Schad

Partial Concurrence and Partial Dissent by Judge RYMER.

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

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 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…

concurring in part and dissenting in part:

While I concur in the rest of the opinion, I part company with the majority’s deci *928 sion 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 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 , 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 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…