Schad v. Ryan, No. 07-99005 (9-11-09). The 9th (Schroeder and Reinhardt) remands a capital habeas for an evidentiary hearing to determine whether petitioner was diligent in his efforts to develop the state record during state post-conviction proceedings. There were a number of continuances as counsel sought to develop and gather evidence. It appears that the court looked at the length of time, rather than assessed whether is was reasonable. Here, the petitioner had to track down witnesses, work with recalcitrant family members, and get experts. The 9th also holds that if the court finds that petitioner's efforts to develop the post-conviction record were reasonable, then an evidentiary hearing should be held to determine if there was IAC at sentencing given that the evidence petitioner presented to the district court was stronger than what the state court considered. Rymer dissented from this, arguing that the petitioner's efforts were not reasonable and that AEDPA deference should occur. Rymer stresses the 34 continuances, the funding given, and the nearly four years of delay, plus the efforts that were undertaken at sentencing originally.

Nash v. Ryan, no. 06-99007 (9-11-09). The 9th (Paez joined by Reinhardt and Thomas) hold that a Rohan (competency) hearing was required. The 9th rejected the state's arguments that competency was not an issue on an appeal from a denial of petition. The 9th now holds that competency is required, and extends Rohan v. Woodford, 334 F.3d 803 (9th Cir. 2003) to the appellate state. The petitioner, by the way, is 94.

Congratulations to AFPD Paula Harms of the D. Az (Phoenix) for the win.