Edward Harold Schad v. Charles L. Ryan

AMENDED ORDER

The full court has been advised of the petition for rehearing and rehearing en banc. Pursuant to the rules applicable to capital cases in which an execution date has been scheduled, a deadline was set by which any judge could request a vote on whether the panel’s orders should be reheard en banc.

A judge requested a vote on whether to hear the panel’s orders en banc, and a vote was conducted. A majority of the active, non-recused judges eligible to vote on the en banc call voted against rehearing the panel’s orders en banc. Therefore, the petition for rehearing en banc is DENIED. No further petitions for panel rehearing or rehearing en banc will be entertained. En banc proceedings with respect to the orders are concluded. The panel will issue a separate order concerning the petition for panel rehearing.

dissenting from the denial of rehearing en banc:

The majority’s stay of execution and remand order in Schad openly defies the Supreme Court’s directive in this very case and takes our habeas jurisprudence down a road that has already been rejected. 1 Judges Reinhardt and Schroeder, writing for a divided panel, fail to appropriately apply the substantive Supreme Court precedents in Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388 , 179 L.Ed.2d 557 (2011), and Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012). Their order needlessly adds years of additional delay in carrying out the sentence imposed on a twice convicted murderer by willfully ignoring the Supreme Court’s express guidance to apply Pinholster here and by refusing to interpret Martinez, 132 S.Ct. at 1315 , narrowly as the Court has commanded. By failing to take this case en banc our court has unfortunately allowed the majority to stretch Martinez beyond its limited scope, and permitted Schad to bolster a previously exhausted Strickland claim with new federal habeas evidence in clear violation of Pinholster .

After the panel previously remanded this case to the district court for an evidentiary hearing,…

FILED

FOR PUBLICATION MAR 04 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

EDWARD HAROLD SCHAD, No. 07-99005

Petitioner - Appellant, D.C. No. CV-9702577-PHX-ROS District of Arizona, v. Phoenix

CHARLES L. RYAN, Arizona Department of Corrections, AMENDED ORDER

Respondent - Appellee.

Before: THOMAS, Circuit Judge and Capital Case Coordinator

The full court has been advised of the petition for rehearing and rehearing en

banc. Pursuant to the rules applicable to capital cases in which an execution date

has been scheduled, a deadline was set by which any judge could request a vote on

whether the panel’s orders should be reheard en banc.

A judge requested a vote on whether to hear the panel’s orders en banc, and

a vote was conducted. A majority of the active, non-recused judges eligible to vote

on the en banc call voted against rehearing the panel’s orders en banc. Therefore,

the petition for rehearing en banc is DENIED. No further petitions for…