Schad

Per Curiam Opinion; Partial Concurrence and Partial Dissent by Judge RYMER.

1. 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 retried in 1985, and was again convicted of first-degree murder 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 prosecution witness; a claim of ineffective assistance during the guilt phase of trial; and a challenge to the sufficiency of the evidence in support of first-degree murder.

Schad’s four challenges…

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 hearing on diligence and, in turn, on the merits of Schad’s claim of ineffective assistance of counsel at sentencing.

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 postconviction 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 , 120 S.Ct. 1479 , 146 L.Ed.2d 435 (2000). Schad and his state habeas counsel knew from the presentence report that his childhood was abusive but that details about his family background were not proffered in mitigation at the penalty phase. This information was available at the time. He had neariy 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.…

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,

OPINION

Respondent-Appellee.  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

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).

13207 SCHAD v. RYAN 13211

COUNSEL

Kelley J. Henry, Nashville, Tennessee, for the petitioner- appellant.

Jon G. Anderson, Phoenix, Arizona, for the respondent- appellee.

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…