Schackart, et al v. Ryan, et al

Filing 162

ORDER: IT IS HEREBY ORDERED as set forth above that Schackart is not entitled to relief on the remanded claim, and granting Schackar's request to expand the record. The record is expanded to include Exhibits 1 through 9 (Doc. 131 - 1 .) Schacka rt's requests for discovery and an evidentiary hearing are denied. IT IS FURTHER ORDERED granting a Certificate of Appealability as to Claim 6(b). Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 39 ) is DENIED. The Clerk of Court shall enter judgment accordingly. Signed by Senior Judge David C Bury on 03/28/2022. (See attached Order for complete information.)(SCA)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Ronald Dwight Schackart,
Petitioner,

10
11

v.

12

No. CV-03-00287-TUC-DCB
DEATH-PENALTY CASE

David Shinn, et al.,

ORDER

13

Respondents.

14

Petitioner Ronald Dwight Schackart is an Arizona death row inmate. He seeks

15

reconsideration of Claim 6(b) of his federal habeas petition, which alleges trial counsel was

16

ineffective at sentencing for failing to “[r]equest a mitigation specialist or other trained and

17

expert person to do a thorough investigation of Schackart’s dysfunctional family origin and

18

mental health status.” (Doc. 131, (Supp. Brief), at 11) (quoting Doc. 39 (Petition) at 31–

19

32.) Because Schackart did not raise this allegation in state court, this Court found the claim

20

procedurally defaulted and barred from federal review. (Doc. 75 at 16–17, 56.) The Ninth

21

Circuit has directed the Court to reconsider that ruling in light of intervening law, including

22

Martinez v. Ryan, 566 U.S. 1 (2012). (Doc. 125.)

23

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

24

On March 8, 1984, Schackart and a female friend, Charla Ryan, met for lunch to

25

discuss his recent problems.1 Upon discharge from the Army in July 1983, (see Doc. 131-

26
27
28

1

Except where otherwise indicated, this factual summary is taken from the Arizona
Supreme Court opinion affirming Schackart’s conviction. State v. Schackart (Schackart I),
175 Ariz. 494, 496–497, 858 P.2d 639, 641–42 (Ariz. 1993).

1

1, Ex. 1 at 2), Schackart had allegedly returned home to find his wife, Alyda Pajkos, in bed

2

with a man. Schackart also had been charged with sexually assaulting his wife, an

3

accusation he denied. He was out of work and needed a place to stay. Charla agreed to

4

drive Schackart to a Holiday Inn so he could rent a room. After talking for a while in the

5

room, Schackart became upset thinking about his wife and, as he later contended, began

6

confusing her with Charla. He pulled a gun out and asked Charla if she would have sex

7

with him. After she refused, he forced her to comply at gunpoint. The two remained in the

8

room for several hours. Schackart struck her on the neck with the gun butt when she

9

appeared to be sleeping, allegedly to knock her out. The blow did not render her

10

unconscious. Instead, she awoke and began screaming. Schackart then strangled her.

11

That evening he confessed to his pastor and his parents that he had killed a woman.

12

He later confessed to police that he had sexually assaulted and killed the victim. Police

13

found the victim where Schackart indicated, in a room at the Holiday Inn. Her body was

14

under the covers on the bed and a large sock had been stuffed in her mouth. Subsequent

15

medical examination revealed that she died of manual strangulation and that the sock had

16

been stuffed in her mouth with sufficient force to tear the base of her tongue.

17

Schackart was prosecuted for first-degree murder, kidnapping, and sexual assault.

18

Pima County Superior Court Judge Michael Brown presided over the trial and sentencing.

19

Assistant Pima County Public Defenders Donald Klein and Karen Noble represented

20

Schackart at trial. (See ROA at 16, 19, 33.)2 On the second day of trial, acting against his

21
22
23
24
25
26
27
28

“RT” refers to reporter’s transcript. “ROA” refers to the Bates-stamped numbers
in the eight-volume record on appeal from trial and sentencing prepared for Schackart’s
direct appeal to the Arizona Supreme Court (Case No. CR-93-0535-AP) (Volumes I-B
through VII). “Resentencing ROA” refers to the Bates-stamped numbers in the one-volume
record on appeal from the resentencing prepared for Schackart’s second direct appeal to
the Arizona Supreme Court (Case No. CR 93-0535-AP) (Volume I-A). “Supp-ROA” refers
to the Bates-stamped numbers in the two-volume supplement of record on appeal (Volumes
Unlabeled, filed April 25, 1994, and November 25, 1994). “PCR ROA” refers to the
documents contained in the seven-volume record on appeal from post-conviction
proceedings prepared for Petitioner’s petition for review to the Arizona Supreme Court
(Case No. CR-02-0344-PC). “PR Doc.” refers to the Arizona Supreme Court’s docket for
Schackart’s petition for review of that case to the Arizona Supreme Court. The original
2

-2-

1

counsel’s advice, Schackart sought to dismiss his counsel and plead guilty. (RT 3/13/85 at

2

2–3; ROA 453–54.) The case proceeded to trial with counsel after Schackart failed to admit

3

a sufficient factual basis for the plea. (RT 3/13/85 at 17–34; ROA 456); State v. Schackart

4

(Schackart I), 175 Ariz. 494, 497, 858 P.2d 639, 642 (Ariz. 1993).

5

On March 16, 1985, a jury convicted Schackart of all charges and further found that

6

Schackart intended to kill the victim. (ROA 490, 589); Schackart I, 175 Ariz. at 497, 858

7

P.2d at 642. Schackart waived counsel and represented himself during sentencing, with

8

Klein and Noble acting as advisory counsel. (RT 3/27/85 at 4–6.) Judge Brown sentenced

9

Schackart to death for the murder and to a term of years for the other counts.3 (ROA at 830,

10

838.)

11

The Arizona Supreme Court affirmed the convictions for all three crimes and the

12

sentences for sexual assault and kidnapping. Schackart I, 175 Ariz. at 503, 858 P.2d at 648.

13

The court vacated the death sentence and remanded for a new sentencing hearing because

14

the sentencing transcript was inadequate for review. Id. at 499, 858 P.2d at 644. Schackart’s

15

allocution and the statement of his defense counsel had not been transcribed. Id. The court

16

noted, however, that the aggravation/mitigation hearing had been transcribed in full and

17

was sufficient for review. Id.

18

After remand, Schackart was again sentenced to death for the first-degree murder

19

conviction. (Resentencing ROA at 115.) The trial court concluded that the State had

20

established the aggravating circumstances of a prior conviction of a violent felony under

21

A.R.S. § 13-703(F)(2)4 and that the murder was cruel, heinous or depraved under A.R.S. §

22

reporter’s transcripts and certified copies of the trial and postconviction records were
provided to this Court by the Arizona Supreme Court on November 18, 2004. (Docs. 66,
67.)

23
24
25
26
27
28

At the time of Schackart’s trial, Arizona law required trial judges to make all
factual findings relevant to the death penalty and to determine the sentence. Following the
United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), which
held that a jury must determine the existence of facts rendering a defendant eligible for the
death penalty, Arizona’s sentencing scheme was amended to provide for jury determination
of eligibility factors, mitigating circumstances, and sentence.
3

4

Section 13-703 has been renumbered as § 13-751. The Court uses the version in
-3-

1

13-703(F)(6). State v. Schackart (Schackart II), 190 Ariz. 238, 245, 947 P.2d 315, 322

2

(Ariz. 1997).

3

On direct review, the Arizona Supreme Court struck the aggravating circumstance

4

of Schackart’s prior violent crime, but again found the crime was committed in an

5

especially cruel manner and affirmed the death sentence after reweighing the remaining

6

aggravating circumstance and the mitigation. Id. at 251, 258 & 260–61, 947 P.2d at 328,

7

335 & 337–38. The court explained that the trial court’s cruelty finding was appropriate

8

because:

9
10
11
12

The length of time Charla was held in the motel room, the presence of a gun,
the sexual assault, the discussion about tying her up or drugging her, the blow
to her head, the strangling, and her inevitable uncertainty about her ultimate
fate all support the court’s finding that this murder was especially cruel.
Id. at 248, 947 P.2d at 325.

13

The court rejected the trial court’s finding that the murder was also heinous or

14

depraved because the record did not support a finding that Schackart relished the murder,

15

that he inflicted unnecessary and gratuitous violence upon the victim, or that the killing

16

was needless and unnecessary. Id. at 250, 947 P.2d at 327.

17

After counsel was appointed to represent Schackart in post-conviction relief (PCR)

18

proceedings, the court granted Schackart’s subsequent motion to permit “hybrid

19

representation,” making him “co-counsel.”5 (PCR ROA 2, 32, 35.) Schackart filed a PCR

20

petition with the trial court and a subsequent addendum. (PCR ROA 166, 167.) After Judge

21

Brown retired, the case was assigned to Pima County Superior Court Judge Jan Kearney.

22

(See PCR ROA 161.) The PCR petition was denied without a hearing. (PCR ROA 185.)

23

The Arizona Supreme Court summarily denied Schackart’s petition for review on May 28,

24

2003. (PR 26.)

25
26
27
28

effect at the time of the murder.
5

In Arizona, hybrid representation occurs when a defendant concurrently represents
himself and is represented by counsel. State v. Murray, 184 Ariz. 9, 27, 906 P.2d 542, 561
(1995). There is no constitutional or other right to hybrid representation; it is disfavored
but permissible under Arizona law. Id.
-4-

1

Schackart filed a preliminary Petition for Writ of Habeas Corpus in this Court on

2

May 30, 2003, and an amended petition on May 3, 2004. (Docs. 1, 39.) Schackart asserted

3

an ineffective assistance of trial counsel claim based on counsel’s failure to request “a

4

mitigation specialist or other trained and expert person to do a thorough investigation of

5

Schackart’s dysfunctional family origin and mental health status.” (Petition at 31–32.)

6

The Court found the claim procedurally defaulted because it had never been fairly

7

presented to the state courts. (Doc. 75 at 16–17.) Based on then-controlling law, the Court

8

rejected Schackart’s allegation that the ineffective assistance of his PCR counsel

9

established cause for the default and dismissed the claim as procedurally barred. (Id. at 17.)

10

On March 17, 2009, the Court denied Schackart’s Amended Petition in its entirety. (Doc.

11

103 at 28.)

12

While Schackart’s appeal from this Court’s denial of habeas relief was pending, the

13

Supreme Court decided Martinez v. Ryan, which held that where ineffective assistance of

14

counsel (IAC) claims must be raised in an initial PCR proceeding, failure of counsel in that

15

proceeding to raise a substantial trial IAC claim may provide cause to excuse the claim’s

16

procedural default. 566 U.S. at 17. Subsequently, Schackart moved the Ninth Circuit to

17

stay his appeal and remand Claim 6(b).

18

The Ninth Circuit granted Schackart’s motion for a limited remand, ordering the

19

district court to reconsider Claim 6(b) in light of intervening law. (Doc. 125) (citing

20

Martinez, 566 U.S. 1; Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc); Detrich

21

v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc)).

22

This Court ordered supplemental briefing to address whether cause exists under

23

Martinez to excuse the procedural default of the claim and whether Schackart is entitled to

24

habeas relief under 28 U.S.C. § 2254. (Doc. 126.) Schackart argues that post-conviction

25

counsel acted ineffectively in litigating claims against sentencing counsel in state court,

26

and requests evidentiary development and an evidentiary hearing to prove both “cause”

27

under Martinez and the merits of Claim 6(b). (Supp. Brief.) Schackart also requests

28

evidentiary development under Rules 6, 7 and 8 of the Rules Governing Section 2254

-5-

1

Cases.6 Respondents have filed a response, and Schackart filed a reply. (Docs. 141 (Supp.

2

Response), 144 (Supp. Reply).)

3

II.

APPLICABLE LAW

4

A.

5

Federal review is generally unavailable for a claim that has been procedurally

6

defaulted. In such situations, review is barred unless the petitioner can demonstrate cause

7

and prejudice or a fundamental miscarriage of justice that excuses the default. Coleman v.

8

Thompson, 501 U.S. 722, 750 (1991). Coleman held that ineffective assistance of counsel

9

in post-conviction proceedings cannot establish cause for a claim’s procedural default. Id.

10

In Martinez, the Supreme Court announced a new, “narrow exception” to that rule.

11
12
13
14
15
16

Martinez v. Ryan

The Court explained that:
Where, under state law, claims of ineffective assistance of trial counsel must
be raised in an initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.
566 U.S. at 17; see also Trevino v. Thaler, 569 U.S. 413, 418 (2013).

17

Accordingly, under Martinez an Arizona habeas petitioner may establish cause and

18

prejudice for the procedural default of a claim of ineffective assistance of trial counsel by

19

demonstrating that (1) PCR counsel was ineffective and (2) the underlying ineffective

20

assistance claim has some merit. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting

21

Martinez, 566 U.S. at 14; Atwood v. Ryan, 870 F.3d, 1033, 1059–60 (9th Cir. 2017)).

22

To establish “cause” under Martinez, a petitioner must demonstrate that PCR

23

counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Clabourne

24

v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v.

25

Ryan, 813 F.3d 798, 819 (9th Cir. 2015). Strickland requires a demonstration “that both (a)

26

post-conviction counsel’s performance was deficient, and (b) there was a reasonable

27
28

6

As discussed in greater detail below, the Court expands the record to consider the
new evidence developed by Schackart during these habeas proceedings (Doc. 131-1,
Supplemental Exhibits 1–9) in support of the defaulted claims.
-6-

1

probability that, absent the deficient performance, the result of the post-conviction

2

proceedings would have been different.” Id. at 377 (citation omitted).7

3

To establish “prejudice” under the second prong of Martinez’s “cause and

4

prejudice” analysis, a petitioner must demonstrate that his underlying ineffective assistance

5

of trial counsel claim is “substantial.” Id. In Martinez, the Supreme Court defined a

6

“substantial” claim as a claim that “has some merit,” noting that the procedural default of

7

a claim will not be excused if the IAC claim “is insubstantial, i.e., it does not have any

8

merit or . . . it is wholly without factual support.” Martinez, 566 U.S. at 14–16.

9

The standard for finding a claim “substantial” is analogous to the standard for

10

issuing a certificate of appealability. Id. at 14; see Detrich, 740 F.3d at 1245. Under that

11

standard, a claim is “substantial” if “reasonable jurists could debate whether . . . the petition

12

should have been resolved in a different manner or that the issues presented were adequate

13

to deserve encouragement to proceed further.” Id. (citing Miller-El v. Cockrell, 537 U.S.

14

322, 336 (2003)).

15

A finding of “prejudice” for purposes of the “cause and prejudice” analysis, which

16

requires only a showing that the underlying claim of ineffective assistance of trial counsel

17

is substantial, “does not diminish the requirement . . . that petitioner satisfy the ‘prejudice’

18

prong under Strickland in establishing ineffective assistance by post-conviction counsel.”

19

Clabourne, 745 F.3d at 377.

20
21
22
23
24
25
26
27
28

The Ninth Circuit has offered guidance in assessing whether “cause” exists under
Martinez. In Atwood, for example, the court explained:
In evaluating whether the failure to raise a substantial claim of ineffective
assistance of trial counsel in state court resulted from ineffective assistance
of state habeas counsel under Strickland, we must evaluate the strength of
Schackart argues that to establish “cause,” he need only show deficient
performance by state post-conviction counsel resulted in the default of a “substantial”
claim of ineffective assistance of trial counsel. (Supp Brief at 9.) The Ninth Circuit,
however, has “consistently . . . reaffirmed the Clabourne framework, which requires a
petitioner to establish “cause” by showing Strickland prejudice.” Hooper v. Shinn, 985 F.3d
594, 627 & n.29 (9th Cir. 2021) (citing Rodney v. Filson, 916 F.3d 1254, 1260 & n.2 (9th
Cir. 2019)).
7

-7-

5

the prisoner’s underlying ineffective assistance of trial counsel claim. If the
ineffective assistance of trial counsel claim lacks merit, then the state habeas
counsel would not have been deficient for failing to raise it. Further, any
deficient performance by state habeas counsel would not have been
prejudicial, because there would not be a reasonable probability that the
result of the post-conviction proceedings would have been different if the
meritless claim had been raised.

6

870 F.3d at 1059–60; Hooper v. Shinn, 985 F.3d 594, 627 (9th Cir. 2021); see Sexton v.

7

Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“PCR counsel would not be ineffective for

8

failure to raise an ineffective assistance of counsel claim with respect to trial counsel who

9

was not constitutionally ineffective.”).

1
2
3
4

10

In Runningeagle v. Ryan, 825 F.3d 970 (9th Cir. 2016), the court addressed the

11

standard necessary to find PCR counsel’s performance prejudicial. The court explained

12

that under Martinez:

13
14
15
16

Although the prejudice at issue is that in PCR proceedings, this is a recursive
standard. It requires the reviewing court to assess trial counsel’s as well as
PCR counsel’s performance. This is because, for us to find a reasonable
probability that PCR counsel prejudiced a petitioner by failing to raise a triallevel IAC claim, we must also find a reasonable probability that the triallevel IAC claim would have succeeded had it been raised.

17
18
19
20
21
22
23
24
25
26
27
28

Id. at 982; see Murray v. Schriro, 882 F.3d 778, 816 (9th Cir. 2018).
The Martinez exception to procedural default applies only to claims of ineffective
assistance of trial counsel. It has not been expanded to other types of claims. Martinez
(Ernesto) v. Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019) (“[I]neffective assistance of PCR
counsel can constitute cause only to overcome procedurally defaulted claims of ineffective
assistance of trial counsel.”); Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015)
(explaining that the Ninth Circuit has “not allowed petitioners to substantially expand the
scope of Martinez beyond the circumstances present in Martinez”); Hunton v. Sinclair, 732
F.3d 1124, 1126–27 (9th Cir. 2013) (noting that only the Supreme Court can expand the
application of Martinez to other areas); see Davila v. Davis, 137 S. Ct. 2058, 2062–63,
2065–66 (2017) (holding that the Martinez exception does not apply to claims of

-8-

1

ineffective assistance of appellate counsel).8

2

B.

3

Claims of ineffective assistance of counsel are governed by the principles set out in

4

Strickland, 466 U.S. 668. To prevail under Strickland, a petitioner must show that counsel’s

5

representation fell below an objective standard of reasonableness and that the deficiency

6

prejudiced the defense. Id. at 687–88. The inquiry under Strickland is highly deferential.

7

“A fair assessment of attorney performance requires that every effort be made to eliminate

8

the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

9

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689;

10

see Wong v. Belmontes, 558 U.S. 15, 16–17 (2009) (per curiam). The “standard is

11

necessarily a general one,” Bobby v. Van Hook, 558 U.S. 4, 7 (2009), because “[n]o

12

particular set of detailed rules for counsel’s conduct can satisfactorily take account of the

13

variety of circumstances faced by defense counsel or the range of legitimate decisions

14

regarding how best to represent a criminal defendant.” Strickland, 466 U.S. at 688–89.

Ineffective of assistance of counsel

15

Deficient performance “requires showing that counsel made errors so serious that

16

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

17

Amendment.” Strickland, 466 U.S. at 687. A petitioner must overcome “the presumption

18

that, under the circumstances, the challenged action might be considered sound trial

19

strategy.” Id. at 689 (quotation omitted). “The question is whether an attorney’s

20

representation amounted to incompetence under ‘prevailing professional norms,’ not

21

whether it deviated from best practices or most common custom.” Harrington v. Richter,

22

562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).

23
24
25
26
27
28

With respect to Strickland’s second prong, a petitioner must affirmatively prove
The Court therefore rejects Schackart’s contention (See Supp. Brief at 18 n. 9) that
the Court should address PCR counsel’s failure to raise an ineffective assistance of
appellate counsel claim for failure to appeal the trial court’s denial of a mental health
evaluation for mitigation. Schackart relies on the holding in Nguyen v. Curry, 736 F.3d
1287, 1292–93 (9th Cir. 2013) (extending the Martinez exception to Sixth Amendment
ineffective assistance of appellate counsel claims) to support his contention, but Nguyen
has since been abrogated by the Supreme Court’s holding in Davila, 137 S. Ct. 2058.
8

-9-

1

prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s

2

unprofessional errors, the result of the proceeding would have been different. A reasonable

3

probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S.

4

at 694. The petitioner “bears the highly demanding and heavy burden [of] establishing

5

actual prejudice.” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (quoting Williams

6

(Terry) v. Taylor, 529 U.S. 362, 394 (2000)).

7

For claims of ineffective assistance of counsel at sentencing in capital cases,

8

prejudice is assessed by “reweigh[ing] the evidence in aggravation against the totality of

9

available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). The “totality

10

of available evidence” includes “both that adduced at trial, and the evidence adduced” in

11

subsequent proceedings. Id. at 536 (quoting Williams (Terry), 529 U.S. at 397–98). “If the

12

difference between the evidence that could have been presented and that which actually

13

was presented is sufficient to ‘undermine confidence in the outcome’ of the proceeding,

14

the prejudice prong is satisfied.” Duncan v. Ornoski, 528 F.3d 1222, 1240 (9th Cir. 2008)

15

(quoting Strickland, 466 U.S. at 694).

16

III.

SCOPE OF REVIEW

17

Respondents argue that Claim 6(b) is a narrow claim alleging counsel was

18

ineffective only in failing to request a mitigation specialist. They argue Schackart is

19

attempting to exceed the mandate by alleging a new claim of ineffective assistance of

20

counsel for failing to conduct a mitigation investigation. (Supp. Response at 3–4.) The

21

Court disagrees. The Ninth Circuit’s remand order is not as narrow as Respondents assert.

22

The Ninth Circuit has “repeatedly held . . . that a district court is limited by this

23

court’s remand in situations where the scope of the remand is clear.” United States v.

24

Thrasher, 483 F.3d 977, 982–83 (9th Cir. 2007) (quoting Mendez-Gutierrez v. Gonzales,

25

444 F.3d 1168, 1172 (9th Cir. 2006)). In Thrasher the Ninth Circuit held that the district

26

court did not err in refusing to consider a new ineffective assistance of counsel argument

27

based on evidence presented during a post-appeal evidentiary hearing. 483 F.3d at 982–83.

28

The court explained that the case was “remanded for a single purpose”—“a hearing to

- 10 -

1

resolve a critical disputed fact”—and thus “[t]he plain language of the disposition

2

precluded the district court from considering any other arguments concerning [counsel’s]

3

effectiveness.” Id. at 983 (quotations omitted); see Holmes v. Miller, 768 F. App’x 781,

4

782–83 (9th Cir. 2019) (explaining that the district court “correctly understood the scope

5

of [its] remand,” which did not include taking evidence on an ineffective assistance of

6

counsel claim that had not been raised in the petition).

7

Here, the Ninth Circuit directed “the district court to reconsider, in light of

8

intervening law, Claim 6(b).” (Doc. 125.) Claim 6(b) asserts trial counsel was ineffective

9

for failing to “[r]equest a mitigation specialist or other trained and expert person to do a

10

thorough investigation of Schackart’s dysfunctional family origin and mental health

11

status.” (Petition at 32.) The Ninth Circuit’s remand order further characterizes Claim 6(b)

12

as a claim that “trial counsel was ineffective in failing to investigate mitigating evidence

13

before Schackart represented himself at sentencing with the assistance of advisory

14

counsel.” (Doc. 125 at 1.) The scope of this Court’s review will be guided by the language

15

of Claim 6(b) and the Ninth Circuit’s characterization of the claim. Accordingly, the Court

16

rejects Respondents’ contention that Claim 6(b) is limited to the specific allegation that

17

trial counsel failed to request a mitigation specialist.

18

IV.

PRO SE REPRESENTATION AND APPLICABILITY OF MARTINEZ

19

Respondents assert that Martinez does not apply to Schackart’s IAC claims because

20

Schackart represented himself at sentencing and was co-counsel during PCR proceedings.

21

(Supp. Response at 32) (“[F]or Martinez to apply, the default must be attributable either to

22

the failure of counsel, or the trial court’s failure to appoint counsel.”).

23

Five days after his conviction, Schackart filed a “Motion to Proceed Pro Se.” (ROA

24

597–98.) The trial court found Schackart’s waiver of counsel was knowing, intelligent and

25

voluntary, and appointed his attorneys as advisory counsel. (Id. at 627–28.) The mitigation

26

hearing took place approximately five weeks later. (ROA at 801.)

27

“[A] defendant in a state criminal trial has a constitutional right to proceed without

28

counsel when he voluntarily and intelligently elects to do so.” Faretta v. California, 422

- 11 -

1

U.S. 806, 807 (1975). A defendant such as Schackart who “knowingly and intelligently”

2

waives his right to counsel “cannot thereafter complain that the quality of his own defense

3

amounted to a denial of ‘effective assistance of counsel.’” Id. at 834–35 n.46; United States

4

v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989) (“If [a defendant] chooses to defend himself,

5

he must be content with the quality of that defense.”); see Cook v. Schriro, 538 F.3d 1000,

6

1029 (9th Cir. 2008) (explaining that petitioner “cannot raise an ineffective assistance of

7

counsel claim as to his own performance under Faretta”). Schackart, however, is not

8

alleging his performance was ineffective, but rather, as the Ninth Circuit acknowledged,

9

he alleges his appointed counsel performed ineffectively during the period “before

10

Schackart represented himself.” (See Doc. 125 at 1.)

11

In Cook v. Ryan, the Ninth Circuit held that Martinez did not apply to Cook’s

12

allegations of pretrial IAC during the seven months that pretrial counsel represented him

13

because “Cook could have corrected those errors once he decided to represent himself.”

14

688 F.3d at 609; see, e.g., Castillo v. Ryan, 603 F. App’x. 598, 599 (2015) (quoting Cook,

15

688 F.3d at 609) (“Even if his appointed counsel performed deficiently prior to being

16

relieved of his duties, Castillo ‘could have corrected those errors once he decided to

17

represent himself.’”). The court explained that “the conduct of the trial and sentencing

18

phases, and Cook’s strategy, were his own.” Cook, 688 F.3d at 609 n.12.

19

By arguing that Schackart’s allegations of IAC are completely foreclosed by Cook,

20

Respondents imply that there are no circumstances under which Schackart might assert

21

ineffective assistance of counsel after waiving the right to representation. (See Supp.

22

Response at 36 (“Schackart was responsible for any defects in the sentencing investigation

23

once he was allowed to represent himself.”).) This argument ignores the appellate court’s

24

key factual finding that “Cook could have corrected” former counsel’s errors. Cook, 688

25

F.3d at 609. In fact, the Ninth Circuit in Cook cautioned that it did “not hold that a Martinez

26

claim can never be available to a defendant who represents himself.” Id. at 609 n.12.

27

Respondents do not allege that Schackart, during the time he had to prepare for sentencing,

28

could have corrected the purported errors by trial counsel that occurred before Schackart

- 12 -

1

represented himself. The Court therefore rejects the blanket assertion that Cook forecloses

2

all relief without first considering whether counsel performed deficiently and whether

3

Schackart could have remedied those deficiencies.

4

Likewise, Schackart is not precluded from asserting PCR counsel’s ineffectiveness

5

as cause to excuse the default of his trial IAC claim under Martinez. Respondents cite two

6

cases in support of their argument that Martinez cannot apply to Schackart’s procedural

7

default of Claim 6(b) because Schackart acted as “co-counsel” during PCR proceedings.

8

(Supp. Response at 32.) Those cases, Brink v. Wengler, 1:13-CV-00039-EJL, 2015 WL

9

874154, *8 (D. Idaho Feb. 27, 2015), and Bender v. Wynder, No. Civ.A. 05-998, 2013 WL

10

3776746, *4 (W.D. Pa. July 15, 2013)), are distinguishable.

11

In Brink, the District Court of Idaho held that Martinez did not apply to excuse any

12

of the petitioner’s claims because he had represented himself on post-conviction review.

13

Brink, 2015 WL 874154 at *8. The court reiterated that Martinez is inapplicable where a

14

petitioner “assumes the risk of proceeding without counsel in initial collateral review

15

proceedings.” Id. (citing Bender, 2013 WL 3776746 at *8). Unlike Brink, Schackart

16

undertook no such risk. Schackart did not waive his right to be represented by PCR counsel.

17

Schackart represented himself only as co-counsel, supplementing the petition filed by his

18

appointed counsel with an addendum containing issues supplied to counsel by Schackart.

19

(PCR ROA 166–67.)

20

Similarly, in Bender, the court noted that Martinez would not apply because the

21

petitioner elected to represent himself, despite the PCR court appointing him counsel.

22

Bender, 2013 WL 3776746 at *4. Any default, the court found, was therefore attributable

23

to the petitioner’s own ineffectiveness. Id. (citing Faretta, 422 U.S. at 834–35).

24

Though Schackart’s status as co-counsel permitted him to correct counsel’s

25

purported ineffectiveness, he did not waive counsel and therefore he was, under the

26

equitable considerations of Martinez, still entitled to effective PCR representation in

27

pursuit of his trial counsel IAC claims. Accord Martinez, 566 U.S. at 11 (“[D]efendants

28

pursuing first-tier review [of an IAC claim] are generally ill equipped to represent

- 13 -

1

themselves”) (internal quotations omitted) (quoting Halbert v. Michigan, 545 U.S. 605,

2

617 (2005)). A review of the facts in Martinez supports this conclusion.

3

In Martinez, after PCR counsel filed a statement “akin to an Anders brief”9 asserting

4

she could find no colorable claims at all, Martinez was permitted to file a pro se petition to

5

preserve his rights but failed to do so. Id. at 6. Nonetheless, the case was remanded to

6

determine whether Martinez’s PCR counsel was ineffective, id. at 18, with the Supreme

7

Court noting that “[t]o present a claim of ineffective assistance at trial . . . a prisoner likely

8

needs an effective attorney.” Id. at 12.

9

Martinez, like Schackart, had the ability to file and preserve his own IAC claims in

10

state court but failed to do so. Nonetheless, the Supreme Court found counsel’s failure to

11

raise the IAC claim permitted consideration on remand as to whether PCR counsel was

12

ineffective and whether Martinez’s claim of trial counsel IAC was substantial. Id. at 18.

13

Accordingly, the Court finds that the ability of Schackart to raise his own claims did not

14

relieve PCR counsel of the obligation to perform effectively. Thus, the Court will consider

15

whether PCR counsel in Schackart’s case was ineffective in failing to raise Claim 6(b).

16

The Court is cognizant that some courts have found Martinez inapplicable when a

17

petitioner had the opportunity to supplement counsel’s allegedly ineffective brief. See

18

Milton v. Inch, No. 4:18CV581-RH-MJF, 2020 WL 3213377, at *1 (N.D. Fla. June 12,

19

2020) (concluding that petitioner had an opportunity to file a pro se brief after appellate

20

counsel filed an Anders brief, and thus petitioner failed to demonstrate that appellate

21

counsel’s constitutionally ineffective performance established cause for the procedural

22
23
24
25
26
27
28

9

In Anders v. California, 386 U.S. 738 (1967), the Court held that a criminal
appellant may not be denied representation on appeal based on appointed counsel’s bare
assertion that he or she is of the opinion that there is no merit to the appeal. The Court
recognized that counsel may be allowed to withdraw in some circumstances if certain
safeguards are followed: Appointed counsel is first required to conduct “a conscientious
examination” of the case. Id., at 744. Counsel may then request leave to withdraw if they
are of the opinion that the case is wholly frivolous. The request “must, however, be
accompanied by a brief referring to anything in the record that might arguably support the
appeal.” Id. This brief is commonly referred to as an “Anders brief.” The appellant must
then be allowed sufficient time “to raise any points that he chooses.” Id.
- 14 -

1

default of claim), appeal dismissed sub nom. Milton v. Sec’y, Fla. Dep’t of Corr., No. 20-

2

12160-B, 2020 WL 5523468 (11th Cir. Aug. 6, 2020); Martin v. Robinson, No. CV 19-

3

10142, 2019 WL 7403980, at *5 (E.D. La. Sept. 23, 2019) (“Martin had the opportunity

4

on direct appeal to raise the claim of ineffective assistance of counsel during multiple-

5

offender proceedings [by filing a pro se supplemental brief] and simply failed to do so. In

6

this case, the procedural default should not be excused under Martinez.”), report and

7

recommendation adopted, No. CV 19-10142, 2020 WL 32440 (E.D. La. Jan. 2, 2020). The

8

Court finds these cases distinguishable or wrongly decided because they fail to take into

9

consideration whether the petitioner waived counsel under Faretta or was able to

10

competently represent himself during PCR proceedings.

11

Accordingly, the Court finds that Schackart’s pro se representation does not

12

preclude him from raising a trial-counsel IAC claim or arguing under Martinez that the

13

ineffectiveness of PCR counsel excuses the default of the claim.

14

V.

DISCUSSION

15

To excuse the default of Claim 6(b), Schackart must show that PCR counsel

16

performed ineffectively under Strickland by failing to raise the claim (“cause”) and that the

17

claim was substantial or had some merit (“prejudice”). See Martinez, 566 U.S. at 17.

18

With respect to prejudice, the Court rejects Schackart’s argument that by granting

19

his motion for partial remand, the Ninth Circuit necessarily found Claim 6(b) “substantial.”

20

(Supp. Brief at 4.) A Martinez remand order does not automatically constitute a finding of

21

substantiality, and in Schackart’s case the Ninth Circuit made no such finding with respect

22

to Claim 6(b). Compare (Doc. 125) (Ninth Circuit’s remand order in this case making no

23

conclusions as to the substantiality of the remanded claim), with Salazar v. Ryan, No. 08-

24

99023 (9th Cir. Aug. 19, 2014) (“[C]oncluding that Appellant’s remanded claims are for

25

purposes of remand substantial.”), and Hooper v. Ryan, No. 08-099024 (9th Cir. Aug. 19,

26

2014) (same).

27

Nevertheless, upon reviewing Claim 6(b), the Court will assume without deciding

28

that it is substantial and has “some merit,” thereby satisfying Martinez’s prejudice prong.

- 15 -

1

Martinez, 566 U.S. at 14. With respect to the cause prong, the Court will assume that PCR

2

counsel’s failure to raise the claim constituted deficient performance under Strickland.

3

Accordingly, the Court’s analysis will focus on whether PCR counsel’s failure to raise the

4

claim was prejudicial; that is, whether there was a reasonable probability of a different

5

outcome during the PCR proceedings if counsel had raised the claim. To make that

6

determination, the court evaluates the strength of the underlying claim of ineffective

7

assistance of trial counsel. See Hooper, 985 F.3d at 627; Atwood, 870 F.3d at 1059–60;

8

Runningeagle, 825 F.3d at 982. The Court begins with an evaluation of trial counsel’s

9

performance.

10

A.

11

Schackart asserts counsel failed to “[r]equest a mitigation specialist or other trained

12

and expert person to do a thorough investigation of Schackart’s dysfunctional family origin

13

and mental health status.” (Supp. Brief at 11) (citing Petition at 31–32.) He argues that

14

counsel “performed unreasonably when they failed to conduct an adequate and timely

15

mitigation investigation.” (Id. at 24.) Further he maintains that “[t]rial counsel’s

16

ineffectiveness encompassed not simply the failure to immediately undertake a mitigation

17

investigation, but also their failure to obtain expert mitigation investigation assistance in

18

order to competently perform that mitigation investigation.” (Id. at 25.) He supports his

19

arguments with the declarations of trial counsel and mitigation expert Russell Stetler.

20

(Supp. Brief Exs. 3, 8–9.)

Performance

21

Respondents do not dispute that Schackart’s counsel failed to seek appointment of

22

a mitigation specialist. (Supp. Response at 4.) Rather, construing the issue narrowly,

23

Respondents assert that Schackart’s IAC claim is not substantial because the “assistance of

24

a mitigation specialist is not a requirement for the effective assistance of counsel in a capital

25

case.” (Supp. Response at 38.) Respondents also maintain that, even considering a broader

26

“failure to investigate claim,” Schackart cannot demonstrate that his attorneys performed

27

deficiently under Strickland and its progeny. As discussed above, the Court rejects

28

Respondents’ narrow reading of the claim but addresses Respondents’ arguments below.

- 16 -

1

Schackart submits the declaration of Stetler, a former death-penalty investigator and

2

the National Mitigation Coordinator for the federal death penalty projects, in support of the

3

assertion that counsel was ineffective for failing to hire a mitigation specialist. Stetler’s

4

declaration, however, does not support a finding that the professional norms at the time of

5

Schackart’s trial in 1985 dictated that the defense team include a mitigation specialist. (See

6

Supp. Brief, Ex. 3 (Stetler Declaration) at 12–13) (discussing the development of the

7

“mitigation specialist” who, by 1987, was being recognized as a professional “who should

8

be included in and would be primary to the defense team”) (emphasis added).

9

The Court is aware of no prevailing professional norm that requires counsel in a

10

capital case to hire a mitigation expert in every instance. See State v. Pandeli, 242 Ariz.

11

175, 190, 394 P.3d 2, 17 (2017) (“Defendants do not have a stand-alone right to a mitigation

12

specialist.”) (citing Phillips v. Bradshaw, 607 F.3d 199, 207–08 (6th Cir. 2010) (“[H]iring

13

a mitigation specialist in a capital case is not a requirement of effective assistance of

14

counsel.”), and State v. Herring, 142 Ohio St. 3d 165, 28 N.E.3d 1217, 1239 (2014)

15

(holding defendant had no “constitutional right to a mitigation specialist or a right to an

16

effective one”)). Cf. Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019) (“Due process under

17

Ake[10] does not require the appointment of a mitigation specialist.”), cert. granted sub

18

nom. Shinn v. Ramirez, 141 S. Ct. 2620 (2021). Thus, counsel’s failure to hire a mitigation

19

specialist does not render their performance ineffective on those grounds alone.

20

Because Respondents focused their answer on the narrow issue of counsel’s failure

21

to hire a mitigation expert, they do little to dispute Schackart’s assertion that counsel had

22

a duty not only to obtain “expert mitigation investigation assistance in order to competently

23

perform [a] mitigation investigation” but to commence such an investigation immediately

24

upon counsel’s appointment to the case. (See Supp. Response at 24.)

25
26
27
28

Ake v. Oklahoma, 470 U.S. 68 (1985). In Ake the Supreme Court held “that when
a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be
a significant factor at trial, the State must, at a minimum, assure the defendant access to a
competent psychiatrist who will conduct an appropriate examination and assist in
evaluation, preparation, and presentation of the defense.” Id. at 83.
10

- 17 -

1

“The proper measure of attorney performance remains simply reasonableness under

2

prevailing professional norms.” Strickland, 466 U.S. at 688. “[S]trategic choices made after

3

thorough investigation of law and facts relevant to plausible options are virtually

4

unchallengeable.” Id. at 690. To determine whether counsel provided ineffective assistance

5

in this regard, the question is whether counsel fully investigated the defendant’s

6

background. Wiggins, 539 U.S. at 524–25. In assessing counsel’s investigation, courts

7

“must conduct an objective review of [counsel’s] performance, measured for

8

reasonableness under prevailing professional norms, which includes a context-dependent

9

consideration of the challenged conduct as seen from counsel’s perspective at the time.”

10

Wiggins, 539 U.S. at 523 (citation and quotation marks omitted); see Rompilla v. Beard,

11

545 U.S. 374, 381 (2005) (quotations omitted) (“[H]indsight is discounted by pegging

12

adequacy to ‘counsel’s perspective at the time’ investigative decisions are made. . . .”). “As

13

long as a reasonable investigation was conducted, we must defer to counsel’s strategic

14

choices.” Cox v. Ayers, 613 F.3d 883, 899 (9th Cir. 2010); see Babbitt v. Calderon, 151

15

F.3d 1170, 1173 (9th Cir. 1998) as amended (Aug. 27, 1998) (“While a lawyer is under a

16

duty to make reasonable investigations, a lawyer may make a reasonable decision that

17

particular investigations are unnecessary.”); Williams v. Woodford, 384 F.3d 567, 616 (9th

18

Cir. 2004).

19

Trial counsel’s duty to conduct a prompt and thorough mitigation investigation was

20

well-established at the time of Schackart’s trial. See Williams (Terry), 529 U.S. 362, 396

21

(2000) (citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.

22

1980)); Summerlin v. Schriro, 427 F.3d 623, 629 (9th Cir. 2005) (en banc) (remarking that

23

professional standards in effect in 1982 “clearly described the ... ‘duty of the lawyer to

24

conduct a prompt investigation of the circumstances of the case and to explore all avenues

25

leading to facts relevant to the merits of the case and the penalty in the event of

26

conviction’”) (quoting ABA Standards for Criminal Justice 4–4.1 (2d ed. 1980)); Silva v.

27

Woodford, 279 F.3d 825, 840 (2002) (stating that while the 1980 ABA Standards for

28

Criminal Justice, which suggest that a lawyer’s duty to investigate is “virtually absolute,”

- 18 -

1

are only guidelines, they were nonetheless cited approvingly by the Supreme Court in

2

Williams); Ainsworth v. Woodford, 268 F.3d 868, 877 (9th Cir. 2001) (finding that the duty

3

to investigate and develop background material “was as crucial in 1980 as it is today”) (see

4

also Supp. Brief, Stetler Declaration at 1) (citing Williams (Terry), 529 U.S. at 396)

5

(“Counsel’s duty to conduct a thorough mitigation investigation was well established in

6

the mid-1980s.). “[C]ounsel must conduct sufficient investigation and engage in sufficient

7

preparation to be able to ‘present[ ] and explain[ ] the significance of all the available

8

[mitigating] evidence.’” Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en

9

banc) (quoting Williams (Terry), 529 U.S. at 393). It is imperative that counsel “unearth”

10

all relevant mitigating information at the capital sentencing phase because “[t]here is a

11

‘belief, long held by this society, that defendants who commit criminal acts that are

12

attributable to a disadvantaged background or to emotional and mental problems, may be

13

less culpable than defendants who have no such excuse.’” Ramirez, 937 F.3d at 1243

14

(quoting Boyde v. California, 494 U.S. 370, 382 (1990)).

15

Schackart points to the absence of any evidence of a mitigation investigation in the

16

record, stating that “[w]hile Schackart’s counsel made documented efforts to prepare for

17

the merits phase of the trial, there is no evidence in the record that they did anything to

18

prepare for the penalty phase, including the aggravation-mitigation proceedings and

19

sentencing.” (Supp. Brief at 11.) Further, Schackart notes that attorney Klein states in his

20

declaration that he “did not undertake the kind of comprehensive mitigation case

21

preparation that was required to competently present a mitigation case for Mr. Schackart

22

at the sentencing phase.” (Supp. Brief, Ex. 8 (Klein Declaration) at 3-4.)

23

The record indeed suggests that trial counsel did little to prepare for the penalty

24

phase, instead focusing their efforts on the guilt phase of Schackart’s trial. (See Supp. Brief

25

at 11–15.) Respondents, focusing their argument solely on trial counsel’s failure to hire a

26

mitigation specialist, do not contest this point. Trial counsel filed several motions related

27

to the merits phase of the trial from the time of their appointment up until the first day of

28

trial. Multiple hearings were held on defense motions related to merits phase issues. (See

- 19 -

1

RT 4/30/84; RT 5/29/84; RT 6/4/84.) Conversely, there is nothing in the record to suggest

2

that counsel was simultaneously conducting a mitigation investigation.

3

Defense counsel did investigate Schackart’s mental health and competency as part

4

of their guilt-phase trial strategy. They filed a Rule 1111 notice of insanity defense and

5

informed the court that they were hiring a mental health expert to perform an evaluation of

6

Schackart’s state of mind at the time of the offense. (See ROA at 64; RT 6/4/84 at 12, 14–

7

15). However, “[h]iring an expert to evaluate possible guilt-phase mental-state defenses

8

does not discharge defense counsel’s duty to prepare for the penalty phase.” Doe v. Ayers,

9

782 F.3d 425, 441 (9th Cir. 2015). “[W]here counsel is on notice that his client may be

10

mentally impaired, counsel’s failure to investigate his client’s mental condition as a

11

mitigating factor in a penalty phase hearing, without a supporting strategic reason,

12

constitutes deficient performance.” Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir.

13

1995) (citing Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989), Evans v.

14

Lewis, 855 F.2d 631, 636–37 (9th Cir.1988)). There is no evidence counsel’s decision to

15

forego an investigation into Schackart’s mental condition for purposes of a mitigation

16

presentation was a strategic condition. Further, it is difficult to imagine a reasonable

17

strategic choice not to conduct a mitigation investigation here.

18

“Counsel may not rely for the development and presentation of mitigating evidence

19

on the probation officer and a court appointed psychologist.... The responsibility to afford

20

effective representation is not delegable to parties who have no obligation to protect or

21

further the interests of the defendant.” Jones v. Ryan, 1 F.4th 1179, 1191 (9th Cir. 2021)

22

(quoting Lambright v. Schriro, 490 F.3d 1103, 1120–21 (9th Cir. 2007)).

23

Moreover, the guilt-phase expert’s reports reveal that defense counsel provided the

24

mental health experts with very little background information about Schackart, aside from

25

the information surrounding the murder. On June 26, 1984, Richard Hinton, Ph.D., the

26
27
28

11

In Arizona, a criminal defendant files a motion for an examination of a
defendant’s competence to stand trial and for a determination of the defendant’s mental
status at the time of the offense under Rule 11 of the Arizona Rules of Criminal Procedure.
Ariz. R. Crim. P. 11.2, 11.8.
- 20 -

1

psychologist who performed Schackart’s Rule 11 competency examination, issued a report.

2

(See ROA at 94.). He noted that he had reviewed the following collateral information for

3

purposes of his evaluation:
. . . police reports and other materials pertaining to the alleged offense, as
well as reports of treatment which [Schackart] has received at the Southern
Arizona Mental Health Center [(SAMHC)]. Also available at the time of this
evaluation were notes apparently supplied by Dr. Leland K. Reeck [sic]. Also
available were several letters which [Schackart] apparently has written to
acquaintances in the past.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(Id.)
On July 30, 1984, defense counsel’s insanity defense expert, psychiatrist Otto
Bendheim, M.D., provided a report to defense counsel based on his evaluation of
Schackart. (PCR ROA 166, Ex. 19)). The records Dr. Bendheim reviewed included police
reports, interviews and statements pertaining to the case, records from SAMHC for
treatment from February 1 to March 8, 1984, a letter written by Schackart in jail to a friend,
Dr. Hinton’s report, and Schackart’s high school attendance records. (Id. at 4–19.)
Defense counsel had an obligation to conduct a thorough investigation of
Schackart’s background. See Williams (Terry), 529 U.S. at 396. Aside from evidence in
the Rule 11 reports suggesting counsel provided the experts with Schackart’s police
records, records from SAMHC, and some high school attendance records, there is no
indication that counsel investigated Schackart’s social history or sought out other
potentially relevant information, such as other school, health, or employment records. Nor
did counsel attempt to timely uncover relevant mitigating evidence from family members
and acquaintances, aside from unsuccessful attempts to contact Schackart’s parents while
acting as advisory counsel. (See Supp. Brief, Exs. 4–7.)
“[T]he duty to investigate does not force defense lawyers to scour the globe on the
off chance something will turn up; reasonably diligent counsel may draw a line when they
have good reason to think further investigation would be a waste.” Rompilla, 545 U.S. at
383. “An attorney need not pursue an investigation that would be fruitless, much less one
that might be harmful to the defense.” Richter, 562 U.S. at 108. However, “when
- 21 -

1

‘tantalizing indications in the record’ suggest that certain mitigating evidence may be

2

available, those leads must be pursued.” Lambright, 490 F.3d at 1117 (quoting Stankewitz

3

v. Woodford, 365 F.3d 706, 719–20 (9th Cir. 2004)).

4

Counsel was on notice that Dr. Hinton had documented that Schackart had sought

5

psychiatric treatment from SAMHC and Dr. Leland Reek just prior to the murder. (ROA

6

at 94.) Dr. Bendheim noted that the SAMHC records revealed that Schackart suffered

7

“from an adjustment disorder with depressed mood” and “a compulsive personality.” (PCR

8

ROA Ex. 19 at 15.)

9

Though Dr. Hinton ultimately found Schackart competent to stand trial, he noted

10

that “at the time of the alleged offense questions are raised regarding [Schackart’s] ability

11

to distinguish between right and wrong and to appreciate the nature and quality of his

12

actions.” (ROA at 95.)

13

Counsel was also on notice that Schackart’s mother told a police officer that her son

14

had been under a lot of pressure and was having marital problems. (PCR ROA 166, Ex. 19

15

at 2). Pajkos had also informed a detective that when Schackart left the National Guard and

16

returned home, “he seemed kind of strange, wanted to go deep into religion quite suddenly,

17

kept accusing her of having an affair once in a while, particularly with Don Burnett, his

18

best friend.” (Id. at 10.) Schackart “told her he couldn’t live without her, he wanted to

19

commit suicide.” (Id. at 11.) Pajkos stated that Schackart “had so many problems” at the

20

time leading up to the crimes. (Id.)

21

Dr. Bendheim concluded that Schackart was chronically depressed and suicidal and

22

that “the events of the few months preceding the incident which gave rise to the prosecution

23

are very important.” (Id. at 23). Dr. Bendheim then described the problems Schackart had

24

in his marriage, also noting that he had started to drink very heavily. (Id. at 24.) Dr.

25

Bendheim explained:

26
27
28

Under these conditions it is quite obvious that we are dealing with an acute
emotional disturbance in a person, who was extremely vulnerable toward that
sort of thing. His pre-existing feeling of inadequacy and his more recent
extreme anger, frustration and conviction of having been dealt unjustly
culminated in an act of tremendous violence with disastrous results.
- 22 -

1

(Id. at 24).

2

Despite several red flags raised in the reports of Drs. Hinton and Bendheim, defense

3

counsel requested no funds for investigation and preparation of the penalty phase and hired

4

no experts who could assist with mitigation issues. Thus, the Court finds that Schackart has

5

presented sufficient evidence, at this stage uncontroverted by Respondents, to overcome

6

the presumption that his counsel conducted an adequate mitigation investigation and that

7

counsel’s decision to forego a mitigation investigation into Schackart’s family, social,

8

educational, and mental health histories was strategic and reasonable.

9

At a minimum, Dr. Bendheim’s report, completed nearly seven months before the

10

guilt phase of trial, should have put counsel on notice that Schackart “has a peculiar

11

psychological make up [sic] and a very strong and psychiatrically important family history”

12

with “certain disabilities and psychological handicaps” (id. at 23, 25) and that Schackart

13

carried a diagnosis of “long-standing depression (depressive personality) beginning in

14

childhood.” (Id. at 23, 25, 26.) Despite these red flags, counsel failed to investigate

15

Schackart’s background and mental status as mitigating factors. See Wiggins, 539 U.S. at

16

525 (explaining that the scope of counsel’s investigation was unreasonable in light of what

17

counsel had actually discovered: the petitioner’s mother was an alcoholic, petitioner was

18

shuttled from foster home to foster home and displayed some emotional difficulties, he had

19

frequent lengthy absences from school, and, on at least one occasion, had been left by his

20

mother alone for days without food); Caro v. Woodford, 280 F.3d 1247, 1254 (9th Cir.

21

2002) (holding counsel’s performance was constitutionally deficient where counsel was

22

aware of defendant’s exposure to neurotoxicants but failed to conduct a reasonable

23

investigation into the effects of the exposure on defendant’s brain).

24

There were other red flags in Dr. Bendheim’s report suggesting the need for counsel

25

to take a closer look at Schackart’s social history. Dr. Bendheim had reported that

26

Schackart’s mother suffered from serious depression and had attempted suicide, and his

27

younger brother had serious problems with behavior and drugs. (PCR ROA 166, Ex. 19, at

28

19.) Additionally, Schackart was somnambulistic in high school, with “some bedwetting

- 23 -

1

at th[e] age of 14 or 15.” Schackart informed Dr. Bendheim that he believed these incidents

2

were a “bizarre psychological manifestation.” (Id.)

3

Counsel’s “decision not to investigate must be directly assessed for reasonableness

4

in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”

5

Strickland, 466 U.S. at 691; see Wiggins, 539 U.S. at 521–22. Given the significant

6

information contained in Schackart’s mental health evaluations, counsel’s decision not to

7

investigate further was unreasonable.

8

In countering Schackart’s arguments, Respondents point to Strickland and two other

9

cases where the Supreme Court held that counsel was not ineffective for failing to conduct

10

certain mitigation investigations. (Supp. Response at 41–42.) In Strickland, the Supreme

11

Court found no deficient performance where sentencing counsel failed to request a

12

psychiatric report, obtain a pre-sentence report, investigate the medical examiner’s reports,

13

or offer character witnesses. 466 U.S. at 675–76. The Court found that counsel made a

14

strategic choice to forego these investigations and argue for an “extreme emotional distress

15

mitigating circumstance and to rely as fully as possible on respondent’s acceptance of

16

responsibility for his crimes.” Id. at 699. The Supreme Court noted that the trial judge’s

17

views on the importance of the latter factor were “well known to counsel.” Id. Additional

18

strategic factors counsel considered, such as preventing contrary character and

19

psychological evidence from being admitted, also factored into the Court’s determination.

20

Id. at 699–700.

21

In Burger v. Kemp, 483 U.S. 776 (1987), the Supreme Court found the failure to

22

present any mitigating evidence, including later-developed evidence of an “exceptionally

23

unhappy and unstable childhood,” was not deficient performance. Id. at 788–96. Like

24

counsel’s approach in Strickland, counsel’s decision to not present this mitigating evidence

25

in Burger was a strategic one. Counsel spoke with the petitioner’s mother on several

26

occasions, with an attorney who had befriended the petitioner and his mother, and with a

27

psychologist who had examined the petitioner. Counsel obtained the petitioner’s

28

psychological reports and interviewed the co-defendant and other members of the military

- 24 -

1

at the base where the two defendants were stationed. Id. at 791. Only then, “[b]ased on

2

these interviews,” did counsel make the “reasonable decision that his client’s interest would

3

not be served by presenting this type of evidence.” Id. Such evidence, the attorney

4

concluded, may have backfired and been counterproductive or unhelpful. Id. at 791–93.

5

The Court found that counsel “could well have made a more thorough investigation than

6

he did.” Id. at 794. The Court held, however, that after interviewing all potential witnesses

7

who had been called to his attention, counsel’s decision “not to mount an all-out

8

investigation into petitioner’s background in search of mitigating circumstances was

9

supported by reasonable professional judgment.” Id. at 794.

10

Finally, Respondents cite Darden v. Wainwright, 477 U.S. 168 (1986), explaining

11

that in Darden, the petitioner failed to show deficient performance despite the claim that

12

counsel spent only one-half hour between the close of guilt phase and the start of penalty

13

phase in preparing the case in mitigation. (Doc. 141 at 42.) In Darden, however, the Court

14

found the petitioner’s claim that counsel only spent a half-hour preparing the case for

15

mitigation to be factually incorrect. The Court noted that “[d]efense counsel engaged in

16

extensive preparation prior to trial, in a manner that included preparation for sentencing,”

17

including “obtain[ing] a psychiatric report on petitioner, with an eye toward using it in

18

mitigation during sentencing.” Id. at 184. The Court concluded that the record “clearly

19

indicates that a great deal of time and effort went into the defense of [the] case; a significant

20

portion of that time was devoted to preparation for sentencing.” Id. at 185.

21

Unlike the petitioners in these cases, Schackart has presented evidence supporting

22

his claim that counsel failed to conduct an adequate mitigation investigation, and that their

23

decision not to pursue mitigating evidence was neither strategic nor reasonable.

24

Respondents do not refute this. Counsel’s failure to uncover and present a case in

25

mitigation cannot be justified as a tactical decision, “because counsel had not ‘fulfilled

26

their obligation to conduct a thorough investigation of the defendant’s background.’”

27

Wiggins, 539 U.S. at 522 (quoting Williams, 529 U.S. at 396) (brackets omitted); see also

28

Silva v. Woodford, 279 F.3d 825, 844 (9th Cir. 2002) (discussing Burger and Darden and

- 25 -

1

noting that “in each of these cases, trial counsel had already investigated and prepared such

2

evidence beforehand so as to make an informed decision about trial strategy, and had

3

reasonable grounds for electing not to present such evidence at trial.”)

4

Counsel failed to investigate Schackart’s background or, lacking the ability or time

5

to do so themselves, failed to seek the assistance of an investigator or mitigation specialist

6

to investigate. Counsel needs to conduct “some sort of mitigation investigation” even if a

7

defendant is fatalistic, uncooperative or instructs counsel not to speak with certain family

8

members. Porter v. McCollum, 58 U.S. 30, 40 (2009). “On the contrary, ‘if a client

9

forecloses certain avenues of investigation, it arguably becomes even more incumbent

10

upon trial counsel to seek out and find alternative sources of information and evidence,

11

especially in the context of a capital murder trial.’” Hamilton v. Ayers, 583 F.3d 1100, 1118

12

(9th Cir. 2009) (quoting Silva, 279 F.3d at 847).

13

Dr. Bendheim’s report suggested such an investigation may have been productive

14

and Klein has admitted he knew that mitigation experts were available during the time of

15

Schackart’s trial.12 (Supp. Brief, Ex. 8 at 4.) Counsel had no reason to believe pursuing a

16

mitigation investigation “would be fruitless or . . . harmful.” See Strickland, 466 U.S. at

17

691.

18

Respondents assert that, even taking counsel’s declarations as true, “it does not

19

show that it would have done any good for counsel to request appointment of a mitigation

20

specialist” and that Schackart has not demonstrated that a mitigation specialist would have

21
22
23
24
25
26
27
28

Because the Court finds the scope of Schackart’s claim is broader than a mere
failure to hire a mitigation specialist and there is no stand-alone right to a mitigation
specialist, the Court does not address Respondents’ assertion that a mitigation specialist,
by that title, would not have been available at the time of Schackart’s trial. (See Supp.
Response at 45–46.) Whether counsel hired a mitigation specialist or an investigator, or
performed the work themselves, the duty of counsel to conduct or oversee a competent
investigation remains the same, as discussed above. (See e.g., Supp. Response at 45–46)
(citing Scott v. Ryan, No. CV 97-1554-PHX-PGR, 2011 WL 240746, **20-21 (D. Ariz.
2011) (finding no IAC where counsel testified he believed he followed his practice in
capital cases at that time in 1989, to retain an investigator who would gather information
for the sentencing phase of trial.)
12

- 26 -

1

been available for appointment in 1985. Nonetheless, if counsel requested and failed to

2

obtain a mitigation specialist, because none were available or the court refused to appoint

3

one,13 it would not relieve counsel of their duty to conduct a proper mitigation investigation

4

through any other means available, e.g., by conducting it themselves or through an

5

investigator or with other expert assistance. Counsel’s failure to uncover and present a case

6

in mitigation cannot be justified as a tactical decision, “because counsel had not ‘fulfilled

7

their obligation to conduct a thorough investigation of the defendant’s background.’”

8

Wiggins, 539 U.S. at 522 (quoting Williams (Terry), 529 U.S. at 396) (brackets omitted).

9

Additionally, during the penalty phase of trial, “counsel has an affirmative duty to provide

10

mental health experts with all information relevant to the formulation of their conclusions.”

11

Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010) (citing Wallace, 184 F.3d at 1117).

12

Counsel here provided little background information aside from the police reports to their

13

expert, as Dr. Bendheim’s report indicates.

14

The Court has evaluated the performance prong of Schackart’s trial counsel IAC

15

claim and, for the reasons stated above, cannot find that the claim lacks merit. The Court

16

focuses next on whether Schackart was prejudiced by counsel’s deficient performance.

17

B.

18

In assessing prejudice courts reweigh the aggravating evidence against the “totality”

19

of the mitigating evidence. Wiggins, 539 U.S. at 534. “In the context of the penalty phase

20

of a capital case, it is enough to show ‘a reasonable probability that [the sentencer]’ would

21

have recommended a sentence of life instead of death.” Andrews v. Davis, 944 F.3d 1092,

22

1108 (2019) (en banc) (quoting Wiggins, 539 U.S. at 537). “The likelihood of that result

23

must be ‘substantial, not just conceivable.’” Id. (quoting Richter, 562 U.S. at 112).

24

Evidence

The Court begins its evaluation by describing the mitigating evidence before the

25
26
27
28

13

During PCR proceedings, counsel asked for the appointment of a mitigation
specialist and the request was denied. (ROA-PCR at 141, 146.) Respondents also point out
that it was not until 2002 that the Arizona Rules of Criminal Procedure were amended to
provide for appointment of a “mitigation specialist” in capital cases. See Rule 15.9(c), Ariz.
R. Crim. P.
- 27 -

1

sentencing court, followed by the new mitigating evidence developed in state PCR and

2

federal habeas proceedings.

3
4

1.

Trial court proceedings
a. Guilt-phase psychiatric evaluations

5

Schackart’s guilt-phase defense was principally based upon a lack of intent. His

6

defense included the testimony of Dr. Otto Bendheim, a psychiatrist, who shared with the

7

jury Schackart’s description of having confused the victim with his wife when she resisted

8

his sexual advances, losing control of himself, and killing the victim. (RT 3/15/85 at 22.)

9

Dr. Bendheim explained that Schackart told him “He was entirely aware of who the girl

10

actually was,” but “that there were moments briefly during that which he felt he was with

11

his wife.” (Id. at 22.) Dr. Bendheim testified that while the story of the confusion between

12

the two women was not very convincing, in his opinion Schackart had acted impulsively

13

and not with intent. (Id. at 23-55.)

14

The prosecution called psychiatrist Michael Cleary in rebuttal. (RT 3/16/85 at 9.)

15

Dr. Clearly reviewed records consisting of Dr. Bendheim’s report, police reports and

16

interviews, diary excerpts and letters from Schackart to his wife. (Supp. Response, Ex. C,

17

Cleary Report, at 1–2.) Dr. Cleary examined Schackart on February 12, 1985, and

18

Schackart provided him with information regarding Schackart’s family background,

19

including his mother’s experiences in a Japanese prisoner of war camp in World War II

20

and her psychological treatment for depression as well as his own juvenile history, military

21

service and his physical and mental health. (Id. at 2– 4.) Schackart reported to Dr. Cleary

22

“no history of head injury or seizures.” (Id. at 4.)

23

Dr. Cleary found “[t]here was no impairment of [Schackart’s] thought processes,

24

stream of thought was within normal limits; he talked in a rational, coherent manner, and

25

did not express any delusions or persecutory ideas.” (Id. at 4.) Further, “[h]e is obviously

26

of bright normal or superior intelligence.” (Id. at 5.) “The telephone calls made to the

27

police, by the defendant . . . shows clearly that he was orientated, rational, speaking

28

coherently, and able to describe the exact circumstances of the homicide; in a lengthy

- 28 -

1

interview with Detective Reuter about two hours later, he again discussed in detail the

2

circumstances of the homicide, his motivations and reactions.” Id.

3

Dr. Cleary concluded: “I find no mental illness in the defendant, on the basis of this

4

examination, there is no indication that he ever suffered from a psychosis or major mental

5

disorder, but I am unable to state with medical probability what his state of mind was on

6

March 8, 1984.” (Id.)

7

b. Sentencing proceedings

8

Five days after his conviction, Schackart filed a “Motion to Proceed Pro Se.” (ROA

9

597–98.) Schackart explained that he was “not really against the death penalty” and that

10

counsel would not be representing his best interests in “attempting to make a big scene and

11

prove all the mitigating circumstances” or to contest the aggravating circumstances “except

12

for the most extreme allegations.” (RT 3/27/85 at 4.) Schackart explained that counsel’s

13

views regarding sentencing were not in line with his “so why should they be representing

14

[him]?”14 (Id. at 6.)

15

At a subsequent hearing, Schackart explained that he wanted to present the facts

16

regarding his prior conviction, and therefore wanted to call his ex-wife, the doctor who did

17

her medical examination after she reported the sexual assault, and a person who knew his

18

ex-wife. (RT 4/3/85 at 30.) He explained he was not going to argue the fact of the prior

19

conviction, but the witnesses would be relevant at sentencing to show the court the weight

20

the prior conviction should be given. (Id. at 29–30.)

21

On April 8, 1985, the court heard oral argument on Schackart’s motion to continue

22

the sentencing. (RT 4/8/85 at 35–36; ROA at 642.) Schackart explained that he intended to

23

move for a diagnostic or psychiatric evaluation for purposes of the mitigation hearing, and

24
25
26
27

14

In later proceedings, Schackart explained to psychiatrist Dr. Barry Morenz that
he “fired his attorneys prior to sentencing because they wanted him to reveal information
about his background, especially about his father being a transvestite.” (Supp. Response,
Ex. F (April 2001 Report) at 3.) As a result of these conflicts, Schackart chose to represent
himself. (Id. at 4.)

28

- 29 -

1

that he had discovered new witnesses who would “be of great use to [him] in the

2

aggravation mitigation hearing.” (Id.; ROA at 644.) Schackart stated he wanted additional

3

time to interview the witnesses and do further legal research. (Id. at 39.) The court granted

4

the motion over the prosecutor’s objection, continuing the sentencing for three weeks to

5

May 3. (Id. at 43.)

6

On April 15, Schackart moved the court for a psychiatric evaluation limited to the

7

determination of specific statutory mitigating circumstances. (ROA 663.) Schackart

8

specifically requested that Dr. Bendheim, who had evaluated him and testified during the

9

trial, not conduct the evaluation because he “has an unfortunate tendency to distort his own

10

report, as well as the statements [Schackart] has made to him.” (Id.) Schackart had stated

11

at an earlier hearing that “there were things I told [Dr. Bendheim] and things that I didn’t

12

tell him, which he later complained that I myself told him.” (RT 4/8/85 at 45.) Specifically,

13

Schackart explained that “[t]he big deal was with my parents”:

14
15
16
17
18
19
20

[Pajkos] made a comment which was put down in the transcript about my
parents. When [Dr. Bendheim] interviewed me, I specifically told him that
it’s not true. If it is, it certainly hasn’t affected what I did or what my actions
were. He later got on the stand and said that he never told me this. This was
about my father walking around in women’s clothing, so forth. That just
floored me.
(Id. at 45–46.)
The court granted Schackart’s motion for a psychiatric evaluation, limiting the
examination to three areas:

21

27

first, whether at the time of offense, the Defendant’s capacity to appreciate
the wrongfulness of his conduct or conform his conduct to the requirement
of the law was significantly impaired by mental disorder; second, whether
the Defendant was under some unusual and substantial duress as a result of
some mental disorder; and, third, whether at the time of the offense, there
were any psychological factors present, including any aspect of the
Defendant’s character or propensity toward, or any of the circumstances of
the offense itself which would tend to make the Defendant less culpable of
the offense.

28

(RT 4/22/85 at 72.) The court granted Schackart’s motion to extend the time to file his

22
23
24
25
26

- 30 -

1

sentencing memorandum until April 29, 1985. (ROA 697, 792.)

2

On April 22, 1985, the court heard argument on Schackart’s motion to have the state

3

disclose recent cases in which the prosecutor’s office “has not sought the death penalty . . .

4

where the killing was accomplished in a much more brutal, depraved manner.” (RT 4/22/85

5

at 60.) Schackart sought disclosure of statistical information that would prove the death

6

penalty selection process was discriminatory, specifically, that it violated the Eighth

7

Amendment because he was more likely to get the death penalty “[b]ecause [he] killed a

8

white person.” (Id. at 66; ROA at 667.) The court declined to order the requested disclosure.

9

(Id. at 72.)

10

Schackart filed a sentencing memorandum on April 29. (ROA at 711–735.) He

11

argued that the sentencing court should not impose the death penalty because the State

12

could not prove the existence of an aggravating factor under A.R.S. § 13-703(F)(6)

13

(commission of the offense in an especially heinous, cruel or depraved manner) and little

14

weight should be given to Schackart’s prior conviction, an aggravating factor under A.R.S.

15

§ 13-703(F)(2) (previous conviction of a serious offense), due to the mitigating

16

circumstances surrounding that incident. (ROA 711–712.)

17

He also alleged the existence of the following statutory mitigating circumstances:

18

A.R.S. 13-703(G)(1) (defendant’s capacity to appreciate the wrongfulness of his conduct

19

or to conform his conduct to the requirements of law was significantly impaired); (G)(2)

20

(defendant was under unusual and substantial duress); (G)(4) (defendant could not

21

reasonably have foreseen that his conduct in the course of the commission of the offense

22

for which the defendant was convicted would cause, or would create a grave risk of

23

causing, death to another person); and (G)(5) (defendant’s age).

24

Schackart also sought to portray his character as upstanding, arguing that his youth,

25

in combination with the extraordinary circumstances he was under and his resulting

26

emotional condition, were contributing factors to the offense, and that the crimes for which

27

he was convicted show a “marked deviation from his true character.” (ROA 733–34.) He

28

alleged that he lacked a prior criminal record before the conviction for raping his ex-wife,

- 31 -

1

and that his involvement in “many worthwhile community activities, his appointment to

2

the military academies and his being selected by the Army ROTC, his above-average

3

intelligence, and overall character, show that the instant conviction resulted from

4

extraordinary circumstances and a mental condition which deviated significantly from his

5

norm.” (ROA at 712.)

6

With respect to his mental condition, Schackart cited State v. Brookover, 124 Ariz.

7

38, 601 P.2d 1322 (Ariz. 1979), to support his argument that the imposition of the death

8

penalty was unwarranted because his mental condition was “sufficiently deviated from his

9

norm.” (ROA at 733.) In Brookover, the Arizona Supreme Court set aside the death

10

penalty, finding that Brookover’s “mental condition”—a neurological lesion that caused a

11

“true suspension of reality”—“was not only a mitigating factor, but a major and

12

contributing cause of his conduct which was ‘sufficiently substantial’ to outweigh the

13

aggravating factor of [his] prior conviction.” Brookover, 124 Ariz. at 41–42, 601 P. 2d at

14

1325–26.

15

Schackart composed and filed another statement on April 29, which he identified as

16

a “Pre-Sentence Report,” consisting of a letter to the sentencing judge, a narrative regarding

17

the murder and events preceding it, and a sentencing recommendation. (ROA at 776–790.)

18

The purpose of the letter, Schackart said, was to explain “a series of complicated events

19

and the way in which [he] reacted to them emotionally,” stating that to understand what

20

happened, he needed to go back to August 3, 1982, when he first met his future wife, Alyda

21

Pajkos. (Id. at 780.) The letter focused on his ex-wife’s infidelities, the threatening “game”

22

he jokingly played with her that she later reported to the police as rape, the psychological

23

harm he experienced in jail after he was arrested for rape, the difficulty he experienced

24

after he was released, his decision to flee to California to avoid incarceration, how on the

25

day he killed the victim “everything was going through [his] head at once,” and how he

26

struck the victim after she refused to give him her car or take sleeping pills to let him get

27

away, and later stuck a sock in her mouth after he thought he heard her sigh. (Id. at 780–

28

789.) He described leaving the hotel and thinking about “blowing both Alyda and the

- 32 -

1

scumbags she was living with away” because “I must admit that I never would’ve reached

2

such a state if Alyda hadn’t seen fit to press those bogus charges against me. If she hadn’t,

3

none of this would’ve occurred.” (Id. at 789.) Deciding against killing anyone else, he

4

stated that he went to his pastor’s house and later turned himself in, telling the police a

5

story that was “part truth, part lie and very confused, . . . just to get myself into more

6

trouble.” (Id. at 789.) As he explained to the detective at the time, he “wanted to die rather

7

than go to prison.” (Id. at 789.) Schackart stated he would “rather receive the death penalty”

8

but could not “stand for all of the wild and outrageous allegations being made by the State.”

9

(Id. at 790.)

10

The sentencing judge had two pre-sentence reports for Schackart, the first one dated

11

July 18, 1984, involving his prior convictions on four counts from the attack on his ex-

12

wife: sexual assault, kidnapping, aggravated assault, and domestic violence. (Supp.

13

Response, Ex. A, at 2.) The first section of the report discussed the facts of the crimes. (Id.

14

at 2–3.) This included Schackart’s statement, in which he reported he had “been in a

15

severely depressed state” prior to assaulting his wife and had contemplated suicide. (Id. at

16

3.) He opined that he was not guilty of the crimes for which he was convicted, but conceded

17

he was guilty of endangerment because he had pointed a gun at his wife. (Id.)

18

The social history section of this report detailed Schackart’s upbringing, education,

19

physical and mental health, marital history, military history, and employment history. (Id.

20

at 4–7.) The report also referred to several letters from family and friends, which “note that

21

he is a bright and intelligent person who has a great deal of potential,” and describe the

22

crimes as “totally out-of-character for him.” (Id. at 7.) These individuals suggested that

23

Schackart “would really benefit from a long-term psychiatric program to deal with his

24

emotional problems.” (Id.)

25

The second report was dated April 26, 1985, after Schackart’s murder conviction.

26

(Supp. Response, Ex. B.) This report “supplement[ed] and update[d]” the previous report.

27

(Id. at 2.) It discussed the facts of the more recent crimes and included Schackart’s

28

statements about them. (Id. at 2–3.) He reiterated what he had told the officers during his

- 33 -

1

confession, telling the probation officer: “I’d rather received [sic] the death penalty than

2

spend the rest of my life in jail.” (Id.)

3

The second report updated Schackart’s social history. (Id. at 3–4.) The report found

4

no prison violations, except for one disciplinary infraction for having a razor blade in his

5

cell. (Id.) With respect to the “numerous” psychological evaluations, the report noted that

6

several “contained statements regarding his family’s background that he [Schackart] felt

7

were damaging and upsetting.” (Id. at 4.) Schackart was uncertain if he had a mental

8

disorder but reported “no suicidal tendencies and is not taking any medication at the present

9

time.” (Id.) The report concluded that “the defendant suffers from character disorders rather

10

than any psychosis.” (Id.)

11

In the report, Schackart commented: “Incarceration is really not the answer; I’m not

12

a violent person, and this was totally out of character for me.” (Id.) He was “still angry

13

about his marriage,” “felt the collapse of his marriage led to his involvement in the instance

14

offense,” and “that he was unjustly convicted in the previous matter, which left him with a

15

great deal of bitterness.” (Id.)

16

The officer who compiled the report made several attempts to contact Schackart’s

17

parents but was unsuccessful. (Id.) The report reconsidered its prior conclusion that

18

Schackart came from a “basically supportive home environment” and instead found “there

19

was dysfunction within the home.” (Id. at 5.) The report found Schackart “emotionally ill

20

equipped to deal with his marriage, and its collapse proved to be fertile ground for his

21

involvement in the instant offense.” (Id.) The report noted Schackart’s lack of a prior record

22

before the collapse of his marriage, his positive work record, his supportive friends, and

23

“his history of family instability.” (Id.)

24
25
26

Advisory counsel Noble sent the probation officer Dr. Cleary’s report as well Dr.
Bendheim’s 26-page report dated July 30, 1984. (Supp. Response, Ex. C.)
c. Aggravation and mitigation hearing

27

The aggravation and mitigation hearing was held on May 3, 1985. The prosecutor

28

called one witness: Gloria Bogulas, the mother of the victim’s fiancé. (RT 5/3/85 at 7.) Ms.

- 34 -

1

Bogulas testified as to the “kind” and “intelligent” character of the victim, the likelihood

2

Schackart would “become a well publicized type of jailhouse lawyer,” and asked the court

3

to impose the “absolute maximum sentence with no chance for parole.” (Id. at 9.) Schackart

4

cross-examined Ms. Bogulas, questioning her judgment of his character in the absence of

5

any personal contact with him and asking whether she was judging him based on her view

6

of the victim’s appearance after the autopsy. (Id. at 11–15.) The court later struck Bogulas’s

7

testimony at Schackart’s request. (ROA at 798.)

8

Schackart called nine witnesses at his mitigation hearing. Throughout his mitigation

9

presentation, consistent with his stated intent (RT 5/3/85 at 29–30), Schackart attempted to

10

cast doubt on his conviction for raping his ex-wife. (Id., passim.)

11

Schackart questioned Earl Mincer, a former acquaintance of both Schackart and his

12

ex-wife, regarding an incident in which Pajkos called Mincer and told him that a man

13

named Joe Burton had raped her. (Id. at 16–19.) Mincer stated that Pajkos was crying and

14

hysterical when they started talking. She calmed down, however, and refused to take any

15

kind of action, so by the time Mincer hung up he no longer believed she had actually been

16

raped. (Id. at 20.) Mincer stated Pajkos had a tendency to “speak first without thinking

17

about it” and was “dramatic.” (Id. at 21.) She was also “unintentionally promiscuous and

18

often found herself in unexpected situations.” (Id.) Mincer also testified that on the

19

occasions he witnessed Schackart when he was angry, he “always seemed to direct it

20

inward,” he did not yell or scream at people, he “just kind of sunk into the background.”

21

(Id. at 23.) Mincer testified that Schackart confided in him that Schackart occasionally

22

slapped Pajkos during their marriage. (Id. at 25.) Mincer believed that “to some extent”

23

Schackart was provoked into hitting her. (Id.) Mincer testified that Schackart was not the

24

sort of person who would kill someone intentionally or with premeditation, and that he

25

would “definitely” have the capacity for being sorry for what he had done. (Id. at 30.) He

26

testified that “general emotional problems . . . [p]ossibly incidents before” could have

27

provoked Schackart to the degree he was capable of killing someone. (Id. at 30.)

28

Schackart called Joe Burton to question him about his relationship with Pajkos. (Id.

- 35 -

1

at 36–37.) Burton admitted the relationship but denied raping her. (Id. at 37.) He testified

2

that if she had reported that he forced her she was “probably confused.” (Id. at 37.)

3

Schackart called David Kubista, a student at the University of Arizona and a captain

4

in the Air Army National Guard who commanded the battery of the 180th Battalion to

5

which Schackart was assigned as an ROTC cadet. (Id. at 120–21.) Kubista testified that

6

Schackart worked in the fire direction center, generating the data that artillery uses to fire

7

shells. (Id. at 123.) Kubista explained the position was demanding, requiring an

8

understanding of geometry and mathematical components, and the ability to work with

9

radios. (Id.) Kubista recalled Schackart as a “neutral individual,” a term he used to describe

10

individuals who perform well but don’t stand out in his memory as extreme “given the

11

number of people he has to work with.” (Id. at 127–28.) He did recall a time, after Schackart

12

was married in spring of 1983, when Schackart was required to attend advanced individual

13

training at Fort Sill, Oklahoma, after he was reverted down to his enlisted rank (id. at 126),

14

and another occasion when Schackart left a two-week training session early because he felt

15

his wife was cheating on him (id. at 127, 130).

16

Janet Watson, a teacher at Palo Verde High School, testified she met Schackart

17

when he was a sophomore in 1977. (Id. at 135.) Watson testified that Schackart was

18

involved academically, particularly with the journalism program, and interacted “pretty

19

well most of the time” with the other students on the staff, most of whom were intellectually

20

superior students. (Id. at 136–37.) Watson couldn’t say Schackart was “well liked” by

21

others, stating that “[r]espected would be a better word.” (Id. at 137.) Watson noted some

22

amount of animosity towards him, but she wasn’t sure “if it was serious.” (Id. at 137.)

23

Watson explained that Schackart’s nickname was “the rectifier” because “[i]f somebody

24

left out a comma, a quotation mark, put one where it wasn’t needed, those types of things,

25

simple printing errors, [he] would come in and list them in some way so that all the others

26

would see all their mistakes.” (Id. at 138.) Watson could not recall specific instances of

27

Schackart getting angry, having problems with women or girls, showing any disrespect, or

28

making inappropriate remarks. (Id. at 139.)

- 36 -

1

Watson recalled Schackart later participating in a school for gifted students and

2

taking part in extracurricular activities including an internship program at the Tucson

3

Citizen newspaper, contributing to a newspaper called Youthful Alternatives, participating

4

in a Model Lecture group, and doing regular interviews for a high school radio program.

5

(Id. at 139–41.) Watson also recalled Schackart’s interest in attending the military

6

academies and was aware that the Naval Academy and the Army and Marine Academy

7

had accepted a nomination from him when he graduated. (Id. at 141.)
Watson believed Schackart would not have just gone out and wantonly killed

8
9

someone, and that he was acting out of character when he killed Charla. (Id. at 142–43.)

10

Leon Hauck testified on Schackart’s behalf as a friend who had known Schackart

11

“on and off for the last five years.” (Id. at 145.) He had also known Pajkos for

12

approximately the same amount of time. (Id. at 146.) Hauck confirmed that Schackart told

13

him that he felt Pajkos was having an affair but couldn’t remember whether Schackart had

14

told him he had caught Pajkos in bed with another man. (Id. at 148.)

15

Schackart called Denise Fox, a friend and former co-worker at Circle K , to testify

16

on his behalf. (Id. at 152–53.) Schackart attempted to question Fox about times he had

17

spoken with her about his marital difficulties and told her that he had been put in jail

18

because his wife charged him with rape, but Fox could not recall these conversations. (Id.

19

at 154–55.) Fox did testify that Schackart would visit her, and she would take a shower

20

while he was in the apartment but would not lock the door, at least “[n]ot all the time,”

21

because she did not feel unsafe with him in the apartment. (Id. at 156.) She testified she

22

wasn’t scared of him; he never made sexual advances or improper remarks and she did not

23

feel that he hated women. (Id. at 157.) She testified he was a good person, honest and

24

trustworthy, and she did not think that he would have killed his friend on purpose. (Id. at

25

157.)

26

Schackart called his ex-wife, Alyda Pajkos. (Id. at 160.) Schackart explained to the

27

court, over numerous objections by the State, that his line of questioning regarding Pajkos

28

went to the:

- 37 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

. . . state of mind that I was in over a marriage, after having married, after
having thrown away my military career, my educational career for the
marriage, and, in essence, everything to work for was her, and then to find
out that this woman is going out and having an affair, and having seen it with
my own eyes, and having her falsely accuse me of rape and coming on the
stand and acting like a, you know, just a normal, chaste woman, with normal,
moral values, it’s ridiculous.
That goes to show my state of mind, everything was gone that I had to live
about, and I still have to. At the time I still had to feel that, you know, she’s
out there living with this guy and I still loved her, and that was just eating
away at me. I feel, you know, the facts of the matter should come out, not
just the accusations that she was making.
(Id. at 173–74.)
Pajkos denied that anyone other than Schackart had forced her to have sex “through
the whole thing,” but testified that she recalled saying something to either Schackart or
someone else that Joe Burton had “at first forced himself” upon her, and then later she
“agreed to it.” (Id. at 162.) When asked if she had told anyone, including Schackart, her
sisters, or Earl Mincer that Joe Burton had raped her, Pajkos replied: “I may have said that
in the context that – I can’t recall, it’s so long ago.” (Id. at 167.) Pajkos denied ever having
an affair. (Id.)
Pajkos testified that “a few times” Schackart would go out of his way to avoid
situations in which he might strike her; he would leave or go driving or into another room
in the house to cool off. (Id. at 192.) On a few occasions, however, she would follow him
and continue the argument until he slapped her or pushed her away. (Id. at 192.)
Dr. Glen Ray Kartchner, an emergency room doctor, testified about the sexual
assault examination he performed on Pajkos. (Id. at 42–43; see ROA at 758.) Dr.
Kartchner’s report, dated January 27, 1984, described Pajkos’s emotional state at the time
as “calm,” which meant “she was not crying, was able to answer questions normally on a
person-to-person basis without any particular emotional overlay.” (Id. at 45; ROA 758–
59.) Her appearance was normal, with no report or evidence of trauma. (Id. at 46–47.)
Dr. Bendheim testified that he examined Schackart looking for factors “which

- 38 -

1

would mitigate against the death penalty.” (Id. at 51–52.) He reviewed Schackart’s records

2

and psychological reports from SAMHC; a report by a psychiatrist whom he identified as

3

Dr. Reedy; a report prepared by a jail psychologist; the report of Dr. Hinton, a clinical

4

psychologist for the Pima County Court Clinic; a letter written by Schackart to a friend

5

following Schackart’s arrest; police reports; Schackart’s confession; the pastor’s report;

6

several statements and taped interviews of Schackart’s family members, friends,

7

acquaintances, and witnesses; Schackart’s high school attendance records; and Dr.

8

Hinton’s psychological report. (Id. at 104–06.)

9

Dr. Bendheim testified he believed Schackart was bright, with normal to high

10

intelligence, and was able to appreciate and foresee what he had done. (Id. at 62.) Dr.

11

Bendheim opined that although Schackart was highly intelligent, he had been severely

12

handicapped emotionally for many years. (Id. at 93.)

13

Dr. Bendheim testified that Schackart was “suffering from considerable distress due

14

to longstanding personal problems within the family, within [his] own life, dating from

15

childhood, occasionally requiring psychiatric intervention and help.” (Id. at 52–53.) He

16

explained that at the time Schackart murdered the victim he was under stress “due to a

17

disappointing marriage which had broken up,” a trial in which Schackart was charged and

18

convicted for raping his wife, which Schackart felt “was a miscarriage of justice due to

19

perjury and lies by witnesses.” (Id. at 53.) Dr. Bendheim explained when Schackart sought

20

to renew his acquaintance with the victim, he was in a frame of mind of “bitterness and

21

utter despair” over having lost his wife, his court battle, and his “honor.” (Id.)

22

Dr. Bendheim testified Schackart was not impaired at the time “in regards to the

23

intent to have . . . an intimate relationship” with Charla, or in “trying to silence her and to

24

make it not possible for her to immediately notify the authorities,” but there was

25

“considerable impairment” as to any intent to “inflict[] permanent damage to [the victim],”

26

that could possibly result “in serious injury or death.” (Id. at 54.) Dr. Bendheim believed

27

that Schackart never intended to kill the victim, that his conduct deviated significantly from

28

his normal conduct, and that the confusion Schackart had regarding the victim and his wife

- 39 -

1

would constitute a significant amount of impairment. (Id.)

2

Dr. Bendheim reiterated that Schackart was under considerable distress for many

3

reasons, going back “for many years” to “very serious family problems.” (Id. at 56.) Dr.

4

Bendheim explained:

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Together with the underlying personality structure, we have a child here, who
from very early childhood has been aware of distress, utter distress when the
family threatened divorce.
On many occasions his mother was given to have significant depression and
needed psychiatric care for many years, a father who turns out to be a sex
deviate sexually [sic], causing distress for the whole family; his brother, his
only sibling, having serious problems with conduct behavior and being
addicted to drugs, and trouble with the law.
Then we have this young man who, from his school days, grade school days
on, felt a great deal of inadequacy, that girls did not appreciate him.
He falls in love, up and married her on the spur of the moment and he remains
in love with the young lady, but is extremely disappointed in her conduct
when he found her to be a thief. He found her to be unfaithful, a liar, and
finally she divorced him even though he made every attempt to remain in that
relationship.
He then finds himself accused of raping that woman, a charge which to this
day he cannot accept as true. He now is a felon, dishonored, facing a
considerable penalty.
He meets another woman whom he has known, but not known intimately,
with whom he hopes to establish a relationship.
(Id. at 56–57.)

21

Schackart elicited testimony from Dr. Bendheim regarding his report that Schackart

22

had persecutory ideas having to do with the rape trial, that he had depressive neurosis

23

throughout his life, with moments of “severe unhappiness and disappointments and

24

feelings of inadequacy, inferiority,” and that at the time of the offense these conditions

25

“would present a fertile soil from which lack of impulse control, anger, frustration, even

26

violence could grow.” (Id. at 58.)

27

On cross-examination, Dr. Bendheim explained that Schackart was taken to a

28

psychiatrist in his early teens and to a doctor for sleepwalking. (Id. at 71.) At age 13 or 14

- 40 -

1

he began to bed wet again. Dr. Bendheim explained these were signs of immaturity and

2

severe psychological stress, though the nature of the stress wasn’t known. (Id.)

3

Schackart elicited further testimony from Dr. Bendheim regarding the relationship

4

of Schackart’s age to his impulse control. Though Schackart was an impulsive person, Dr.

5

Bendheim stated “impulse control in anybody improves with maturity and gaining in

6

years.” (Id. at 61.) He further testified that with “help and guidance” the chances of “this

7

sort of thing not occurring again would be better. . . .” (Id. at 62.) Dr. Bendheim hoped that

8

rehabilitation and treatment would help Schackart resolve his problems. (Id.) On cross-

9

examination, Dr. Bendheim admitted Schackart had been seeing a professional counselor

10

and had a session with him on the morning before the murder. (Id. at 64 –65.) Dr. Bendheim

11

also testified that Schackart’s confusion about who he killed “went back and forth several

12

times during that short period” and was a “very unusual disorientation.” (Id. at 72.)

13

The sentencing judge also elicited testimony from Dr. Bendheim, including

14

testimony that Schackart had stated he wished to have the death penalty imposed rather

15

than spend the rest of his life in prison. (Id. at 108.) Dr. Bendheim explained that while

16

Schackart did not make this statement because he was feeling remorseful, he was not

17

without remorse. (Id. at 108–09.)

18

Schackart requested a continuance of the hearing for purposes of obtaining the

19

testimony of Captain John Barbier, who could testify about how Schackart was suffering

20

academically and emotionally in 1981 and 1982 due to problems that were occurring within

21

his family, “specifically [his] parents [sic] reaction to [his] brother having trouble with

22

drugs, and that [he] suffered academically; and in fact, . . . requested a six month leave

23

from the ROTC program.” (Id. at 195–96.) Schackart also stated Barbier would attest to

24

his conduct around women and his involvement in extracurricular activities and would

25

“just be a good character witness.” (Id. at 196.) Barbier could further testify that Schackart

26

did not hate women or make inappropriate remarks around them, that he could deal with

27

his anger effectively, and that he was a person of high character, potential, and honesty.

28

(Id. at 196.) The court stipulated that this is what Barbier would testify to in an offer of

- 41 -

1

proof. (Id. at 197.)

2

Schackart’s counsel stated at the hearing that they had been unsuccessful in attempts

3

to subpoena Schackart’s parents to testify. (Id. at 198.) Schackart’s father had “apparently

4

left the state, apparently on business, although we have reason to believe there are other

5

reasons. He made threats that if subpoenaed he would do everything he could to hurt Mr.

6

Schackart.” (Id.) Counsel believed, based on their investigator’s affidavit, that Schackart’s

7

mother was attempting to evade service of the subpoena. (Id.) Pima County Public

8

Defender Criminal Investigator Gene Reedy submitted an affidavit stating that he

9

attempted to serve subpoenas on Schackart’s mother and father over the course of three

10

days, noting that a car was in the driveway, the trash had been emptied, and a neighbor

11

believed them to be home, but that they would not answer the phone or the door. (ROA at

12

799–800.)

13

Counsel informed the court that he had advised Schackart to request a continuance

14

to allow them to call his parents as witnesses, believing them to be material, especially in

15

light of the prosecutor’s “consistent insinuations that what Mr. Schackart told to Dr.

16

Bendheim was not truthful, and particularly, was not truthful as far as his family history.”

17

Schackart advised, however, that he did not want the hearing continued for that purpose,

18

and “does not in fact want to call them to testify.” (RT 5/3/85 at 198.) While the court

19

suggested their testimony might not be helpful if they were unwilling to appear, counsel

20

countered that “despite this unusual behavior” he believed Schackart’s parents “would

21

testify truthfully, despite what they say outside of the court” and that “part of the reason

22

why Mrs. Schackart is unwilling to be served and come in is a function of her psychiatric

23

problems.” (Id. at 199.) Counsel thought “their testimony would be very significant,” both

24

“in terms of their statement in the pre-sentence report. . . and also in terms of the mitigating

25

circumstances concerning defendant’s family background.” (Id. at 199–200.)

26

The court found that Schackart, who had advised counsel that he did “not want to

27

have [sentencing] continued for that purpose, and does not in fact want to call them to

28

testify” (id. at 198), had a right “not to ask for a continuance, and that it is a reasonable

- 42 -

1

decision under the circumstances.” (Id. at 200.)

2

Following the aggravation/mitigation hearing, the trial court rendered its sentence.

3

The court found the mitigating circumstances not sufficiently substantial to call for

4

leniency, and sentenced Schackart to death for the murder and to a term of years for the

5

other counts. (ROA at 837–38.)

6

d. Appeal

7

On direct appeal, the Arizona Supreme Court noted that there were serious problems

8

with the transcripts. Schackart I, 858 P.2d. at 642–44. It concluded that the transcripts for

9

the trial and the aggravation/mitigation hearing were sufficient for proper appellate review.

10

Id. at 644. The court rejected Schackart’s attacks on his convictions. Id. at 644–648. The

11

court also affirmed his sentences for the kidnapping and sexual assault convictions. Id. at

12

648. However, the court found the sentencing transcript inadequate with respect to the

13

murder conviction and remanded for a new sentencing hearing. Id. at 644. The court added

14

that “[t]he trial court need not repeat the aggravation/mitigation hearing . . . because that

15

proceeding was transcribed in full.” Id. at 644.

16

e. Resentencing

17

On remand, Schackart was represented by attorney Sarah Michele Martin, of the

18

Pima County Legal Defender’s Office, assisted by attorney Robb Holmes. (See

19

Resentencing-ROA at 39–40.) Martin submitted a 31-page Memorandum of Law for

20

Sentencing. (Id. at 49–79.) Counsel also attached Schackart’s DOC records. (Id. at 80–98.)

21

The probation officer filed a two-page addendum to the presentence report, which

22

noted the prior presentence reports. (Supp. Response, Ex. D.) It related that Schackart had

23

been incarcerated with DOC as of May 14, 1985, and had “worked as a porter, a janitor,

24

and a law library clerk.” (Id. at 1.) It also noted he had been “the subject of disciplinary

25

actions in 1986, 1987, and 1988 for Disobeying an Order, Attempted Escape, and

26

Destroying Property respectively.” (Id.)

27

Counsel requested a full mitigation hearing before resentencing. (Supp-ROA at 42;

28

RT 10/22/93 at 2–5.) Judge Brown denied the request for a new hearing but permitted

- 43 -

1

counsel to present additional mitigation evidence as an offer of proof to complete the

2

record. (Supp-ROA at 71; RT 10/22/93 at 7–8.) Counsel renewed the motion at the

3

resentencing hearing and requested a continuance to prepare. (RT 12/7/93 at 2.) The court

4

denied the continuance and proceeded with sentencing. (Resentencing ROA at 103; RT

5

12/7/93 at 10.)

6

The court allowed Schackart to allocute and he did so. (12/7/93 at 12–17.) Schackart

7

expressed frustration that the court misconstrued his attempts to express remorse. (Id. at

8

12–13.) He disputed his prior conviction for raping his ex-wife. (Id. at 14–15.) He also

9

disputed some things the judge had said at the prior sentencing. (Id. at 15–17.) He stated

10

he turned himself in for the murder and made up a story about raping the victim because

11

he “wanted to get the death penalty” for what he had done, and because he “simply couldn’t

12

live with what [he] had done.” (Id. at 16.) Schackart asked for a life sentence. (Id. at 17.)

13

The court proceeded with sentencing, stating it had reviewed letters submitted on

14

Schackart’s behalf by friends, family members and others, but did not review the letters

15

sent by people “who wanted to say bad things about” Schackart. (Id. at 27.)15 The court

16

also “again reviewed the facts adduced at the trial, all the evidence of mitigating factors

17

even remotely reliable or relevant.” (Id.) The court reiterated that it had reviewed, “all of

18

the matters proffered to the Court in mitigation. I have weighed those factors, the evidence

19

supporting them and their significance.” (Id. at 29.)16

20
21
22
23
24
25
26
27
28

15

These letters were not contained in the record received from the Arizona Supreme
Court, nor were they included in the inventory of the transmittal of record from the Arizona
Supreme Court. The Court notes that their absence, however, is not prejudicial to the
Court’s ruling on Schackart’s supplemental Martinez brief because they weigh on the side
of demonstrating a lesser, not greater, prejudicial impact of counsel’s failure to conduct a
mitigation investigation. Schackart does not argue otherwise, nor reference these letters in
support of any of his assertions.
16

On direct appeal, Schackart alleged the trial court failed to consider his
nonstatutory mitigation. See Schackart II, 190 Ariz. at 252, 947 P.2d at 329. The Arizona
Supreme Court found that although the trial court did not specifically discuss each piece of
evidence as statutory and then nonstatutory mitigation, he “clearly considered it all, even
that which did not qualify under any subsection of 13-703(G).” Id.
- 44 -

1

The court again found two aggravating circumstances: Schackart’s prior violent

2

felonies and the murder being committed in an especially cruel, heinous or depraved

3

manner. (Id. at 21–22, 24–27.) The court rejected Schackart’s claim of remorse, and found

4

he committed the crimes “with a depraved mind and a malignant heart.” (Id. at 26–27.) The

5

court considered the proffered evidence and found several mitigating circumstances: (1)

6

Schackart’s age; (2) his “lack of real contact with the criminal justice system until January

7

17th of 1984[17] and [his] laudable youthful activities;” (3) he is “more impulsive than the

8

average person and [his] capacity to conform [his] conduct to the requirements of the law

9

was to some extent impaired,” and (4) he was “at the time in question under substantial

10

stress.” (Id. at 27–28.)

11

After weighing the aggravating and mitigating circumstances, the court found

12

“beyond a reasonable doubt that the mitigating factors and circumstances shown are not

13

sufficiently substantial to call for leniency.” (Id. at 29.) Accordingly, it re-sentenced

14

Schackart to death on the first-degree murder conviction. (Id. at 30.) It further found that

15

either aggravating circumstance alone would be sufficient to warrant imposition of the

16

death penalty. (Id. at 31.)

17

After resentencing, Schackart’s counsel declared that they had spoken with and

18

obtained an affidavit from Schackart’s mother, “which specifically sets forth many of the

19

family’s problems,” and, in light of this information, attempted to locate a mental health

20

expert to evaluate Schackart but did not have time to make those arrangements.

21

(Resentencing ROA at 137–38.)

22

Counsel also submitted an offer of proof containing testimony from two correctional

23

officers regarding Schackart’s good behavior while incarcerated and a letter from Dr.

24

Eduardo Caraveo, a psychologist, who had reviewed the affidavit from Schackart’s mother

25

and opined that it “might have provided critical data in terms of conducting the two prior

26

psychiatric evaluations” and might provide “critical variables in terms of mitigating his

27
17

28

Schackart was charged with sexually assaulting his wife on this date and was
convicted on June 8, 1984. (See ROA at 821–832.)
- 45 -

1

sentence.” (Resentencing ROA at 138.)

2

The Arizona Supreme Court struck the trial court’s (F)(2) prior violent conviction

3

and (F)(6) heinous or depraved findings but upheld the (F)(6) cruelty finding and after

4

reweighing affirmed the death sentence on direct appeal. Schackart II, 190 Ariz. at 261,

5

947 P.2d at 338.

6

f. PCR proceedings

7

Attorney Mathew Newman was appointed to represent Schackart in the PCR

8

proceedings. (PCR ROA 2.) Newman did not file a claim alleging trial counsel was

9

ineffective for failing to investigate mitigating evidence or hire an expert to do so. He did

10

attempt to develop evidence of Schackart’s mental illness to support a claim that, in the

11

first direct appeal, appellate counsel performed ineffectively by failing to raise an Ake

12

claim based on the sentencing court’s failure to appoint an independent mental health

13

mitigation expert. (See PCR ROA 166 at 34–38.)

14

Newman filed motions for appointment and compensation of an investigator, which

15

the court denied. (PCR ROA 9, 10, 15, 19.) He also filed a motion for neuropsychological

16

testing to support the Ake claim, arguing that Dr. Bendheim had not tested for “organic

17

brain damage.” (PCR ROA 22 at 1, 24.) The court denied the motion, finding “there is not

18

a shred or scintilla of evidence in this case to this date that there was anything organically

19

wrong with the defendant mentally or otherwise at the time he committed the crime.” (PCR

20

ROA 26 at 2.) It also found irrelevant whether “a mental illness is functionally based as

21

opposed to organically based. . . .” (Id. at 2–3.)

22

In his motion asking the court to appoint him as co-counsel, Schackart informed the

23

PCR court that he had been diagnosed by prison psychiatrists with paranoid schizophrenia

24

and had been taking “various psychotropic medications prescribed by ADC psychiatrists

25

(since late 1986/early 1987) in the hope that it would keep his schizophrenia under

26

control[.]” (PCR ROA 32 at 3.) Schackart then moved for and was granted access to his

27

prison mental health records. (PCR ROA 38, 43.) After reviewing his mental health

28

records, Schackart noted they indicated he was a paranoid schizophrenic and exhibited

- 46 -

1

psychotic symptoms which were being controlled with antipsychotic medications. (PCR

2

ROA 38, Ex. B.)

3

PCR counsel moved again for a mental health evaluation for purposes of raising a

4

claim of ineffective assistance of re-sentencing counsel based on counsel’s failure to

5

present “highly relevant material” that was “readily available.” (PCR ROA 78 at 6.) In

6

support of the motion, Schackart submitted a report, dated October 12, 2000, from

7

psychiatrist Dr. Barry Morenz. Dr. Morenz prepared the report after reviewing Schackart’s

8

mental health records from the Department of Corrections dating from February 18, 1986.

9

(Supp. Response, Ex. E (October 2000 Report).) In his report, Dr. Morenz concluded that

10

“there is a substantial probability that Mr. Schackart suffers from a serious mental illness,

11

specifically paranoid schizophrenia.” (Id. at 3.)

12

The court granted the motion, appointing Dr. Morenz to conduct the examination.

13

(PCR ROA 90). Schackart also moved for the appointment of a mitigation specialist to

14

perform an investigation to support Dr. Morenz’s preliminary evaluation, dated April 27,

15

2001. (Supp. Response, Ex. F (April 2001 Report)). (PCR ROA 141.) The court denied the

16

motion, noting that Dr. Morenz could conduct interviews telephonically with anyone who

17

might have input into his evaluation. (PCR ROA 146.)

18

The PCR court later ordered a “follow-up examination” by Dr. Morenz. (Id. at 165.)

19

Dr. Morenz prepared a third and final report on December 17, 2001, after interviewing

20

Schackart’s parents. (Supp. Response, Ex. G (December 2001 Report).) Schackart filed a

21

PCR petition and a subsequent addendum. (ROA 166, 167.) In support of his Ake claim,

22

Schackart submitted the April 2001 Report, in which Dr. Morenz indicated “Schackart

23

appeared to have been developing a schizophrenic disorder around the time he married his

24

wife in 1983.” (April 2001 Report at 8.)18 He further opined that “[b]y the time [Schackart]

25
26
27
28

18

Though Respondents assert that the December 2001 Report was filed in state
court, the Court finds no reference to the report in the state court record. The Court will,
however, consider the December 2001 Report, developed in “subsequent proceedings” as
part of its analysis when it “reweigh[s] the evidence in aggravation against the totality of
available mitigating evidence.” See Wiggins, 539 U.S. at 534.
- 47 -

1

committed the sexual assault in January 1984, he may have become severely depressed and

2

psychotic,” . . . and “[w]hen he was in prison, he became floridly psychotic.” (Id.) Dr.

3

Morenz concluded that to complete a more thorough evaluation, additional data was

4

needed, including family interviews, and that psychological, neurological examinations

5

might also be necessary to complete such an assessment. (Id.)

6

The PCR court declined to consider this evidence, finding Schackart’s Ake claim to

7

be procedurally defaulted because it was not raised in his first direct appeal. (PCR ROA at

8

20.) Nonetheless, after finding the claim precluded, the court concluded that “nothing in

9

[Dr. Morenz’s] reports adds significantly to the evidence presented at sentencing.” (Id.) As

10

noted above, PCR counsel did not raise a claim based on trial counsel’s failure to

11

investigate mitigating evidence. (See PCR ROA 166.)

12

2.

Federal habeas proceedings

13

Schackart asserts that recent mental health evaluations confirm Dr. Morenz’s

14

diagnoses of schizophrenia and psychosis, diagnoses that could have been developed at the

15

time of Schackart’s trial and demonstrate that Schackart has frontal and temporal lobe brain

16

damage. (Supp. Brief at 28–29.) Schackart also argues that a persuasive personal and

17

family history could have been developed, which would have supported the mental-health

18

mitigating evidence and constituted independent mitigation. (Id. at 36.)

19

a.

Social history and background

20

Schackart’s father has now submitted a declaration explaining that Schackart’s birth

21

was assisted with forceps, and it “was frightening”; he looked “like he had two heads,

22

which did not go away for about two months.” (Supp. Brief, Ex. 4 at 2.) Schackart also

23

reported that he experienced a motorcycle accident with a loss of consciousness while

24

attending college. (Supp. Brief, Ex. 1 at 9.) While Schackart did well in his first year of

25

college, attaining mostly A’s and B’s, his grades began deteriorating in 1981 and eventually

26

he had to withdraw. (Id.)

27

Lawrence Campbell, Schackart’s former teacher; Arlan Witbeck, a neighbor and

28

fellow student; and Robert Cannon, a high school classmate, submitted declarations stating

- 48 -

1

that no one from Schackart’s prior defense teams had ever spoken with them. (Supp. Brief,

2

Exs. 5–7.) If they had, Campbell states he would have provided information about

3

Schackart’s “outstanding” academic career and “excellent” social behavior. (Supp. Brief,

4

Ex. 5.) Witbeck would have provided information about the “totally different life”

5

Schackart lived, prohibited from playing and socializing much, and viewed by others as

6

lacking in athleticism and social skills. (Supp. Brief, Ex. 6.) Cannon described Schackart

7

as “odd but brilliant,” “somewhat unstable,” and “paranoid.” (Supp. Brief, Ex. 7.)

8

b.

Psychiatric and Neuropsychological evaluations

9

Dr. Ruben Gur, a neuropsychologist, evaluated Schackart on April 19 and May 21,

10

2012. (Supp. Brief, Ex. 1 at 1.) Dr. Gur reviewed records, interviewed Schackart, and

11

administered numerous tests. (Id. at 1–6.) Dr. Gur concludes in his report that Schackart’s

12

pattern of neuropsychological performance indicates “dysfunction of posterior parieto-

13

occipital and temporal areas, extending inferiorly and anteriorly and affecting the frontal

14

lobe.” (Id. at 9.) In Dr. Gur’s opinion, these deficits are likely developmental in nature and

15

impacted by the effects of a forceps delivery interacting with the results of a motorcycle

16

accident with loss of consciousness. (Id.) Dr. Gur also notes that “Schackart’s behavior

17

meets criteria for a diagnosis of Schizophrenia, Paranoid Type, and his neurocognitive

18

performance indicates brain dysfunction that impairs important domains of behavior

19

including executive control and reasoning.” (Id. at 10.)

20

Dr. Gur also explains that Schackart’s symptoms of paranoia began in the early

21

1980s, followed by persecutory auditory hallucinations beginning in the late 1980s. (Id. at

22

9.) Schackart has been treated with antipsychotic medications since the 1990s. (Id.) Dr.

23

Gur believes that “[t]he early symptoms of paranoia, concerns about police following him,

24

mistaken identification of the victim, and sleeping with a knife under his mattress may

25

indeed have been early signs of schizophrenia indicating a prodromal [early onset] state of

26

the disorder.” (Id.) It is common, Dr. Gur explains, “for such symptoms to manifest in an

27

attenuated form in the years before the full manifestations of the disorder develop.” (Id.)

28

According to Dr. Gur, “In addition to organic damage or dysfunction, Mr. Schackart’s

- 49 -

1

ongoing psychotic process is likely exacerbating the deficits observed, and also could very

2

likely have contributed to both the misidentification of the victim as Mr. Schackart reported

3

. . . and the flat affect he demonstrated in his demeanor at trial.” (Id. at 9–10.)

4

Psychiatrist Dr. Raphael Morris evaluated Schackart and furnished a report on

5

November 9, 2012. (Supp. Brief, Ex. 2.) Dr. Morris reviewed numerous records, including

6

Schackart’s previous mental health reports (id. at 2–4, 6–17), and conducted a mental status

7

exam on July 10, 2010 (id. at 5, 25–27). Dr. Morris concludes that, prior to his evaluation,

8

observation and treatment history established that Schackart suffers from Schizophrenia,

9

Paranoid Type. (Id. at 4.) Dr. Morris states that “[a]lthough it is clear that [Schackart]

10

continues to suffer from signs and symptoms of his mental illness, in exploring his history

11

and the events leading up to his two arrests, there is evidence that he demonstrated a

12

deteriorating clinical course in the year leading up to the murder and that at the time of the

13

instant offense, he was suffering from florid psychotic symptoms due to his untreated

14

mental illness.” (Id.) Dr. Morris explains that the age of onset of Schackart’s schizophrenia

15

was consistent with epidemiological data, and that the trajectory of his illness is also

16

consistent, presenting first with a prodromal phase with deteriorating social and

17

occupational functioning. (Id.) Further, “[t]here is evidence that there was an escalation in

18

his psychiatric illness over the course of the months leading up to the instant offense . . .

19

and the onset of that illness is prior to his crimes and has persisted for many years following

20

his arrests.” (Id. at 5.) “[W]hile untreated, he was vulnerable to sabotaging his legal

21

defense. What is also noteworthy is that in the context of an impaired insight into the extent

22

of his illness, he was unable and unmotivated to present appropriate mitigating factors for

23

the sentencing phase of his case.” (Id. at 4–5.)

24

Dr. Morris further concludes:

25

Mr. Schackart was already developing signs and symptoms of schizophrenia
leading up to the instant offense and during the trial and sentencing phases,
and was suffering under grandiose and paranoid thought content when he
decided to try to defend himself and go pro se. His coherent speech and
apparent intelligence complicated the court’s ability to appreciate the
severity of his illness and to consider that his decisions were being driven by

26
27
28

- 50 -

1

psychiatric conditions.

2

Also, complicating the court’s perception of Mr. Schackart is the fact that he
has not displayed what we term a thought disorder, which means that he does
not exhibit word salad or loosening of associations and his thought process
is not incoherent. . . . Therefore, the fact that he was coherent, able to review
records and cross-examine witnesses did not take away from the fact that he
had developed schizophrenia in the early stages of his illness at the time of
his arrest and legal proceedings.

3
4
5
6
7

(Id. at 29.)

8

C.

9

Schackart asserts that had counsel diligently investigated his background, they

10

would have learned the information that was later developed by Dr. Morenz during state

11

postconviction proceedings about Schackart’s family background and his spiral from

12

relative normalcy to his depressed, schizophrenic and psychotic state at the time of the

13

crime. (Doc. 131 at 27.) Schackart also asserts that had counsel conducted interviews of

14

people who knew him, including friends, teachers, military supervisors, employers,

15

neighbors, and family members for mitigation purposes, and hired a mitigation specialist

16

who is uniquely trained to discover mental health issues, they could have presented a

17

compelling case that Schackart was in the early stages of schizophrenia at the time of the

18

crime, which would have offered an explanation for why these crimes occurred. (Doc. 131

19

at 27.) However, as discussed next, Schackart could have corrected counsel’s errors and

20

obtained this evidence himself, or, even if he could not, he was not prejudiced by trial

21

counsel’s failure to develop this new evidence.

22
23

Prejudice

1. Schackart could have remedied trial counsel’s failure to develop the
family-history and mental health evidence

24

As previously discussed, the Court rejects Respondents’ argument that Cook

25

forecloses the possibility of relief any time a defendant discharges counsel and proceeds

26

pro se. The Court must consider the specific circumstances of this case to determine

27

“whether Schackart, . . . could have remedied his trial counsel’s failure to do anything to

28

perform the necessary mitigation investigation.” (See Supp. Reply at 14.) Upon careful
- 51 -

1

review of the record and the evidence offered in these proceedings, the Court finds that,

2

even if trial counsel performed deficiently by failing to investigate mitigating evidence,

3

Schackart could have investigated and presented the evidence available at the time of his

4

sentencing.

5

Schackart alleges that several factors prevented him from correcting any errors in

6

counsels’ performance. Relying on Stetler’s affidavit, Schackart suggests that there are

7

“inherent difficulties” defendants who represent themselves face in attempting to develop

8

the kind of life history that must be done for an effective mitigation investigation: “too

9

young. . . too impaired. . . too traumatized. . . too ashamed. . .” (Supp. Brief at 38.)

10

Schackart also conclusively states that “the mitigation investigation and psychiatric

11

examination could not possibly have been done from a jail cell, in two months or less.”

12

(Supp. Reply at 14–15; see Supp Brief at 38–39.) This argument has two components:

13

Schackart’s custodial status and the amount of time he had to prepare his mitigation case.

14

The record in this case does not support a finding that these factors prevented Schackart

15

from presenting the evidence he now asserts should have been offered in mitigation.

16

Though Schackart was detained throughout the relevant period, he fails to explain

17

how his detention status impeded his ability to investigate or present the available

18

mitigating evidence offered here. The impediment is not self-evident; the trial court

19

appointed advisory counsel and they would have been available to assist Schackart with

20

any aspect of the investigation he may have had difficulty completing while in jail. (See

21

e.g., ROA 684 (criminal subpoena for mitigation witness filed by advisory counsel)).

22

Nonetheless, Schackart asserts that “even with advisory counsel there was

23

insufficient time to conduct a mitigation investigation.” (Supp. Reply at 16.) As discussed

24

above, the Court finds counsel performed deficiently by failing to conduct any significant

25

mitigation investigation before the guilt phase concluded. Nonetheless, the Court does not

26

address these claims in the abstract, but in the context of the evidence Schackart alleges

27

should have been presented. Considering that evidence, both the family dysfunction and

28

mental health evidence, the record indicates that Schackart “could have corrected those

- 52 -

1

errors once he decided to represent himself.” See Cook, 688 F.3d at 609. The best evidence

2

in support of this conclusion is that, despite his detention and with only five weeks to

3

prepare, Schackart was able to present the testimony of seven acquaintances, as well as the

4

testimony of Drs. Bendheim and Kartchner, at his mitigation hearing. (See RT 5/3/95.)

5

a.

Social History Evidence

6

In Kayer v. Ryan, the testifying experts explained that one rationale for beginning a

7

mitigation investigation at the outset of a case is to “build trust and understanding” and “to

8

establish a relationship with the client and attempt the process of collecting a life history.”

9

923 F.3d 692, 714 (9th Cir. 2019) (citing Strickland, 466 U.S. at 688), pet. rehearing and

10

rehearing en banc denied, 944 F.3d 1147, judgment vacated on other grounds sub nom.

11

Shinn v. Kayer, 141 S. Ct. 517 (2020) (per curiam). But this rationale does not apply to a

12

defendant who represents himself and is aware of his own life history.

13

Schackart points to no evidence supporting his contention that he could not have

14

obtained the social-history evidence offered in this habeas proceeding. Schackart could

15

have contacted his parents and asked them to testify at sentencing, but the record

16

demonstrates Schackart did not want to call his parents as witnesses. Schackart explained

17

to Dr. Morenz that he raped his ex-wife the day after he found out about his father being a

18

cross-dresser. (December 2001 Report at 5.) Schackart’s father had informed Schackart

19

that he would probably lose his job if he revealed this information. (April 2001 Report at

20

3–4.) Rather than allow his attorneys to reveal this information about his background,

21

Schackart chose to represent himself. (See id. at 3–4.) Schackart even opposed his

22

counsel’s request for a continuance of sentencing to allow them to call his parents as

23

witnesses. (RT 5/3/85 at 198.) Schackart explained to the court that in regards to sentencing

24

“I have my own views about it, they have different views about that. . . . [S]o why should

25

they be representing me?” (RT 3/27/85 at 6.) The record demonstrates that Schackart was

26

aware, and had been informed, that his parents were a potential source of mitigating

27

evidence but chose not to pursue that evidence. Schackart cannot complain of prejudice

28

from his own failure to pursue or present this evidence. Cf. Cook, 538 F.3d at 1016 (finding

- 53 -

1

no prejudice from pretrial counsel’s alleged failure to uncover potentially impeaching

2

evidence when pro se defendant was aware of the evidence he could have used to impeach

3

a witness but chose not to present it).

4

Schackart also could have contacted his former acquaintances who have now

5

submitted declarations and could have obtained their testimony for use at sentencing or to

6

support a mental health evaluation. Schackart did present the testimony of several other

7

acquaintances at sentencing, including a former teacher and a commander who oversaw

8

Schackart’s ROTC unit, demonstrating that he had the ability, while detained and in the

9

time he was allowed, to contact and obtain the testimony of such individuals.

10

Because Schackart “already knew much, if not all, of the information he now faults

11

his counsel for failing to develop,” and could have corrected trial counsel’s alleged failure

12

to investigate his family and acquaintances, he cannot claim he was denied effective

13

assistance of counsel. See Cook, 688 F.3d at 609–10, n.11 (“[E]ven if he was not

14

completely aware of the mental impairments he now alleges he had at the time he

15

committed the murders, he plainly was aware of his own troubled childhood and

16

adolescence.”).

17

b.

Mental Health Evidence

18

Schackart asserts that he “did do what he could” by seeking a psychiatric evaluation

19

for purposes of the aggravation/mitigation hearing but the trial court denied his request.

20

(Supp. Reply at 15 (citing RT 4/22/85).) This is only partially correct.

21

The trial court granted Schackart’s motion for psychiatric examination for the

22

purpose of presenting expert testimony at the sentencing hearing. (RT 4/22/85 at 70–72;

23

ROA 791) Dr. Bendheim performed an additional mental health evaluation of Schackart

24

before the mitigation hearing and presented his findings at the hearing. (RT 5/3/95 at 52.)

25

These facts bely Schackart’s allegation that he had “insufficient time” to conduct a mental

26

health evaluation.

27

Rather, Schackart’s failure to obtain a neuropsychological exam is attributable to

28

the limitations he placed on his investigation based on his sentencing strategy. “A

- 54 -

1

defendant’s decision to limit a mitigation defense,” will be sustained on review if the

2

defendant’s waiver comports with due process. Summerlin, 427 F.3d at 639 (citing Jeffries

3

v. Blodgett, 5 F.3d 1180, 1198 (9th Cir. 1993)). Though the court limited the scope of the

4

psychiatric evaluation (see ROA 791), Schackart’s request for a mental health examination

5

prior to his original sentence specifically stated that the requested exam was to be limited

6

to determining the existence of specific statutory mitigating factors. (ROA 663–64.) The

7

motion was granted to allow examination with respect to three factors, including “whether

8

the defendant was under some unusual and substantial distress as a result of some other

9

mental disorder,” and whether there were any psychological factors present at the time of

10

the offense which would tend to make the defendant less culpable of the offense. (RT

11

4/22/85 at 72–73.) As previously determined, Schackart “has not asserted and, after a

12

review of the record, the Court is not aware of the trial court restricting [Schackart’s]

13

presentation of any mitigation at the aggravation/mitigation hearing prior to his original

14

sentence.” (Doc. 75 at 49.) Schackart could have, but did not, request the psychiatric

15

evaluations performed here. “[Schackart] makes much of the trial court’s appointment of

16

Dr. Bendheim for only limited purposes regarding mitigation, but it was [Schackart] that

17

requested limited assistance. (See ROA 663–64.) He got exactly the assistance he

18

requested.” (Doc. 75 at 52.)

19

Moreover, Dr. Gur’s results regarding Schackart’s alleged brain dysfunction are not

20

dependent on the development of the family-history evidence that Schackart now claims

21

could have been investigated before sentencing. Dr. Gur relies primarily on the results from

22

Schackart’s neuropsychological testing to establish the presence of a brain dysfunction,

23

which Dr. Gur opined was “developmental” and impacted by the effects of a forceps

24

delivery and a motorcycle accident causing loss of consciousness. (Supp. Brief, Ex. 1 at 9.)

25

Though Dr. Gur relied on Schackart’s self-reporting of his forceps birth and motorcycle

26

accident to establish that Schackart’s neurodevelopmental deficiencies were impacted by

27

additional head trauma, he did not rely on these reports to establish the diagnosis of brain

28

dysfunction. Further, Dr. Gur explained that the “neuropsychological assessment tools that

- 55 -

1

[he] administered and factored into the quantitative analysis of behavioral findings were

2

available” in 1985 and 1993. Had Schackart wanted a neuropsychological examination

3

such as that performed by Dr. Gur, he could have requested one.

4

Thus, the Court concludes, Schackart could have corrected the alleged errors of trial

5

counsel in failing to perform neurocognitive testing once he decided to represent himself.

6

By requesting a limited psychiatric examination, however, Schackart foreclosed that

7

possibility and may not now claim that he was prejudiced by counsel’s failure to conduct

8

a mitigation investigation. See Cook, 688 F.3d at 609. Nor can this Court speculate as to

9

whether Schackart would have been allowed the time or resources to develop this kind of

10

mitigating evidence since he did not make the request.

11

Despite his detention, Schackart was able to present the testimony of seven

12

acquaintances and the expert testimony of Drs. Bendheim and Kartchner at his mitigation

13

hearing. (See RT 5/3/95.) In sum, the record demonstrates that nothing but Schackart’s own

14

choice of strategy prevented him from correcting the sentencing stage errors of trial

15

counsel. See Cook, 688 F.3d at 609 n.12.

16
17

2. There is no reasonable probability the new evidence would have
altered the outcome at sentencing

18

Alternatively, even if Schackart was unable to correct trial counsel’s errors, he

19

cannot show prejudice as a result. To assess prejudice from counsel’s performance at the

20

sentencing stage of a capital case, a court considers the totality of the mitigating evidence

21

and weighs it against the aggravating factors. Wiggins, 539 U.S. at 534. This Court, after

22

performing such an assessment of Schackart’s mitigating evidence, including the evidence

23

raised during his PCR proceedings and this habeas proceeding, concludes that Schackart

24

was not prejudiced by counsel’s failure to present additional information at sentencing.

25
26

a. The new evidence would have conflicted with Schackart’s trial
strategy.

27

The new mental health evidence presented here would have conflicted with

28

Schackart’s mitigation strategy. Schackart’s strategy was to show that he was a promising,

- 56 -

1

high-achieving young man, who committed an out-of-character act because he was under

2

stress from the situation with his ex-wife. This strategy was in accord with Dr. Bendheim’s

3

contemporaneous report stating: “[I]t is quite obvious that we are dealing with an acute

4

emotional disturbance in a person who was extremely vulnerable toward that sort of thing.”

5

(Doc. 141-1, Ex. C, Bendheim Report at 24.) Schackart presented a mitigation case that

6

supported this theory. He did not want to call either of his parents to testify, and counsel’s

7

desire to pursue his parents as a source of mitigating material was a point of contention

8

between counsel and Schackart. (RT 5/3/85 at 198.)

9

Further, although Schackart’s father now avows that he would have participated in

10

an interview with trial counsel Karen Noble if she had granted his request to have a pastor

11

present, the defense had attempted unsuccessfully to subpoena Schackart’s parents at the

12

time and the father “made threats that if subpoenaed he would do everything he could to

13

hurt Mr. Schackart.” (Id.; ROA 799–800) The second pre-sentence report also relates that

14

the probation officer made several attempts to contact Schackart’s parents but was

15

unsuccessful. (Supp. Response, Ex. B at 4.) There is no indication that a mitigation

16

specialist would have been any more successful in contacting Schackart’s father and

17

getting information from him than the defense investigator or the probation officer.

18

To the extent Schackart’s acquaintances could have testified that his home life was

19

unusual and alienating (see Supp. Brief, Ex. 6 at 1), that he needed mental health treatment

20

(see id. Ex. 5 at 1, Ex. 6 at 2, Ex. 7 at 2) or that he was odd, unstable, or had a dissociative

21

and paranoid mental disorder (see id. Ex. 7 at 1–2), such testimony would have undermined

22

Schackart’s mitigation case, and the record demonstrates that he would not have presented

23

such evidence in any case.

24

Schackart’s mitigation theory was to present positive evidence of his character. This

25

strategy would have been undermined by evidence of long-term mental disease and brain

26

damage. See, e.g., Truesdale v. Moore, 142 F.3d 749, 754 (4th Cir. 1998) (counsel

27

exercised reasonable strategic judgment by “steer[ing] away from” evidence of organic

28

brain dysfunction, “calculating that it would not help portray [the petitioner] as normal and

- 57 -

1

capable of rehabilitation”); Cannon v. Gibson, 259 F.3d 1253, 1277–78 (10th Cir. 2001)

2

(omitted mitigation information of “serious brain damage” and lack of impulse control

3

would have displaced mitigation information portraying the petitioner as a “kind,

4

compliant, and responsible individual whose involvement in the murder was an

5

aberration”). Further, Schackart knew about the two incidents that could have contributed

6

to his brain dysfunction, as he reported both the forceps delivery and the motorcycle

7

accident to Dr. Gur, but failed to pursue them as part of his theory of mitigation.

8
9

b. The diagnosis of schizophrenia is based in part on evidence
unavailable before sentencing.

10

Schackart asserts that the diagnosis of schizophrenia which has now been made,

11

could have been developed at the time of Schackart’s trial had counsel performed an

12

adequate mitigation investigation. The Court disagrees. Schackart’s medical records from

13

the Department of Corrections laid the foundation for Dr. Morenz’s initial diagnosis of

14

schizophrenia, (see Morenz’s April 2001 Report at 1). Dr. Gur subsequently relied on Dr.

15

Morenz’s conclusions as well as the prison medical records in reaching his diagnosis of

16

schizophrenia. Those records did not exist at the time of sentencing. Thus, counsel cannot

17

be faulted for failing to obtain them, nor can Schackart demonstrate prejudice from the

18

conclusions in his expert’s reports that rely on them.

19
20

c. The new evidence is, in part, cumulative to the evidence presented
at sentencing.

21

To the extent Schackart’s acquaintances would have testified about Schackart’s

22

positive attributes, such evidence is cumulative and internally inconsistent. Schackart

23

presented the testimony of five other acquaintances at sentencing, all of whom had positive

24

things to say about him. (See RT 3/5/85 at 16, 120–21, 135–36, 145–46, 151–52.) The

25

largely cumulative nature of the evidence offered about Schackart’s background

26

diminishes the likelihood of prejudice. See Wong v. Belmontes, 558 U.S. 15, 22–23 (2009)

27

(finding no prejudice where additional evidence was cumulative to that presented at trial);

28

Leavitt v. Arave, 646 F.3d 605, 615 (9th Cir. 2011) (“[C]umulative evidence is given less

- 58 -

1

weight because it is not as likely to have affected the outcome of the sentencing.”); Rhoades

2

v. Henry, 638 F.3d 1027, 1051 (9th Cir. 2011) (finding no prejudice despite the fact that

3

new evidence “exceed[ed] what was uncovered and presented by trial counsel” in part

4

because “much of the newly adduced evidence [wa]s cumulative”).

5

Additionally, the new declarations are somewhat inconsistent with each other. For

6

example, Schackart’s teacher Campbell describes Schackart as a “model student” with

7

good behavior and citizenship” and “excellent social behavior,” (Doc. 131-1, Ex. 5 at 1),

8

while Witbeck describes him as living “a totally different life from other kids,” perceived

9

as “lacking in social skills” (Id., Ex. 6 at 1) and Cannon described him as “somewhat

10

unstable” with some “profound” “breaks from reality,” though he also stated he was “active

11

in school, a great worker, and a dynamo” (Id., Ex. 7 at 1).

12

Accordingly, the three new lay declarations would not have significantly altered the

13

sentencing profile presented to the sentencing judge. See Strickland, 466 U.S. at 699-700;

14

see also Schurz v. Ryan, 730 F.3d 812, 815 (9th Cir. 2013) (explaining that most of the new

15

evidence was cumulative, unsubstantiated, “minimally relevant at best,” and “so

16

speculative that it comes nowhere close to showing deficient performance.”).

17

d. The new evidence was contradictory, speculative and directly

18

contradicted by contemporaneous reports.

19

The new retrospective diagnoses of schizophrenia and brain damage carry little

20

weight given the contemporaneous reports available at the time. See Earp v. Cullen, 623

21

F.3d 1065, 1076 (9th Cir. 2010) (diagnosis of brain damage received 11 years after trial is

22

insufficient to overcome the reports at the time of trial indicating that petitioner did not

23

have brain damage).

24

Schackart asserts that if he had obtained “the necessary full mental and neurological

25

evaluations, which would have encompassed organic brain damage,” such evidence would

26

have confirmed that he “was in the prodromal phase of schizophrenia at the time of the

27

crime.” (Supp. Brief at 32.) This assertion is highly speculative. Though Dr. Gur concludes,

28

after examining Schackart in 2012, that Schackart’s “current evaluation of behavior meets

- 59 -

1

the criteria for a diagnosis of Schizophrenia, Paranoid Type,” he also explains that it is

2

“common for symptoms such as Schackart’s early symptoms of paranoia to manifest in an

3

attenuated form in the years before the full manifestations of the disorder develops.” (Supp.

4

Brief, Ex. A at 9, 10.) Dr. Gur notes that Schackart reported only “possible early symptoms

5

during the time of murder, which included a visual hallucination in which he mistook the

6

victim for his wife.” (Id. at 9.) This “possible early symptom,” however, was discredited

7

by Dr. Bendheim in 1984. Dr. Bendheim addressed this possible dissociative reaction in

8

his report, concluding Schackart’s misidentification of the victim, mistaking her for his

9

wife, though possibly delusional, was “bizarre,” and such “a dissociative reaction, coming

10

and going in rapid succession, is not a very convincing story.” (PCR ROA 166, Ex. 19 at

11

25; see RT 5/3/85 at 72 (“If that was disorientation, it was indeed very unusual because it

12

went back and forth, it waned and waxed.”)) Dr. Bendheim’s contemporaneous report

13

indicated, contrary to the later opinion of Dr. Gur, “no other evidence of delusions or

14

hallucinations. . . . [or] evidence of serious illusions or difficulties with reality testing” as

15

might be expected from someone in the prodromal phase of schizophrenia. (See id. at 21.)

16

Rather, as Dr. Bendheim testified, Schackart was “impulsive” and would try “to keep it all

17

within and then would explode at an inopportune moment.” (RT 3/15/85 at 23.)

18

Dr. Gur addresses Schackart’s other early symptoms of paranoia, such as “concerns

19

about police following him, mistaken identification of the victim, and sleeping with a knife

20

under the mattress,” and opines that it is “often only in retrospect” that these “early signs

21

of schizophrenia” can be linked to a subsequent diagnosis of schizophrenia. (Supp. Brief,

22

Ex. 1 at 9.) It is highly speculative that a diagnosis of schizophrenia, even in the prodromal

23

state, would have been made at the time of sentencing. To support his findings, Dr. Gur

24

relied on “a psychiatric history . . . remarkable for a diagnosis of schizophrenia with

25

symptoms of paranoia beginning in the early 1980s, followed by persecutory auditory

26

hallucinations beginning in the late 1980s.”. (See id. at 1–2, 9.) The Court concludes, after

27

a careful review of Dr. Gur’s “Relevant Record Review,” that the psychiatric history he is

28

referring to is Dr. Morenz’s April 2001 Report, which Dr. Gur summarizes as “present[ing]

- 60 -

1

evidence that Mr. Schackart appeared to be developing schizophrenia in 1983” (id. at 1),

2

and medical records from the Arizona Department of Corrections, indicating a diagnosis

3

of “Schizophrenia, Paranoid,” on June 8, 1993 (id. at 2). These reports were not available

4

at the time of Schackart’s mitigation hearing in 1985.

5

Even if Schackart had been diagnosed with schizophrenia in 1985, the Court finds

6

it unlikely that the diagnosis would have been accorded much weight by the sentencer as

7

direct mitigation or as an explanation for Schackart’s “remorseless behavior and cavalier

8

attitude toward the trial proceedings” (see Doc. 131-1 at 27), given the contemporaneous

9

reports from Dr. Cleary and the records from SAMHC. Dr. Cleary, in his report dated

10

February 22, 1985, gave Schackart “no psychiatric diagnosis” and found “no indication . . .

11

that he suffered at [the time of the offense] from any mental illness, defect, or disorder . . .

12

[or] that he ever suffered from a psychosis or major mental disorder.” (Supp. Response,

13

Ex. C, Clearly Report at 5; RT 3/16/85 at 17.) Additionally, Dr. Bendheim’s report

14

indicates Schackart was treated at SAMHC from February 1, 1984, to March 8, 1984. Dr.

15

Bendheim’s summary of the SAMHC reports indicates Schackart was diagnosed with an

16

adjustment disorder with depressed mood and compulsive personality, but not psychosis,

17

and no mention is made of a possible diagnosis of schizophrenia or paranoia. (PCR ROA

18

166, Ex. 19 at 15.) These contemporaneous reports cast doubt on Schackart’s retrospective

19

claims of mental illness.

20

Additionally, the import of Dr. Gur’s opinion, that Schackart’s “neurocognitive

21

performance indicates brain dysfunction that impairs important domains of behavior

22

including executive control and reasoning,” (see Supp. Brief, Ex. 1 at 10), is of little more

23

mitigating value than Dr. Bendheim’s conclusion at the mitigation hearing that Schackart:

24

(1) was significantly impaired at the time of the crime; (2) did not intend to kill Charla and

25

did not foresee her death; (3) had “persecutory ideas”; (4) had “depressive neurosis”; (5)

26

was confused in his understanding that the victim was his wife; and (6) was an impulsive

27

person. (RT 5/3/85 at 53–61.)

28

To the extent the new brain damage evidence shows impulsivity, Schackart had

- 61 -

1

already presented such evidence at sentencing and the court specifically found that

2

impulsivity was a mitigating circumstance. (RT 12/7/93 at 28; Resentencing ROA at 113.)

3

Additionally, having reported “no history of head injury” to Dr. Cleary, Schackart’s later,

4

inconsistent claims of head injury, would lack credibility. Cf. Herrera v. Collins, 506 U.S.

5

390, 423 (1993) (O’Connor, J, concurring) (noting exonerating affidavits made many years

6

after trial “are to be treated with a fair degree of skepticism.”).

7

Additionally, Dr. Gur’s opinion that Schackart’s neurological deficits were

8

“developmental in nature” (Doc. 131-1, Ex. 1, Dr. Gur’s Report, at 9) would have lacked

9

credibility because this opinion was in contrast with ample evidence that in school

10

Schackart had above average intelligence and had been on the honor roll, (see id., Ex. 2,

11

Dr. Morris’s Report at 6–7), was “extremely bright and a model student,” (see id., Ex. 5,

12

Lawrence Declaration, at 1), “brilliant” even, (see id., Ex. 7 (Cannon Declaration) at 1),

13

and, at the time of the crime, was “of better than average intelligence” (Doc. 141-1, Ex. C

14

(Bendheim Report) at 21). In addition to his raw intelligence, there is also ample evidence

15

in the record, in the form of Schackart’s many youthful accomplishments, recognized by

16

the trial court, that would have contradicted Dr. Gur’s opinion that Schackart’s brain

17

dysfunction specifically “impairs important domains of behavior including executive

18

control and reasoning.” (Doc. 131-1, Ex. 1 at 10.)

19

The PCR court’s ruling on Schackart’s claim that appellate counsel was ineffective

20

for failing to raise an Ake claim on appeal supports this Court’s conclusion that the

21

additional mental health evidence is insufficient to establish prejudice. In ruling on the

22

claim, the PCR court considered the possibility that, according to Dr. Morenz, Schackart

23

suffered from schizophrenia, and “may have been experiencing considerable emotional

24

turmoil and psychosis” in 1983 and 1984. (PCR ROA 185 at 20.) The PCR court

25

concluded, as does this Court, that nothing in those reports adds significantly to the

26

evidence presented at sentencing. (Id.) “That Dr. Morenz, 17 years after the original

27

aggravation/mitigation hearing, may have a different view from Dr. Bendheim, or

28

additional explanations for defendant’s conduct” is insufficient to “warrant the relief he

- 62 -

1

requests.” (Id.)

2

Schackart was not prejudiced by counsel’s failure to investigate additional social

3

history or mental health evidence. The difference between the evidence that was presented

4

and the evidence that could have been presented is insufficient to undermine confidence in

5

the outcome of the sentencing proceedings. Duncan, 528 F.3d at 1240; see also Atwood,

6

870 F.3d at 1064; Runningeagle, 825 F.3d at 988. There was not a reasonable probability

7

that Schackart would have received a life sentence if the evidence had been presented.

8

Strickland, 466 U.S. at 693.

9

PCR counsel, in turn, did not perform ineffectively by failing to raise this claim. See

10

Atwood, 870 F.3d at 1060 (“If the ineffective assistance of trial counsel claim lacks merit,

11

then the state habeas counsel would not have been deficient for failing to raise it.”);

12

Runningeagle, 825 F.3d at 982 (explaining that to find prejudice based on PCR counsel’s

13

failure to raise a trial-level ineffective assistance of counsel claim, the court “must also find

14

a reasonable probability that the trial-level IAC claim would have succeeded had it been

15

raised”). There is no reasonable probability that the results of the PCR proceedings would

16

have been different if counsel had raised this claim. Schackart therefore cannot show

17

“cause” under Martinez for the claim’s default. Claim 6(b) remains procedurally defaulted

18

and barred from federal review.

19

VI.

20
21

EVIDENTIARY DEVELOPMENT
Finally, Schackart seeks discovery, expansion of the record, and an evidentiary

hearing. (Supp. Brief at 53–61.)

22

In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court held that where the

23

state court has denied a habeas petitioner’s claim under 28 U.S.C. § 2254(d), review by the

24

federal court “is limited to the record that was before the state court that adjudicated the

25

claim on the merits.” Id. at 181. However, where a state court has not adjudicated the merits

26

of a claim because of a procedural bar, a district court may consider new evidence in

27

determining whether the petitioner can overcome that bar. See Dickens, 740 F.3d at 1321

28

(holding that Pinholster did not bar petitioner from presenting new evidence to support a

- 63 -

1

cause-and-prejudice argument under Martinez because Pinholster applies only to claims

2

previously “adjudicated on the merits in State court proceedings”); Detrich, 740 F.3d at

3

1246–47 (“Pinholster’s predicates are absent in the context of a procedurally defaulted

4

claim in a Martinez case.”).

5

In Dickens the court also rejected the argument that 28 U.S.C. § 2254(e)(2) barred

6

evidentiary development in federal court, explaining that a petitioner seeking to show

7

“cause” under Martinez is not asserting a “claim.”19 740 F.3d at 1321. (“A federal court’s

8

determination of whether a habeas petitioner has demonstrated cause and prejudice . . . is

9

not the same as a hearing on a constitutional claim for habeas relief.”); see Woods, 764

10

F.3d at 1138 n.16 (explaining that neither Pinholster nor § 2254(e)(2) “categorically bar [a

11

petitioner] from obtaining such a hearing or from presenting extra-record evidence to

12

establish cause and prejudice for the procedural default. . . .”).

13

Accordingly, contrary to Respondents’ argument (see Supp. Response at 5), in

14

carrying out its analysis under Martinez, the Court will consider the entirety of the record,

15

including the new evidence developed by Schackart during these habeas proceedings (Doc.

16

131-1, Supplemental Exhibits 1–9) in support of the defaulted claims. See Dickens, 740

17

F.3d at 1321.

18

Schackart seeks formal discovery, specifically requesting authorization to depose

19

his trial, resentencing, and PCR counsel, as well as healthcare providers in Illinois and

20

Arizona who can present records of Schackart’s birth trauma and motorcycle accident.

21

A habeas petitioner is not entitled to formal discovery “as a matter of ordinary

22

course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6 of the Rules

23

Governing Section 2254 Cases provides that “[a] judge may, for good cause, authorize a

24

party to conduct discovery.” R. 6(a), Rules Governing Sec. 2254 Cases in the U.S. Dist.

25

Cts. (2010).

26
27
28

19

Twenty-eight U.S.C. § 2254(e)(2) severely limits the circumstances in which a
federal habeas court may hold an evidentiary hearing on claims not developed in state
court.
- 64 -

1

“[A] district court abuse[s] its discretion in not ordering Rule 6(a) discovery when

2

discovery [i]s ‘essential’ for the habeas petitioner to ‘develop fully’ his underlying

3

claim.” Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005) (quoting Jones v. Wood, 114

4

F.3d 1002, 1009 (9th Cir. 1997)). However, courts should not allow a petitioner to “use

5

federal discovery for fishing expeditions to investigate mere speculation.” Calderon v. U.S.

6

Dist. Ct. for the N. Dist. of Cal. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996); see

7

also Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (recognizing that habeas corpus

8

“was never meant to be a fishing expedition for habeas petitioners to ‘explore their case in

9

search of its existence.’”) (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)).

10

Whether a petitioner has established “good cause” for discovery under Rule 6(a)

11

requires a court to determine the essential elements of the petitioner’s substantive claim

12

and evaluate whether “specific allegations before the court show reason to believe that the

13

petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled

14

to relief.” Bracy, 520 U.S. at 908–09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).

15

Schackart fails to show good cause for the requested discovery. The record is

16

sufficient for the Court to carry out its analysis of the remanded claim. Additional evidence

17

is unnecessary with respect to allegations that trial counsel performed ineffectively by

18

failing to request a mitigation specialist or investigate relevant mitigating evidence or that

19

PCR counsel performed ineffectively by failing to raise a claim of ineffective assistance of

20

trial counsel. As discussed above, the Court presumes that counsel in both instances

21

performed deficiently. The Court declines, however, to find prejudice from these failures,

22

or that Schackart could not have corrected his trial counsel’s errors. Thus, there is no good

23

cause to allow Schackart to depose his counsel in support of this claim.

24

The record provides sufficient evidence for the Court to undertake its analysis under

25

Martinez and Dickens. See Phillips v. Ornoski, 673 F.3d 1168, 1179 (9th Cir. 2012)

26

(explaining that a court has the discretion to deny an evidentiary hearing where the

27

documentary evidence is sufficient to decide the issue); Runningeagle, 825 F.3d at 990

28

(concluding that the district court did not abuse its discretion in denying an evidentiary

- 65 -

1

hearing where “[t]he expanded record included the declarations of witnesses who would

2

testify at a live hearing, and [the petitioner] made no showing that their testimony would

3

differ materially from their declarations”); Williams (Stanley) v. Woodford, 384 F.3d 567,

4

591 (9th Cir. 2004) (explaining that “oral testimony and cross-examination were not

5

necessary because the documentary evidence submitted fully presented the relevant

6

facts”). Moreover, to the extent Schackart seeks formal discovery of his own medical

7

records, they should be available to him without the need for a court order.

8

Finally, Schackart seeks an evidentiary hearing on the remanded claim and all

9

allegations of cause under Martinez. (Supp. Brief at 59–61.) Again, the record provides

10

sufficient evidence for the Court to undertake its analysis under Martinez and Dickens. See

11

Phillips, 673 F.3d at 1179. As discussed above, the Court need not consider the new

12

mitigating circumstances developed in these proceedings because it finds that Schackart

13

could have developed that evidence after deciding to represent himself but chose not to.

14

Schackart also asserts an evidentiary hearing is the only sure way “to determine the

15

facts about [his] paranoid schizophrenia,” specifically “its likely impact on [his] affect,

16

which was so negatively perceived by the court, . . . whether Drs. Gur and Morris are

17

correct about [his] brain dysfunction,” and “whether any such brain dysfunction had a

18

likely impact upon [his] ability to control [his] emotions and to be in reality at the time of

19

the crime, or to, in fact, have mistaken the victim for his ex-wife.” (Supp. Brief at 60.)

20

Schackart asserts that an evidentiary hearing is also the only reliable way in which the

21

Court may “truly become informed about the many facets of [his] personal and family life

22

history, school, employment and military experiences, and other events that shaped him

23

and made him who he was at the time of the crime.” (Doc. 131 at 61.)

24

For purposes of reviewing Schackart’s remanded claim, however, the Court

25

assumes the testimony of witnesses at a hearing would be consistent with their declarations

26

or reports. Schackart does not identify what additional evidence or witnesses would be

27

presented at a hearing, nor does he suggest how that testimony would differ from the

28

contents of the reports and declarations in the expanded record. See Hooper, 985 F.3d at

- 66 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

632–33; Runningeagle, 825 F.3d at 990; Williams (Stanley), 384 F.3d at 591.
VII.

CERTIFICATE OF APPEALABILITY
Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, an applicant

cannot take an appeal unless a certificate of appealability has been issued by an appropriate
judicial officer. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the
district judge must either issue or deny a certificate of appealability when it enters a final
order adverse to the applicant. If a certificate is issued, the court must state the specific
issue or issues that satisfy 28 U.S.C. § 2253(c)(2).
Under § 2253(c)(2), a certificate of appealability may issue only when the petitioner
“has made a substantial showing of the denial of a constitutional right.” This showing can
be established by demonstrating that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner” or that the
issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (citation and internal quotation marks omitted). For procedural
rulings, a certificate of appealability will issue only if reasonable jurists could debate
whether the petition states a valid claim of the denial of a constitutional right and whether
the court’s procedural ruling was correct. Id.
The Court finds that reasonable jurists could debate the Court’s application of
Martinez in its analysis of Claim 6(b).
VIII. CONCLUSION
For the reasons stated above, the default of Claim 6(B) is not excused under
Martinez. The claims remain defaulted and barred from federal review.
Accordingly,
IT IS HEREBY ORDERED as set forth above that Schackart is not entitled to
relief on the remanded claim.
IT IS FURTHER ORDERED granting Schackart’s request to expand the record.
The record is expanded to include Exhibits 1 through 9 (Doc. 131-1.) Schackart’s requests
for discovery and an evidentiary hearing are denied.
- 67 -

IT IS FURTHER ORDERED granting a Certificate of Appealability as to Claim

1
2

6(b).

3

IT IS FURTHER ORDERED that Petitioner’s Amended Petition for Writ of

4

Habeas Corpus (Doc. 39) is DENIED. The Clerk of Court shall enter judgment

5

accordingly.

6

Dated this 28th day of March, 2022.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 68 -