Schad

Edward Harold Schad is scheduled to be executed by the State of Arizona on October 9, 2013. He was convicted in 1985 of first degree murder in the strangling death of Lorimer Grove. Federal habeas proceedings began in 1997 and in the intervening years have traversed every twist and turn in the path of federal habeas. The case reached Supreme Court review for the third time last summer. The history of the litigation is summarized in its opinion, Ryan v. Schad, — U.S. —, 133 S.Ct. 2548, 2549-50 , 186 L.Ed.2d 644 (2013) (per curiam). We set forth a somewhat fuller time line here.

Schad now appeals the district court’s dismissal of his Rule 60(b) motion seeking to reopen the district court’s 2006 denial of his original federal habeas petition. Underlying both this proceeding, and the attempts to stay the mandate that led to the Supreme Court’s decision earlier this year, is Schad’s claim that he received ineffective assistance of counsel in his state court sentencing, because his counsel failed to present mitigating evidence of the effect that his childhood abuse had on his mental condition at the time he committed the crime.

Federal court consideration of evidence or…

concurring:

I concur in the majority opinion but would deny the Rule 60(b) motion for a second, independent reason.

The Supreme Court emphasized that our court already denied Schad’s Mar tinez-based request to vacate the judgment and remand the case. 1 “The Ninth Circuit denied [Schad’s] motion on July 27, 2012.” Ryan v. Schad, — U.S. —, 133 S.Ct. 2548, 2549-50 , 186 L.Ed.2d 644 (2013) (per curiam). The Supreme Court then denied a petition for certiorari and a petition for rehearing. Id. at 2550 . “Further, there is no doubt that the arguments presented in the rejected July 10, 2012, motion were identical to those accepted by the Ninth Circuit the following February.” Id. at 2552 . Both motions sought a Martinez remand on the ground that post-conviction counsel should have developed more evidence to support the claim of ineffective assistance of counsel at sentencing. Id. The Court went on to suggest that Schad was not diligent in developing this claim. See, e.g., id. at 2550 n. 2, 2552 n. 3.

I take those statements to instruct, or at least strongly suggest, that the law of the case doctrine applies. Accordingly, I would deny the Rule 60(b) motion on this ground as well.

. I…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD HAROLD SCHAD, No. 13-16895 Petitioner-Appellant, D.C. No. v. 2:97-cv-02577-

ROS

CHARLES L. RYAN, Director, Arizona Department of Corrections, Respondent-Appellee. OPINION

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

Submitted October 1, 2013* San Francisco, California

Filed October 4, 2013

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

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

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

Habeas Corpus/Death Penalty

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

Petitioner filed a Rule 60(b) motion for relief, seeking to reopen the district court’s previous denial of his original 28 U.S.C. § 2254 habeas corpus petition challenging his murder conviction…

dissenting.

I would hold that the allegation of Schad’s serious mental illness at- the time he committed his offense constitutes a new ineffective assistance of counsel claim. In reaching a contrary result, the majority adopts an erroneous view of how Schad’s new allegation relates to his old ineffective assistance claim — and thus misses the fundamental difference between Schad’s two claims. This error leads the majority to dismiss Schad’s motion by deeming it a second or successive petition. Because Schad in fact presents a new claim that satisfies the standard for relief from judgment under Federal Rule of Civil Procedure 60(b), I dissent.

My disagreement with the majority turns on an assessment of the proper interpretation of the scope of Schad’s old and new claims. When Schad presented new evidence on federal habeas regarding the failure of sentencing counsel to investigate the state of his serious mental illness as of the time of the crime, he advanced a new claim distinct from his earlier one that counsel should have investigated Schad’s history of childhood abuse. See Valerio v. Crawford, 306 F.3d 742, 768 (9th Cir.2002) (en banc). Although the majority blends the two…