Schad v. Ryan, 07-99005.

606 F.3d 1022

Edward Harold SCHAD, Petitioner-Appellant,v.Charles L. RYAN,^* Arizona Department of Corrections, Respondent-Appellee.

No. 07-99005.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 14, 2009.

Filed Sept. 11, 2009.

Amended Jan. 12, 2010.

Second Amendment June 3, 2010.

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Kelley J. Henry, Nashville, TN, for the petitioner-appellant.

Jon G. Anderson, Phoenix, AZ, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona; Roslyn O. Silver, District Judge, Presiding. D.C. No. CV-9702577-PHX-ROS.

Before: MARY M. SCHROEDER, STEPHEN REINHARDT and PAMELA ANN RYMER, Circuit Judges.

ORDER AND AMENDED OPINIONORDER

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.

Judge CALLAHAN, with whom KOZINSKI, Chief Judge, and O'SCANNLAIN, KLEINFELD, GOULD, TALLMAN, BEA, IKUTA Circuit Judges, 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(e)(2), and the Supreme Court's decision in Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). See Amended Slip Op. at 1048-57 (Rymer, J., concurring in part, dissenting in part). I write separately to point out the gravity of the majority's departure from settled Supreme Court law, and to emphasize how it effectively eviscerates AEDPA's diligence requirement as well as the preliminary showing the Supreme Court has held a state prisoner must make in order to obtain an evidentiary hearing in federal court.

I.

The majority opinion substantially erodes AEDPA's requirement that a person challenging the constitutionality of his state conviction diligently pursue his claim in state court in order to obtain an evidentiary hearing in federal court. 28 U.S.C. § 2254(e)(2). Not only does the majority's decision contravene the Supreme Court's decision in Williams by permitting an evidentiary hearing in the absence of an initial showing of diligence by the petitioner, it effectively eviscerates the diligence requirement altogether by endorsing a simultaneous hearing on both the petitioner's “diligence” and the merits of his claim of ineffective assistance of counsel (“IAC”). In approving of a single hearing on both issues, the court allows a petitioner to present new evidence on the merits of his underlying claim in a full-blown evidentiary hearing without first establishing that he was diligent in developing such evidence in state court. Moreover, the majority's decision effectively eliminates the requirement that a petitioner present a colorable claim for federal habeas relief before a federal court may grant an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). The potential for mischief created by the majority's approach is evident here, where it urges an evidentiary hearing on the merits of Schad's IAC claim without ever considering the “double deference” owed under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and AEDPA. Knowles v. Mirzayance, --- U.S. ----, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (explaining that a federal court's evaluation of “a Strickland claim” under § 2254(d)(1) must be deferential to both the state court's decision and counsel's strategic choices). We should have reheard this case en banc to rectify these departures from Supreme Court precedent and to correct what district courts in our circuit are likely to perceive as a confusing directive to hold evidentiary hearings where Congress and the Supreme Court have determined that none are permitted.

A.

After more than thirty years of litigation, this case has not come to rest. Schad was convicted of first-degree murder in 1979, and was sentenced to death in 1985 following a retrial. The majority's order remanding for “further proceedings” and a possible evidentiary hearing ensures that the litigation will continue for several more years despite every indication that it should end.

AEDPA provides that a district court “ shall not ” hold an evidentiary hearing if the petitioner has not been diligent in developing the factual basis for his claim in state court. 28 U.S.C. § 2254(e)(2) (emphasis added). “Diligence ... depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court....” Williams, 529 U.S. at 435, 120 S.Ct. 1479. As the Supreme Court explained in Williams, AEDPA's insistence that a petitioner diligently attempt to develop evidence supporting his claims in state court is grounded in principles of comity:

Comity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met. Federal 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 437, 120 S.Ct. 1479 (citations and internal quotation marks omitted) (emphasis added).

Disregarding the Supreme Court's admonition that “[f]ederal courts sitting in habeas are not an alternative forum for trying facts” the petitioner failed to develop in state court, the majority remands this case to the district court so that Schad may have an opportunity to do just that. The majority attempts to justify its remand by concluding that (1) the record is insufficient to determine whether Schad was diligent in developing the evidence he seeks to present in federal court, and (2) the district court erred by not focusing on the “reasonableness” of Schad's efforts to do so. Neither conclusion withstands scrutiny.

The majority's first misstep is its failure to recognize that Schad has the burden of establishing his diligence in state court. Ignoring glaring evidence of Schad's lack of diligence, the majority concludes that the record in this case is “insufficient” for it to determine whether or not his efforts in state court were “reasonable.” Amended Op. at 1044. However, were the record in this case truly “insufficient” to determine Schad's diligence, that would definitively end the inquiry of whether or not he is entitled to an evidentiary hearing. The Supreme Court made clear in Williams that the petitioner has the burden of establishing that he was diligent in developing the evidence in the state court. 529 U.S. at 440, 120 S.Ct. 1479. Thus, where a petitioner presents a record that does not sufficiently demonstrate diligence, he necessarily fails to meet his burden and is not entitled to an evidentiary hearing. Despite the clarity of the Supreme Court's guidance on this issue, the majority reaches a contrary conclusion, effectively holding that a petitioner's failure to demonstrate diligence in the first instance entitles him to “further proceedings” and a possible evidentiary hearing in order to try once more to make the necessary showing. This clearly contravenes Williams, eliminating the threshold showing of diligence the Supreme Court has held a petitioner must make in order to obtain an evidentiary hearing in federal court.

The majority's second mistake is its assertion that the district court misapplied Williams by focusing on Schad's “lack of success” in developing the evidence rather than the reasonableness of his efforts. Amended Op. at 1044. This is a mischaracterization of the record and the standard set forth in Williams.

The district court's published decision reveals that it did consider Schad's efforts to develop evidence in state court and found them to be less than diligent. Schad v. Schriro, 454 F.Supp.2d 897, 955-56 (D.Ariz.2006). Specifically, the district court observed that Schad was granted thirty-four extensions of time to file an amended petition with supporting evidence but that he failed to do so. Further, the district court rejected Schad's contention that a denial of funds was to blame for his failure, noting that he could point to no funding request that the state court had denied. Id. at 955. The district court also rejected Schad's assertion that the state court wrongly denied him an opportunity to develop his claims in an evidentiary hearing, noting that the state court's refusal to hold an “evidentiary hearing was attributable to Schad's failure to develop a factual record that would have warranted a hearing.” Id. at 955-56.

The record clearly shows that the district...