Schurz v. Ryan

In the absence of “new” mitigating evidence showing it was likely a jury would have reached a different verdict, a petitioner cannot show any prejudice from alleged ineffective assistance.

Eldon Schurz was convicted of first degree murder after killing a man by splashing him with gasoline and lighting him on fire. Schurz was sentenced to death because the judge determined the nature of the murder was so heinous and depraved that it outweighed the Schurz’s mitigating circumstances. Schurz appealed his conviction, appealed the denial of his petitions for state post-conviction relief, and claimed he had ineffective assistance of counsel at sentencing. Before the Ninth Circuit, Schurz claimed he was prejudiced by his sentencing attorney not presenting evidence about his drug abuse and family life, believing that such evidence would have mitigated the murder. However, the sentencing attorney did include those aspects in his sentencing memorandum, so the evidence Schurz presented did not show a deficient performance by the sentencing attorney amounting to prejudice. In order to recover, Schurz would have had to show a deficient performance by his sentencing attorney that prejudiced the defense. To show prejudice, Schurz needed to present new mitigating evidence that when weighed against the aggravating evidence would have likely caused a different verdict than the one reached. Considering the minimal provocation and the heinous nature of the murder, the mitigating factors Schurz presented only held minimal weight in assessing his punishment, and the new mitigating evidence presented would not likely have impacted his sentence. The panel found that the evidence Schurz presented in support of his petitions was insufficient to reduce his death sentence. AFFIRMED.