Schad

*1026 ORDER AND AMENDED OPINION

ORDER

The amended opinion filed January 12, 2010 is hereby amended. The amended opinion is filed concurrently with this order.

Judges Schroeder and Reinhardt have voted to deny the petition for panel rehearing and petition for rehearing en banc. Judge Rymer has voted to grant the petition for panel rehearing and petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

Absent further order of the court, no further petitions for rehearing or rehearing en banc will be considered.

with whom

join, dissenting from the denial of rehearing en banc:

Judge Rymer’s dissent persuasively explains why the majority decision to remand for “further proceedings” and an evidentiary hearing on “diligence” and the merits of Schad’s ineffective assistance of counsel claim conflicts with AEDPA’s diligence requirement, 28 U.S.C. § 2254…

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 post-conviction proceedings, Sehad did not make “a reasonable attempt, *1049 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…