value of the let-
ters would not have changed the jury’s verdict.
[5] Schad is not entitled to relief on his Brady claim
because of the lack of prejudice resulting from the prosecu-
tion’s failure to produce the actual letters written pursuant to
a promise of assistance to Duncan that, along with the history
of Duncan’s other transgressions, was fully known to the
defense.
In a related argument, Schad asserts that the state commit-
ted prosecutorial misconduct by permitting Duncan to testify
820 SCHAD v. RYAN
falsely in 1985 that he did not receive any assistance from the
state in exchange for his cooperation. Schad relies on Napue,
360 U.S. at 269, in which the Supreme Court held that the
state violated a defendant’s right to due process by doing
nothing to correct a witness’s false testimony that he received
no promise of consideration from the prosecutor in exchange
for his cooperation.
To prevail on a Napue claim, a habeas petitioner must show
that “(1) the testimony (or evidence) was actually false, (2)
the prosecution knew or should have known that the testi-
mony was actually false, and (3) that the false testimony was
material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th
Cir. 2003). Under Napue, false testimony is material, and
therefore prejudicial, if there is “any reasonable likelihood
that the false testimony could have affected the judgment of
the jury.” Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005)
(en banc) (citation omitted); see also id. at 978 (“[I]f it is
established that the government knowingly permitted the
introduction of false testimony reversal is virtually automat-
ic.”) (internal quotation marks and citation omitted).
[6] In this case, it is not entirely clear that Duncan lied.
Although there is some indication in the record that Duncan
may at some point have learned that Detective Halterman
wrote a letter on his behalf, because the letter was referred to
during a California proceeding in Duncan’s case, it is not
clear that Duncan remembered this letter in 1985 and thus lied
on the stand. Even assuming he did, there is no evidence that
the state knew or should have known that his testimony was
false. Finally, the record before us does not reflect that the
California authorities acted on Halterman’s and the prosecu-
tor’s requests to benefit Duncan. Duncan’s testimony that he
received no assistance in his California case was not necessar-
ily false even if he knew and remembered the letter.
B. Ineffective assistance of counsel at the guilt phase
Schad argues that his trial counsel’s failure to locate and
present impeachment testimony from Duncan’s ex-wife,
SCHAD v. RYAN 821
Sharon Sprayberry, amounted to ineffective assistance of
counsel. Schad contends Sprayberry’s testimony would have
impeached Duncan’s statements about his jailhouse conversa-
tion with Schad in which, according to Duncan, Schad made
statements about the need to destroy incriminating evidence
and stated he would deny being in the area of Arizona where
the murder took place. In an affidavit submitted with Schad’s
state habeas petition, Sprayberry attested that she was present
during the conversation and that Schad “did not make any
statements relating to a homicide in Arizona.”
Ineffective assistance of counsel claims require a defendant
to show that counsel’s performance was so deficient that it
“fell below an objective standard of reasonableness,” and that
there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687-
88, 694 (1984).
[7] Regardless of whether Sprayberry may have provided
evidence helpful to Schad’s case, Schad does not attempt to
establish counsel’s performance was deficient. In his briefing
on appeal, Schad concedes that defense counsel’s efforts to
locate Sprayberry were “diligent and thorough.” Strickland
requires both deficient performance and prejudice to make out
an ineffective assistance of counsel claim. See id. at 687.
Schad’s inability to show his counsel’s efforts to obtain the
evidence were deficient is fatal to his claim.
C. Sufficiency of the evidence
Schad’s final conviction-related claim challenges the suffi-
ciency of the evidence underlying his conviction for first-
degree murder. In reviewing a sufficiency of the evidence
challenge, we ask whether, “viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
822 SCHAD v. RYAN
(1979) (original emphasis). Because the state habeas court did
not address the merits of this claim, we review de novo
whether sufficient evidence exists to support Schad’s murder
conviction. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.
2002).
[8] Circumstantial evidence and reasonable inferences
drawn from it may properly form the basis of a conviction.
United States v. Jackson, 72 F.3d 1370, 1381 (9th Cir. 1995).
The circumstances of Grove’s death, including the fact that
the murder was accomplished by ligature strangulation, per-
mitted the jury to infer that the killing was intentional and
premeditated, as required under Arizona law. See Ariz. Rev.
Stat. § 13-1105(A). Thus, the main issue at trial was the iden-
tity of Grove’s killer. To establish that Schad murdered
Grove, the state introduced evidence that one day after Grove
was last seen alive, Schad was in possession of Grove’s prop-
erty, including his vehicle, credit cards, and checkbook.
Schad’s description to New York authorities of Grove as an
elderly man strengthened the inference that Schad had
encountered Grove in person. Moreover, the state introduced
evidence that would permit a rational jury to infer that Schad
knew about Grove’s death, including Schad’s statement to
Duncan that he would deny being near the scene of the crime,
and request to Duncan to destroy Grove’s credit cards. The
evidence, taken as a whole, was sufficient to allow a rational
jury to return a conviction for first-degree murder, and we
therefore deny relief on this claim.
IV. Sentencing Claims
A. Introduction — The 1985 Sentencing Proceeding
Prior to the sentencing hearing before the trial court in
1985, Schad’s counsel filed a 39-page sentencing memoran-
dum that presented the following mitigating circumstances,
which focused largely on his prison conduct following his
original conviction in 1979: (1) Schad was a model prisoner;
SCHAD v. RYAN 823
(2) Schad pursued higher education while in prison; (3) Schad
had numerous stable friendships; (4) the trial court gave a
felony-murder instruction at Schad’s trial, meaning that
Schad’s conduct may have been less reprehensible than a pre-
meditated murder; (5) Schad had a troubled childhood with
abusive parents; (6) Schad was beaten and threatened while in
prison in Utah for a prior conviction; (7) Schad showed poten-
tial for rehabilitation; (8) Schad had a stable character; (9)
Schad did not pose a risk of violent or dangerous behavior;
(10) Schad made charitable contributions; (11) Schad did not
drink or use drugs; and (12) Schad had an excellent employ-
ment record in Arizona prisons.
At the sentencing hearing, Shaw called fifteen witnesses,
including correctional officers, friends, relatives and a psychi-
atrist. Nearly all of the testimony related to Schad’s good rep-
utation and behavior as an adult, and particularly his good
behavior while in prison. A Utah prison official, John Powers,
testified regarding Schad’s personal development and conduct
while he was incarcerated in Utah state prison after a prior
offense. Powers stated that Schad “made some great strides”
in the prison’s group therapy program. He also testified that
Schad was permitted to be near weapons while working on a
renovation project because he “was an excellent security
risk.” Powers testified that, in general, Schad was a “model
prisoner” while incarcerated in Utah, and that he recom-
mended Schad’s release because he felt Schad was not a dan-
ger to the community. One Arizona prison official, Frank
Terry, testified that Schad was placed in a relatively low-
security prison block because he posed no disciplinary prob-
lems or security risks, and another official, Jerry McKeand,
elaborated that Schad actually assisted with other prisoners’
disciplinary issues by helping to “keep[ ] the cell block kind
of in line.”
Next, several of Schad’s friends and relatives testified.
Janet Bramwell, a friend and fellow member of Schad’s
church, the King of Glory Lutheran Church in Tempe, testi-
824 SCHAD v. RYAN
fied that Schad requested and received instruction in the
Lutheran faith while in prison, and was confirmed as a mem-
ber of the church. Bramwell also testified that she, her hus-
band, and other church members wrote letters to Schad,
welcoming him into the congregation and telling him about
themselves and their families. Bramwell stated that after she
and her husband received a letter in return, they began visiting
Schad in prison approximately once per month. Bramwell
described Schad as “clean and well-groomed,” “likeable,” and
a “very intelligent person, very talented,” and stated that
Schad opened up to her and her husband about his difficult
childhood. Bramwell’s husband, Frank Bramwell, confirmed
her testimony and also described Schad’s educational efforts
while incarcerated, including earning such good grades in his
college courses that he was named to the dean’s list. Another
friend and fellow church member, Herb Zerbst, testified
regarding his friendship with Schad. Zerbst and his wife cor-
responded with Schad using both written letters and audio
cassettes on which they recorded messages. Zerbst and his
wife also visited Schad in prison until they moved to Illinois.
Zerbst described Schad as friendly and caring, and described
Schad’s concern for the Zerbsts’ safety during their long drive
to Illinois. Zerbst also stated that Schad was creative and sent
him and his wife gifts, including crocheted items and paint-
ings.
Ronald Koplitz, the chaplain at Schad’s prison, stated that
Schad consulted him for religious guidance due to his fear of
death. He testified that Schad stood out from other prisoners
because he was likeable and genuine. Koplitz described Schad
as “the kind of inmate you can like, and the kind of inmate
that does not play games or try to . . . . get extra favors by
being in a religious program.” He testified that despite
Schad’s troubled childhood, he believed Schad had a “stable
personality,” at least in a controlled prison setting.
The psychiatrist, Otto Bendheim, testified briefly regarding
Schad’s early background and mental condition. Bendheim
SCHAD v. RYAN 825
stated that Schad “had a miserable childhood and ha[d] been
delinquent since his teens” and that he “was a deprived
youngster,” but that despite his criminal history, Schad was
“not a dangerous type,” was “pleasant” and had “above aver-
age” intelligence, and Bendheim was not “a bit afraid for his
own safety” when he met with Schad.
The pre-sentence report prepared by a probation officer
included discussions of Schad’s troubled childhood, favorable
character reports from several of Schad’s friends and Arizona
prison officials, and Schad’s good behavior and achievements
in prison. The report described Schad’s childhood as follows:
The defendant reported a very stormy childhood,
with his father being an alcoholic and abusing the
defendant on a regular basis. The defendant stated
that his father would beat him with his fist as disci-
pline. The defendant reported that he tried to protect
the family from his father’s abuse by allowing his
father to inflict beatings on him for anger towards
other members of the family. The defendant always
kept his problems to himself and to this day has not
dealt with the feelings he has regarding his life.
The defendant learned at an early age how to sup-
press his feelings, even to the point of refusing to
display emotion when his father would abuse him.
. . . The defendant stated that at age seventeen he
tried to commit his father to the VA Hospital for
treatment. He stated that his father was out of control
due to his alcoholism. When the officials came to
pick up his father, the defendant’s mother changed
her mind and took sides with her husband. The
defendant stated that when the officials left he expe-
rienced the worst beating of his life. The defendant
described his decision to commit his father as the
hardest thing he ever did in his life.
826 SCHAD v. RYAN
The defendant stated that in addition to the abuse his
father would never allow him to socialize with oth-
ers; consequently, the defendant was a very shy,
withdrawn adolescent.
At the sentencing hearing, defense counsel praised the pre-
sentence report’s discussion, but did not present additional
evidence regarding Schad’s troubled childhood. Counsel did
not, for example, present testimony or affidavits from Schad’s
relatives to provide first-hand descriptions of the abuse Schad
suffered as a child, nor did counsel seek a comprehensive psy-
chiatric evaluation to assess the negative effects of that abuse.
After the sentencing hearing, the court rendered a special
verdict discussing the aggravating and mitigating factors.
First, the court took into account Schad’s positive record since
his arrest and incarceration. The court found that the most
persuasive mitigating circumstance was the fact that Schad
was “a model prisoner, a student and a religious man with
many supportive friends since being incarcerated.” The court
observed that Schad was “helpful, charitable and appears to
care for people,” that he did not abuse drugs or alcohol or
have any discipline problems, and that he took many college
courses while in prison and earned good grades. The court
said, however, that although Schad’s “good, stable character”
and “signs of rehabilitation” constituted a mitigating factor,
this factor was “not particularly weighty of view of [Schad’s]
length of incarceration.”
Next, the court noted Schad’s “unfortunate childhood,” but
concluded it was not a “persuasive mitigating circumstance.”
The sentencing court determined that the mitigating circum-
stances presented by Shaw were insufficient “to overcome
any one of the aggravating circumstances,” and imposed a
sentence of death. After conducting an independent review of
the aggravating and mitigating evidence, the Arizona
Supreme Court affirmed, concluding that the mitigating fac-
SCHAD v. RYAN 827
tors were “insufficient to outweigh a single aggravating fac-
tor.” Schad, 788 P.2d at 1174.
The aggravating factors applied by the sentencing court
related to a prior conviction and to the circumstances of the
murder. The court relied on a 1968 Utah second-degree mur-
der conviction to impose aggravating factors for having a
prior conviction punishable under Arizona law by a life sen-
tence or by death, and for having a prior conviction of a crime
of violence. The court also found that Grove’s murder was
committed for the purpose of pecuniary gain. On appeal, the
Arizona Supreme Court affirmed the first and third of these
aggravating factors, and declined to reach the issue of whether
the violent crime aggravator was sufficient to support imposi-
tion of the death penalty. Id. at 1170.
B. The Protracted State Court Post-Conviction
Proceedings
After Schad was sentenced to death, he initiated state post-
conviction proceedings in 1991 in which he was represented
by a new attorney. In Schad’s preliminary state habeas peti-
tion, filed on December 16, 1991, he argued the sentencing
court failed to give proper weight to mitigating evidence of
his troubled family background, but he did not raise a claim
of ineffective assistance of counsel. The state court ordered
Schad to file a supplemental petition by February 18, 1992,
and Schad’s legal team requested and obtained seventeen suc-
cessive extensions of that deadline. During that time, post-
conviction counsel obtained appointment of an investigator to
look into Schad’s family history.
In January 1994, Schad was appointed a new post-
conviction attorney. The court granted her request for further
investigative services, as well as more than ten motions for an
extension of the deadline to file Schad’s supplemental state
habeas petition. In March 1995, counsel obtained appointment
of a mitigation expert. The court denied counsel’s request for
828 SCHAD v. RYAN
disclosure of Schad’s prison file and for contact visits to allow
the mitigation expert to interview Schad.
After the court ruled that no additional extensions of time
would be granted, counsel filed Schad’s supplemental petition
on October 19, 1995. The supplemental petition included a
general claim that Schad’s sentencing counsel was ineffective
for failing to discover and present mitigating evidence regard-
ing Schad’s family background. Attached to the supplemental
petition was an affidavit from the expert in which she stated
that the presentence report used at Schad’s sentencing hearing
did not adequately address the extent of the abuse Schad had
suffered as a child. The affidavit described the physical and
psychological abuse inflicted by Schad’s father, including
beating Schad with a belt or fists, refusing to allow Schad’s
mother to show him any affection, and isolating Schad from
other children. The expert recommended that a comprehen-
sive psychological evaluation be performed, and stated that
she could compile a thorough profile only through further
interviews with Schad and his relatives.
The state habeas court denied the ineffective assistance
claim in June 1996 without holding an evidentiary hearing.
The court described Schad’s request for a hearing as amount-
ing to nothing more than a “fishing expedition.” Schad filed
a motion for rehearing along with another expert affidavit.
That affidavit indicated that she had performed additional
interviews with Schad and obtained more information about
his life history, but did not describe the new information or
include any supporting affidavits or other documents. The
trial court denied the motion for rehearing, and in 1997 the
Arizona Supreme Court denied Schad’s petition for review.
C. Federal Habeas Proceedings
By the start of federal habeas proceedings in 1998, Schad’s
counsel had obtained a great deal more information about his
early and abusive childhood experiences. Schad asserted that
SCHAD v. RYAN 829
he received ineffective assistance of counsel at the penalty
phase of trial when his attorney, Shaw, failed to investigate
and present mitigating evidence regarding Schad’s troubled
childhood, and instead relied on the brief discussion of
Schad’s childhood contained in the psychiatrist’s testimony
and in the presentence report. During proceedings before the
district court, Schad sought an evidentiary hearing in order to
present a significant amount of evidence regarding his abusive
childhood, which he contends his sentencing counsel should
have presented at the sentencing hearing.
The district court held that Schad was not entitled to an evi-
dentiary hearing because he was not diligent in attempting to
develop the evidence during his state habeas proceedings. The
court denied Schad’s ineffective assistance claim without
holding an evidentiary hearing. For the following reasons, we
conclude that the district court applied the wrong standard in
ruling on the issue of Schad’s diligence, and remand for the
court to determine, using the correct standard, whether an evi-
dentiary hearing is warranted on the merits of the ineffective
assistance claim.
Schad sought to present mitigating evidence not submitted
during sentencing or during his state post-conviction proceed-
ings, including extensive mental health records of his mother,
father, and brother, as well as several declarations discussing
Schad’s childhood and its effect on his mental health. The
first declaration, from psychologist Charles Sanislow, pro-
vided an extremely detailed discussion of the psychological
impact of Schad’s abusive childhood. The second declaration,
from psychologist Leslie Lebowitz, discussed the mental
health history of Schad’s parents, including his mother’s
struggle with prescription drug addiction and his father’s
affliction with post-traumatic stress disorder due to spending
eighteen months in a German POW camp during World War
II. Declarations from Schad’s mother and aunt provided
details regarding Schad’s father’s severe alcoholism and the
abuse he inflicted upon his family. The final declaration, from
830 SCHAD v. RYAN
a paralegal employed by the office of the Federal Public
Defender, described interviews with Schad’s sister and aunt
regarding Schad’s childhood.
The district court held, however, that Schad was not enti-
tled to expansion of the record or to an evidentiary hearing
because he was not diligent in developing the proffered evi-
dence in state court. The district court also held that even if
the evidence were considered in federal court, the evidence
did not show that sentencing counsel was deficient in failing
to present it. The court ruled the strategy counsel pursued was
competent and that the newly proffered evidence could not
have affected the result.
D. Schad’s Claims
1. Diligence
[9] The fundamental issue presented in this habeas proceed-
ing is whether Schad was diligent in seeking to present in
state collateral proceedings the extensive mitigating evidence
offered in district court. Under 28 U.S.C. § 2254, the district
court shall not hold an evidentiary hearing to consider new
evidence if the petitioner has “failed to develop” the factual
basis of the claim in state court, unless the claim relies on an
intervening change in constitutional law or a factual predicate
that could not previously have been discovered, and the evi-
dence the petitioner seeks to present would establish by clear
and convincing evidence the petitioner’s entitlement to habeas
relief. 28 U.S.C. § 2254(e)(2). A petitioner has “failed” to
develop a claim where there was a lack of diligence or some
other fault on the part of the petitioner or his counsel. Wil-
liams v. Taylor, 529 U.S. 420, 432 (2000). In this context, dil-
igence requires a habeas petitioner to have made a
“reasonable attempt, in light of the information available at
the time, to investigate and pursue claims in state court.” Id.
at 436. If a petitioner fails to discover the facts necessary to
support his claim despite making a reasonable effort to inves-
SCHAD v. RYAN 831
tigate those facts, he will not be barred from introducing new
evidence in federal court. Id. at 435 (“Diligence . . . does not
depend . . . upon whether [investigative] efforts could have
been successful.”).
The record before us reflects that Schad’s legal team
attempted in state court to develop a factual basis for his inef-
fective assistance claim, but faced several difficult obstacles.
Schad’s family members were not cooperative and counsel
had difficulty accessing records generated during a decade of
prior proceedings in Schad’s case. This resulted in three
changes in counsel. The mitigation expert was not appointed
until 1995, and although her affidavits after her appointment
explained that she needed additional time for investigation
due to the vast size of Schad’s records and the reticence of
Schad’s family members, the state habeas court set the dead-
line for filing the supplemental state habeas petition at a date
three months after her appointment. As a result, Schad was
unsuccessful in bringing out any significant mitigation evi-
dence during his state habeas proceedings, leading to the
denial of his ineffective assistance of sentencing counsel
claim without an evidentiary hearing in state court.
[10] The district court, however, focused not on the reason-
ableness of Schad’s efforts in state court to develop mitigating
evidence regarding his childhood, but on the fact that he did
not succeed in doing so. The court emphasized that Schad
failed to present the evidence to the state post-conviction
court despite having several years to do so as well as having
a court-appointed investigator. The court held: “[T]he record
demonstrates that the state court facilitated Petitioner’s inves-
tigation and development of evidence supporting his claims.”
Schad, 454 F. Supp. 2d at 955. The district court further
stated, “The state court’s refusal to hold an evidentiary hear-
ing was attributable to Petitioner’s failure to develop the fac-
tual record.” Id. at 955-56. The district court thus did not fully
consider the materials presented to it because it ruled that
Schad had not been diligent in attempting to develop the basis
832 SCHAD v. RYAN
of his claim during his state post-conviction proceedings. The
district court’s focus on Schad’s failure to develop a record in
state court, rather than on whether he was delinquent in
attempting to do so, was not in accord with controlling
Supreme Court precedent. See Williams, 529 U.S. at 435
(“Diligence for purposes of [28 U.S.C. § 2254(e)(2)] depends
upon whether the prisoner made a reasonable attempt, in light
of the information available at the time, to investigate and
pursue claims in state court; it does not depend . . . upon
whether those efforts could have been successful.”).
[11] In the district court, Schad presented evidence that, we
conclude, if it had been presented to the sentencing court,
would have demonstrated at least some likelihood of altering
the sentencing court’s evaluation of the aggravating and miti-
gating factors present in the case. The evidence showed how
Schad’s childhood abuse affected his mental condition as an
adult. Had the sentencing court seen this evidence, which was
so much more powerful than the cursory discussion of
Schad’s childhood contained in Bendheim’s testimony and
the presentence report, it might well have been influenced to
impose a more lenient sentence. There was ample evidence
presented at sentencing to illustrate Schad’s intelligence, good
character, many stable friendships, and church involvement,
at least while he was in prison. Although Schad had a prior
Utah conviction for second-degree murder, that charge arose
out of an accidental death. The missing link was what in his
past could have prompted him to commit this aberrant violent
act of intentionally killing Grove. Without this psychological
link, the crime appeared to be nothing but the act of a ruthless
and cold blooded killer in the course of a robbery, and Schad
was therefore sentenced to death. The extensive evidence of
repressed childhood violent experiences could have supplied
that link and mitigated his culpability for the crime.
The record is clear that Schad did not succeed in bringing
out relevant mitigating evidence during state habeas proceed-
ings. Because the district court focused on this lack of suc-
SCHAD v. RYAN 833
cess, it held no hearing on the reasonableness of Schad’s
efforts to develop a record in state court. Neither the state
court nor the district court record, however, contains informa-
tion sufficient to determine whether or not those efforts were
reasonable and whether Schad therefore acted diligently.
The district court also ruled on the merits of the ineffective-
ness claim, rejecting Schad’s request for an evidentiary hear-
ing, and ruling the new evidence did not establish ineffective
assistance. Schad did not request a separate evidentiary hear-
ing on the issue of diligence, probably assuming the court
would consider evidence on that issue as part of the evidenti-
ary hearing he did request on his sentencing ineffectiveness
claim as a whole. Thus, the district court conducted no evi-
dentiary hearing before denying the ineffectiveness claim on
the merits, as well as summarily ruling there had been a lack
of diligence.
[12] We therefore remand for appropriate proceedings,
including an evidentiary hearing, to determine whether Schad
was diligent in attempting to develop the state court record.
The court should apply the proper standard as to the reason-
ableness of his efforts. In ordering a remand, we recognize the
district court stated it had considered the new evidence prof-
fered by Schad in support of his ineffective assistance of sen-
tencing counsel claim and said that, even assuming diligence,
this new evidence could not justify relief. We disagree with
that ruling. Thus, should the district court, upon full inquiry,
find that Schad’s efforts to develop the record in state court
were reasonable, the district court should hold an evidentiary
hearing on the merits of his ineffective assistance of sentenc-
ing counsel claim, because the evidence Schad presented to
the district court was stronger than the evidence presented at
sentencing. Alternatively, the district court could hold a single
evidentiary hearing at which it considers both the diligence
and the merits issues. In assessing the merits question, the dis-
trict court should take into account the Supreme Court’s
recent decisions in Porter v. McCollum, 558 U.S. ___, 130 S.
834 SCHAD v. RYAN
Ct. 447 (2009), and Wong v. Belmontes, 558 U.S. ___, 130 S.
Ct. 383 (2009).
2. State courts’ consideration of mitigating evidence
Schad not only seeks to rely on mitigating evidence not
presented at trial, but also challenges the standard under
which the state courts evaluated the mitigating evidence that
was submitted. While he makes a strong argument that the
state court was following the wrong standard in other cases,
we cannot conclude that the state court actually applied a
standard that was too narrow in this case.
Because the state habeas court denied this claim without
addressing the merits, we review de novo whether the state
courts violated Schad’s constitutional rights by failing to con-
sider and give effect to the mitigating evidence of Schad’s
childhood. Pirtle, 313 F.3d at 1167.
We begin with the Supreme Court’s decisions in Lockett v.
Ohio, 438 U.S. 586 (1978) and Eddings v. Oklahoma, 455
U.S. 104 (1982). In Lockett, a plurality of the Court struck
down an Ohio statute requiring mandatory imposition of the
death penalty unless certain specified mitigating circum-
stances applied. 438 U.S. at 607-08. The Court held that a
state’s statutory scheme for capital sentencing must not pre-
clude the sentencing court from considering any mitigating
evidence offered by the defendant. Id. at 604.
[13] In Eddings, the Court extended Lockett, holding that
an Oklahoma capital sentencer acted unconstitutionally by
refusing to consider evidence of the defendant’s abusive
childhood. The court ruled that the state court constitutionally
erred in holding that only evidence which specifically negated
an offense element was relevant for mitigation purposes. 455
U.S. at 108-13. The Court explained that Lockett’s holding
applies not only to state statutes that prevent a capital sentenc-
ing authority from considering all potentially mitigating cir-
SCHAD v. RYAN 835
cumstances, but also to the process by which a sentencing
court conducts the sentencing proceedings: “Just as the State
may not by statute preclude the sentencer from considering
any mitigating factor, neither may the sentencer refuse to con-
sider, as a matter of law, any relevant mitigating evidence.”
Id. at 113-14 (original emphasis).
Schad’s principal contention in this case is that the state
courts did not consider the evidence of his troubled childhood
because they unconstitutionally required a “nexus” between
his childhood abuse and his commission of Grove’s murder.
Schad contends the state courts applied the same test the
Supreme Court rejected in Tennard v. Dretke, 542 U.S. 274,
281 (2004).
In Tennard, a case involving a defendant’s low mental acu-
ity, the Court invalidated a Fifth Circuit test that rendered
potential mitigating evidence of a mental condition relevant to
a capital sentencing determination only if the defendant pre-
sented evidence that “the criminal act was attributable to” the
mental condition. In Smith v. Texas, 543 U.S. 37, 45 (2004),
the Court went further and rejected any “nexus test,” explain-
ing that the requirement to prove a “nexus” between mitigat-
ing evidence and the charged offense is “a test we never
countenanced and now have unequivocally rejected.” Tennard
and Smith are retroactively applicable to the Arizona Supreme
Court’s 1989 decision in this case. Smith, 543 U.S. at 45; see
also Graham v. Collins, 506 U.S. 461, 467 (1993).
Before Tennard was decided, Arizona courts recognized a
nexus test, similar to that rejected in Tennard, to preclude
consideration of evidence of childhood abuse unless the abuse
bore a causal connection to the crime of conviction. See, e.g.,
State v. Djerf, 959 P.2d 1274, 1289 (Ariz. 1998) In State v.
Wallace, 773 P.2d 983, 986 (Ariz. 1989), decided eight
months before the Arizona Supreme Court’s decision in this
case, the Arizona Supreme Court said that “a difficult family
836 SCHAD v. RYAN
background, in and of itself, is not a mitigating circumstance.”
Id. at 986.
After Tennard, however, the Arizona Supreme Court has
clarified that the nexus test affects only the weight of mitigat-
ing evidence, not its admissibility. See State v. Newell, 132
P.3d 833, 849 (Ariz. 2006) (“We do not require that a nexus
between the mitigating factors and the crime be established
before we consider the mitigation evidence. But the failure to
establish such a causal connection may be considered in
assessing the quality and strength of the mitigation evi-
dence.”) (citing Tennard, 542 U.S. at 287). The United States
Supreme Court has said that the use of the nexus test in this
manner is not unconstitutional because state courts are free to
assess the weight to be given to particular mitigating evi-
dence. Eddings, 455 U.S. at 114-15.
In two recent published opinions, we granted habeas relief
from Arizona murder convictions on the ground that a lower
court used an unconstitutional nexus test. Styers v. Schriro,
547 F.3d 1026 (9th Cir. 2008); Lambright v. Schriro, 490
F.3d 1103 (9th Cir. 2007). In Styers, we granted relief to a
habeas petitioner whose evidence of post-traumatic stress dis-
order was expressly disregarded by the Arizona courts due to
his failure to demonstrate a causal connection between the
disorder and the crime. The Arizona Supreme Court had con-
cluded that although evidence of post-traumatic stress disor-
der “could . . . , in an appropriate case, constitute mitigation,”
it did not constitute mitigation in the instant case because
“two doctors who examined defendant could not connect
defendant’s condition to his behavior at the time of the con-
spiracy and the murder.” Id. at 1035 (quoting State v. Styers,
865 P.2d 765, 777 (Ariz. 1993)). We held that the court’s
imposition of a nexus requirement was contrary to the clearly
established rule set forth in Eddings. Id.
In Lambright, we granted habeas relief after concluding
that the district court improperly applied a preclusive nexus
SCHAD v. RYAN 837
test and declined to consider mitigating evidence of the peti-
tioner’s post-traumatic stress disorder. We stated that the dis-
trict court’s approach was “fundamentally flawed” and that
the court “misapplied” Tennard and Eddings. 490 F.3d at
1114-15. We explained that the court erred by refusing to
consider the majority of Lambright’s mitigating evidence
solely on the ground that he failed to show a nexus between
the mitigating evidence and the crime. Id.
[14] In both of those cases, however, it was clear from the
record that the lower court had applied the unconstitutional
nexus test and had excluded mitigation evidence. By contrast,
in this case, there is no indication that the state courts applied
a nexus test, either as a method of assessing the weight of the
mitigating evidence, or as an unconstitutional screening
mechanism to prevent consideration of any evidence. Rather,
the record shows that the sentencing court did consider and
weigh the value of the small amount of childhood mitigation
evidence that was offered, stating that it was not “a persuasive
mitigating circumstance in this case.” The Arizona Supreme
Court stated that it had conducted an independent review of
the entire record regarding the aggravating and mitigating fac-
tors. See Schad, 788 P.2d at 1172. In short, it does not appear
that the state courts refused to consider any evidence Schad
offered. They concluded, as Eddings allows them to do, that
it did not outweigh the aggravating circumstances.
[15] Absent a clear indication in the record that the state
court applied the wrong standard, we cannot assume the
courts violated Eddings’s constitutional mandates. See Bell v.
Cone, 543 U.S. 447, 455 (2005) (“Federal courts are not free
to presume that a state court did not comply with constitu-
tional dictates on the basis of nothing more than a lack of cita-
tion.”). We must hold there was no constitutional error in the
Arizona courts’ consideration of the mitigating evidence of
Schad’s troubled childhood.
[16] Schad’s two remaining contentions with respect to the
state courts’ consideration of the mitigating evidence are eas-
838 SCHAD v. RYAN
ily disposed of. First, Schad challenges the state courts’
weighing of the aggravating and mitigating evidence. It is
well-established, however, that state courts have the discre-
tion to assess the appropriate weight of sentencing-related evi-
dence. See Harris v. Alabama, 513 U.S. 504, 512 (1995)
(“[T]he Constitution does not require a State to ascribe any
specific weight to particular factors, either in aggravation or
mitigation, to be considered by the sentencer.”). It was well
within the state courts’ discretion to determine that the miti-
gating evidence presented in Schad’s case did not outweigh
the aggravating evidence.
[17] Next, Schad challenges the state courts’ failure specifi-
cally to address each of the categories of mitigating evidence
he presented at his sentencing hearing. State courts imposing
or reviewing capital sentences are not required to provide an
exhaustive discussion of all the mitigating evidence presented,
as long as it is clear from the record that they reviewed the
evidence. See Moormann v. Schriro, 426 F.3d 1044, 1055 (9th
Cir. 2005) (“[T]he trial court need not exhaustively analyze
each mitigating factor as long as a reviewing federal court can
discern from the record that the state court did indeed con-
sider all mitigating evidence offered by the defendant.”)
(internal quotation marks and citation omitted). Moreover,
where, as here, the sentencing court states that it has consid-
ered all the mitigating evidence offered, we may not second-
guess its actions. See id. (“This court may not engage in spec-
ulation as to whether the trial court actually considered all the
mitigating evidence; we must rely on its statement that it did
so.”).
3. State courts’ application of aggravating factors
Schad challenges the state courts’ determinations regarding
the aggravating circumstances present in his case. Most
importantly, he challenges the sufficiency of the evidence
underlying the pecuniary gain aggravating factor, the only
aggravating factor connected to this crime. Schad contends
SCHAD v. RYAN 839
that application of the aggravating factor was improper
because there was insufficient evidence to prove robbery was
a motive for Grove’s murder.
Under Arizona law, “[a] court may find pecuniary gain as
an aggravating factor if the expectation of pecuniary gain is
a motive, cause, or impetus for the murder and not merely a
result of the murder.” State v. Hyde, 921 P.2d 655, 683 (Ariz.
1996). In applying the pecuniary gain factor, the sentencing
court in this case emphasized that the state had proved that
Schad was in possession of Grove’s credit cards and his vehi-
cle within a day of the murder and immediately began using
the vehicle and the cards, as well as his check book. Grove’s
vehicle was a new Cadillac, while Schad abandoned his stolen
Ford. In affirming the application of the factor, the Arizona
Supreme Court held that these facts constituted “strong cir-
cumstantial evidence that the purpose of the murder was
pecuniary gain.” Schad, 788 P.2d at 1171. We review this
determination under AEDPA standards that require us to give
a presumption of correctness to a state court’s factual determi-
nations. 28 U.S.C. § 2254(e)(1).
In essence, Schad’s position is that without direct evidence
of his guilt, no rational sentencer could have made any find-
ing as to his motive. Schad’s guilt, however, was established
at the guilt phase through circumstantial evidence. There is
nothing irrational about relying on circumstantial evidence to
show motive. Nor was the application of the pecuniary motive
factor arbitrary or capricious. See Lewis v. Jeffers, 497 U.S.
764, 780 (1990).
[18] It is clear that the evidence presented at trial regarding
Schad’s acquisition and use of Grove’s vehicle, credit cards
and checkbook rationally supported the application of the
pecuniary gain aggravating factor. After Grove’s death, Schad
was living off of Grove’s credit cards and his bank account.
Indeed, like the district court, we find it difficult to imagine
a non-pecuniary motive for the murder. See Schad, 454 F.
840 SCHAD v. RYAN
Supp. 2d at 931 (“[D]espite Petitioner’s argument that the evi-
dence could lead to contradictory inferences, it is difficult to
ascribe a motivation other than pecuniary gain to the offense
against Mr. Grove, who was a complete stranger to Petition-
er.”). Accordingly, we uphold the validity of pecuniary gain
as an aggravating factor.
The state courts concluded that, under state law, a single
aggravating factor was sufficient to support imposition of the
death penalty in this case. Because we conclude that the pecu-
niary gain factor was rationally supported by the evidence
presented, and not arbitrarily imposed, we do not reach the
challenges to other aggravating factors.
V. Conclusion
We affirm the district court’s denial of habeas relief on all
claims related to Schad’s conviction. With respect to the sen-
tence, we reverse the district court’s conclusion that Schad
was not entitled to an evidentiary hearing regarding his claim
of ineffective assistance of counsel at sentencing. On remand,
the court should determine whether there was a “failure” to
develop the record in state court under the standard set forth
in Williams. We remand for the district court to consider,
using the proper standard, whether Schad was diligent in pur-
suing state court relief, and if so, to hold a hearing on the mer-
its of his ineffectiveness claim.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.
RYMER, Circuit Judge, concurring in part and dissenting in
part:
While I concur in the rest of the opinion, I part company
with the majority’s decision to remand for an evidentiary
SCHAD v. RYAN 841
hearing on diligence and, in turn, on the merits of Schad’s
claim of ineffective assistance of counsel at sentencing.1
First, I believe that the district court faithfully construed
AEDPA’s diligence requirement, properly applied 28 U.S.C.
§ 2254(e)(2), and correctly determined that during state post-
conviction proceedings, Schad did not make “a reasonable
attempt, in light of the information available at the time, to
investigate and pursue” his claim of ineffective assistance of
counsel. Williams v. Taylor, 529 U.S. 420, 435 (2000). Schad
and his state habeas counsel knew from the presentence report
that his childhood was abusive but that details about his fam-
ily background were not proffered in mitigation at the penalty
phase. This information was available at the time. He had
nearly four years in state post-conviction proceedings to ferret
out the affidavits and evidence presented for the first time in
federal court. He was never denied a request for funding or
help in state court. Instead of trying to try the issue in state
court, Schad asked for thirty-four continuances and ended up
presenting no facts to that court in support of this claim. Now,
with the majority’s blessing, Schad is making the federal
court sitting in habeas an alternative forum for trying facts
and issues which he made insufficient effort to pursue in state
proceedings. This is precisely what Williams says that federal
courts should not become. Id. at 437.2
1
I concur in Section III of the per curiam opinion with respect to
Schad’s challenges to his conviction, and with respect to sentencing, in
Sections IV.D.2 (the state courts’ consideration of mitigating evidence)
and IV.D.3 (the state courts’ application of aggravating factors). I dissent
only from Section IV.D.1.
2
As the Court explained in Williams:
Comity dictates that when a prisoner alleges that his continued
confinement for a state court conviction violates federal law, the
state courts should have the first opportunity to review this claim
and provide any necessary relief. For state courts to have their
rightful opportunity to adjudicate federal rights, the prisoner must
be diligent in developing the record and presenting, if possible,
842 SCHAD v. RYAN
Second, I disagree with the majority’s view that the district
court improperly focused on the success of Schad’s state-
court efforts, or that the weight of newly developed informa-
tion has any role in the diligence inquiry. The district court
properly focused on the notice, information, time and
resources available to Schad, as well as on the causes for
delay. See Schad v. Schriro, 454 F.Supp.2d 897, 951-53, 955-
956 (D. Ariz. 2006). I also disagree that this court should (or
may) order an evidentiary hearing on diligence that Schad
himself did not ask for, simply because the record seems to
two of us to contain information that is inadequate to deter-
mine whether Schad’s efforts in state court were reasonable.
It was Schad’s burden to show diligence, and if the record is
insufficient to determine that Schad’s efforts were reasonable,
then it was sufficient to determine they were not reasonable.
That is what the district court found, and rightly so.
Finally, in these circumstances § 2254(e)(2) bars an eviden-
tiary hearing on the merits of Schad’s ineffective assistance
claim. Nevertheless the majority orders one if, on remand, the
court determines that Schad was actually diligent. It does so
without taking into account the district court’s alternative
explanation why no hearing is required, without mentioning
AEDPA, and without tethering the order to Strickland.3 And
I take issue with that.
all claims of constitutional error. If the prisoner fails to do so,
himself or herself contributing to the absence of a full and fair
adjudication in state court, § 2254(e)(2) prohibits an evidentiary
hearing to develop the relevant claims in federal court, unless the
statute’s other stringent requirements are met. Federal courts sit-
ting in habeas are not an alternative forum for trying facts and
issues which a prisoner made insufficient effort to pursue in state
proceedings.
529 U.S. at 437 (internal quotes, alterations, and citations omitted).
3
Strickland v. Washington, 466 U.S. 668 (1984).
SCHAD v. RYAN 843
As Schad did next to nothing in state court to develop the
factual predicate of his ineffective assistance of counsel
claim, he is barred from obtaining an evidentiary hearing on
the merits of that claim in federal court. I would, therefore,
affirm across the board.
I
Schad alleges that his counsel was ineffective at sentencing
for failing to investigate Schad’s family background and to
present corroborating evidence about the nature and effects of
his abusive childhood.
In a nutshell, the record shows: Counsel’s mitigation case
at sentencing emphasized Schad’s changed character and
potential for rehabilitation. Fourteen people in the Phoenix
area who had come to know Schad while he was incarcerated
testified that they valued his friendship, good works, and posi-
tive contribution to their lives. Counsel also pointed out the
emotional harm caused by Schad’s abusive childhood with an
alcoholic father. For this he relied on the presentence report.4
Sentence was imposed in 1985 and affirmed on direct
appeal in 1989. After a trip to the United States Supreme
Court, Schad filed a post-conviction petition in state court on
4
The presentence report indicated that Schad reported “a very stormy
childhood, with his father being an alcoholic and abusing the defendant on
a regular basis.” Schad’s father beat him with his fist and never allowed
him to socialize with others. Schad often accepted beatings to protect other
members of his family. Schad kept his problems to himself and had yet
to deal with the feelings regarding his life. At the age of seventeen, Schad
tried to commit his father to the VA Hospital for treatment because his
father was out of control due to alcoholism. However, his mother took his
father’s side and Schad was given the worst beating of his life. Schad left
home at eighteen, once he graduated from high school. His father died
when Schad was incarcerated on the Utah offense, and his last contact
with his mother was in 1978 when she was drinking and he figured it was
better not to stay around. Schad hadn’t had contact from his siblings since
the Arizona murder, but did write them.
844 SCHAD v. RYAN
December 16, 1991. John Williams took over as counsel after
the petition was filed, and was ordered to file a supplemental
petition by February 18, 1992. That deadline was extended
five times (February 14, March 18, April 17, August 6, and
October 14, 1992). On November 3, 1992 Williams was
replaced by Michael Chezem. Chezem successfully sought
appointment of an investigator and funds (July 30, 1993), and
also obtained twelve extensions (January 5, 1993, February 2,
April 14, May 14, June 28, July 30, August 19, September 27,
October 25, November 29, December 27, 1993, and February
1, 1994). On January 31, 1994, Chezem withdrew and was
succeeded by Rhonda Repp. She obtained authorization for
further investigative services in February 1994; on March 28,
1995, she asked for the services of a mitigation expert, which
the court approved on July 6, 1995. Meanwhile, she asked for
and received a series of extensions on the ground that she and
the investigator had not completed their investigation and
located all potential witnesses (February 16, 1994, March 18,
April 22, May 24, June 23, July 22, August 30, September 27,
October 31, November 21, December 28, 1994, January 18,
1995, February 21, April 20, May 22, June 20, July 21,
August 22, and September 20, 1995). On September 20, 1995
the court ruled that no further continuances would be granted.
A supplemental post-conviction petition was filed on October
19, 1995, together with a request for an evidentiary hearing on
the basis of “newly discovered evidence.” The newly discov-
ered evidence consisted of an affidavit by the mitigation
expert, Holly Wake, expressing her opinion that the presen-
tence report failed adequately to address the seriousness of
Schad’s abuse; it contained no new facts and identified no
witnesses. The state court denied the ineffectiveness claim in
July 1996 for lack of any specifics.
Schad’s federal petition was filed December 16, 1997; an
amended petition was filed August 3, 1998. The following
year Schad presented newly developed information together
with a request for an evidentiary hearing on the merits of his
SCHAD v. RYAN 845
ineffectiveness claim.5 The district court found that Schad
knew the factual basis for his claims at the time of post-
conviction proceedings, and had not shown that the newly
developed information was not available during that period.
The court rejected Schad’s argument that post-conviction
counsel were diligent because they asked for time, funds, and
a hearing to investigate, develop, and present evidence. As the
court explained, post-conviction counsel requested and were
granted thirty-four extensions, delaying proceedings for four
years, and were provided with funds, an investigator, and a
mitigation expert. Likewise, the district court found that rea-
sonable counsel with the time and funding available to post-
conviction counsel would have presented evidence in support
of Schad’s position that his family background was not ade-
quately explored by trial counsel. Further, the court found, the
state court did not unreasonably deny an evidentiary hearing
given that only conclusory claims were made about additional
mitigation evidence. Accordingly, because Schad did not
“ ‘undertake[ ] his own diligent search for evidence’ in state
court,” the court held that Schad was not entitled to an eviden-
5
The newly developed information submitted in support of Schad’s fed-
eral ineffective assistance claim includes an affidavit from his mother
recounting her experiences with Schad’s father; an affidavit from an inves-
tigator reciting a conversation with Schad’s sister, which describes what
it was like to grow up in a poor household with cold and distant parents
who showed no affection for their children, and with his aunt, who dis-
cussed the religious upbringing of the Schads, Mr. Schad’s war experi-
ences, and the death of Schad’s infant sister; employment records of
Schad’s mother (indicating that she was prescribed narcotics for injuries)
and Veterans’ Administration records of Schad’s father (showing that he
returned from the war with a disabling anxiety disorder and alcoholism);
an affidavit by a clinical psychologist, Dr. Leslie Lebowitz, noting that
Schad’s family was dysfunctional and the violence and neglect the chil-
dren experienced left them at a tremendous disadvantage when faced with
challenges of adult life; and an affidavit by a clinical psychologist, Dr.
Charles Sanislow, who prepared a social history of Schad repeating the
family background, and could not rule out the possibility that Schad’s his-
tory of abuse, neglect, and abandonment played a significant factor in his
psychiatric and behavioral functioning as an adult.
846 SCHAD v. RYAN
tiary hearing or to expand the record. Schad, 454 F.Supp.2d
at 956 (quoting Williams, 529 U.S. at 435).
II
New evidence may be introduced on federal habeas “only
if respondent was not at fault in failing to develop that evi-
dence in state court, or (if he was at fault) if the conditions
prescribed by § 2254 (e)(2) were met.” Holland v. Jackson,
542 U.S. 649, 652-53 (2004) (citing Williams, 529 U.S. at
431-37).6 This rule applies to requests for evidentiary hear-
ings, and whenever parties seek relief based on new evidence.
Id. The rule also covers a motion to expand the record under
Habeas Rule 7.7 Cooper-Smith v. Palmateer, 397 F.3d 1236,
1241 (9th Cir. 2005).8
6
28 U.S.C. § 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously dis-
covered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense.
7
Habeas Rule 7 provides, in relevant part: “if the petition is not dis-
missed, the [habeas court] may direct the parties to expand the record by
submitting additional materials relating to the petition.”
8
Cooper-Smith indicates that the standard of review is an open question,
397 F.3d at 1241 n.12, but regardless of whether it is de novo or for abuse
of discretion, the district court properly denied Schad’s request for an evi-
dentiary hearing and to expand the record because he did not exercise dili-
gence in his efforts to develop the factual basis of his claims in state court.
SCHAD v. RYAN 847
Schad does not argue that the exceptions permitting a hear-
ing or admission of new evidence under § 2254(e)(2)(A) or
(B) apply. Thus the lone issue is whether he failed diligently
to develop the factual basis for his claim in state court pro-
ceedings.
“Under the opening clause of § 2254(e)(2), a failure to
develop the factual basis of a claim is not established unless
there is lack of diligence, or some greater fault, attributable to
the prisoner or the prisoner’s counsel.” Williams, 529 U.S. at
432. “Diligence for the purposes of the opening clause
depends on whether the prisoner made a reasonable attempt,
in light of the information available, to investigate and pursue
claims in state court[.]” Id. at 435. “The failure to investigate
or develop a claim given knowledge of the information upon
which the claim is based, is not the exercise of diligence.”
Cooper-Smith, 397 F.3d at 1241 (citing Williams, 529 U.S. at
439-40). The petitioner bears the burden of showing dili-
gence. See Williams, 529 U.S. at 440 (concluding that peti-
tioner met the burden of showing he was diligent in efforts to
develop the facts supporting certain claims).
The district court applied these principles, and did so cor-
rectly in my view. The presentence report disclosed that
Schad’s childhood was abusive and unstable, that he had sib-
lings, that his father was an out-of-control alcoholic whom
Schad had sought to have committed, that Schad was forced
to endure beatings and isolation, and that neither parent stood
up for him or gave him attention or affection. This put post-
conviction counsel on notice that details of Schad’s family
background beyond those brought out at sentencing might be
mitigating. Notice of the need to develop evidence is an
important marker of diligence. In Williams, for example, the
Court found that the petitioner was not diligent in developing
facts in support of a Brady claim in part because the trial tran-
script put the petitioner’s habeas counsel on notice of possible
exculpatory evidence, but was diligent in developing juror
bias and prosecutorial misconduct claims in part because
848 SCHAD v. RYAN
nothing in the record “would have put a reasonable attorney
on notice” of misconduct. 529 U.S. at 437-44. In line with
Williams, I would conclude (as the district court did) that
Schad knew the factual basis for his claims during post-
conviction proceedings.
Further, the information newly developed for federal court
was available during state court proceedings. Indeed, Schad
told the district court that the newly discovered mitigating
evidence was “readily” available at the time of sentencing, but
wasn’t presented due to defense counsel’s lack of investiga-
tion — and that had counsel only looked, he would have
found it.9 It follows that the newly discovered information
was readily available to post-conviction counsel as well, but
wasn’t adduced due to lack of investigation.
Schad had plenty of time (four years) and resources (all he
asked for) to pursue the claim; he just wasn’t persistent. His
efforts consisted of one telephone call in 1993 by an investi-
gator to Schad’s mother and his request for an evidentiary
hearing. In the phone call, Schad’s mother said that Edward
was a good boy, declined to say where his siblings were, and
hung up. She was apparently reluctant or afraid to talk about
her son over the phone with someone she didn’t know,10
9
Petitioner’s Brief Pursuant to Court’s May 8, 2000 Order and Motion
for Evidentiary Hearing (filed October 23, 2000). After summarizing the
newly developed information, Schad argues that he was prejudiced by sen-
tencing counsel’s failure to investigate and discover this evidence, stating:
“First, readily available mitigating evidence was not presented due to
defense counsel’s lack of investigation.” Id. at 88. Prefacing his summary
of the newly discovered evidence, Schad says: “Had counsel only looked,
however, he would have found this.” Id. at 81.
I mention this not to suggest that the facts could have been discovered,
but to indicate that the information sought was available at the time. See
Williams, 529 U.S. at 435.
10
See Petitioner’s Reply to Respondents’ Brief on the Merits (filed June
12, 2001), at 70 (discussing reasonableness of Mrs. Schad’s reluctance to
talk over the phone with someone assisting her son for the first time in fif-
teen years).
SCHAD v. RYAN 849
which is perfectly understandable. However, there was no
follow-up. Schad also asked for an evidentiary hearing in state
court, which, if well-founded, might show diligence — but it
doesn’t here because he offered no facts and identified no wit-
nesses in support. Cf. Williams, 529 U.S. at 437 (noting that
“[d]iligence will require in the usual case that the prisoner, at
a minimum, seek an evidentiary hearing in state court in the
manner prescribed by state law.”). So far as the record
reveals, that’s it for effort.
There is no evidence that the state impeded those efforts.
Schad’s requests for professional assistance and funds were
granted. All but the last extension he sought for filing a defin-
itive petition in order to investigate, locate witnesses, and
review the file were granted.11
The majority faults the district court in part because it ruled
without “appropriate consideration of the many reasons Schad
offered for his inability to produce the mitigating evidence
during the state proceedings.” Maj. op. at 810. I disagree: The
district court did consider the reasons advanced by Schad, but
found them wanting — as do I. For instance: Schad argued
that the state court did not allow time and a hearing to develop
his claims; the district court rejected this excuse given that his
counsel asked for, and received, thirty-four extensions, result-
ing in a delay of four years. 454 F.Supp.2d at 955. Schad also
complained about the “chaos” occasioned by being repre-
sented by multiple attorneys; the district court rejected this
excuse because one counsel alone had twenty-one months
(and nineteen extensions) to complete the investigation and
file a supplemental petition. Id. Schad posited that a denial of
funds posed a roadblock; the district court rejected this excuse
as Schad was unable to point to any funding request that the
11
So far as I can tell, the only requests that were denied were for a con-
tact visit with Schad, though post-conviction counsel interviewed him
twice; for certain prison records; and for more time after the thirty-fourth
extension had expired.
850 SCHAD v. RYAN
state court denied. Id. To the contrary, as the district court
observed, the record demonstrates that the state court facili-
tated Schad’s investigation and development of evidence by
appointing an investigator (who was on the case for more than
two years) and a mitigation specialist. Although the mitiga-
tion specialist was only appointed three months before the
supplemental petition was filed, counsel had been on the case
for over a year before she requested such an appointment and,
as the district court found, even a year later when the special-
ist filed her supplemental affidavit (July 7, 1996), she was
able to make only conclusory claims about the existence of
additional, unspecified mitigation evidence. Id. And Schad
maintained that the state court denied him an opportunity to
develop his claims in an evidentiary hearing; the district court
rejected this excuse because the state court’s refusal to hold
an evidentiary hearing was attributable to Schad’s failure to
develop a factual record that would have warranted a hearing.12
Id. at 955-56.
Rather than acknowledging what the district court actually
considered and found, the majority identifies “several difficult
obstacles” that it believes Schad faced in attempting to
develop a factual basis for his ineffective assistance claim in
state court that led to his being unsuccessful in bringing out
any significant mitigation evidence during his state habeas
proceedings. Maj. op. at 831. These are that Schad’s family
members weren’t cooperative; counsel had difficulty assess-
ing records generated during a decade of prior proceedings;
these difficulties somehow “resulted in” three changes in
12
The district court found with respect to the submissions in support of
an evidentiary hearing that “[a] reasonable attorney, provided with the
time and funding to which post-conviction counsel had access, would have
presented affidavits and records in support of the argument that Schad’s
traumatic family background was not adequately explored by trial coun-
sel.” 454 F.Supp.2d at 956. Schad offers no evidence to the contrary. It is
manifest from the record that this is so. See Holland, 542 U.S. at 652 (stat-
ing that “attorney negligence . . . is chargeable to the client and precludes
relief unless the conditions of § 2254(e)(2) are satisfied”).
SCHAD v. RYAN 851
counsel; and the state post-conviction court set a deadline for
filing the supplemental petition three months after appoint-
ment of the mitigation specialist. However, neither alone nor
in combination do these “obstacles” indicate that Schad made
a reasonable effort to develop a record in state court in light
of available information to which he was timeously alerted.
So far as family cooperation is concerned: The only evi-
dence in the record is that in 1993, Schad’s mother unsurpris-
ingly hung up on a phone call by an investigator she didn’t
know; that she wouldn’t tell him where Schad’s siblings were;
and that even though Schad had written them, his siblings had
not responded. So far as appears, no follow-up or attempts to
engage other family members were made.13
So far as accessing records is concerned: Schad made no
showing that he was thwarted in developing in state proceed-
ings the newly developed information produced in federal
court such as his mother’s medical records, his father’s VA
records, and evidence that he had to pay his own way around
the house and procure alcohol for his father. As the district
court noted, the rest of what the mitigation expert later
gleaned from Schad’s mother, sister, and aunt, is similar to
information in the presentence report. Beyond this, Schad
failed to link whatever difficulty he may have experienced in
getting records from the Arizona prison and those from out of
state to his ability to present the claim at issue here — ineffec-
tiveness of sentencing counsel in failing to pursue family
background — and none appears. The same applies to records
from his first trial.
So far as multiple counsel is concerned: No basis appears
for supposing that difficulties in developing a record led to
multiple counsel, or vice-versa. In any event, all else aside,
13
In her 1999 affidavit filed in federal court, Schad’s mother avers that
she “would have done anything to help Ed,” including going from New
York to Arizona to tell the judge all the things she says in her affidavit.
852 SCHAD v. RYAN
Schad’s last post-conviction counsel had ample time (more
than fifteen months to file the supplemental petition and
twenty months before state proceedings were concluded),
enough continuances (nineteen), and the assistance of an
investigator and mitigation specialist, to develop the claim.
So far as the state court’s final deadline is concerned: The
district court explained why it was neither unreasonable nor
material. Schad had been given more than thirty extensions
and four years to get his act together. He failed to seek
appointment of a mitigation expert for more than three and a
half years. Even so, a year later the mitigation specialist was
still unable to offer anything concrete.
For these reasons, I would hold that Schad did not meet the
burden of showing that he was diligent in efforts to develop
the factual basis for his ineffective assistance of counsel claim
in state court.
III
The majority’s analysis does not persuade me otherwise.
The per curiam concludes that the district court applied an
incorrect diligence standard — focusing, in its view, on the
lack of success rather than the reasonableness of Schad’s
efforts to develop a record in state court — and remands for
an evidentiary hearing under the “proper” standard to deter-
mine whether Schad was diligent. Maj. op. at 833. I do not
agree that the district court failed to measure up, or that an
evidentiary hearing is needed or appropriate.
In Williams, the Commonwealth of Virginia argued that the
only question for purposes of the introductory clause of
§ 2254(e)(2) — the clause that states “[i]f the applicant has
failed to develop the factual basis of a claim in State court
proceedings” — is whether the factual basis was indeed
developed in state court. The Court disagreed that this cap-
tured the fault concept implicit in the clause, and explained:
SCHAD v. RYAN 853
The question is not whether the facts could have
been discovered but instead whether the prisoner
was diligent in his efforts. The purpose of the fault
component of “failed” is to ensure the prisoner
undertakes his own diligent search for evidence. Dil-
igence for purposes of the opening clause depends
upon whether the prisoner made a reasonable
attempt, in light of the information available at the
time, to investigate and pursue claims in state court;
it does not depend, as the Commonwealth would
have it, upon whether those efforts could have been
successful.
529 U.S. at 435. Thus, the “success” enjoinder simply means
that the introductory clause looks at more than the mere fact
that a record was not developed in state court. The “more” is
diligence.
The district court followed this standard from Williams
exactly. It focused on whether Schad’s attempts to develop
the record in state court were reasonable given what he knew,
the information available at the time, and the four years plus
funding that he requested and got. This applied the correct
standard and adopted the right focus. In accord with Williams,
the district court’s conclusion was based on the fact that
Schad had notice of the basis for his ineffectiveness claim
from the time of sentencing, had nearly four years to develop
the record before the state post-conviction court, and pointed
to no request of the state court for funding or anything else
that was unreasonably denied.
Moreover, this conclusion is consistent with the outcome in
Williams itself. There, the Court was concerned with three
different claims; it found lack of diligence as to one (a Brady
claim) but not the others (juror bias and prosecutorial miscon-
duct claims). In the two claims on which the Court found dili-
gence the trial record contained no evidence that would have
put a reasonable attorney on notice of the misconduct, thus
854 SCHAD v. RYAN
there was no basis for an investigation; also, counsel
requested funding for an investigator, which the state court
denied. By contrast, in the claim on which the Court found no
diligence, the transcript put state habeas counsel on notice of
an undisclosed report’s existence and its potential materiality.
The only indication that habeas counsel made some effort to
investigate the Brady material was one letter; no further
efforts were made. As the Court said, a diligent attorney
would have done more. Id. at 439-40. Schad’s situation is
almost identical. The presentence report put post-conviction
counsel on notice of the importance of Schad’s family back-
ground; one phone call was made to Schad’s mother; and no
further efforts were made. As the district court said, a reason-
able attorney provided with the time and funding to which
post-conviction counsel had access would have done more.
Schad v. Schriro, 454 F.Supp.2d at 956. Consequently, the
efforts in Schad’s case fall on the not-diligent side of the led-
ger, just as did the efforts in Williams on the Brady claim.
In sum, I think the district court got Williams precisely
right. By the same token, I think the majority’s emphasis on
“success” misapprehends Williams. Also, I think the majori-
ty’s focus on the strength of the newly developed evidence is
itself improper.
Without explaining why, in the middle of its discussion
about the “proper” standard for diligence, the majority posits
that the newly developed information “would have demon-
strated at least some likelihood of altering the sentencing
court’s evaluation of the aggravating and mitigating factors
present in the case.” Maj. op. at 832. However, considering
the weight of evidence newly developed for federal court is
nowhere grounded in § 2254(e)(2) or Williams.14 It seems
14
To the extent this discussion is intended as a bridge to the merits of
Schad’s ineffective assistance claim, it is way off the Strickland mark. The
Strickland question is whether there is “a reasonable probability” that
absent the errors asserted, the sentencer would have concluded that the
balance of aggravating and mitigating circumstances did not warrant
death, 466 U.S. at 695 — not, as the majority puts it, whether there is “at
least some likelihood” of altering the sentencing court’s evaluation of the
aggravating and mitigating factors.
SCHAD v. RYAN 855
exactly backward to me. We are not supposed to start with the
evidence newly developed for federal court, then determine
whether that evidence has “some likelihood” of altering the
sentencing court’s evaluation, then decide that the petitioner
made a threshold showing of reasonably attempting to
develop it in state court. Rather, we are to start with diligence
— asking whether the factual basis was developed in state
court and if not, whether there is lack of diligence or some
greater fault attributable to the petitioner — and never get to
the weight of the newly developed evidence unless the peti-
tioner bears no responsibility for failure to develop and pre-
sent that evidence in state court. Put differently, evidence that
could have been adduced in state post-conviction proceedings
if the petitioner were diligent, should play no role in a finding
that he was diligent. The effect otherwise is to write
§ 2254(e)(2)’s diligence requirement off the books.
Neither is there basis for requiring an evidentiary hearing
on diligence. Schad never asked for one. The majority doesn’t
say that the district court had a sua sponte obligation to hold
an evidentiary hearing, nor does it cite authority for any such
thing, yet it orders the hearing sua sponte, for which, again,
it points to no authority. More importantly, the record is what
it is. Schad had the burden of showing he was diligent in his
efforts. From the parties’ submissions on this point, the dis-
trict court could determine whether post-conviction counsel
were on notice of the need to develop facts relating to Schad’s
family background and made reasonable efforts to do so in
light of the information then available in the time, and with
the resources, they had. The district court made that determi-
nation, and I think we should review it and affirm. The major-
ity punts because it believes that there is too little information
in the record to determine whether post-conviction counsels’
efforts were reasonable. Maj. op. at 832. However, lack of
evidence of diligence in the state and federal record does not
compel an evidentiary hearing, but rather, compels denial of
Schad’s request for an evidentiary hearing on the merits of his
ineffective assistance claim. This is because he had the burden
856 SCHAD v. RYAN
of showing he was diligent, didn’t meet it, and § 2254(e)(2)
accordingly bars an evidentiary hearing on the merits of his
constitutional claim.
IV
Because I would affirm the district court’s conclusion that
Schad failed to exercise diligence in developing the factual
basis of his ineffectiveness claim in state court, I have no need
to reach the question whether he is entitled to an evidentiary
hearing on that claim given that a hearing is statutorily barred
by § 2254(e)(2). However, the majority does reach the issue,
directing the district court to hold an evidentiary hearing on
the merits of this claim if it finds in the other evidentiary hear-
ing — on diligence — that Schad’s efforts to develop the
record in state court were reasonable. Maj. op. at 832-33. I
note that it does so without regard to the district court’s exten-
sive and reasoned holding in the alternative that, even consid-
ering the newly developed information, Schad was
nevertheless not entitled to an evidentiary hearing on his inef-
fectiveness claim.15 It also does so without regard to the state
court’s ruling that denied Schad’s ineffectiveness claim on the
merits. And it does so without reference to AEDPA, Strick-
land, or the double deference owed to state court adjudica-
tions under Knowles v. Mirzayance, 129 S.Ct. 1411, 1420
(2009). See Schriro v. Landrigan, 550 U.S. 465, 474 (2007)
(holding that a court considering a request for an evidentiary
hearing “must take into account” the deferential standards of
§ 2254(d), and a hearing is not required “if the record refutes
the applicant’s factual allegations or otherwise precludes
habeas relief”). In my view, it is inappropriate to order an evi-
dentiary hearing on an ineffective assistance claim without
touching these bases.
15
The district court concluded that trial counsel presented a strategically
sound case in mitigation, and that the newly developed information is not
of sufficient weight to create a reasonable probability that, if it had been
presented, the trial court would have reached a different sentencing deter-
mination. 454 F.Supp.2d at 940-44 .
SCHAD v. RYAN 857
Conclusion
If a state prisoner can show that he indeed tried to develop
facts in state post-conviction proceedings in support of an
ineffective assistance of counsel claim, then he should be able
to proceed in federal court on newly developed evidence
because the principles of comity underlying § 2254(e)(2) will
not be offended. But those principles will be offended if a
state prisoner lets opportunity pass by without giving the state
courts that convicted and sentenced him first crack at a claim
that his constitutional rights were violated in the process.
Given that Schad had notice during post-conviction pro-
ceedings of the need to develop facts about his family back-
ground to support his claim of ineffective assistance of
sentencing counsel, and the information available at the time,
together with the opportunity afforded to develop that infor-
mation in four years, with thirty-four extensions and with all
the funding requested, I agree with the district court that
Schad failed to show he was diligent in efforts to investigate
and present those facts in state court.
The district court properly applied the governing standard
from Williams v. Taylor: whether Schad made “a reasonable
attempt, in light of the information available at the time, to
investigate and pursue” his constitutional claim. 529 U.S. at
435. Its analysis did not stop with the predicate question
whether the factual basis was actually developed in state
court. Rather, its focus was on the notice, information, time
and resources available to Schad, as well as on the causes for
delay. I would not remand for an evidentiary hearing on dili-
gence that was neither requested nor required. As Schad did
not develop the factual basis for his ineffective assistance
claim in state court proceedings, no evidentiary hearing on the
merits of that claim may be held. I would, therefore, affirm.