D.C. No. CV-9702577-PHX-ROS District of Arizona, Phoenix
The opinion of the court was delivered by: 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 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.
Circuit Judge TALLMAN, with whom Chief Circuit Judge KOZINSKI and Circuit Judges O'SCANNLAIN, BYBEE, CALLAHAN, BEA, M. SMITH and IKUTA join, 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.*fn1 Judges Reinhardt and Schroeder, writing for a divided panel, fail to appropriately apply the substantive Supreme Court precedents in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), and Martinez v. Ryan, 132 S. Ct. 1309 (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, the Supreme Court vacated the panel's opinion, instructing it to apply Pinholster. Ryan v. Schad, 131 S. Ct. 2092, 2092 (2011). In response, the panel initially amended its opinion to apply Pinholster, correctly recognizing that AEDPA forecloses a federal court's ability to consider on the merits new facts not raised before a state court. Schad v. Ryan, 671 F.3d 708, 722 (9th Cir. 2011) (per curiam).
In 2012, Schad again sought review of his case by filing a Motion to Vacate and Remand in light of Martinez, and the same panel properly denied the motion. Order, Schad v. Ryan, No. 07-99005 (9th Cir. July 27, 2012), ECF No. 91. Schad then attempted to raise Martinez once more in a petition for certiorari, but the Supreme Court denied review, Schad v. Ryan, 133 S. Ct. 432, 432 (2012), and he unsuccessfully argued the Martinez IAC claim again on his motion for rehearing, Schad v. Ryan, 133 S. Ct. 922, 922 (2013).*fn2 Bereft of any legally significant change of circumstances in the interim, the majority has now completely reversed its prior ruling and has again remanded the case to the Arizona district court for a second time, directing it to consider the "new" Martinez claim (which the majority now characterizes as procedurally defaulted), while back-handedly dispatching Pinholster in a mere footnote.
This panel should have stood by its original ruling; Pinholster properly applies to this case, and it bars Schad from introducing new mitigating evidence in federal court for a claim he has previously exhausted before the Arizona courts. In Pinholster, the Supreme Court held that if a petitioner's claim of ineffective assistance of trial counsel has been adjudicated in a state court proceeding, federal habeas review of that claim is restricted to the record that was before the state court. 131 S. Ct. at 1398–1401. As the Court there explained, "[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Id. at 1401 (alteration in original).
Pinholster and Schad's claims are, for all relevant purposes, factually indistinguishable. Both filed petitions for post-conviction relief, arguing that their trial counsel rendered ineffective assistance of counsel by failing to investigate and present certain mitigating evidence at sentencing. Schad, 671 F.3d at 721; Pinholster, 131 S. Ct. at 1396. Then in federal habeas proceedings, both petitioners reasserted their initial claims of ineffective assistance of sentencing counsel, attempting to bolster them with additional facts. Schad, 671 F.3d at 721–22; Pinholster, 131 S. Ct. at 1396–97.
As in Pinholster, the legal basis for Schad's ineffective assistance of counsel claim is the same now as it was before the initial post-conviction state court, and merely improving the evidentiary support does not provide a basis for a federal court to overturn a state court's reasoned opinion. We were reversed in Pinholster for permitting the petitioner to do just that, and thus, we should have gone en banc in this case to ...