Schad v. Schriro

Filing

FILED ORDER AND AMENDED PER CURIAM OPINION (MARY M. SCHROEDER, STEPHEN R. REINHARDT and SUSAN P. GRABER) AFFIRMED. 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. FILED AND ENTERED JUDGMENT. [7961275]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD HAROLD SCHAD,
Petitioner-Appellant,
v.
CHARLES L. RYAN,* Arizona
Department of Corrections,
Respondent-Appellee.





No. 07-99005
D.C. No.
CV-9702577PHX-ROS
ORDER AND
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.

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COUNSEL
Kelley J. Henry, Nashville, Tennessee, for the petitionerappellant.
Jon G. Anderson, Phoenix, Arizona, for the respondentappellee.

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-

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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 prosecution witness; a claim of ineffective assistance during the guilt
phase of trial; and a challenge to the sufficiency of the evidence 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 insufficiency 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 district 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.

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II.

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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 significant 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 connection 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 alongside 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

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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 December 1977 and July 1978. In late July, Schad told Ehrhardt he
was going to look for work and left Ohio with the Ford. Ehrhardt 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 himself 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 driving 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.

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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 collect 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 firstdegree murder, and the court sentenced Schad to death. The
Arizona Supreme Court affirmed the conviction and death

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sentence. State v. Schad, 633 P.2d 366, 383 (Ariz. 1981). The
United States Supreme Court denied Schad’s petition for certiorari. 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 murder. State v. Schad, 691 P.2d 710, 711-12 (Ariz. 1984).
In Schad’s 1985 retrial, he was again convicted of firstdegree murder on materially the same evidence, and sentenced 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 conviction is unconstitutional when it does not require the jury to
agree on whether the murder was premeditated murder or felony murder; and (2) whether capital defendants are entitled to
jury instructions on all lesser included offenses. Schad v. Arizona, 501 U.S. 624 (1991). The Court answered both questions 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 Arizona in August 1998, raising nearly thirty claims. In a published 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 conviction, 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 evidence was sufficient to support the conviction. With respect

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to sentencing, the court denied Schad’s request for an evidentiary hearing to present new mitigating evidence in support of
his claim of ineffective assistance at the penalty phase, finding 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.
A.

The Three Challenges to the Conviction
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 promised 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 conviction 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. Maryland, 373 U.S. 83 (1963) and Napue v. Illinois, 360 U.S. 264
(1959).
The state has conceded that it should have disclosed the letters 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 impeachment material already available to the defense.

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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, Arizona 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 consideration that can be given, including an early release, if possible.” 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 possible, his sentence be modified in light of his contribution to
criminal justice.”
Before the second trial in 1985, defense counsel unsuccessfully 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 special 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

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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 credibility 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 promising 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 provided 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 material, potentially exculpatory evidence — including impeachment 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-

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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 material 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 convictions 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 defendant, where the impeachment pursued at trial went to the witness’s criminal history and participation as a getaway driver
in the defendant’s offense. The undisclosed Brady information was that the key witness had received immunity for his
testimony; this provided an independent motive for the witness to lie and would have made his critical, uncontroverted
testimony less credible. Id. at 580. We held that the undisclosed promise of immunity was material, and therefore prejudicial, because it constituted “a wholly different kind of
impeachment evidence” from the lines of impeachment pursued by the defense at trial. Id.
[3] This case is like Barker, where the undisclosed evidence related to the same motives to lie as evidence already

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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 evidence demonstrating Schad’s guilt was powerful, and Schad
did not offer any significant evidence to rebut the strong inference of guilt arising from that evidence. In light of the evidence 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 prosecution’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 committed 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.

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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 testimony 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 automatic.”) (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 prosecutor’s requests to benefit Duncan. Duncan’s testimony that he
received no assistance in his California case was not necessarily 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 conversation 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

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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, 68788, 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 sufficiency of the evidence underlying his conviction for firstdegree 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).

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[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, permitted 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 identity 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 property, 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.
A.

Sentencing Claims
Introduction — The 1985 Sentencing Proceeding

Prior to the sentencing hearing before the trial court in
1985, Schad’s counsel filed a 39-page sentencing memorandum 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 premeditated murder; (5) Schad had a troubled childhood with
abusive parents; (6) Schad was beaten and threatened while in

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prison in Utah for a prior conviction; (7) Schad showed potential 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 employment record in Arizona prisons.
At the sentencing hearing, Shaw called fifteen witnesses,
including correctional officers, friends, relatives and a psychiatrist. Nearly all of the testimony related to Schad’s good reputation 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 recommended Schad’s release because he felt Schad was not a danger to the community. One Arizona prison official, Frank
Terry, testified that Schad was placed in a relatively lowsecurity prison block because he posed no disciplinary problems 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, testified that Schad requested and received instruction in the
Lutheran faith while in prison, and was confirmed as a member of the church. Bramwell also testified that she, her husband, 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

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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 corresponded 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 paintings.
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 average” intelligence, and Bendheim was not “a bit afraid for his
own safety” when he met with Schad.

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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 discipline. 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 suppress 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 experienced 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 others; consequently, the defendant was a very shy,
withdrawn adolescent.
At the sentencing hearing, defense counsel praised the presentence report’s discussion, but did not present additional

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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 psychiatric 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 circumstances 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 factors were “insufficient to outweigh a single aggravating factor.” 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 murder conviction to impose aggravating factors for having a
prior conviction punishable under Arizona law by a life sen-

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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 imposition of the death penalty. Id. at 1170.
B.

The Protracted State Court Post-Conviction
Proceedings

After Schad was sentenced to death, he initiated state postconviction proceedings in 1991 in which he was represented
by a new attorney. In Schad’s preliminary state habeas petition, 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 successive extensions of that deadline. During that time, postconviction counsel obtained appointment of an investigator to
look into Schad’s family history.
In January 1994, Schad was appointed a new postconviction 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-

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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 comprehensive 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 amounting 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

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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 evidentiary 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 proceedings, 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, provided 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 entitled to expansion of the record or to an evidentiary hearing
because he was not diligent in developing the proffered evidence 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.

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D.
1.

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Schad’s Claims
Additional Mitigating Evidence

[9] The state habeas court ruled that Schad’s claim of ineffective 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. Pinholster, 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 district 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 consider 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

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death penalty unless certain specified mitigating circumstances applied. 438 U.S. at 607-08. The Court held that a
state’s statutory scheme for capital sentencing must not preclude 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 sentencing authority from considering all potentially mitigating circumstances, 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 consider, 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 acuity, 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 presented 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,” explaining that the requirement to prove a “nexus” between mitigat-

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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 mitigating 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 evidence.”) (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 evidence. 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 disorder was expressly disregarded by the Arizona courts due to

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his failure to demonstrate a causal connection between the
disorder and the crime. The Arizona Supreme Court had concluded that although evidence of post-traumatic stress disorder “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 conspiracy 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 petitioner’s post-traumatic stress disorder. We stated that the district 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 factors. See Schad, 788 P.2d at 1172. In short, it does not appear
that the state courts refused to consider any evidence Schad

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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 constitutional dictates on the basis of nothing more than a lack of citation.”). 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 easily 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 discretion to assess the appropriate weight of sentencing-related evidence. 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 mitigating evidence presented in Schad’s case did not outweigh
the aggravating evidence.
[14] Next, Schad challenges the state courts’ failure specifically 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 consider all mitigating evidence offered by the defendant.”)

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(internal quotation marks and citation omitted). Moreover,
where, as here, the sentencing court states that it has considered all the mitigating evidence offered, we may not secondguess its actions. See id. (“This court may not engage in speculation 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 vehicle 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 circumstantial 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 determinations. 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-

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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 evidence 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 Petitioner.”). 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 pecuniary 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.