Schurz v. Ryan

• Decision Date: 12 September 2013
• Docket Number: No. 07–99025.,07–99025.
• Citation: 730 F.3d 812
• Parties: Eldon M. SCHURZ, Petitioner–Appellant, v. Charles L. RYAN, Arizona Department of Corrections, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

730 F.3d 812

Eldon M. SCHURZ, Petitioner–Appellant,

v.Charles L. RYAN, Arizona Department of Corrections, Respondent–Appellee.

No. 07–99025.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 19, 2012.

Filed Sept. 12, 2013.

Jennifer Y. Garcia (argued) and Paula K. Harms, Assistant Federal Public Defenders, and Jon M. Sands, Federal Public Defender, Phoenix, AZ, for Petitioner–Appellant.

John Pressley Todd (argued), Assistant Attorney General, Arizona Attorney General's Office, Phoenix, AZ, and Terry Goddard, Attorney General, Kent Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, and Melissa Alice Parham, Assistant Attorney General, Criminal Appeals/Capital Litigation Section, Phoenix, AZ, for Respondents–Appellees.

Appeal from the United States District Court, for the District of Arizona, Earl H. Carroll, Senior District Judge, Presiding. D.C. No. CV–97–00580–EHC.

Before: ALEX KOZINSKI, Chief Judge, M. MARGARET McKEOWN and N. RANDY SMITH, Circuit Judges.

OPINION

KOZINSKI, Chief Judge:

You can't always get what you want. But Eldon Schurz just about did. He wanted the judge who sentenced him to hear a laundry list of mitigating evidence, and his attorney dutifully presented it. Because the judge had most of the mitigating evidence, Schurz can't show any prejudice from his attorney's alleged ineffective assistance. Thus, we affirm the district court.

I. BACKGROUND

Late one evening, a thirsty Eldon Schurz and two friends approached a group of people drinking behind a motel and demanded a beer. When they refused, Schurz grabbed some and sauntered off.

Schurz and his friends returned later the same night, in search of money and more booze. They arrived in time to overhear a newcomer, Jonathan Bahe, assure the group that if he'd been there when Schurz stole the beer, he'd have stepped in. These words set Schurz off. Overcome by a barrage of punches, Bahe tried to escape by crawling under a nearby chain-link fence, trapping himself in an enclosed area between a stairwell and a brick wall. Schurz found a jug of gasoline sitting nearby, smelled it and then splashed it on Bahe. Schurz lit a small puddle of gas using a lighter, but, seeing that the flame wasn't spreading, began kicking the burning puddle toward a terrified Bahe. As Bahe burst into flames, Schurz ran.

When police arrived and put out the flames, Bahe was an unrecognizable, charred husk. The blaze had shortened the muscles in his arms and legs, leaving him in a rigid contortion. Remarkably, Bahe was still alive and conscious. In his last excruciating moments, he was able to answer a few questions from the police at the hospital, although his mouth and tongue were so charred that he was nearly impossible to understand. Schurz later said all we needed to know: “He wouldn't give me the money or the beer, so I burned him.”

A jury convicted Schurz of first degree murder. At sentencing, the judge found one aggravating circumstance: The murder “was especially heinous and depraved.” After considering the mitigating circumstances and determining they did not outweigh the aggravating factor, the judge sentenced Schurz to death.

Schurz appealed his conviction and then filed three petitions for state post-conviction relief (PCR). Neither tactic was successful. Schurz then turned to federal court, advancing a claim of ineffective assistance of counsel (IAC) at sentencing. He now appeals the denial of his petitions. We decline to address Schurz's two uncertified claims because we find that no reasonable jurist could disagree with the district court's resolution of them. 28 U.S.C. § 2253(c); 9th Cir. R. 22–1(e); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

II. DISCUSSION

Schurz filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996. Normally, this would require us to apply a highly deferential standard of review to the last reasoned state court decision. See28 U.S.C. § 2254(d); see also Ylst v. Nunnemaker, 501 U.S. 797, 803–04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). However, Schurz argues that he's entitled to de novo review because the state court denied one of his PCRs on procedural grounds. While we're inclined to disagree, we needn't resolve this thorny procedural issue because Schurz's IAC claim fails even under de novo review.

Schurz argues that his lawyer performed deficiently by failing to develop “abundant evidence of significant, humanizing mitigation information,” which “undermine[d]confidence in” the outcome of his sentencing hearing. But, to be entitled to relief, Schurz must show not only that his sentencing “counsel's performance was deficient” but also that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

1. Schurz claims that his sentencing attorney failed to present mitigating evidence about his drug abuse and dysfunctional family life. But the attorney extensively covered these topics in his sentencing memorandum, complete with an attached psychological evaluation. The evidence Schurz cites would have been cumulative, and so, “not ... likely to have affected the outcome of the sentencing.” Leavitt v. Arave, 646 F.3d 605, 615 (9th Cir.2011); see also Wong v. Belmontes, 558 U.S. 15, 130 S.Ct. 383, 387, 175 L.Ed.2d 328 (2009) (per curiam).

The sentencing memorandum described Schurz as the “classic picture of a young boy who was the product of a dysfunctional family ... [and who] grew up in an environment of alcoholism.” The home where he lived was shared by “[t]hree families with a total of 10 children,” a sign of the poverty his family suffered. The psychological evaluation elaborated on Schurz's utter lack of emotional connection with either parent—he was abandoned early on by his father, and the only attention he got from his mother was when she beat him. “The only person [Schurz] ever really had was [his] grandmother.” He was “deeply disturb[ed]” when she died early in his life; it was then that he “start[ed] getting into trouble” and first started taking heroin. He was sent to rehabilitation that same year and after experimenting with “just about every drug that is illegally available,” became an alcoholic and a heroin addict. The evaluation concluded with a lengthy discussion of Schurz's many psychological problems.

We fail to see what the evidence Schurz discusses in his briefs would have added to this already bleak picture. Indeed, most of the new evidence is cumulative and minimally significant. The...