Edward Harold Schad v. CHARLES L. RYAN, Director, Arizona Department of Corrections

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD HAROLD S CHAD,
Petitioner-Appellant,
v.
C HARLES L. R YAN, Director,
Arizona Department of Corrections,
Respondent-Appellee.
No. 13-16895
D.C. No.
2:97-cv-02577-
ROS
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).

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SCHAD V. RYAN 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 and capital sentence. Petitioner contended
that he wished to bring a new but procedurally defaulted
claim (ineffective assistance of counsel in failing to present
mitigating evidence of the effect of childhood abuse on his
mental condition), and that the default was excused under
Martinez v. Ryan, 132 S. Ct. 1309 (2012). The panel held
that the district court properly denied the Rule 60(b) motion
because petitioner’s claim was essentially the same as the
claim he brought in his original petition.
Judge Graber concurred in the majority opinion, but
would deny the Rule 60(b) motion for a second, independent
reason: that the law of the case doctrine applies.
Dissenting, Judge Reinhardt would hold that the
allegation of petitioner’s mental illness at the time he
committed the offense constitutes a new ineffective assistance
claim that satisfies the standard for relief from judgment
under Rule 60(b).
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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SCHAD V. RYAN 3
COUNSEL
Kelley J. Henry, Assistant Federal Public Defender,
Nashville, Tennessee; and Denise Irene Young, Law Office
of Denise I. Young, Tucson, Arizona, for Petitioner-
Appellant.
Jon Anderson and Jeffrey A. Zick, Assistant Attorneys
General, Arizona Attorney General’s Office, Phoenix,
Arizona, for Respondent-Appellee.
OPINION
SCHROEDER, Senior Circuit Judge:
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,
133 S. Ct. 2548, 2549–50 (2013) (per curiam). We set forth
a somewhat fuller time line here.
December 14, 1978 - Schad is indicted for
first degree murder in Arizona.
June 27 – August 29, 1985 - Schad is
convicted of first degree murder and
sentenced to death.
SCHAD V. RYAN 18
before carrying out a sentence of death under the questionable
circumstances present here.2
2 Judge Graber suggests in her concurring opinion that law of the case
doctrine provides an independent reason to affirm the district court. I
disagree. In the case that she cites, the Supreme Court addressed only
whether “extraordinary circumstances” justified a delay in issuing the
mandate under Federal Rule of Appellate Procedure 41(d)(2)(D). See
Ryan v. Schad, 133 S. Ct. 2548, 2552 (2013). The Supreme Court said
nothing about the substance of Schad’s argument. Although it did note
that we had previously denied Schad’s request to vacate the judgment, we
did so only on procedural grounds in an order consisting of a single
sentence. See Schad v. Ryan, No. 07-99005, Docket Entry No. 90 (“The
petitioner-appellant’s Motion to Vacate Judgment and Remand to the
District Court is DENIED.”). Neither our one sentence order nor the
Supreme Court’s recitation of the procedural history of our case while
addressing an entirely different issue constitutes law of the case that
controls this Rule 60(b) appeal.

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SCHAD V. RYAN 17
The majority bases its argument almost entirely on a few
references to the lack of investigation into Schad’s
psychiatric status. In context, however, these statements refer
to evaluations of how his traumatic experiences affected
Schad as a youth and relate solely to the sympathy-based
mitigation argument described above. See, e.g., id. at 720
(noting that counsel failed to obtain “first-hand descriptions
of the abuse Schad suffered as a child” or “a psychiatric
evaluation to assess the negative effects of that abuse”). At
no point in our prior opinion did we say anything at all about
a connection between Schad’s youth and his commission of
the crime or about his multi-faceted mental illness at the time
he did so. Ultimately, the majority errs in concluding that
because Schad’s childhood trauma may be relevant to both
ineffective assistance claims, those two claims must
constitute a single claim. In fact, the new claim relies upon
that childhood evidence only to provide an explanation of the
background conditions that led to the development of Schad’s
serious mental ailments. It does not seek mitigation because
of Schad’s abusive childhood. To the contrary, it seeks
mitigation because of the serious mental illness that marked
Schad’s adult life.
It is clear that Schad’s new claim bears little resemblance
to his old one and, therefore, cannot be said to be the same
claim that was adjudicated on the merits by the state post-
conviction court. The majority errs in reaching a contrary
conclusion. That error leads it to mistake Schad’s
procedurally proper Rule 60(b) motion for a second or
successive habeas petition. Because Schad’s Rule 60(b)
motion satisfies all other requirements for relief, I would
remand to the district court to review his new ineffective
assistance claim on the merits. That is the least we should do
SCHAD V. RYAN 4
December 14, 1989 - Schad’s conviction and
sentence are affirmed on direct appeal. State
v. Schad, 788 P.2d 1162 (Ariz. 1989).
June 21, 1991 - After granting certiorari (on
instruction issues), the Supreme Court
affirms. Schad v. Arizona, 501 U.S. 624
(1991).
December 16, 1991 - Schad files for habeas
relief in Arizona state court.
June 21, 1996 - The state court dismisses
Schad’s petition for habeas relief that claimed
ineffective assistance at sentencing.
December 16, 1997 - Schad files for habeas
relief in the district of Arizona.
September 28, 2006 - The district court
denies Schad’s petition for habeas relief,
Schad v. Schriro, 454 F. Supp. 2d 897
(D. Ariz. 2006), holding Schad was not
diligent in state court and denying on the
merits with respect to evidence presented in
federal court.
January 12, 2010 - This court reverses the
district court and remands to determine
whether Schad had been diligent in presenting
evidence regarding his mental health to the
state court. Schad v. Ryan, 595 F.3d 907,
922–23 (9th Cir. 2010).

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SCHAD V. RYAN 5
April 18, 2011 - The Supreme Court grants
Arizona’s petition for certiorari and remands
back to this court to reconsider its decision in
light of the Supreme Court’s opinion in
Cullen v. Pinholster, 131 S. Ct. 1388 (2011).
Ryan v. Schad, 131 S. Ct. 2092 (2011) (per
curiam).
November 10, 2011 - This court affirms the
district court’s denial of Schad’s habeas
petition on the merits. Schad v. Ryan,
671 F.3d 708, 722 (9th Cir. 2011) (per
curiam).
July 27, 2012 - This court denies Schad’s
Motion to Vacate Judgment and Remand in
light of Martinez v. Ryan, 132 S. Ct. 1309
(2012). No. 07-99005(CA9), Docs. 88, 91.
October 9, 2012 - The Supreme Court denies
Schad’s certiorari petition. Schad v. Ryan,
133 S. Ct. 432 (2012).
February 1, 2013 - This court denies Schad’s
“Emergency Motion to Continue Stay of the
Mandate Pending En Banc Proceedings in
Dickens v. Ryan,” and construes it as a motion
to reconsider its prior denial of his Motion to
Vacate Judgment and Remand in light of
Martinez. No. 07-99005(CA9), Doc. 102, pp.
1–2.
February 26, 2013 - This court grants
Schad’s Motion to Vacate Judgment and
SCHAD V. RYAN 16
failed to give proper weight to mitigating evidence of his
troubled family background,” and pointed out that his
supplemental state petition included “a general claim that
Schad’s sentencing counsel was ineffective for failing to
discover and present mitigating evidence regarding Schad’s
family background.” Schad v. Ryan, 671 F.3d 708, 720–21
(9th Cir. 2011). Turning to his federal petition, we added:
By the start of federal habeas proceedings in
1998, Schad’s counsel had obtained a great
deal more information about his early and
abusive childhood experiences. Schad
asserted that he received ineffective assistance
of counsel at the penalty phase of trial when
his attorney, Shaw, failed to investigate and
present mitigating evidence regarding Schad’s
troubled childhood, and instead relied on the
brief discussion of Schad’s childhood
contained in the psychiatrist’s testimony and
in the presentence report. During proceedings
before the district court, Schad sought an
evidentiary hearing in order to present a
significant amount of evidence regarding his
abusive childhood, which he contends his
sentencing counsel should have presented at
the sentencing hearing.
Id. at 721 (emphasis added). The unmistakable point of our
opinion was that Schad based his old ineffective assistance
claim on failure to present mitigation evidence consisting of
his abusive childhood experiences. We said nothing
whatsoever about ineffective assistance in failing to seek or
obtain evidence of Schad’s mental illness as an adult.

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SCHAD V. RYAN 15
Schad’s mental state at the time of the murder and to obtain
a full social history in support of such a claim. Finally, it
turns on a different legal theory. The new claim, unlike the
old one, is not concerned with inadequacies in painting Schad
as a sympathetic individual by virtue of his difficult
childhood. It is not based on counsel’s failure to develop
evidence that Schad’s abusive upbringing constituted a
mitigating circumstance that outweighed the case for death.
Rather, it attempts to establish that counsel was ineffective
for failing to investigate and present evidence of serious
mental illness as an adult that might have been responsible,
at least in part, for Schad’s commission of the violent act of
intentionally killing Grove. Without this evidence, Schad’s
crime appears to be nothing but the act of a ruthless and cold
blooded killer. This was especially true in light of the other
evidence at sentencing, which strongly suggested that Schad
was of sound mind at the time that he committed the offense.
Schad’s new claim thus relies on new and different factual
allegations, a new and different account of the alleged
deficiency in sentencing counsel’s performance, and a new
and different legal theory of why sentencing counsel rendered
ineffective assistance.
The majority nonetheless treats the two claims as one. Its
insistence that Schad’s claim has always been based on the
link between childhood abuse and his mental condition at the
time of the offense, however, is simply not correct. In our
earlier opinion, relied upon by the majority, we revealed our
awareness that Schad’s claim was focused almost exclusively
on his childhood. We quoted at length from the pre-sentence
report’s discussion of “Schad’s childhood,” noted that
counsel “did not present additional evidence regarding
Schad’s troubled childhood,” observed that Schad’s
preliminary state habeas petition “argued the sentencing court
SCHAD V. RYAN 6
Remand. Schad v. Ryan, No. 07-99005, 2013
WL 791610 (9th Cir. Feb. 26, 2013).
June 24, 2013 - The Supreme Court grants
certiorari, reverses, and remands back to this
court to issue the mandate. Ryan v. Schad,
133 S. Ct. 2548, 2552 (2013) (per curiam).
September 4, 2013 - This court issues its
mandate affirming the district court’s 2006
denial of habeas relief in all respects pursuant
to its third amended opinion of November 10,
2011. No. 07-99005(CA9), Doc. 137, p. 1.
September 19, 2013 - The district court
dismisses Schad’s motion for relief under
Federal Rule of Civil Procedure 60(b) as an
unauthorized second or successive petition.
Schad v. Ryan, No. CV-97-02577-PHX-ROS,
2013 WL 5276407 (D. Ariz. Sept. 19, 2013).
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 claims not
presented in the state court is generally barred. See Cullen v.

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SCHAD V. RYAN 7
Pinholster, 131 S. Ct. 1388 (2011), see also Ryan v. Schad,
131 S. Ct. 2092 (2011). The Supreme Court later held,
however, in Martinez v. Ryan, 132 S. Ct. 1309 (2012), that
ineffective assistance of post-conviction counsel in some
circumstances can establish cause for lifting the procedural
bar to a claim not pursued in state court proceedings. Schad
contends that his ineffectiveness claim can now be considered
under Martinez.
When this ineffectiveness contention was presented to us
in 2012 as a motion to remand, we originally denied it. We
reconsidered the denial in light of intervening authority from
our court. Schad v. Ryan, No. 07-99005, 2013 WL 791610,
at *1 (9th Cir. Feb. 26, 2013). After we attempted to remand
the matter to the district court to decide whether Schad’s
claim came within the Supreme Court’s holding in Martinez,
however, the Supreme Court ruled that there were no
extraordinary circumstances justifying our reconsideration of
our earlier ruling. Schad, 133 S. Ct. at 2552. Thus, we then
issued the mandate for our November 2011 decision and
Schad was barred from litigating his ineffectiveness of
counsel claim under Martinez.
Schad has now attempted to accomplish the same purpose
by filing a Rule 60(b) motion to vacate the district court’s
2006 denial of habeas relief and thus reopen his original
habeas petition. He wants to show that his state post-
conviction counsel was ineffective in failing adequately to
present a claim relating to his mental condition at the time of
sentencing. He offers some evidence, principally an affidavit
of a medical expert about the effect of his childhood abuse on
his adult mental condition, that he has asked the federal
courts to consider since these habeas proceedings began, and
SCHAD V. RYAN 14
Obsessive-Compulsive Disorder; Schizoaffective Disorder;
Several of the anxiety disorders; Dissociative disorders;
Adjustment disorders.” In his report, Sanislow concludes:
[Schad’s] behavior is consistent with mental
illness in the affective spectrum, specifically
some type of bipolar affective illness.
Throughout his life, he had often exhibited
symptoms of paranoia, anxiety, and mania,
and his presentation is complicated by his
history of trauma. Signs of a thought
disturbance are at times present in his speech
patterns; he perseverates, displays
impoverished speech, and has a limited range
of affect. The passive-dependent traits that
[an earlier expert] described in her
psychological evaluation are likely
accompaniments to chronic mental illness but
do not capture the complete diagnostic
picture. In addition to manic symptoms, he
displays classic signs of chronic depression
including a foreshortened sense of future.
This new evidence stands in stark contrast to the pre-
sentencing report, relied on heavily by the sentencing court,
which stated that “[Schad] has not suffered from any mental
health problems.”
The new claim differs from the old claim in every respect
that matters. It relies heavily on new and different evidence
relating to Schad’s mental illness at the time he committed
the crime, notably including Sanislow’s report. It points to
different deficiencies on the part of counsel than those
identified in the old claim, principally the failure to examine

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SCHAD V. RYAN 13
condition as an adult. Rather, the old claim simply alleged an
incompetent investigation of Schad’s background—an
investigation that resulted in an inability to present a
complete picture of a person that could have helped humanize
Schad before the sentencer. In short, the old claim related
only to deficiencies with respect to counsel’s failure to
investigate Schad’s childhood and family environment,
including his failure to examine records from Schad’s youth
and to follow up with mitigation experts. Ultimately, the old
claim was based on the legal theory that counsel rendered
ineffective assistance by failing to investigate or present
substantial evidence that would have painted a human picture
of Schad—a picture that might have prompted a reasonable
judge to feel sympathy and spare the defendant’s life. See
Ainsworth v. Woodford, 268 F.3d 868, 876–77 (9th Cir. 2001)
(emphasizing the “essential importance of developing the
background and character of a defendant in order to make an
individualized assessment of the appropriateness of the death
penalty.”).
On federal habeas, in support of the “new” claim, Schad
introduced substantial new factual evidence pertaining to his
mental condition as an adult. He argued that counsel
provided ineffective assistance by failing to investigate and
present evidence that Schad suffered from serious mental
illness at the time of the crime. One of his doctors, Dr.
Sanislow, offered expert opinions regarding Schad’s
“cognitive and psychological development and his behavioral
functioning as an adult.” Sanislow’s extremely thorough
review of Schad’s history notes that his early (pre-crime)
documented behavior was consistent with “several major
mental disorders, apparently none of which was ever
considered previously.” These disorders include “Bipolar
Disorder; Major Depression or other depressive disorders;
SCHAD V. RYAN 8
which we in 2011 effectively ruled was barred by Pinholster,
following the Supreme Court’s remand.
The district court in denying the Rule 60(b) motion
recognized that Schad had already raised in state court habeas
proceedings a claim that trial counsel was ineffective in
failing to investigate his childhood abuse. The district court
also recognized that the claim now being made, i.e., the
failure of trial counsel to develop more evidence, is the same
as it had rejected earlier. The district court therefore
concluded that it had already ruled on Schad’s claim and that
there was no separate procedurally defaulted claim that could
be the basis for applying Martinez.
In this appeal, Schad’s principal contention is that the
district court erred because he is presenting a different
ineffective assistance claim than that presented in state court.
He is now contending that the federal claim of counsel
ineffectiveness with respect to the effect of childhood abuse
is somehow distinct from the earlier claim of ineffectiveness
in failing to investigate the childhood abuse itself. The two
cannot be so easily separated, however, because the relevant
mitigating factor in sentencing was always the effect of the
childhood abuse on his adult mental state. As we explained
in an earlier opinion, the point of presenting new evidence of
Schad’s dismal childhood was to show its effect on his adult
mental health. See Schad v. Ryan, 671 F.3d 708 (9th Cir.
2011). For example, we wrote:
At the sentencing hearing, defense counsel . . .
[did not] seek a comprehensive psychiatric
evaluation to assess the negative effects of
that abuse. [Id. at 720.]

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SCHAD V. RYAN 9
The expert [whose affidavit counsel attached]
recommended that a comprehensive
psychological evaluation be performed . . . .
[Id. at 721.]
Schad sought to present mitigating evidence
. . . , including extensive mental health records
of [family members], as well as several
declarations discussing Schad’s childhood and
its effect on his mental health. The first
declaration . . . provided an extremely detailed
discussion of the psychological impact of
Schad’s abusive childhood. [Id. at 721–22
(emphasis added).]
The claim presented here is thus not new. It is essentially
the same as the claim he brought in his original habeas
petition. There is no separate procedurally defaulted
ineffectiveness claim.
We do not need to decide whether Rule 60(b) can ever be
an appropriate vehicle for bringing a Martinez argument with
respect to a procedurally defaulted claim. The district court
in this case correctly held that “[p]etitioner’s Rule 60(b)
motion does not present a new claim; rather, he seeks a
second chance to have the merits determined favorably.”
Schad v. Ryan, No. CV-97-02577-PHX-ROS, 2013 WL
5276407, at *6 (D. Ariz. Sept. 19, 2013) (internal quotation
marks omitted). The district court correctly dismissed the
Rule 60(b) motion as a second or successive petition.
AFFIRMED.
SCHAD V. RYAN 12
To be sure, the line between a new claim and an old claim
bolstered by more evidence is not always clear.1 Wherever
that line is drawn, however, Schad’s claim is most certainly
a new one. An examination of the new evidence that he has
presented on federal habeas, and his legal theories supporting
a finding of ineffective assistance, demonstrate that Schad has
advanced two separate claims, only one of which was
presented to and adjudicated by the state post-conviction
court.
Schad’s initial claim was that “sentencing counsel was
ineffective for failing to discover and present mitigating
evidence regarding Schad’s family background.” Schad v.
Ryan, 671 F.3d 708, 721 (9th Cir. 2011). This “old” claim
did not purport to raise the question of Schad’s mental
1 Dickens v. Ryan, a case currently pending before the en banc court,
involves a similar fact pattern and presents a similar question to that which
we are forced to address hastily in Schad’s case. See 688 F.3d 1054 (9th
Cir. 2012), vacated, 704 F.3d 816 (9th Cir. 2013). The panel that
originally decided Dickens concluded that a petitioner’s factual allegations
regarding mitigation evidence in federal court may amount to a new
ineffective assistance claim, even where that petitioner has already alleged
a more general ineffective assistance claim based on failure to investigate.
See id. at 1067–70. It is to be expected that the en banc court will address
that question and offer guidance on how to determine when new
allegations generate a new claim. In almost any other circumstance,
because a hasty resolution of this complicated issue runs a high risk of
error, we would await the en banc ruling in Dickens. As Justice Douglas
once said, “It is . . . important that before we allow human lives to be
snuffed out we be sure—emphatically sure—that we act within the law.”
Rosenberg v. United States, 346 U.S. 273, 321 (1953) (Douglas, J.,
dissenting). Although under the presently controlling case law, we are
required to act quickly and without due time for reflection, Justice
Douglas’s maxim counsels in favor of a liberal reading of the law
governing what qualifies as a “new claim” so that we may avoid making
a decision that we may regret in a matter of days or weeks.

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SCHAD V. RYAN 11
REINHARDT, Circuit Judge, 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. 20002) (en banc). Although the
majority blends the two claims into a single argument, each
of these claims relies basically on different evidence, invokes
a different legal basis for mitigation, and results from a
different kind of deficiency in counsel’s investigation and
presentation of mitigation evidence. Those considerations
dictate the conclusion that Schad’s claim based on recently-
obtained evidence is a new and different one.
SCHAD V. RYAN 10
GRABER, Circuit Judge, 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 Martinez-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,
133 S. Ct. 2548, 2549–50 (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.
1 I question the relevance of Martinez v. Ryan, 132 S. Ct. 1309 (2012),
because the district court did not rely on a procedural default that could be
excused. The court examined the issue on the merits.

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