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
September 12, 2013
728 F.3d 813
Argued and Submitted April 19, 2012.
The government gives no reason for its failure to raise or argue exigent circumstances prior to the district court‘s grant of the motion to suppress. Instead, it wishfully asserts that it did raise the exigent circumstances exceрtion in its initial briefing. It says that it did so inferentially by citing to United States v. Davis, 787 F.Supp.2d 1165 (D.Or.2011), which discussed a number of exceptions to the warrant requirement, including the exigency exception. Not only did the government quote from a section of Davis having little to do with the exigent circumstances exception, but nowhere in its briefing did the government mention exigency or probable cause.3
The district court did not abuse its discretion in denying the motion for reconsideration. Its reason for denying the motion to rеconsider was logical, plausible, and supported by inferences drawn from the record. Hinkson, 585 F.3d at 1262. We know of no case reversing a district court for exercising its discretion in this manner, and the government cites none.4
CONCLUSION
For the reasons discussed above, we AFFIRM the district court‘s order suppressing the evidence obtained by answering Lopez‘s cell phones and AFFIRM the district court‘s denial of the government‘s motion for reconsideration.
AFFIRMED.
John Pressley Todd (argued), Assistant Attorney General, Arizona Attorney General‘s Office, Phoenix, AZ, and Terry Goddard, Attornеy 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.
Bеfore: 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
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 undеr 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 thаt 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 musсles 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 werе 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) аt 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.
II. DISCUSSION
Schurz filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996. Normally, this would require us to apply a highly deferential standard of review to the last reasoned state court decision. See
Schurz argues that his lawyer performed deficiently by failing to develop “abundant evidence of significant, humanizing mitigation information,” which “un
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 “сlassic 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 wаs when she beat him. “The only person [Schurz] ever really had was [his] grandmother.” He was “deeply disturb[ed]” when she died early in his life; it was then that he “start[ed] getting into trouble” and first started taking heroin. He was sent to rehabilitation that same year and after experimenting with “just about every drug that is illegally available,” became an alcoholic and a heroin addict. The evaluation concluded with a lengthy discussion of Schurz‘s many psychological problems.
We fail to see what the evidence Schurz discusses in his briefs would have added to this already bleak picture. Indeed, most of the new evidence is cumulative and minimally significant. The non-cumulative pieces of evidence include allegations of sexual abuse, cerebral dysfunction and fetal alcohol syndrome but are unsubstantiated by Schurz.
2. Most of the remaining evidence Schurz presents is so speculative that it comes nowhere close to showing deficient performance, much less prejudice. See, e.g., Gonzalez v. Knowles, 515 F.3d 1006, 1015-16 (9th Cir.2008); Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir.2001). Schurz claims that his “fetal development likely suffered” because his mother drank while pregnant with him, that his family members had “undiagnosed mental illness[es],” that he has a “genetic рredisposition” to substance addiction and that he was “likely sexually abused by a priest.” While Schurz relies on such tentative statements from family members, he presents no medical reports or even a declaration from Schurz himself. What is perhaps his strongest piece of evidence, a report from the time he spent at a drug treatment center as a child, only goes so far as to suggest he may have “possible cerebral dysfunction.” There‘s nothing to suggest that this is, in fact, the case or how this could have been used to mitigate Schurz‘s punishment.
3. The remaining evidence is minimally relevant at best. Though Schurz points to evidence of some head trauma six or seven months beforе his arrest, the doctor who made the finding also expressly found that it “has nothing to do with his present competency.” Schurz advances a litany of childhood woes—his parents’ romantic involvement as minors, an “acute psychоtic
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“To assess prejudice, we consider the mitigating evidence that was presented along with the new mitigating evidеnce and reweigh all of it against the aggravating evidence to determine whether there is a ‘reasonable probability’ that it would have produced a different verdict.” Samayoa v. Ayers, 649 F.3d 919, 928 (9th Cir.2011); see also Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009). Here, the sentencing judge found a single aggravating factor, but it was an exceedingly powerful one: Schurz committed a particularly heinous murder—lighting a defenseless, trapped man on fire—in response to a minimal provocation occasioned by a few words of brаvado that were not even directed at him. As the Arizona Supreme Court observed:
The cold-blooded burning to death of a person who is attempting to flee demonstrates the kind of “vile” mind-set that we have labeled heinous or depraved. The suffering—both mental and physical—of a person who remains conscious while receiving third and fourth degree burns over almost 100% of his body more than adequately demonstrates cruelty.
State v. Schurz, 176 Ariz. 46, 859 P.2d 156, 166 (1993).
The new mitigating evidence Sсhurz presents isn‘t “reasonably likely” to have made an impact at sentencing. See Strickland, 466 U.S. at 693. We are particularly confident in so concluding in light of the fact that the judge who sentenced Schurz already reviewed much of the “new” еvidence through the state post-conviction process, and found it insufficient to change the sentence from death.
AFFIRMED.
ALEX KOZINSKI
Chief Judge