Schurz v. Schriro

Filing

FILED OPINION (ALEX KOZINSKI, M. MARGARET MCKEOWN and N. RANDY SMITH) AFFIRMED. Judge: AK Authoring, Judge: MMM , Judge: NRS . FILED AND ENTERED JUDGMENT. [8779376]

Case: 07-99025

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ID: 8779376

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ELDON M. SCHURZ,
Petitioner-Appellant,

No. 07-99025

v.

D.C. No.
CV-97-00580-EHC

CHARLES L. RYAN, Arizona
Department of Corrections,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, Senior District Judge, Presiding
Argued and Submitted
April 19, 2012—San Francisco, California
Filed September 12, 2013
Before: Alex Kozinski, Chief Judge, M. Margaret
McKeown and N. Randy Smith, Circuit Judges.
Opinion by Chief Judge Kozinski

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SCHURZ V. RYAN
SUMMARY*

Habeas Corpus/Death Penalty
The panel denied a 28 U.S.C. § 2254 habeas corpus
petition challenging a murder conviction and capital sentence
alleging ineffective assistance for failure to present mitigating
evidence.
The panel rejected petitioner’s claim that counsel was
ineffective by failing to present evidence about his drug abuse
and dysfunctional family life, because the evidence he cited
would have been cumulative. The panel addressed the
remaining evidence that petitioner presented as speculative,
minimally relevant at best, and concluded that the evidence
was not reasonably likely to have made an impact at
sentencing.

COUNSEL
Jennifer Y. Garcia (argued) and Paula K. Harms, Assistant
Federal Public Defenders, and Jon M. Sands, Federal Public
Defender, Phoenix, Arizona, for Petitioner-Appellant.
John Pressley Todd (argued), Assistant Attorney General,
Arizona Attorney General’s Office, Phoeniz, Arizona, and
Terry Goddard, Attorney General, Kent Cattani, Chief

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Counsel, Criminal Appeals/Capital Litigation Section, and
Melissa Alice Parham, Assistant Attorney General, Criminal
Appeals/Capital Litigation Section, Phoenix, Arizona, for
Respondents-Appellees.

OPINION
KOZINSKI, Chief Judge:
You can’t always get what you want. But Eldon Schurz
just about did. He wanted the judge who sentenced him to
hear a laundry list of mitigating evidence, and his attorney
dutifully presented it. Because the judge had most of the
mitigating evidence, Schurz can’t show any prejudice from
his attorney’s alleged ineffective assistance. Thus, we affirm
the district court.
I. BACKGROUND
Late one evening, a thirsty Eldon Schurz and two friends
approached a group of people drinking behind a motel and
demanded a beer. When they refused, Schurz grabbed some
and sauntered off.
Schurz and his friends returned later the same night, in
search of money and more booze. They arrived in time to
overhear a newcomer, Jonathan Bahe, assure the group that
if he’d been there when Schurz stole the beer, he’d have
stepped in. These words set Schurz off. Overcome by a
barrage of punches, Bahe tried to escape by crawling under a
nearby chain-link fence, trapping himself in an enclosed area
between a stairwell and a brick wall. Schurz found a jug of
gasoline sitting nearby, smelled it and then splashed it on
Bahe. Schurz lit a small puddle of gas using a lighter, but,

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seeing that the flame wasn’t spreading, began kicking the
burning puddle toward a terrified Bahe. As Bahe burst into
flames, Schurz ran.
When police arrived and put out the flames, Bahe was an
unrecognizable, charred husk. The blaze had shortened the
muscles in his arms and legs, leaving him in a rigid
contortion. Remarkably, Bahe was still alive and conscious.
In his last excruciating moments, he was able to answer a few
questions from the police at the hospital, although his mouth
and tongue were so charred that he was nearly impossible to
understand. Schurz later said all we needed to know: “He
wouldn’t give me the money or the beer, so I burned him.”
A jury convicted Schurz of first degree murder. At
sentencing, the judge found one aggravating circumstance:
The murder “was especially heinous and depraved.” After
considering the mitigating circumstances and determining
they did not outweigh the aggravating factor, the judge
sentenced Schurz to death.
Schurz appealed his conviction and then filed three
petitions for state post-conviction relief (PCR). Neither tactic
was successful. Schurz then turned to federal court,
advancing a claim of ineffective assistance of counsel (IAC)
at sentencing. He now appeals the denial of his petitions. We
decline to address Schurz’s two uncertified claims because
we find that no reasonable jurist could disagree with the
district court’s resolution of them. 28 U.S.C. § 2253(c); 9th
Cir. R. 22-1(e); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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II. DISCUSSION
Schurz filed his federal habeas petition after the effective
date of the Antiterrorism and Effective Death Penalty Act of
1996. Normally, this would require us to apply a highly
deferential standard of review to the last reasoned state court
decision. See 28 U.S.C. § 2254(d); see also Ylst v.
Nunnemaker, 501 U.S. 797, 803–04 (1991). However,
Schurz argues that he’s entitled to de novo review because the
state court denied one of his PCRs on procedural grounds.
While we’re inclined to disagree, we needn’t resolve this
thorny procedural issue because Schurz’s IAC claim fails
even under de novo review.
Schurz argues that his lawyer performed deficiently by
failing to develop “abundant evidence of significant,
humanizing mitigation information,” which “undermine[d]
confidence in” the outcome of his sentencing hearing. But,
to be entitled to relief, Schurz must show not only that his
sentencing “counsel’s performance was deficient” but also
that “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984).
1. Schurz claims that his sentencing attorney failed to
present mitigating evidence about his drug abuse and
dysfunctional family life. But the attorney extensively
covered these topics in his sentencing memorandum,
complete with an attached psychological evaluation. The
evidence Schurz cites would have been cumulative, and so,
“not . . . likely to have affected the outcome of the
sentencing.” Leavitt v. Arave, 646 F.3d 605, 615 (9th Cir.
2011); see also Wong v. Belmontes, 130 S. Ct. 383, 387
(2009) (per curiam).

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The sentencing memorandum described Schurz as the
“classic picture of a young boy who was the product of a
dysfunctional family . . . [and who] grew up in an
environment of alcoholism.” The home where he lived was
shared by “[t]hree families with a total of 10 children,” a sign
of the poverty his family suffered. The psychological
evaluation elaborated on Schurz’s utter lack of emotional
connection with either parent—he was abandoned early on by
his father, and the only attention he got from his mother was
when she beat him. “The only person [Schurz] ever really
had was [his] grandmother.” He was “deeply disturb[ed]”
when she died early in his life; it was then that he “start[ed]
getting into trouble” and first started taking heroin. He was
sent to rehabilitation that same year and after experimenting
with “just about every drug that is illegally available,”
became an alcoholic and a heroin addict. The evaluation
concluded with a lengthy discussion of Schurz’s many
psychological problems.
We fail to see what the evidence Schurz discusses in his
briefs would have added to this already bleak picture. Indeed,
most of the new evidence is cumulative and minimally
significant. The non-cumulative pieces of evidence include
allegations of sexual abuse, cerebral dysfunction and fetal
alcohol syndrome but are unsubstantiated by Schurz.
2. Most of the remaining evidence Schurz presents is so
speculative that it comes nowhere close to showing deficient
performance, much less prejudice. See, e.g., Gonzalez v.
Knowles, 515 F.3d 1006, 1015–16 (9th Cir. 2008); Wildman
v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001). Schurz claims
that his “fetal development likely suffered” because his
mother drank while pregnant with him, that his family
members had “undiagnosed mental illness[es],” that he has a

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“genetic predisposition” to substance addiction and that he
was “likely sexually abused by a priest.” While Schurz relies
on such tentative statements from family members, he
presents no medical reports or even a declaration from Schurz
himself. What is perhaps his strongest piece of evidence, a
report from the time he spent at a drug treatment center as a
child, only goes so far as to suggest he may have “possible
cerebral dysfunction.” There’s nothing to suggest that this is,
in fact, the case or how this could have been used to mitigate
Schurz’s punishment.
3. The remaining evidence is minimally relevant at best.
Though Schurz points to evidence of some head trauma six or
seven months before his arrest, the doctor who made the
finding also expressly found that it “has nothing to do with
his present competency.” Schurz advances a litany of
childhood woes—his parents’ romantic involvement as
minors, an “acute psychotic break” he suffered from using a
hallucinogenic drug, teasing by siblings and classmates,
various childhood maladies and possible exposure to
neurotoxins from pesticides used in his home town. But he
hasn’t explained why these factors deserve more than de
minimis weight in assessing his punishment as an adult. Nor
do we see how the facts that his mother and father are
cousins, that he holds “sincere beliefs” in his native religion
and that there was a culture of alcohol abuse and widespread
criminal activity on his reservation could have made any
difference in the sentencing decision.
*

*

*

“To assess prejudice, we consider the mitigating evidence
that was presented along with the new mitigating evidence
and reweigh all of it against the aggravating evidence to

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determine whether there is a ‘reasonable probability’ that it
would have produced a different verdict.” Samayoa v. Ayers,
649 F.3d 919, 928 (9th Cir. 2011); see also Porter v.
McCollum, 130 S. Ct. 447, 452 (2009). Here, the sentencing
judge found a single aggravating factor, but it was an
exceedingly powerful one: Schurz committed a particularly
heinous murder—lighting a defenseless, trapped man on
fire—in response to a minimal provocation occasioned by a
few words of bravado that were not even directed at him. As
the Arizona Supreme Court observed:
The cold-blooded burning to death of a person
who is attempting to flee demonstrates the
kind of “vile” mind-set that we have labeled
heinous or depraved. The suffering—both
mental and physical—of a person who
remains conscious while receiving third and
fourth degree burns over almost 100% of his
body more than adequately demonstrates
cruelty.
State v. Schurz, 859 P.2d 156, 166 (Ariz. 1993).
The new mitigating evidence Schurz presents isn’t
“reasonably likely” to have made an impact at sentencing.
See Strickland, 466 U.S. at 693. We are particularly
confident in so concluding in light of the fact that the judge
who sentenced Schurz already reviewed much of the “new”
evidence through the state post-conviction process, and found
it insufficient to change the sentence from death.
AFFIRMED.

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