Schad v. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD HAROLD SCHAD,  No. 07-99005

Petitioner-Appellant, D.C. No.

v. CV-9702577-

CHARLES L. RYAN,* Arizona  PHX-ROS

Department of Corrections, ORDER AND

Respondent-Appellee. AMENDED

 OPINION

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted

May 14, 2009—San Francisco, California

Filed September 11, 2009

Amended January 12, 2010

Second Amendment June 3, 2010

Third Amendment November 10, 2011

Before: Mary M. Schroeder, Stephen Reinhardt and

Susan P. Graber,** Circuit Judges.

Per Curiam Opinion

*Charles L. Ryan is substituted for his predecessor Dora B. Schriro as

Director of the Arizona Department of Corrections. See Fed. R. App. P.

43(c)(2).

**Judge Graber was drawn to replace Judge Rymer.

20129

20132 SCHAD v. RYAN

COUNSEL

Kelley J. Henry, Nashville, Tennessee, for the petitioner-

appellant.

Jon G. Anderson, Phoenix, Arizona, for the respondent-

appellee.

ORDER

The second amended opinion filed June 3, 2010 is hereby

amended. The amended opinion is filed concurrently with this

order.

Absent further order of the court, no further petitions for

rehearing or rehearing en banc will be considered.

OPINION

PER CURIAM:

I. Overview

Edward Harold Schad was convicted in Arizona state court

in 1979 of the murder of Lorimer Grove, and sentenced to

death. After his first conviction and sentence were reversed by

the Arizona Supreme Court on collateral review, Schad was

re-tried in 1985, and was again convicted of first-degree mur-

SCHAD v. RYAN 20133

der and sentenced to death. His direct appeal and state habeas

proceedings from his second trial lasted for the next twelve

years, and his federal habeas proceedings in district court for

nine years after that. After the district court denied Schad’s

federal habeas petition on all grounds, he filed this appeal in

2007.

Schad’s appeal raises seven principal contentions. Three

pertain to his conviction and four to the imposition of the

death sentence. The challenges to the conviction include a

claim of a Brady violation in the state’s failure to disclose

impeachment material relating to the credibility of a prosecu-

tion witness; a claim of ineffective assistance during the guilt

phase of trial; and a challenge to the sufficiency of the evi-

dence in support of first-degree murder.

Schad’s four challenges to the sentence include claims of

ineffective assistance during the penalty phase, application of

an unconstitutionally narrow standard for determining the

admissibility of mitigating evidence, improper use of a prior

conviction to establish two aggravating factors, and insuffi-

ciency of the evidence underlying a third aggravating factor.

With respect to the conviction, the important issue involves

the state’s admitted failure to produce letters written in 1979

by a detective and a prosecutor to assist the state’s witness,

Duncan, in an unrelated California prosecution. With respect

to the sentence, the key issue is whether the district court

erred by denying the claim of ineffective assistance of counsel

at the penalty phase without holding an evidentiary hearing to

consider substantial additional mitigating evidence. The dis-

trict court ruled Schad failed to exercise diligence in bringing

the new evidence out during his state habeas proceedings.

We affirm the district court’s denial of habeas relief for the

conviction and sentence.

20134 SCHAD v. RYAN

II. Facts and Procedural Background

This is a case with strong circumstantial evidence pointing

to the defendant’s guilt and to no one else’s. The victim,

Lorimer Grove, a 74-year-old resident of Bisbee, Arizona,

was last seen on August 1, 1978, when he left Bisbee driving

his new Cadillac, coupled to a trailer, to visit his sister in

Everett, Washington. Grove may have been carrying up to

$30,000 in cash.

On August 9, 1978, Grove’s body was discovered in thick

underbrush down a steep embankment off the shoulder of

U.S. Highway 89, several miles south of Prescott, Arizona.

The medical examiner determined that the cause of death was

ligature strangulation accomplished by means of a sash-like

cord, still knotted around the victim’s neck. According to the

medical examiner, Grove had been strangled using a signifi-

cant amount of force, resulting in breaking of the hyoid bone

in his neck and the reduction of his neck circumference by

approximately four inches. The time of death was estimated

to be four to seven days prior to discovery of the body.

No physical evidence at the crime scene implicated Schad

in Grove’s murder, and there was no evidence of a prior con-

nection between the two men. There was, however, ample

evidence establishing Schad’s presence in Arizona at the time

of the crime and his possession, after the date Grove was last

seen, of Grove’s property, including his Cadillac, credit cards

and jewelry.

On August 3, 1978, two days after Grove left Bisbee, and

six days before his body was discovered, an Arizona highway

patrolman found an abandoned Ford Fairmont sedan along-

side Highway 89, approximately 135 miles north of where

Grove’s body was discovered. The Ford was unlocked, except

for the trunk, and its license plates were missing. A check of

the Fairmont’s VIN revealed that Schad had rented the car

SCHAD v. RYAN 20135

from a Ford dealership in Utah in December 1977, had failed

to return it, and that the dealership had reported it as stolen.

According to Schad’s girlfriend, Wilma Ehrhardt, she and

Schad, along with Ehrhardt’s children, had driven the car

from Utah to New York, Florida, and Ohio between Decem-

ber 1977 and July 1978. In late July, Schad told Ehrhardt he

was going to look for work and left Ohio with the Ford. Ehr-

hardt and the children remained in Ohio, but later returned to

Utah.

When police impounded the Ford on August 3, 1978, they

found in it, among other things, three Arizona newspapers

dated July 31 and August 1, 1978, the days just before the

estimated date of Grove’s murder, as well as a special mirror

device later identified by witnesses as an object Grove

invented to help him couple his trailer to his Cadillac.

According to credit card records, on August 2, 1978, Schad

began driving the Cadillac from Arizona eastward, using

Grove’s credit cards to make purchases in numerous cities

along the way. On August 2, Schad used Grove’s credit card

to purchase gasoline in Benson, Arizona. On August 3, Schad

used the card to purchase gas in Albuquerque, New Mexico.

For approximately the next month, Schad continued traveling

the country in the Cadillac and using Grove’s credit card.

Schad also used Grove’s checkbook to forge a check to him-

self from Grove’s account, which he cashed on August 7,

1978, in Des Moines, Iowa.

In New York state on September 3, 1978, Schad, still driv-

ing Grove’s Cadillac, was stopped for speeding by a New

York state highway trooper. Schad told the trooper he was

delivering the car to New York on behalf of a “rather elderly”

man named Larry Grove. Schad could not produce the car’s

registration, and instead gave the trooper the registration for

Grove’s trailer. The trooper issued Schad a citation and let

him go.

20136 SCHAD v. RYAN

Schad then drove back across the country, reuniting with

Ehrhardt in Salt Lake City, Utah, on September 7, 1978. A

man who was living with Ehrhardt at the time, John Duncan,

contacted Salt Lake City police the same day to report that

Schad had told him the Cadillac was stolen. Schad was

arrested in Salt Lake City on September 8.

After Schad’s arrest, Salt Lake City police impounded and

searched the Cadillac. From the Cadillac’s title application,

found in the car, the police learned that the vehicle belonged

to Grove. Schad told police that he had obtained the Cadillac

four weeks before in Norfolk, Virginia, after meeting “an

elderly gentleman who was with a young girl” and who asked

Schad to trade vehicles temporarily so that he and the girl

would not be recognized. Schad also told the Utah police that

he “was supposed to leave [the Cadillac] at the New York

City port of entry at a later date for the man to pick up.”

Police found in the Cadillac’s trunk a set of Utah license

plates issued to Ehrhardt. Schad had previously installed these

plates on the stolen Ford. He left the Cadillac’s original plates

on the car while he was driving it across the country.

After Schad’s arrest, Ehrhardt went to the Salt Lake City

jail and retrieved Schad’s wallet. Duncan then searched the

wallet and found the credit card receipts and the New York

traffic citation. He again contacted the Salt Lake City police.

When Detective Halterman came to Ehrhardt’s home to col-

lect the wallet and the documents, Ehrhardt also handed over

a diamond ring she said her daughter had found in the glove

compartment of the Cadillac. Witnesses later identified the

ring as belonging to Grove. Duncan also visited Schad in jail.

Duncan testified that during the visit Schad talked about lying

about his presence in Arizona at the time of the crime and

destroying evidence of the crime.

On October 5, 1979, the jury found Schad guilty of first-

degree murder, and the court sentenced Schad to death. The

Arizona Supreme Court affirmed the conviction and death

SCHAD v. RYAN 20137

sentence. State v. Schad, 633 P.2d 366, 383 (Ariz. 1981). The

United States Supreme Court denied Schad’s petition for cer-

tiorari. Schad v. Arizona, 455 U.S. 983 (1982). Schad then

petitioned for habeas relief in the state courts and obtained a

reversal of his conviction on the ground that the trial court

improperly instructed the jury on the elements of felony mur-

der. State v. Schad, 691 P.2d 710, 711-12 (Ariz. 1984).

In Schad’s 1985 retrial, he was again convicted of first-

degree murder on materially the same evidence, and sen-

tenced to death. The Arizona Supreme Court again affirmed

on direct appeal. State v. Schad, 788 P.2d 1162, 1174 (Ariz.

1989). The United States Supreme Court granted certiorari to

resolve two questions: (1) whether a first-degree murder con-

viction is unconstitutional when it does not require the jury to

agree on whether the murder was premeditated murder or fel-

ony murder; and (2) whether capital defendants are entitled to

jury instructions on all lesser included offenses. Schad v. Ari-

zona, 501 U.S. 624 (1991). The Court answered both ques-

tions in the negative and affirmed the conviction and

sentence. Id.

Schad again sought collateral review in state court. The

trial court denied the state habeas petition after four years in

which Schad’s counsel sought repeated extensions to file his

supplemental petition detailing his claims, particularly with

respect to mitigating sentencing evidence. The Arizona

Supreme Court denied review.

Schad filed his federal habeas petition in the District of Ari-

zona in August 1998, raising nearly thirty claims. In a pub-

lished opinion dated September 28, 2006, the district court

denied habeas relief. Schad v. Schriro, 454 F. Supp. 2d 897

(D. Ariz. 2006). With respect to the challenges to the convic-

tion, the court ruled that the state’s failure to disclose

impeachment material had not resulted in prejudice, that

counsel was not ineffective at the guilt phase, and that the evi-

dence was sufficient to support the conviction. With respect

20138 SCHAD v. RYAN

to sentencing, the court denied Schad’s request for an eviden-

tiary hearing to present new mitigating evidence in support of

his claim of ineffective assistance at the penalty phase, find-

ing that Schad was not entitled to a hearing because he was

not diligent in developing the evidence in question during

state habeas proceedings. Id. at 955-56. The district court also

said that the evidence presented in district court did not render

trial counsel’s performance deficient because the evidence did

not support the strategy of presenting the positive image that

trial counsel had pursued at trial. Id. at 941-44. This appeal

followed.

III. The Three Challenges to the Conviction

A. State’s failure to disclose exculpatory material

[1] John Duncan, a principal witness for the state, had a

lengthy criminal history. As part of its efforts to gain his

cooperation in the first trial, in 1979, the prosecution prom-

ised to assist Duncan with a pending, unrelated California

criminal proceeding. In impeaching Duncan’s credibility, the

defense was able to question him at length about his criminal

record and the prosecution’s promises of assistance, but the

defense did not know that a prosecutor and detective in 1979

had actually written letters on Duncan’s behalf to California

authorities. Schad’s most significant challenge to his convic-

tion is the prosecution’s failure to disclose these letters as

impeachment material. Schad asserts that the state’s actions

violated his due process rights as set forth in Brady v. Mary-

land, 373 U.S. 83 (1963) and Napue v. Illinois, 360 U.S. 264

(1959).

The state has conceded that it should have disclosed the let-

ters under Brady, so the Brady issue is whether Schad was

prejudiced by the omission. We agree with the district court

that the omission does not justify habeas relief because it

resulted in little or no prejudice, given the extensive impeach-

ment material already available to the defense.

SCHAD v. RYAN 20139

Duncan eventually testified in both trials that while Schad

was being detained prior to trial in 1979, Duncan visited him

to talk about the theft of the Cadillac, and Schad made several

incriminating statements: he asked Duncan to destroy Grove’s

credit cards, and said that he “would deny being in any area

of Arizona or the state of Arizona, particularly Tempe, Ari-

zona and Prescott, Arizona.”

In order to obtain Duncan’s testimony and assistance with

the Schad investigation, an investigative officer, Detective

Halterman, had told Duncan he would write a letter to the

judge presiding over Duncan’s pending California criminal

case. Moreover, the day before Duncan was set to testify at

Schad’s first trial in 1979, the prosecutor at that trial wrote to

the California Community Release Board, stating that Duncan

was “an extremely important witness for the State of Arizona”

who had been “very cooperative” and “deserve[d] any consid-

eration that can be given, including an early release, if possi-

ble.” The prosecutor wrote a similar letter a few weeks later

to the California judge presiding over Duncan’s prosecution,

stating that Duncan was “an important witness who was of

material assistance to the prosecution” in Schad’s case, and

requesting that Duncan’s “sentence be reviewed and if possi-

ble, his sentence be modified in light of his contribution to

criminal justice.”

Before the second trial in 1985, defense counsel unsuccess-

fully moved to suppress Duncan’s testimony. Duncan testified

at that trial that Detective Halterman promised to write a letter

on his behalf, but stated he did not know whether Halterman

actually sent one. Halterman testified that he did offer to write

a letter on Duncan’s behalf, but stated he did not remember

whether he actually sent a letter. Duncan further testified that

he did not ask the prosecutor in Schad’s first trial for any spe-

cial treatment, although he did tell the prosecutor he knew of

“people in the state prison that have been released early due

to the fact of a state prisoner being a witness in a major or

semi major crime.” Duncan stated that he did not receive

20140 SCHAD v. RYAN

early release or any other lenient treatment in exchange for his

testimony at Schad’s first trial. At the close of the second

trial, the prosecution still had not disclosed the letters so the

defense could use them to impeach Duncan.

The defense was, however, able to impeach Duncan’s cred-

ibility with other evidence of his lengthy criminal history,

including the fact that he was currently serving a sentence for

theft. Duncan admitted the advantages he asked for and some

he obtained in exchange for his involvement in the Schad

investigation. Detective Halterman stated on cross that

although he could not remember whether he sent a letter to

California authorities on Duncan’s behalf, he recalled promis-

ing to do so, and “probably” did send a letter, further

impeaching Duncan’s credibility. Through this impeachment,

the defense established Duncan had a motivation to testify

falsely. The letters themselves would have provided some

documentation of his motivation, but would not have pro-

vided a new or further motivation.

It is not now disputed that the letters could have been used

to impeach Duncan. The prosecution’s duty to disclose mate-

rial, potentially exculpatory evidence — including impeach-

ment evidence — to a criminal defendant was established in

Brady, 373 U.S. at 86. The state violates its obligations under

Brady, and denies a criminal defendant due process of law,

where the following three elements are met: (1) the evidence

in question was favorable to the defendant, meaning that it

had either exculpatory or impeachment value; (2) the state

“willfully or inadvertently” suppressed the evidence; and (3)

the defendant was prejudiced by the suppression. Strickler v.

Greene, 527 U.S. 263, 281-82 (1999).

The sole dispute here concerns the question of prejudice.

The state’s failure to disclose the letters written on Duncan’s

behalf was prejudicial to Schad if “there [was] a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been differ-

SCHAD v. RYAN 20141

ent.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (citation

omitted).

[2] We conclude the state’s admitted failure to turn over

the letters was not prejudicial. In the first place, the letters

provided no independent basis for impeaching Duncan. We

are less likely to find the withholding of impeachment mate-

rial prejudicial in cases in which the undisclosed materials

would not have provided the defense with a new and different

form of impeachment. In Barker v. Fleming, 423 F.3d 1085

(9th Cir. 2005), for example, we held that the prosecution’s

failure to disclose evidence of a witness’s four prior convic-

tions was not prejudicial because the undisclosed evidence

was duplicative of impeachment already pursued at trial. We

explained that the evidence would not have “provide[d] ‘the

defense with a new and different ground of impeachment.’ ”

Id. at 1097 (quoting Silva v. Brown, 416 F.3d 980, 989 (9th

Cir. 2005)).

We have also applied that test to grant relief where the

undisclosed evidence would have provided a new basis for

impeachment. In Horton v. Mayle, 408 F.3d 570 (9th Cir.

2005), we held that the prosecution’s failure to disclose an

immunity deal with its key witness did prejudice the defen-

dant, where the impeachment pursued at trial went to the wit-

ness’s criminal history and participation as a getaway driver

in the defendant’s offense. The undisclosed Brady informa-

tion was that the key witness had received immunity for his

testimony; this provided an independent motive for the wit-

ness to lie and would have made his critical, uncontroverted

testimony less credible. Id. at 580. We held that the undis-

closed promise of immunity was material, and therefore prej-

udicial, because it constituted “a wholly different kind of

impeachment evidence” from the lines of impeachment pur-

sued by the defense at trial. Id.

[3] This case is like Barker, where the undisclosed evi-

dence related to the same motives to lie as evidence already

20142 SCHAD v. RYAN

known to and utilized by the defense. Here the jury knew that

the prospect of obtaining assistance with the California case

provided an incentive to lie. Moreover, Duncan was also

impeached by his extensive criminal record, apart from the

California case.

In addition, in this case each of the three letters was written

in connection with Duncan’s assistance at Schad’s first trial

in 1979, so that the letters would have shed little light on

Duncan’s motivation to testify at the second trial six years

later. Duncan had already enjoyed any benefit the letters

prompted, and did not receive any further assistance for his

testimony in 1985.

[4] Finally, and most important, the circumstantial evi-

dence demonstrating Schad’s guilt was powerful, and Schad

did not offer any significant evidence to rebut the strong infer-

ence of guilt arising from that evidence. In light of the evi-

dence against Schad, any additional impeachment value of the

letters would not have changed the jury’s verdict.

[5] Schad is not entitled to relief on his Brady claim

because of the lack of prejudice resulting from the prosecu-

tion’s failure to produce the actual letters written pursuant to

a promise of assistance to Duncan that, along with the history

of Duncan’s other transgressions, was fully known to the

defense.

In a related argument, Schad asserts that the state commit-

ted prosecutorial misconduct by permitting Duncan to testify

falsely in 1985 that he did not receive any assistance from the

state in exchange for his cooperation. Schad relies on Napue,

360 U.S. at 269, in which the Supreme Court held that the

state violated a defendant’s right to due process by doing

nothing to correct a witness’s false testimony that he received

no promise of consideration from the prosecutor in exchange

for his cooperation.

SCHAD v. RYAN 20143

To prevail on a Napue claim, a habeas petitioner must show

that “(1) the testimony (or evidence) was actually false, (2)

the prosecution knew or should have known that the testi-

mony was actually false, and (3) that the false testimony was

material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th

Cir. 2003). Under Napue, false testimony is material, and

therefore prejudicial, if there is “any reasonable likelihood

that the false testimony could have affected the judgment of

the jury.” Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005)

(en banc) (citation omitted); see also id. at 978 (“[I]f it is

established that the government knowingly permitted the

introduction of false testimony reversal is virtually automat-

ic.”) (internal quotation marks and citation omitted).

[6] In this case, it is not entirely clear that Duncan lied.

Although there is some indication in the record that Duncan

may at some point have learned that Detective Halterman

wrote a letter on his behalf, because the letter was referred to

during a California proceeding in Duncan’s case, it is not

clear that Duncan remembered this letter in 1985 and thus lied

on the stand. Even assuming he did, there is no evidence that

the state knew or should have known that his testimony was

false. Finally, the record before us does not reflect that the

California authorities acted on Halterman’s and the prosecu-

tor’s requests to benefit Duncan. Duncan’s testimony that he

received no assistance in his California case was not necessar-

ily false even if he knew and remembered the letter.

B. Ineffective assistance of counsel at the guilt phase

Schad argues that his trial counsel’s failure to locate and

present impeachment testimony from Duncan’s ex-wife,

Sharon Sprayberry, amounted to ineffective assistance of

counsel. Schad contends Sprayberry’s testimony would have

impeached Duncan’s statements about his jailhouse conversa-

tion with Schad in which, according to Duncan, Schad made

statements about the need to destroy incriminating evidence

and stated he would deny being in the area of Arizona where

20144 SCHAD v. RYAN

the murder took place. In an affidavit submitted with Schad’s

state habeas petition, Sprayberry attested that she was present

during the conversation and that Schad “did not make any

statements relating to a homicide in Arizona.”

Ineffective assistance of counsel claims require a defendant

to show that counsel’s performance was so deficient that it

“fell below an objective standard of reasonableness,” and that

there is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 687-

88, 694 (1984).

[7] Regardless of whether Sprayberry may have provided

evidence helpful to Schad’s case, Schad does not attempt to

establish counsel’s performance was deficient. In his briefing

on appeal, Schad concedes that defense counsel’s efforts to

locate Sprayberry were “diligent and thorough.” Strickland

requires both deficient performance and prejudice to make out

an ineffective assistance of counsel claim. See id. at 687.

Schad’s inability to show his counsel’s efforts to obtain the

evidence were deficient is fatal to his claim.

C. Sufficiency of the evidence

Schad’s final conviction-related claim challenges the suffi-

ciency of the evidence underlying his conviction for first-

degree murder. In reviewing a sufficiency of the evidence

challenge, we ask whether, “viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979) (original emphasis). Because the state habeas court did

not address the merits of this claim, we review de novo

whether sufficient evidence exists to support Schad’s murder

conviction. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.

2002).

SCHAD v. RYAN 20145

[8] Circumstantial evidence and reasonable inferences

drawn from it may properly form the basis of a conviction.

United States v. Jackson, 72 F.3d 1370, 1381 (9th Cir. 1995).

The circumstances of Grove’s death, including the fact that

the murder was accomplished by ligature strangulation, per-

mitted the jury to infer that the killing was intentional and

premeditated, as required under Arizona law. See Ariz. Rev.

Stat. § 13-1105(A). Thus, the main issue at trial was the iden-

tity of Grove’s killer. To establish that Schad murdered

Grove, the state introduced evidence that one day after Grove

was last seen alive, Schad was in possession of Grove’s prop-

erty, including his vehicle, credit cards, and checkbook.

Schad’s description to New York authorities of Grove as an

elderly man strengthened the inference that Schad had

encountered Grove in person. Moreover, the state introduced

evidence that would permit a rational jury to infer that Schad

knew about Grove’s death, including Schad’s statement to

Duncan that he would deny being near the scene of the crime,

and request to Duncan to destroy Grove’s credit cards. The

evidence, taken as a whole, was sufficient to allow a rational

jury to return a conviction for first-degree murder, and we

therefore deny relief on this claim.

IV. Sentencing Claims

A. Introduction — The 1985 Sentencing Proceeding

Prior to the sentencing hearing before the trial court in

1985, Schad’s counsel filed a 39-page sentencing memoran-

dum that presented the following mitigating circumstances,

which focused largely on his prison conduct following his

original conviction in 1979: (1) Schad was a model prisoner;

(2) Schad pursued higher education while in prison; (3) Schad

had numerous stable friendships; (4) the trial court gave a

felony-murder instruction at Schad’s trial, meaning that

Schad’s conduct may have been less reprehensible than a pre-

meditated murder; (5) Schad had a troubled childhood with

abusive parents; (6) Schad was beaten and threatened while in

20146 SCHAD v. RYAN

prison in Utah for a prior conviction; (7) Schad showed poten-

tial for rehabilitation; (8) Schad had a stable character; (9)

Schad did not pose a risk of violent or dangerous behavior;

(10) Schad made charitable contributions; (11) Schad did not

drink or use drugs; and (12) Schad had an excellent employ-

ment record in Arizona prisons.

At the sentencing hearing, Shaw called fifteen witnesses,

including correctional officers, friends, relatives and a psychi-

atrist. Nearly all of the testimony related to Schad’s good rep-

utation and behavior as an adult, and particularly his good

behavior while in prison. A Utah prison official, John Powers,

testified regarding Schad’s personal development and conduct

while he was incarcerated in Utah state prison after a prior

offense. Powers stated that Schad “made some great strides”

in the prison’s group therapy program. He also testified that

Schad was permitted to be near weapons while working on a

renovation project because he “was an excellent security

risk.” Powers testified that, in general, Schad was a “model

prisoner” while incarcerated in Utah, and that he recom-

mended Schad’s release because he felt Schad was not a dan-

ger to the community. One Arizona prison official, Frank

Terry, testified that Schad was placed in a relatively low-

security prison block because he posed no disciplinary prob-

lems or security risks, and another official, Jerry McKeand,

elaborated that Schad actually assisted with other prisoners’

disciplinary issues by helping to “keep[ ] the cell block kind

of in line.”

Next, several of Schad’s friends and relatives testified.

Janet Bramwell, a friend and fellow member of Schad’s

church, the King of Glory Lutheran Church in Tempe, testi-

fied that Schad requested and received instruction in the

Lutheran faith while in prison, and was confirmed as a mem-

ber of the church. Bramwell also testified that she, her hus-

band, and other church members wrote letters to Schad,

welcoming him into the congregation and telling him about

themselves and their families. Bramwell stated that after she

SCHAD v. RYAN 20147

and her husband received a letter in return, they began visiting

Schad in prison approximately once per month. Bramwell

described Schad as “clean and well-groomed,” “likeable,” and

a “very intelligent person, very talented,” and stated that

Schad opened up to her and her husband about his difficult

childhood. Bramwell’s husband, Frank Bramwell, confirmed

her testimony and also described Schad’s educational efforts

while incarcerated, including earning such good grades in his

college courses that he was named to the dean’s list. Another

friend and fellow church member, Herb Zerbst, testified

regarding his friendship with Schad. Zerbst and his wife cor-

responded with Schad using both written letters and audio

cassettes on which they recorded messages. Zerbst and his

wife also visited Schad in prison until they moved to Illinois.

Zerbst described Schad as friendly and caring, and described

Schad’s concern for the Zerbsts’ safety during their long drive

to Illinois. Zerbst also stated that Schad was creative and sent

him and his wife gifts, including crocheted items and paint-

ings.

Ronald Koplitz, the chaplain at Schad’s prison, stated that

Schad consulted him for religious guidance due to his fear of

death. He testified that Schad stood out from other prisoners

because he was likeable and genuine. Koplitz described Schad

as “the kind of inmate you can like, and the kind of inmate

that does not play games or try to . . . . get extra favors by

being in a religious program.” He testified that despite

Schad’s troubled childhood, he believed Schad had a “stable

personality,” at least in a controlled prison setting.

The psychiatrist, Otto Bendheim, testified briefly regarding

Schad’s early background and mental condition. Bendheim

stated that Schad “had a miserable childhood and ha[d] been

delinquent since his teens” and that he “was a deprived

youngster,” but that despite his criminal history, Schad was

“not a dangerous type,” was “pleasant” and had “above aver-

age” intelligence, and Bendheim was not “a bit afraid for his

own safety” when he met with Schad.

20148 SCHAD v. RYAN

The pre-sentence report prepared by a probation officer

included discussions of Schad’s troubled childhood, favorable

character reports from several of Schad’s friends and Arizona

prison officials, and Schad’s good behavior and achievements

in prison. The report described Schad’s childhood as follows:

The defendant reported a very stormy childhood,

with his father being an alcoholic and abusing the

defendant on a regular basis. The defendant stated

that his father would beat him with his fist as disci-

pline. The defendant reported that he tried to protect

the family from his father’s abuse by allowing his

father to inflict beatings on him for anger towards

other members of the family. The defendant always

kept his problems to himself and to this day has not

dealt with the feelings he has regarding his life.

The defendant learned at an early age how to sup-

press his feelings, even to the point of refusing to

display emotion when his father would abuse him.

. . . The defendant stated that at age seventeen he

tried to commit his father to the VA Hospital for

treatment. He stated that his father was out of control

due to his alcoholism. When the officials came to

pick up his father, the defendant’s mother changed

her mind and took sides with her husband. The

defendant stated that when the officials left he expe-

rienced the worst beating of his life. The defendant

described his decision to commit his father as the

hardest thing he ever did in his life.

The defendant stated that in addition to the abuse his

father would never allow him to socialize with oth-

ers; consequently, the defendant was a very shy,

withdrawn adolescent.

At the sentencing hearing, defense counsel praised the pre-

sentence report’s discussion, but did not present additional

SCHAD v. RYAN 20149

evidence regarding Schad’s troubled childhood. Counsel did

not, for example, present testimony or affidavits from Schad’s

relatives to provide first-hand descriptions of the abuse Schad

suffered as a child, nor did counsel seek a comprehensive psy-

chiatric evaluation to assess the negative effects of that abuse.

After the sentencing hearing, the court rendered a special

verdict discussing the aggravating and mitigating factors.

First, the court took into account Schad’s positive record since

his arrest and incarceration. The court found that the most

persuasive mitigating circumstance was the fact that Schad

was “a model prisoner, a student and a religious man with

many supportive friends since being incarcerated.” The court

observed that Schad was “helpful, charitable and appears to

care for people,” that he did not abuse drugs or alcohol or

have any discipline problems, and that he took many college

courses while in prison and earned good grades. The court

said, however, that although Schad’s “good, stable character”

and “signs of rehabilitation” constituted a mitigating factor,

this factor was “not particularly weighty of view of [Schad’s]

length of incarceration.”

Next, the court noted Schad’s “unfortunate childhood,” but

concluded it was not a “persuasive mitigating circumstance.”

The sentencing court determined that the mitigating circum-

stances presented by Shaw were insufficient “to overcome

any one of the aggravating circumstances,” and imposed a

sentence of death. After conducting an independent review of

the aggravating and mitigating evidence, the Arizona

Supreme Court affirmed, concluding that the mitigating fac-

tors were “insufficient to outweigh a single aggravating fac-

tor.” Schad, 788 P.2d at 1174.

The aggravating factors applied by the sentencing court

related to a prior conviction and to the circumstances of the

murder. The court relied on a 1968 Utah second-degree mur-

der conviction to impose aggravating factors for having a

prior conviction punishable under Arizona law by a life sen-

20150 SCHAD v. RYAN

tence or by death, and for having a prior conviction of a crime

of violence. The court also found that Grove’s murder was

committed for the purpose of pecuniary gain. On appeal, the

Arizona Supreme Court affirmed the first and third of these

aggravating factors, and declined to reach the issue of whether

the violent crime aggravator was sufficient to support imposi-

tion of the death penalty. Id. at 1170.

B. The Protracted State Court Post-Conviction

Proceedings

After Schad was sentenced to death, he initiated state post-

conviction proceedings in 1991 in which he was represented

by a new attorney. In Schad’s preliminary state habeas peti-

tion, filed on December 16, 1991, he argued the sentencing

court failed to give proper weight to mitigating evidence of

his troubled family background, but he did not raise a claim

of ineffective assistance of counsel. The state court ordered

Schad to file a supplemental petition by February 18, 1992,

and Schad’s legal team requested and obtained seventeen suc-

cessive extensions of that deadline. During that time, post-

conviction counsel obtained appointment of an investigator to

look into Schad’s family history.

In January 1994, Schad was appointed a new post-

conviction attorney. The court granted her request for further

investigative services, as well as more than ten motions for an

extension of the deadline to file Schad’s supplemental state

habeas petition. In March 1995, counsel obtained appointment

of a mitigation expert. The court denied counsel’s request for

disclosure of Schad’s prison file and for contact visits to allow

the mitigation expert to interview Schad.

After the court ruled that no additional extensions of time

would be granted, counsel filed Schad’s supplemental petition

on October 19, 1995. The supplemental petition included a

general claim that Schad’s sentencing counsel was ineffective

for failing to discover and present mitigating evidence regard-

SCHAD v. RYAN 20151

ing Schad’s family background. Attached to the supplemental

petition was an affidavit from the expert in which she stated

that the presentence report used at Schad’s sentencing hearing

did not adequately address the extent of the abuse Schad had

suffered as a child. The affidavit described the physical and

psychological abuse inflicted by Schad’s father, including

beating Schad with a belt or fists, refusing to allow Schad’s

mother to show him any affection, and isolating Schad from

other children. The expert recommended that a comprehen-

sive psychological evaluation be performed, and stated that

she could compile a thorough profile only through further

interviews with Schad and his relatives.

The state habeas court denied the ineffective assistance

claim in June 1996 without holding an evidentiary hearing.

The court described Schad’s request for a hearing as amount-

ing to nothing more than a “fishing expedition.” Schad filed

a motion for rehearing along with another expert affidavit.

That affidavit indicated that she had performed additional

interviews with Schad and obtained more information about

his life history, but did not describe the new information or

include any supporting affidavits or other documents. The

trial court denied the motion for rehearing, and in 1997 the

Arizona Supreme Court denied Schad’s petition for review.

C. Federal Habeas Proceedings

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

20152 SCHAD v. RYAN

childhood, which he contends his sentencing counsel should

have presented at the sentencing hearing.

The district court held that Schad was not entitled to an evi-

dentiary hearing because he was not diligent in attempting to

develop the evidence during his state habeas proceedings. The

court denied Schad’s ineffective assistance claim without

holding an evidentiary hearing.

Schad sought to present mitigating evidence not submitted

during sentencing or during his state post-conviction proceed-

ings, including extensive mental health records of his mother,

father, and brother, as well as several declarations discussing

Schad’s childhood and its effect on his mental health. The

first declaration, from psychologist Charles Sanislow, pro-

vided an extremely detailed discussion of the psychological

impact of Schad’s abusive childhood. The second declaration,

from psychologist Leslie Lebowitz, discussed the mental

health history of Schad’s parents, including his mother’s

struggle with prescription drug addiction and his father’s

affliction with post-traumatic stress disorder due to spending

eighteen months in a German POW camp during World War

II. Declarations from Schad’s mother and aunt provided

details regarding Schad’s father’s severe alcoholism and the

abuse he inflicted upon his family. The final declaration, from

a paralegal employed by the office of the Federal Public

Defender, described interviews with Schad’s sister and aunt

regarding Schad’s childhood.

The district court held, however, that Schad was not enti-

tled to expansion of the record or to an evidentiary hearing

because he was not diligent in developing the proffered evi-

dence in state court. The district court also held that even if

the evidence were considered in federal court, the evidence

did not show that sentencing counsel was deficient in failing

to present it. The court ruled the strategy counsel pursued was

competent and that the newly proffered evidence could not

have affected the result.

SCHAD v. RYAN 20153

D. Schad’s Claims

1. Additional Mitigating Evidence

[9] The state habeas court ruled that Schad’s claim of inef-

fective assistance of counsel at sentencing lacked merit

because he was unable to present any significant mitigating

evidence. Although Schad sought to present such evidence in

the district court, the Supreme Court has now ruled that when

a state court has decided an issue on the merits, the federal

courts may not consider additional evidence. Cullen v. Pinhol-

ster, 131 S. Ct. 1388, 1398 (2011) (“[R]eview under

§ 2254(d)(1) is limited to the record that was before the state

court that adjudicated the claim on the merits.”). It has

vacated and remanded this case to us for reconsideration.

Ryan v. Schad, 131 S. Ct. 2092 (2011). Accordingly the dis-

trict court’s denial of this claim must be affirmed.

2. State courts’ consideration of mitigating evidence

Schad not only seeks to rely on mitigating evidence not

presented at trial, but also challenges the standard under

which the state courts evaluated the mitigating evidence that

was submitted. While he makes a strong argument that the

state court was following the wrong standard in other cases,

we cannot conclude that the state court actually applied a

standard that was too narrow in this case.

Because the state habeas court denied this claim without

addressing the merits, we review de novo whether the state

courts violated Schad’s constitutional rights by failing to con-

sider and give effect to the mitigating evidence of Schad’s

childhood. Pirtle, 313 F.3d at 1167.

We begin with the Supreme Court’s decisions in Lockett v.

Ohio, 438 U.S. 586 (1978) and Eddings v. Oklahoma, 455

U.S. 104 (1982). In Lockett, a plurality of the Court struck

down an Ohio statute requiring mandatory imposition of the

20154 SCHAD v. RYAN

death penalty unless certain specified mitigating circum-

stances applied. 438 U.S. at 607-08. The Court held that a

state’s statutory scheme for capital sentencing must not pre-

clude the sentencing court from considering any mitigating

evidence offered by the defendant. Id. at 604.

[10] In Eddings, the Court extended Lockett, holding that

an Oklahoma capital sentencer acted unconstitutionally by

refusing to consider evidence of the defendant’s abusive

childhood. The court ruled that the state court constitutionally

erred in holding that only evidence which specifically negated

an offense element was relevant for mitigation purposes. 455

U.S. at 108-13. The Court explained that Lockett’s holding

applies not only to state statutes that prevent a capital sentenc-

ing authority from considering all potentially mitigating cir-

cumstances, but also to the process by which a sentencing

court conducts the sentencing proceedings: “Just as the State

may not by statute preclude the sentencer from considering

any mitigating factor, neither may the sentencer refuse to con-

sider, as a matter of law, any relevant mitigating evidence.”

Id. at 113-14 (original emphasis).

Schad’s principal contention in this case is that the state

courts did not consider the evidence of his troubled childhood

because they unconstitutionally required a “nexus” between

his childhood abuse and his commission of Grove’s murder.

Schad contends the state courts applied the same test the

Supreme Court rejected in Tennard v. Dretke, 542 U.S. 274,

281 (2004).

In Tennard, a case involving a defendant’s low mental acu-

ity, the Court invalidated a Fifth Circuit test that rendered

potential mitigating evidence of a mental condition relevant to

a capital sentencing determination only if the defendant pre-

sented evidence that “the criminal act was attributable to” the

mental condition. In Smith v. Texas, 543 U.S. 37, 45 (2004),

the Court went further and rejected any “nexus test,” explain-

ing that the requirement to prove a “nexus” between mitigat-

SCHAD v. RYAN 20155

ing evidence and the charged offense is “a test we never

countenanced and now have unequivocally rejected.” Tennard

and Smith are retroactively applicable to the Arizona Supreme

Court’s 1989 decision in this case. Smith, 543 U.S. at 45; see

also Graham v. Collins, 506 U.S. 461, 467 (1993).

Before Tennard was decided, Arizona courts recognized a

nexus test, similar to that rejected in Tennard, to preclude

consideration of evidence of childhood abuse unless the abuse

bore a causal connection to the crime of conviction. See, e.g.,

State v. Djerf, 959 P.2d 1274, 1289 (Ariz. 1998) In State v.

Wallace, 773 P.2d 983, 986 (Ariz. 1989), decided eight

months before the Arizona Supreme Court’s decision in this

case, the Arizona Supreme Court said that “a difficult family

background, in and of itself, is not a mitigating circumstance.”

Id. at 986.

After Tennard, however, the Arizona Supreme Court has

clarified that the nexus test affects only the weight of mitigat-

ing evidence, not its admissibility. See State v. Newell, 132

P.3d 833, 849 (Ariz. 2006) (“We do not require that a nexus

between the mitigating factors and the crime be established

before we consider the mitigation evidence. But the failure to

establish such a causal connection may be considered in

assessing the quality and strength of the mitigation evi-

dence.”) (citing Tennard, 542 U.S. at 287). The United States

Supreme Court has said that the use of the nexus test in this

manner is not unconstitutional because state courts are free to

assess the weight to be given to particular mitigating evi-

dence. Eddings, 455 U.S. at 114-15.

In two recent published opinions, we granted habeas relief

from Arizona murder convictions on the ground that a lower

court used an unconstitutional nexus test. Styers v. Schriro,

547 F.3d 1026 (9th Cir. 2008); Lambright v. Schriro, 490

F.3d 1103 (9th Cir. 2007). In Styers, we granted relief to a

habeas petitioner whose evidence of post-traumatic stress dis-

order was expressly disregarded by the Arizona courts due to

20156 SCHAD v. RYAN

his failure to demonstrate a causal connection between the

disorder and the crime. The Arizona Supreme Court had con-

cluded that although evidence of post-traumatic stress disor-

der “could . . . , in an appropriate case, constitute mitigation,”

it did not constitute mitigation in the instant case because

“two doctors who examined defendant could not connect

defendant’s condition to his behavior at the time of the con-

spiracy and the murder.” Id. at 1035 (quoting State v. Styers,

865 P.2d 765, 777 (Ariz. 1993)). We held that the court’s

imposition of a nexus requirement was contrary to the clearly

established rule set forth in Eddings. Id.

In Lambright, we granted habeas relief after concluding

that the district court improperly applied a preclusive nexus

test and declined to consider mitigating evidence of the peti-

tioner’s post-traumatic stress disorder. We stated that the dis-

trict court’s approach was “fundamentally flawed” and that

the court “misapplied” Tennard and Eddings. 490 F.3d at

1114-15. We explained that the court erred by refusing to

consider the majority of Lambright’s mitigating evidence

solely on the ground that he failed to show a nexus between

the mitigating evidence and the crime. Id.

[11] In both of those cases, however, it was clear from the

record that the lower court had applied the unconstitutional

nexus test and had excluded mitigation evidence. By contrast,

in this case, there is no indication that the state courts applied

a nexus test, either as a method of assessing the weight of the

mitigating evidence, or as an unconstitutional screening

mechanism to prevent consideration of any evidence. Rather,

the record shows that the sentencing court did consider and

weigh the value of the small amount of childhood mitigation

evidence that was offered, stating that it was not “a persuasive

mitigating circumstance in this case.” The Arizona Supreme

Court stated that it had conducted an independent review of

the entire record regarding the aggravating and mitigating fac-

tors. See Schad, 788 P.2d at 1172. In short, it does not appear

that the state courts refused to consider any evidence Schad

SCHAD v. RYAN 20157

offered. They concluded, as Eddings allows them to do, that

it did not outweigh the aggravating circumstances.

[12] Absent a clear indication in the record that the state

court applied the wrong standard, we cannot assume the

courts violated Eddings’s constitutional mandates. See Bell v.

Cone, 543 U.S. 447, 455 (2005) (“Federal courts are not free

to presume that a state court did not comply with constitu-

tional dictates on the basis of nothing more than a lack of cita-

tion.”). We must hold there was no constitutional error in the

Arizona courts’ consideration of the mitigating evidence of

Schad’s troubled childhood.

[13] Schad’s two remaining contentions with respect to the

state courts’ consideration of the mitigating evidence are eas-

ily disposed of. First, Schad challenges the state courts’

weighing of the aggravating and mitigating evidence. It is

well-established, however, that state courts have the discre-

tion to assess the appropriate weight of sentencing-related evi-

dence. See Harris v. Alabama, 513 U.S. 504, 512 (1995)

(“[T]he Constitution does not require a State to ascribe any

specific weight to particular factors, either in aggravation or

mitigation, to be considered by the sentencer.”). It was well

within the state courts’ discretion to determine that the miti-

gating evidence presented in Schad’s case did not outweigh

the aggravating evidence.

[14] Next, Schad challenges the state courts’ failure specif-

ically to address each of the categories of mitigating evidence

he presented at his sentencing hearing. State courts imposing

or reviewing capital sentences are not required to provide an

exhaustive discussion of all the mitigating evidence presented,

as long as it is clear from the record that they reviewed the

evidence. See Moormann v. Schriro, 426 F.3d 1044, 1055 (9th

Cir. 2005) (“[T]he trial court need not exhaustively analyze

each mitigating factor as long as a reviewing federal court can

discern from the record that the state court did indeed con-

sider all mitigating evidence offered by the defendant.”)

20158 SCHAD v. RYAN

(internal quotation marks and citation omitted). Moreover,

where, as here, the sentencing court states that it has consid-

ered all the mitigating evidence offered, we may not second-

guess its actions. See id. (“This court may not engage in spec-

ulation as to whether the trial court actually considered all the

mitigating evidence; we must rely on its statement that it did

so.”).

3. State courts’ application of aggravating factors

Schad challenges the state courts’ determinations regarding

the aggravating circumstances present in his case. Most

importantly, he challenges the sufficiency of the evidence

underlying the pecuniary gain aggravating factor, the only

aggravating factor connected to this crime. Schad contends

that application of the aggravating factor was improper

because there was insufficient evidence to prove robbery was

a motive for Grove’s murder.

Under Arizona law, “[a] court may find pecuniary gain as

an aggravating factor if the expectation of pecuniary gain is

a motive, cause, or impetus for the murder and not merely a

result of the murder.” State v. Hyde, 921 P.2d 655, 683 (Ariz.

1996). In applying the pecuniary gain factor, the sentencing

court in this case emphasized that the state had proved that

Schad was in possession of Grove’s credit cards and his vehi-

cle within a day of the murder and immediately began using

the vehicle and the cards, as well as his check book. Grove’s

vehicle was a new Cadillac, while Schad abandoned his stolen

Ford. In affirming the application of the factor, the Arizona

Supreme Court held that these facts constituted “strong cir-

cumstantial evidence that the purpose of the murder was

pecuniary gain.” Schad, 788 P.2d at 1171. We review this

determination under AEDPA standards that require us to give

a presumption of correctness to a state court’s factual determi-

nations. 28 U.S.C. § 2254(e)(1).

In essence, Schad’s position is that without direct evidence

of his guilt, no rational sentencer could have made any find-

SCHAD v. RYAN 20159

ing as to his motive. Schad’s guilt, however, was established

at the guilt phase through circumstantial evidence. There is

nothing irrational about relying on circumstantial evidence to

show motive. Nor was the application of the pecuniary motive

factor arbitrary or capricious. See Lewis v. Jeffers, 497 U.S.

764, 780 (1990).

[15] It is clear that the evidence presented at trial regarding

Schad’s acquisition and use of Grove’s vehicle, credit cards

and checkbook rationally supported the application of the

pecuniary gain aggravating factor. After Grove’s death, Schad

was living off of Grove’s credit cards and his bank account.

Indeed, like the district court, we find it difficult to imagine

a non-pecuniary motive for the murder. See Schad, 454 F.

Supp. 2d at 931 (“[D]espite Petitioner’s argument that the evi-

dence could lead to contradictory inferences, it is difficult to

ascribe a motivation other than pecuniary gain to the offense

against Mr. Grove, who was a complete stranger to Petition-

er.”). Accordingly, we uphold the validity of pecuniary gain

as an aggravating factor.

The state courts concluded that, under state law, a single

aggravating factor was sufficient to support imposition of the

death penalty in this case. Because we conclude that the pecu-

niary gain factor was rationally supported by the evidence

presented, and not arbitrarily imposed, we do not reach the

challenges to other aggravating factors.

V. Conclusion

We affirm the district court’s denial of habeas relief on all

claims related to Schad’s conviction and sentence.

AFFIRMED.