Frank Atwood v. Charles Ryan ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK JARVIS ATWOOD, No. 14-99002
Petitioner-Appellant,
D.C. No.
v. 4:98-cv-00116-
JCC
CHARLES L. RYAN; GEORGE
HERMAN, Warden, Arizona State
Prison Complex—Eyman, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
John C. Coughenour, Senior District Judge, Presiding
Argued and Submitted June 7, 2017
Seattle, Washington
Filed September 13, 2017
Before: M. Margaret McKeown, Consuelo M. Callahan,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
2 ATWOOD V. RYAN
SUMMARY*
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of a habeas
corpus petition in a death penalty case.
The petitioner was convicted after a jury trial and
sentenced to death for kidnapping and first-degree felony
murder. He claimed that his Eighth Amendment rights were
violated by the use of an aggravating circumstance of a prior
conviction for another offense for which under Arizona law
a sentence of life imprisonment or death was imposable. The
petitioner contended that the determination of his eligibility
for the death penalty based on this aggravating factor was
unconstitutionally arbitrary because Arizona subsequently
determined that the conduct underlying his prior conviction
for lewd and lascivious conduct under Cal. Penal Code § 288was not so serious as to warrant a life sentence. The panel
held that the Arizona Supreme Court’s adjudication of this
claim was not contrary to or an unreasonable application of
clearly established federal law as determined by the United
States Supreme Court.
The panel held that the state habeas court did not make an
unreasonable determination of the facts by failing to hold an
evidentiary hearing on a claim of law enforcement
misconduct.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ATWOOD V. RYAN 3
The panel held that the petitioner did not establish
ineffective assistance of trial counsel in the failure to develop
information regarding the victim’s bones, which would have
allowed counsel to challenge the State’s chronology
implicating the petitioner in the murder.
The panel held that the petitioner did not meet the
requirements set forth in Martinez v. Ryan for overcoming the
procedural default of a claim of ineffective assistance of
sentencing counsel in the failure to present evidence from
mental health experts because he did not show that the failure
to raise this claim in state court resulted from ineffective
assistance of state habeas counsel. The panel agreed with the
district court’s conclusion, after an evidentiary hearing, that
the claim of ineffective assistance of sentencing counsel
lacked merit, and the petitioner therefore failed to establish
ineffective assistance of state habeas counsel.
COUNSEL
Larry A. Hammond (argued), Osborn Maledon P.A., Phoenix,
Arizona; Paula K. Harms, Assistant Federal Public Defender;
Jon M. Sands, Federal Public Defender; Office of the Federal
Public Defender, Phoenix, Arizona; for Petitioner-Appellant.
Lacey Stover Gard (argued), Chief Counsel, Capital
Litigation Section; Mark Brnovich, Attorney General; Office
of the Attorney General, Tucson, Arizona; for Respondents-
Appellees.
4 ATWOOD V. RYAN
OPINION
IKUTA, Circuit Judge:
Frank Jarvis Atwood was found guilty of kidnapping and
first-degree felony murder and sentenced to death. Atwood
appeals the district court’s denial of his petition for a writ of
habeas corpus. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and we affirm.
I
Because the facts as found by the Arizona Supreme Court
are presumed correct, 28 U.S.C. § 2254(e)(1), the following
background relies on the state court’s determination of factual
issues.
Before the kidnapping and murder convictions at issue in
this case, Frank Jarvis Atwood had been convicted twice for
sexual incidents involving children. In 1975, Atwood was
convicted of engaging in lewd and lascivious conduct with a
child under the age of fourteen years in violation of section
288 of the California Penal Code,1 State v. Atwood, 171 Ariz.
576, 593 (1992) (en banc), and incarcerated at Atascadero
State Hospital (a maximum-security facility for convicts
1
At the time, section 288 of the California Penal Code (1975)
provided that a person who “wilfully” committed a “lewd or lascivious
act” with “a child under the age of fourteen years, with the intent of
arousing, appealing to, or gratifying the lust or passions or sexual desires
of such person or of such child” was guilty of a felony punishable by up
to life imprisonment. 1937 Cal. Stat. 1562.
ATWOOD V. RYAN 5
deemed to be mentally ill) until his discharge in 1978, id. at
647 n.22.2
In 1981, Atwood was convicted for kidnapping an eight-
year-old boy. Id. at 593, 654. Atwood encountered the boy
while riding his motorcycle and offered the boy a ride. Id. at
655. When the boy refused, Atwood threw the boy’s bicycle
down and pulled him onto the motorcycle. Id. After
kidnapping the victim, Atwood forced him to perform oral
sex, “holding his head down so roughly that the boy received
visible scratches on his neck” and threatening to kill the boy
if he screamed. Id. Atwood was incarcerated in a California
State Penitentiary for this offense. Id. at 593.
While in prison, Atwood communicated with Ernest
Bernsienne (a member of a religious cult) about his sexual
interest in young children. Id. at 596, 634 n.17. In one of his
letters to Bernsienne, Atwood disclosed that he had been
molested when he was fourteen by a twenty-four-year-old
man but stated that he “honestly . . . really enjoyed it!”
Atwood asserted in the letter that he saw “no reason that sex
between [him] and pre-adolescent kids is not only not
allowed but also illegal,” and admitted that when he was
fifteen, he and a friend had taken a four-year-old girl into
2
The records from Atwood’s incarceration in Atascadero were
submitted in connection with his ineffective assistance of sentencing
counsel claims. Although the record before the Arizona Supreme Court
did not include the facts underlying Atwood’s 1975 conviction, Atwood,
171 Ariz. at 654 n.24, the Atascadero records and other records submitted
to the district court show that Atwood kissed and fondled a ten-year-old
girl. According to the Arizona Supreme Court, Atwood “was initially sent
to the Atascadero Mental Hospital for an indefinite period of time” but
was subsequently resentenced for a definite period of time. Id. at 647
n.22.
6 ATWOOD V. RYAN
some bushes to “explain the birds and the bees to [his] young
friend, as well as satisfying [Atwood’s] sexual curiosity.”
Atwood was released on parole in May 1984. Id. at 593.
Bernsienne testified that during a phone call after Atwood’s
release, Atwood stated that he was considering “going out
and picking up a child” and that “this time he would make
sure the child wouldn’t talk.” Id. at 596.
After he was released on parole in May 1984, Atwood
began traveling across country in his black 1975 Datsun
280Z. Id. at 593. In August 1984, Atwood met Jack
McDonald, who became his traveling companion. Id.Among other stops, Atwood and McDonald visited
Bernsienne in Enid, Oklahoma. Id. In mid-September,
Atwood and McDonald traveled to Tucson, Arizona. Id. The
morning of September 17, 1984, Atwood was seen at De
Anza Park, a congregating spot popular among Tucson’s
transient population. Id. Atwood left the park in the middle
of the afternoon. Id.Around the same time, Sam Hall, a teacher at a Tucson
elementary school, noticed a “dark Z car” with California
license plates in an alley near the school. Id. at 592. Hall
“described the driver as a man with a medium frame,
shoulder-length hair, and a dark beard and mustache,” id., a
description that fit Atwood at the time, and noted that the man
was “making strange gestures and shaking his head,” id. at
593. Because Hall was “somewhat unnerved by the driver’s
appearance and behavior, he wrote down the car’s license
plate number.” Id.At around 3:30 p.m., an eight-year-old girl named Vicki
Lynn Hoskinson left her Tucson home on a pink bicycle to
drop off a card at a nearby mailbox. Id. at 592, 595. Two
ATWOOD V. RYAN 7
teenage boys in the neighborhood passed Vicki as she was
riding her bicycle south toward the intersection of Root Lane
and Pocito Place, which was only a few hundred feet from the
elementary school where Hall had observed the “dark Z car”
with California license plates. Id. at 592–93. The boys also
passed a man with “long dark hair, a mustache, and the
beginnings of a beard” in a “dark Datsun Z car” heading
towards the same intersection. Id. (internal quotation marks
omitted). When Vicki did not return home, her mother sent
Vicki’s sister to look for her. Id. at 592. Vicki’s sister found
Vicki’s pink bicycle lying in the street near the intersection of
Root Lane and Pocito Place, but Vicki was missing. Id.Atwood returned to De Anza Park “approximately one
hour before sunset.” Id. at 593. “As [Atwood’s]
acquaintances at the park would later testify, he returned with
blood on his hands” and a knife. Id. at 593, 596. Atwood
told his acquaintances that he “stabbed a man in a drug
transaction” and “took the body to the desert near the
mountains.” Id. at 596. McDonald testified that Atwood had
cactus needles in his arms and legs. Id. That evening, after
playing pool at a local tavern and returning a tire iron to an
acquaintance, Atwood and McDonald left Tucson in
Atwood’s car for New Orleans, Louisiana. Id. at 593.
McDonald later testified that he observed Atwood repeatedly
sandpapering the blade of his knife during this trip. Id. at
599.
On September 18, Hall told the authorities about his
observations, including the license plate number of the car.
Id. at 593. Authorities traced the car to Atwood, id., and
agents from the Federal Bureau of Investigation (FBI)
contacted his parents for information about his whereabouts,
8 ATWOOD V. RYAN
id. at 596. The FBI also obtained a warrant for Atwood’s
arrest on kidnapping charges. Id. at 593.
While driving through Texas, Atwood’s Datsun had
mechanical problems. Id. at 636. Atwood, who was
financially dependent on his parents, called his mother for
money to pay for the car repairs. Id. McDonald heard him
say on the phone: “Even if I did do it, you have to help me.”
Id. at 637. McDonald also testified that Atwood told him that
law enforcement was “trying to stick something on him about
a little girl.” Id. Atwood’s parents informed the FBI that
Atwood was taking his car to Ken Stoepel Ford in Kerrville,
Texas for repair work. Id. at 593.
On September 20, 1984, the FBI arrested Atwood at the
garage and impounded his car. Id. at 593–94. FBI agents
interviewed Atwood in Kerrville for approximately two hours
after his arrest. Id. at 594. In this preliminary interview,
Atwood stated that he and McDonald arrived at De Anza Park
around noon on September 17, but that he left the park
sometime later after an argument with McDonald. Id.Atwood stated that, while he was away from the park, he met
Gary Cisco in the area of Wetmore and Romero Roads, an
area near Vicki’s neighborhood, to discuss buying marijuana
and stated that he visited Armour Watts’s home. Id. Both
Cisco and Watts would later deny meeting with Atwood that
afternoon. Id. Atwood stated that he returned to the park at
5:00 p.m. Id.FBI agents conducted an initial inspection of Atwood’s
car in Kerrville. Id. FBI Agent Declan Hoffman later
testified that, as a part of the inspection, he photographed
Atwood’s car from numerous angles. (This set of photos is
referred to as the Kerrville Suite.) At least one photo
ATWOOD V. RYAN 9
included in the Kerrville Suite shows a streak of pink paint on
the front bumper of Atwood’s Datsun.
The next day, September 21, 1984, the FBI transported
Atwood to San Antonio, Texas. Id. En route to San Antonio,
Atwood changed his story, telling agents that he had returned
to De Anza Park at 3:30 p.m. rather than 5:00 p.m. Id. The
same day, the FBI agents transported Atwood’s car to an FBI
facility in San Antonio and obtained a search warrant to
conduct a more thorough search of the car. Id. On
September 22, 1984, the FBI agents executed the search
warrant and observed pink paint on the front bumper of
Atwood’s car during this search. FBI Agent Edward Burwitz
took scrapings of this pink paint from the front bumper, and
FBI Agent Hoffman took additional photos. (This set of
photos is referred to as the San Antonio Suite.)
On September 27, 1984, Atwood was charged with
kidnapping. Id. at 594. Because the investigation was still
ongoing at that time, authorities did not know what additional
evidence would be found or whether Vicki was still alive. Id.This uncertainty changed on April 11, 1985, when the skull
and bones of a child were found in the desert northwest of
Tucson. Id. Through dental records, the Pima County
Medical Examiner, Dr. Richard Froede, and a physical
anthropologist from the University of Arizona, Dr. Walter
Birkby, identified the remains as Vicki’s. Id. at 594, 598.
Both experts noted the presence of adipocere on some of the
bones during their evaluation.3 The State’s experts could not,
however, determine the cause of death from the bones that
were found. Id. at 598.
3
Adipocere is a waxy substance that is formed during postmortem
decomposition when bacteria breaks down a body’s tissue.
10 ATWOOD V. RYAN
Atwood’s initial counsel, Lamar Couser, hired two
experts, Dr. Philip Keen, the Yavapai County Medical
Examiner, and Dr. Hal Chilton, a forensic odontologist, to
inspect the remains. See id. at 604. Keen and Chilton agreed
that the remains were Vicki’s. Id. Keen’s report noted the
presence of adipocere and stated that its presence “suggests
that at least for some time after death and prior to
skeletonization of the remains the body was subjected to a
moist environment.”
Once both the State and defense experts had the
opportunity to inspect Vicki’s remains, her family conducted
funeral services on May 30, 1985. Id. at 604. Soon after
Vicki’s burial, Atwood’s second counsel, Stanton Bloom,
replaced Couser. Id. Bloom unsuccessfully sought to have
Vicki’s remains exhumed, arguing that additional testing was
needed to determine whether the remains had been correctly
identified. Id. Records also show that Bloom consulted with
two forensic anthropologists, an odontologist, and a dentist
regarding the remains.
On May 15, 1985, Atwood was indicted for first-degree
murder. Id. at 594. The State consolidated the kidnapping
and murder charges for trial. Id. The Arizona Supreme Court
summarized the State’s theory at trial as follows:
Defendant, a convicted pedophile, was
cruising [Vicki’s] neighborhood in search of
a child. He saw [Vicki] riding her bike near
the mailbox and followed her on the street as
she cut through a field on her way home. The
field led to a short street—Pocito—that
intersected with Root Lane. Defendant
proceeded to Root Lane (where he was seen
ATWOOD V. RYAN 11
by the teenagers), intending to abduct [Vicki]
as she traveled down Pocito. [Vicki] stopped
briefly to talk with a friend who lived on
Pocito, and then continued down the street.
Defendant’s car struck [Vicki’s] bike, leaving
a pink paint smear on the car bumper, and he
grabbed the child. He then proceeded toward
northwest Tucson. En route, his car was
sighted by three people, all of whom later
identified defendant and testified that they
saw a young child in the passenger’s seat.
Defendant took the child to the desert, where
he molested and murdered her. He then
returned to De Anza Park in central Tucson,
where he had been earlier in the day.
Id. at 594–95.
According to the State’s witnesses at trial, laboratory tests
established that the pink paint on the front bumper of
Atwood’s car had come “from the victim’s bike or from
another source exactly like the bike” and that Vicki’s bicycle
had nickel particles on it that were consistent with nickel on
Atwood’s bumper. Id. at 595. The State’s accident
reconstruction expert, Paul Larmour, testified that “he found
a nearly perfect match heightwise between the contact area on
the backside of the bicycle and the [paint] transfer on the
bumper,” id. (alteration in original) (internal quotation marks
omitted), and that “marks on the car’s gravel pan were
consistent with the theory that it struck the bicycle at a low
speed and caused the bike to lodge beneath the car,” id.After a two-month trial, the jury found Atwood guilty of
kidnapping and first-degree felony murder. Id. at 591–92.
12 ATWOOD V. RYAN
Before sentencing, the State alleged three capital
aggravating factors, and Atwood offered several mitigating
circumstances. The court’s probation department also
prepared a presentence report. At the sentencing hearing,
Bloom called two witnesses: Atwood and his father. Id. at
651.
After reviewing the evidence presented, the trial court
found the aggravating factor set out in section 13-703(F)(1)
of the Arizona Revised Statutes had been proven beyond a
reasonable doubt. Id. at 647–48. At the time of sentencing,
this statute provided:
F. Aggravating circumstances to be
considered shall be the following:
1. The defendant has been convicted of
another offense in the United States for which
under Arizona law a sentence of life
imprisonment or death was imposable.
1985 Ariz. Sess. Laws 1439 (codified at Ariz. Rev. Stat. § 13-
703(F)(1)). The trial court held that Atwood’s conviction in
1975 for lewd and lascivious conduct under section 288 of the
California Penal Code supported the application of this factor
because at the time of that conviction, Arizona had a
materially identical criminal law providing that a person who
commits a lewd or lascivious act with a minor was guilty of
a felony punishable by life imprisonment. 1965 Ariz. Sess.
Laws 25 (then codified at Ariz. Rev. Stat. § 13-652).4 The
4
Section 13-652 of the Arizona Revised Statutes stated that “[a]
person who wilfully commits . . . any lewd or lascivious act . . . with the
intent of arousing, appealing to or gratifying the lust, passion or sexual
ATWOOD V. RYAN 13
trial court found that the mitigating circumstances were not
sufficiently substantial to warrant leniency. Atwood,
171 Ariz. at 648. Accordingly, the trial court sentenced
Atwood to death for the murder conviction and to a
concurrent term of life imprisonment for the kidnapping
conviction. Id. at 591.
On direct appeal, Atwood argued that his 1975 conviction
could not be used as an aggravating circumstance under
section 13-703(F)(1). Arizona revised its criminal statutes in
1977 to eliminate life imprisonment as a potential punishment
for lewd or lascivious conduct with a minor. See 1977 Ariz.
Sess. Laws 731 (then codified at Ariz. Rev. Stat. § 13-1412).
Therefore, Atwood argued that his 1975 conviction was not
a crime for which “a sentence of life imprisonment or death
was imposable” under Arizona law because “life
imprisonment” was not “imposable” at the time of
sentencing. Atwood, 171 Ariz. at 646–48. Atwood also
argued that use of section 13-703(F)(1) violated his Eighth
Amendment rights (we refer to this claim as the “Eighth
Amendment claim”).
The Arizona Supreme Court rejected these claims. It
interpreted the language in section 13-703(F)(1) as requiring
the defendant to be convicted of an offense for which “a
sentence of life imprisonment or death was imposable” under
Arizona law at the time the defendant committed the offense,
not at the time of the sentencing hearing for the subsequent
offense, which could be years or decades later. Atwood,
171 Ariz. at 647–48. Applying this interpretation, the
desires of either [the actor or victim],” was guilty of a felony punishable
by life imprisonment if the victim was “a child under the age of fifteen
years.” 1965 Ariz. Sess. Laws 25.
14 ATWOOD V. RYAN
Arizona Supreme Court held that section 13-703(F)(1) was
applicable to Atwood because a sentence of life imprisonment
was imposable in 1974 when he committed the offense of
lewd and lascivious conduct.5 Id. at 648. The Arizona
Supreme Court affirmed Atwood’s conviction and sentence,
id. at 660, and the United States Supreme Court denied
certiorari, Atwood v. Arizona, 506 U.S. 1084 (1993).
In 1996, Atwood filed his first state habeas petition for
post-conviction relief.6 Atwood raised his Eighth
Amendment claim, as well as two other claims relevant here:
(1) a claim that his trial counsel was ineffective for failing to
further investigate the presence of adipocere and discover the
existence of the grave (we refer to this claim as the
“adipocere ineffective assistance of trial counsel claim”), and
(2) a claim that law enforcement officials (FBI agents and
Pima County Sheriff deputies) engaged in misconduct by
planting the pink paint found on the bumper of Atwood’s car
(we refer to this claim as the “law enforcement misconduct
claim”). The Arizona Superior Court denied relief on all
claims. The Arizona Supreme Court denied review, and the
United States Supreme Court denied certiorari.
Atwood filed his first habeas petition in federal district
court in 1998. As amended, his habeas petition raised forty-
5
Because Atwood presented his Eighth Amendment claim to the
Arizona Supreme Court, which denied relief on the claim without
explanation, “it may be presumed that the state court adjudicated the claim
on the merits in the absence of any indication or state-law procedural
principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011).
6
Daniel Davis represented Atwood during his state post-conviction
proceedings and as second-chair counsel in federal habeas proceedings
until February 3, 2012.
ATWOOD V. RYAN 15
three claims, including the law enforcement misconduct
claim (Claim 1-B), the adipocere ineffective assistance of
trial counsel claim (Claim 2), and the Eighth Amendment
claim (Claim 27). He also raised a new claim (Claim 29)
alleging ineffective assistance of counsel at sentencing due to
the failure to conduct a thorough investigation of Atwood’s
background (we refer to this claim as the “ineffective
assistance of sentencing counsel claim”).
On June 6, 2005, the district court dismissed a number of
Atwood’s claims on procedural grounds. The district court
concluded that the ineffective assistance of sentencing
counsel claim was procedurally defaulted because Atwood
had failed to raise the claim in state court and failed to show
cause and prejudice to excuse the default. The court allowed
Atwood to file an additional memorandum in support of his
remaining claims, and in November 2005, Atwood submitted
new photos to support his law enforcement misconduct claim.
In May 2007, the district court addressed Atwood’s
remaining claims. The district court denied relief for the
adipocere ineffective assistance of trial counsel claim and the
Eighth Amendment claim, but granted a certificate of
appealability on these claims. The district court stayed the
proceedings to allow Atwood to exhaust the new aspects of
his law enforcement misconduct claim that had not been
presented to the state court. The court denied all of Atwood’s
other claims on the merits and denied a certificate of
appealability for these claims.
In December 2007, Atwood filed his second state habeas
petition to exhaust the law enforcement misconduct claim, as
permitted by the district court. In support of this claim,
Atwood produced affidavits from David Hill, a failure analyst
16 ATWOOD V. RYAN
for the aerospace industry who was writing a book on
Atwood’s case. The Arizona Superior Court held that an
evidentiary hearing was unnecessary because Atwood failed
to produce evidence sufficient to support a colorable claim of
law enforcement misconduct. In reaching this conclusion, the
state court determined that Hill’s conclusions and opinions
were “well outside of any expertise he may have” and
therefore did not constitute competent evidence to support
Atwood’s claim. The state court dismissed Atwood’s petition
on January 2, 2009. Atwood submitted a motion for
rehearing, this time including an affidavit from an additional
expert, Dr. Diana Hulick, who approved some of Hill’s
findings. After considering Hulick’s affidavit and re-
examining the photos submitted by Atwood, the state court
denied the motion for rehearing. Atwood petitioned the
Arizona Supreme Court for review.
While Atwood’s petition to the Arizona Supreme Court
on the law enforcement misconduct claim was pending, the
State offered Atwood access to additional discovery. Taking
advantage of this offer, Atwood’s counsel interviewed Gary
Dhaemers, Cliff McCarter, and Leo Duffner, three former
Pima County investigators who allegedly engaged in
misconduct, as well as the State’s accident-reconstruction
expert, Paul Larmour. Based on these interviews and
additional new materials, Atwood filed a second motion for
rehearing with the Arizona Superior Court. But the court
again denied the rehearing motion, holding that the new
information did not make Atwood’s law enforcement
misconduct claim any more colorable. The Arizona Supreme
Court later denied Atwood’s petition for review.
Having exhausted his law enforcement misconduct claim
in state court, Atwood returned to federal district court in
ATWOOD V. RYAN 17
January 2012 for a ruling on this claim. The district court
permitted additional briefing, ordered the transfer of exhibits
from the state court to the federal court, and allowed
Atwood’s attorneys to make an evidentiary proffer in court.
After reviewing the evidence, the district court dismissed
Atwood’s law enforcement misconduct claim, holding that
the state court reasonably concluded that there was
insufficient competent evidence supporting Atwood’s claim
to warrant an evidentiary hearing. At this point, all of
Atwood’s federal habeas claims had been dismissed.
But a subsequent change in the law revived Atwood’s
ineffective assistance of sentencing counsel claim. While
Atwood’s federal habeas petition was pending in district
court, the Supreme Court decided Martinez v. Ryan, 566 U.S.
1 (2012), which held that under certain circumstances the
ineffective assistance of a petitioner’s state habeas counsel
could constitute cause and prejudice for the procedural
default of a claim asserting ineffective assistance of trial
counsel.
In light of Martinez v. Ryan, the district court permitted
Atwood to file a motion for reconsideration of its prior order
dismissing Atwood’s ineffective assistance of sentencing
counsel claim as procedurally barred. Atwood did so. But
whereas Atwood’s first federal habeas petition had
characterized the claim as ineffective assistance for failure to
conduct a thorough investigation of Atwood’s background,
the motion for reconsideration now claimed that sentencing
counsel had rendered ineffective assistance by failing to seek
mental health experts to evaluate Atwood’s mental condition.
18 ATWOOD V. RYAN
In January 2014, after a four-day evidentiary hearing, the
district court denied the motion for reconsideration on several
grounds. First, the district court concluded that the
ineffective assistance of sentencing counsel claim raised in
Atwood’s motion for reconsideration had not been raised in
Atwood’s federal habeas petition. It further held that Atwood
could not amend his habeas petition to add the new claim
under Rule 15 of the Federal Rules of Civil Procedure
because the amendment would not relate back to any claim in
his habeas petition and therefore would be barred by the one-
year statute of limitations set by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), see 28 U.S.C.
§ 2244(d)(1). In the alternative, the district court held that
Atwood’s revised ineffective assistance of sentencing counsel
claim was procedurally barred, because Atwood failed to
establish cause and prejudice to excuse his procedural default
under Martinez v. Ryan. Finally, even if the requirements of
Martinez v. Ryan were satisfied, the district court held that
Atwood’s revised ineffective assistance of sentencing counsel
claim failed on the merits. The district court did, however,
expand its certificate of appealability to include this claim.
Atwood timely filed a notice of appeal, raising the three
claims for which the district court granted a certificate of
appealability: the adipocere ineffective assistance of trial
counsel claim, the ineffective assistance of sentencing
counsel claim, and the Eighth Amendment claim. He also
raised the law enforcement misconduct claim, and we granted
a certificate of appealability.
ATWOOD V. RYAN 19
II
We review de novo a district court’s decision to deny a
habeas petition under AEDPA, 28 U.S.C. § 2254. Aguilar v.
Woodford, 725 F.3d 970, 972 (9th Cir. 2013).7
Under 28 U.S.C. § 2254(d), a petition for habeas corpus
pending before a federal court “shall not be granted with
respect to any claim that was adjudicated on the merits in
State court proceedings” unless the resulting decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,” id. § 2254(d)(1), or
“was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding,”
id. § 2254(d)(2). In conducting this inquiry, we look to the
last reasoned state court decision to address the merits of a
petitioner’s claim. Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th
Cir. 2003).
Under § 2254(d)(1), “clearly established Federal law”
includes only the Supreme Court’s decisions in existence “as
of the time the state court renders its decision.” Greene v.
Fisher, 565 U.S. 34, 38 (2011) (emphasis omitted) (citation
omitted) (internal quotation marks omitted). Accordingly,
Supreme Court cases decided after the state court’s decision
are not “clearly established Federal law” under § 2254(d)(1)
for purposes of evaluating whether the state court
unreasonably applied such precedent.
7
AEDPA applies to Atwood’s federal habeas petition, which was
filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 322, 336
(1997).
20 ATWOOD V. RYAN
A state court decision is “contrary to” Supreme Court
authority if “the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or
if the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A state
court decision is an unreasonable application of clearly
established federal law if it “identifies the correct governing
legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003)
(citation omitted).
A state court “must reasonably apply the rules ‘squarely
established’ by [the Supreme] Court’s holdings to the facts”
of the case before it. White v. Woodall, 134 S. Ct. 1697, 1706
(2014) (quoting Knowles v. Mirzayance, 556 U.S. 111, 122
(2009)). A rationale that must be extended before it applies
is not clearly established law, Moses v. Payne, 555 F.3d 742,
754 (9th Cir. 2009), and a state court’s refusal to extend a
precedent warrants habeas relief “if, and only if, it is so
obvious that a clearly established rule applies to a given set
of facts that there could be no fairminded disagreement on the
question,” Woodall, 134 S. Ct. at 1706–07 (citation omitted)
(internal quotation marks omitted). “[W]hen a state court
may draw a principled distinction between the case before it
and Supreme Court caselaw, the law is not clearly established
for the state-court case.” Murdoch v. Castro, 609 F.3d 983,
991 (9th Cir. 2010) (en banc). As the Supreme Court has
consistently reminded us, § 2254(d) sets forth a “highly
deferential standard . . . , which demands that state-court
decisions be given the benefit of the doubt.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (citation omitted)
(internal quotation marks omitted).
ATWOOD V. RYAN 21
Similarly, under § 2254(d)(2), a federal court “may not
second-guess” a state court’s factual findings unless “the state
court was not merely wrong, but actually unreasonable” in
light of the record before it. Taylor v. Maddox, 366 F.3d 992,
999 (9th Cir. 2004). A state court’s determination of facts
has been held to be unreasonable under § 2254(d)(2) if “the
state-court decision is based on a finding [that] is unsupported
by sufficient evidence; the process employed by the state
court [wa]s defective; or . . . no finding was made by the state
court at all, when it was required to make a finding.” Murray
v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014) (first and second
alterations in original) (citation omitted) (internal quotation
marks omitted). Further, § 2254(e)(1) states that “a
determination of a factual issue made by a State court shall be
presumed to be correct.” 28 U.S.C. § 2254(e)(1). “[O]ur
panel decisions appear to be in a state of confusion as to
whether § 2254(d)(2) or (e)(1), or both, applies to AEDPA
review of state-court factual findings.” Murray, 745 F.3d at
1001. However, a court need not address the interaction
between § 2254(d)(2) and (e)(1) when the petitioner’s claims
fail to satisfy either provision. See id. (declining to resolve
the apparent conflict).
III
First, we address Atwood’s argument that the Arizona
Supreme Court’s adjudication of his Eighth Amendment
claim was contrary to or an unreasonable application of
clearly established federal law as determined by the Supreme
Court.
We begin by examining the Supreme Court’s death
penalty precedent in existence at the time of the Arizona
Supreme Court’s rejection of Atwood’s claim in 1992.
22 ATWOOD V. RYAN
Greene, 565 U.S. at 38. Under Furman v. Georgia, 408 U.S.
238 (1972), a state’s death sentencing scheme is
unconstitutional if it provides insufficient guidance to the
fact-finder, thereby creating an intolerably high risk of
discriminatory and arbitrary imposition of the death penalty.
“A fair statement of the consensus expressed by the Court in
Furman is that where discretion is afforded a sentencing body
on a matter so grave as the determination of whether a human
life should be taken or spared, that discretion must be suitably
directed and limited so as to minimize the risk of wholly
arbitrary and capricious action.” Zant v. Stephens, 462 U.S.
862, 874 (1983) (citation omitted) (internal quotation marks
omitted); see also Gregg v. Georgia, 428 U.S. 153, 206
(1976) (plurality opinion) (describing Furman as focused on
avoiding arbitrary and capricious death sentences by ensuring
that sentencing authorities were “directed to give attention to
the nature or circumstances of the crime committed or to the
character or record of the defendant”).
At the time the Arizona Supreme Court ruled on
Atwood’s Eighth Amendment claim, the clearly established
Supreme Court precedent held that in capital cases, the
Constitution requires a sentencing body’s discretion to be
narrowed with respect to two aspects of the process:
(1) determining whether a defendant is eligible for the death
penalty (the eligibility requirement) and (2) determining
whether to impose the death penalty on a particular eligible
defendant (the selection requirement). See Zant, 462 U.S. at878–79. A state’s death penalty scheme satisfies the
eligibility requirement when it directs the sentencing body to
find at least one aggravating factor that “genuinely narrow[s]
the class of persons eligible for the death penalty.” Id. at 877.
As Zant summarized the state of the law, aggravating factors
are constitutionally adequate so long as they (1) are not “so
ATWOOD V. RYAN 23
vague that they would fail adequately to channel the
sentencing decision,” id. (quoting Gregg, 428 U.S. at 195
n.46 (plurality opinion)), and (2) “reasonably justify the
imposition of a more severe sentence on the defendant
compared to others found guilty of murder,” id. As for the
selection requirement, the Eighth Amendment requires “an
individualized determination on the basis of the character of
the individual and the circumstances of the crime.” Id. at 879
(emphasis omitted) (citing, inter alia, Eddings v. Oklahoma,
455 U.S. 104, 110–12 (1982) and Lockett v. Ohio, 438 U.S.
586, 601–05 (1978) (plurality opinion)). To be
constitutionally adequate, a state may not preclude the
sentencing body from considering any proffered aspect of the
defendant’s character or record, or any circumstances of the
offense, as a mitigating factor. Eddings, 455 U.S. at 110.
Atwood’s argument relates to the requirement that the
state adequately narrow eligibility for the death penalty. He
contends that the determination of his eligibility based on the
aggravating factor codified at section 13-703(F)(1) was
unconstitutionally arbitrary. According to Atwood, section
13-703(F)(1) was intended to identify a class of the worst
offenders who committed the most serious offenses. Because
Arizona subsequently determined that the conduct underlying
Atwood’s prior conviction was not so serious as to warrant a
life sentence, Atwood claims that social standards have
evolved such that he cannot now be executed on account of
prior lewd conduct with a child. In other words, Atwood
argues that it would be arbitrary to execute him based on
aggravating conduct that society no longer deems to be the
worst and that does not reasonably distinguish him from other
offenders who had committed prior offenses that did not
make them death eligible.
24 ATWOOD V. RYAN
We reject this claim because the Arizona Supreme
Court’s decision was neither contrary to nor an unreasonable
application of clearly established federal law as determined
by the Supreme Court. At the time the state court rendered its
decision, there was no Supreme Court case invalidating an
aggravating factor similar to the section 13-703(F)(1) factor.
Nor had the Supreme Court invalidated an aggravating factor
relating to a prior conviction because the state had
subsequently changed the penalties imposable for such a
conviction. (Indeed, the Supreme Court has still not
addressed such issues.) Therefore, in rejecting Atwood’s
claim, the Arizona Supreme Court did not arrive at a
conclusion opposite to that reached by the Supreme Court on
materially indistinguishable facts.
Nor did the Arizona Supreme Court unreasonably apply
clearly established federal law. Furman and Gregg
established a general rule that turns on individualized
examinations of death penalty schemes. See Zant, 462 U.S.
at 875 (citing Gregg, 428 U.S. at 195 (plurality opinion)).
When applying such general rules, courts have “more leeway
. . . in reaching outcomes in case-by-case determinations.”
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Under
AEDPA, “a state court [applying a general standard] has even
more latitude to reasonably determine that a defendant has
not satisfied that standard.” Mirzayance, 556 U.S. at 123.
Here, the state court could reasonably have concluded that
section 13-703(F)(1) meets the requirements set forth in
Furman and Gregg for guiding a sentencing body’s decision
as to death eligibility. First, the factor is not “so vague” that
it fails to narrow the eligibility decision adequately; rather,
section 13-703(F)(1) uses a “clear and objective” selection
criterion that offers specific guidance. Godfrey v. Georgia,
ATWOOD V. RYAN 25
446 U.S. 420, 428 (1980) (plurality opinion). Second, the
Arizona Supreme Court could have reasonably concluded that
section 13-703(F)(1) is not arbitrary and “reasonably
justif[ies] the imposition of a more severe sentence on the
defendant compared to others found guilty of murder.” Zant,
462 U.S. at 877. Contrary to Atwood’s claim that Arizona
uses section 13-703(F)(1) to identify its worst criminals, a
concept that may change over time as society evolves, the
Arizona Supreme Court interprets its death penalty statute as
having the purpose of determining “the character and
propensities of the defendant.” State v. Gretzler, 135 Ariz.
42, 57 n.2 (1983) (citation omitted) (internal quotation marks
omitted). Accordingly, the state court could have reasonably
concluded that section 13-703(F)(1) identified an important
propensity factor, namely the defendant’s willingness to
engage in criminal behavior that society deemed at the time
to be the most serious, thereby risking life imprisonment or
death. Cf. Jurek v. Texas, 428 U.S. 262, 272–76 (1976)
(plurality opinion) (holding that the sentencer’s consideration
of whether “the defendant would be a continuing threat to
society” does not lead to arbitrary imposition of the death
penalty). The Arizona Supreme Court’s conclusion that this
propensity factor rationally narrows the pool of defendants
who are death eligible compared to others found guilty of
murder (regardless whether the state later decides to impose
only lesser sentences on that offense) is not contrary to or an
unreasonable application of the Supreme Court’s general
guidance in Furman and Gregg.
IV
We next turn to Atwood’s law enforcement misconduct
claim. The state habeas court dismissed without an
evidentiary hearing Atwood’s claim that FBI agents and Pima
26 ATWOOD V. RYAN
County investigators planted pink paint from Vicki’s bicycle
on the bumper of his car. The state court determined that
there was no colorable basis for the claim and that Atwood’s
theory lacked any “link to provable reality.” On appeal,
Atwood argues that the state court made an unreasonable
determination of the facts, see 28 U.S.C. § 2254(d)(2), by
failing to hold an evidentiary hearing on this claim.
A state court does not have to “conduct an evidentiary
hearing to resolve every disputed factual question.” Hibbler
v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012). The
“ultimate question” is whether a state court was
“unreasonable in holding that an evidentiary hearing was not
necessary in light of the state court record.” Id. at 1148(emphasis omitted). We have held that a state court’s failure
to hold an evidentiary hearing is not unreasonable under
§ 2254(d)(2) “where the allegations are said to be incredible
in light of the record,” or where the “petitioner’s factual
allegations are entirely without credibility.” Perez v. Rosario,
459 F.3d 943, 950–51 (9th Cir. 2006). Nor does a state
court’s failure to hold an evidentiary hearing make its factual
findings unreasonable “when the record already before the
court is said to establish a fact conclusively,” or “there is no
likelihood that an evidentiary hearing would have affected the
determination of the state court.” Id.In evaluating whether a state court erred in its fact-finding
process, we may look to the rules governing when a district
court must conduct an evidentiary hearing, because “if a
district court would be within its discretion in denying an
evidentiary hearing, a state court’s similar decision is
probably not objectively unreasonable.” Hibbler, 693 F.3d at
1148. Nevertheless, our review of a state court’s decision not
to conduct an evidentiary hearing is much more deferential.
ATWOOD V. RYAN 27
“[W]e may not ‘second-guess a state court’s fact-finding
process’ unless we determine ‘that the state court was not
merely wrong, but actually unreasonable.’” Id. (quoting
Taylor, 366 F.3d at 999).
In order to determine whether the state court here was
objectively unreasonable in failing to conduct an evidentiary
hearing, we must first explain Atwood’s theory of law
enforcement misconduct. Under Atwood’s theory, Pima
County investigators, in collusion with the FBI, removed both
bumpers from Atwood’s car in San Antonio and transported
the bumpers as luggage on a commercial airline to Tucson.
These investigators then scraped pink paint off Vicki’s
bicycle (which was in Tucson at the time) and planted it on
the front bumper of Atwood’s car. Next, the investigators
collected scrapings from the pink paint they had applied to
the bumpers, combined these scrapings with scrapings taken
by the FBI from an unrelated pink paint smear on the bumper,
and substituted the combined sample in the evidence log.
The Pima County investigators then used water-soluble paint
to cover up the scrape marks created while collecting the
sample, transported the bumpers from Tucson back to the
FBI’s impound garage in San Antonio, and reattached the
bumpers to Atwood’s car. Once the bumpers were
reattached, the agents took photos of the pink paint on the
bumpers and then substituted these photos for original photos
in the Kerrville and San Antonio Suites to cover up their
actions.
Atwood supports his theory by pointing to alleged
anomalies in three different suites of photos (the Kerrville
Suite, the San Antonio Suite, and a third suite of undated
photos taken in Tucson, which we refer to as the Tucson
28 ATWOOD V. RYAN
Suite), which he claims raise inferences of law enforcement
misconduct.
A
We first consider the alleged anomalies in the Kerrville
Suite of photos.8
The record establishes that FBI agents conducted an
initial inspection of Atwood’s car at the garage in Kerrville
on September 20, and that FBI Agent Hoffman took photos
of the car. Frame 9 of the Kerrville Suite shows pink paint on
the passenger side front bumper.
Atwood alleges that Frame 9 was taken in San Antonio
(after the FBI tampered with the car to add pink paint from
Vicki’s bicycle to the bumper, as explained above) and the
FBI substituted Frame 9 for the original photo. From this
alleged evidence of tampering, Atwood claims, it can be
inferred that pink paint from Vicki’s bicycle was not present
on the bumper of Atwood’s Datsun when the FBI took
custody of the car in Kerrville.9
8
See Appendix, pp. 58–61 (select photos from the Kerrville Suite).
9
Atwood’s theory on this point has evolved through the course of the
litigation. Initially, Atwood’s memorandum submitted in support of his
second state habeas petition argued that there was no pink paint on the
bumper of his car when he was arrested Under this theory, Atwood
claimed that Agent Burwitz collected paint from the bumper of the car, but
it was not pink. According to Atwood’s theory at that time, the scrapings
entered into the evidence collection log were replaced with later-obtained
pink paint scrapings, requiring evidence log entries to be altered. Atwood
later conceded that there was pink paint on his bumper at the time of his
arrest, but he now claims it was not pink paint from Vicki’s bicycle.
ATWOOD V. RYAN 29
Atwood points to the following evidence to support this
allegation. First, Hill made a digital photo enhancement of
Frame 9. Hill claims the enhancement shows that the right
side of the front bumper in Frame 9 is “specularly clean and
reflective” compared to the left side of the front bumper in
Frame 1, which is “grimy, dirty and splattered with dead
gnats and other insects.”10 According to Atwood, the
differences in the cleanliness of the bumper establish that
Frame 9 was taken at a different time than the rest of the
Kerrville Suite. Second, Atwood submitted an affidavit from
Hulick stating that Frame 9 “does not appear to be a part of
the same set of photographs” because it is “in sharper focus
and taken from a noticeably different angle than the other
photographs.” The government gave Atwood sequential
negatives of these photos, but Hill stated that “[t]hese images
are not ‘original negatives’ as that term is usually
understood.” Instead, according to Hill, “they are negatives
made from other negatives or photographic positives.”
(Hulick did not opine on this issue.)
Based on our review of the record, the state court could
have reasonably concluded that Atwood’s claim that law
enforcement had tampered with the Kerrville Suite was not
credible. First, on their face, the enhanced photos do not
show that the right side of the front bumper pictured in Frame
9 is cleaner than the left side of the front bumper pictured in
Frame 1. Moreover, the mere fact that Frame 9 was taken at
a different angle than the other Kerrville photos does not raise
the inference that it was falsified. Indeed, the majority of the
photos in the Kerrville Suite are taken from differing angles.
Atwood presents nothing more than “conclusory allegations”
10
See Appendix, p. 61 (comparing Frame 1 and Frame 9 of the
Kerrville Suite).
30 ATWOOD V. RYAN
that are “unsupported by facts and refuted by the record,”
which we have repeatedly held is insufficient to entitle a
petitioner to an evidentiary hearing. Farrow v. United States,
580 F.2d 1339, 1360–61 (9th Cir. 1978) (en banc).
The state court could also reasonably discount the
testimony of Hill and Hulick. The state court’s conclusion
that Hill’s evidence was not competent under Arizona law
was not an unreasonable application of Supreme Court
precedent nor an unreasonable determination of the facts,
given Hill’s lack of specialized knowledge. Moreover,
Hulick’s testimony was merely an inference from the
evidence that the court could reasonably reject.
B
Next, we consider Atwood’s claim that law enforcement
tampered with the San Antonio Suite.
Witnesses for the government provided the following
evidence regarding the events in San Antonio. On September
21, 1984, the FBI transported Atwood’s car from Kerrville to
an FBI impound garage in San Antonio. Two Pima County
investigators (McCarter and Dhaemers) flew into San
Antonio on a commercial airline the same day. On
September 22, FBI Agent Burwitz and four other FBI agents
inspected Atwood’s car, which had been cordoned off in the
FBI’s impound garage. FBI agents collected evidence from
the car, including scrapings of pink paint from the front
bumper. McCarter and Dhaemers were prohibited from
touching the car, but observed the FBI activities. The
investigations were documented in numerous photos.11
11
See Appendix, p. 62 (select photos from the San Antonio Suite).
ATWOOD V. RYAN 31
According to Atwood, the photos in the San Antonio
Suite showing pink paint on the car’s bumper were not taken
in San Antonio on September 22. Rather, Atwood alleges
that these photos were taken later, after the Pima County
investigators fabricated evidence in Tucson, returned the
bumpers to the FBI impound garage in San Antonio, and
reattached the bumpers.
Atwood supports this theory as follows. First, Atwood
states that a “close dimensional analysis” establishes that four
of the photos (one of which shows pink paint on Atwood’s
front bumper) were not taken on September 22 with the other
San Antonio photos. Atwood next relies on an affidavit from
Hill, which states that one pre-scraping photo from the San
Antonio Suite, “when enhanced[,] reveals the existence of
scrape marks beneath the surface of the paint.” Finally,
Atwood points to a photo in the Kerrville Suite that shows a
smooth bumper cowling, and a photo in the San Antonio
Suite that shows the cowling slightly out of alignment.12
Hulick states that comparing Exhibit 26-1 (Frame 1 taken in
Kerrville on September 20) to Exhibit 25-10 (taken in San
Antonio) “clearly shows that the bumper and its attached
cowling are in a different position from one photograph to
another,” which she claims supports Atwood’s contention that
the bumper was removed and reattached.
After reviewing the record, we conclude that the state
court reasonably determined that Atwood’s claim that Pima
County investigators tampered with the San Antonio Suite
was not credible. Atwood does not explain or support his
contention that a “close dimensional analysis” proves that the
12
See Appendix, p. 63 (comparing Frame 26-1 from the Kerrville
Suite with Frame 25-10 from the San Antonio Suite).
32 ATWOOD V. RYAN
photographs in the San Antonio Suite were “[c]ounterfeit
[a]dditions.” Nor does the evidence substantiate Atwood’s
claim that a water-soluble paint was affixed to the bumper
and then removed to enable false pre-scraping photos to be
taken. Given Hill’s lack of expertise, the state court
reasonably discounted his affidavit regarding the existence of
scrape marks beneath the surface of the paint, which are not
visible in the photo. Although the Kerrville and San Antonio
Suites show a change in the alignment of the bumper
cowling, the change does not raise the inference that the
bumpers were removed in San Antonio, transported to
Tucson, transported back to San Antonio, and then
reattached.13
C
Finally, we consider Atwood’s claim that a series of
unmarked and undated photos taken on the Pima County
Sheriff’s loading dock in Tucson (the Tucson Suite) shows
investigators planting pink paint from Vicki’s bicycle on the
bumper of Atwood’s car.
According to the undisputed facts, Vicki’s bicycle
remained in Tucson until law enforcement agents shipped it
to the FBI laboratory in Washington, D.C., on September 25,
1984. The bicycle arrived at the FBI laboratory on
September 26. Also on September 26, the FBI loaded
Atwood’s car into a trailer for transportation from the FBI’s
San Antonio impound garage to Tucson. The trailer arrived
13
Larmour, the State’s reconstruction expert, testified that the cowling
was “a flexible portion in the bumper guard” that could readily fall out of
alignment if a nut became loose or fell off. Larmour saw “no indication
that [the bumper] was taken off and reattached.”
ATWOOD V. RYAN 33
in Tucson the next day, and the Pima County Sheriff’s
Department took custody of the car. In October 1984, the
Pima Country Sheriff’s Department sent the bumper of
Atwood’s car to the FBI. The bumper was returned to
Tucson in March 1985, and Couser took photos of the
bumper when it arrived in Tucson. (This set of photos is
referred to as the Couser Suite.)
Atwood contends that an evaluation of the Tucson and
Couser Suites establishes that the bumpers and the bicycle
were together on the Pima County Sheriff’s loading dock in
Tucson before March 1985 and also shows that investigators
planted the pink paint on the bumper of Atwood’s car. To
support this theory, Atwood points to one of the Tucson Suite
photos showing a car’s chrome bumper, and argues that the
shiny surface of the bumper reflects a man holding a pink
bicycle.14 According to Atwood, this reflection establishes
that the bicycle and the bumpers were together in Tucson at
the same time. Although it is undisputed that the bicycle and
bumper were together in Tucson in March 1985, Atwood
argues that the Tucson Suite was taken earlier, because the
bumper looks cleaner in the Couser Suite than in the Tucson
Suite, indicating it had been cleaned in the FBI laboratory.15
Next, Atwood argues that because Vicki’s bicycle was
shipped to Washington, D.C., on September 25, the Tucson
Suite must have been taken before that date. Based on these
assumptions, Atwood claims the Tucson Suite gives rise to
the inference that investigators shipped the bumpers from
14
See Appendix, pp. 64–68 (select Tucson Suite photos and an
enhanced image that purportedly shows a pink bicycle).
15
Compare Appendix, pp. 64–67 (Tucson Suite photos) with
Appendix, p. 69 (Couser Suite photo).
34 ATWOOD V. RYAN
Atwood’s car to Tucson between September 22 and 25, 1984
to fabricate the pink paint evidence.
Atwood’s claims are not credible in light of the record.
Even with photographic enhancements, it is not possible to
discern the reflection of a man holding a pink bicycle in the
car’s bumper. Moreover, the resolution, quality, lighting, and
angles of the Tucson Suite and Couser Suite are substantially
different, making it impossible to conclude that the bumper
as photographed in the Couser Suite is cleaner than the
bumper as photographed in the Tucson Suite. Because both
inferences (the presence of the bicycle and the difference in
the cleanliness of the bumpers) are necessary to support
Atwood’s theory that the Tucson Suite photos were taken
before September 25, 1984, the state court could reasonably
conclude that Atwood’s allegations were not credible and a
hearing would not have affected the court’s determination.
D
The general implausibility of Atwood’s theory further
supports our conclusion that the state court was not
unreasonable in declining to hold an evidentiary hearing.
Under Atwood’s theory, FBI agents colluded with Pima
County investigators to remove and ship the bumpers to
Tucson, insert staged photos, and mix paint samples to be
sent to the FBI laboratory, despite the fact that Atwood’s car
already had a pink paint mark on the bumper. At the time of
the alleged fabrication, law enforcement officers could
reasonably expect the pink paint found on Atwood’s car to
match the paint on Vicki’s bicycle and therefore would have
had no incentive to plant additional pink paint on Atwood’s
bumper. Moreover, as the district court pointed out, there
was no reason for the Pima County investigators, as part of a
ATWOOD V. RYAN 35
clandestine operation, to take both bumpers to Tucson (when
they needed only one for the alleged fabrication), to check
these bulky items as baggage on a commercial airline, or to
take photos of the bumpers during the fabrication process.
Further, there does not seem to be any reason for the Pima
County investigators to apply the pink paint to the bumper,
scrape it off, mix the scrapings with scrapings of the other
pink paint scraped from the bumper, and cover the scraped
bumper with additional pink paint to cover the scrapings.
Even more generally, at the time of this alleged misconduct,
law enforcement authorities were in the midst of an
investigation that might uncover further evidence. Indeed,
the officers did not know at that time whether Vicki was alive
or dead. Atwood’s claim that at this point state and federal
officers would have concocted an elaborate plot to fabricate
evidence is simply not credible.
In sum, because Atwood’s allegations regarding law
enforcement misconduct are “incredible in light of the
record,” and a hearing would not have affected the state
court’s determination, the state court’s failure to hold an
evidentiary hearing was not unreasonable under § 2254(d)(2).
Perez, 459 F.3d at 950.
E
As a subsidiary argument, Atwood also contends that the
state court erred in not holding an evidentiary hearing on his
claim that the State’s accident reconstruction expert, Paul
Larmour, fabricated evidence indicating that the markings
and indentation on the car’s gravel pan matched the pedal of
Vicki’s bicycle.
36 ATWOOD V. RYAN
The record establishes that in September 1985, Larmour
conducted an accident reconstruction to determine if physical
evidence supported the State’s theory that Atwood’s car had
run into Vicki’s bicycle in Tucson. Larmour testified that the
“marks on the car’s gravel pan were consistent with the
theory that it struck the bicycle at a low speed and caused the
bike to lodge beneath the car.” Atwood, 171 Ariz. at 595.
Atwood contends that the markings and indentation on the
car’s gravel pan did not exist at the time it was examined in
San Antonio and must have been placed there during
Larmour’s accident reconstruction one year later.
Atwood’s own evidence refutes this claim. Atwood
points to photos taken before and after the reconstruction.16
The “before” photos show scrapes and markings, as well as
a slight indentation, on the gravel pan. The “after” photos
arguably show more scrapes and markings and a slightly
more prominent indentation. But such additional damage is
consistent with Larmour having conducted an accident
reconstruction. Because Atwood presents no evidence of
fabrication of the “before” photos, which undisputedly show
scrapings and indentation, the state court did not err in
declining to conduct an evidentiary hearing on Atwood’s law
enforcement misconduct claim.17
16
Compare Appendix, p. 70 (photos from before reconstruction) with
Appendix, p. 71 (photo from after reconstruction).
17
Atwood argues that the district court also erred in failing to conduct
an evidentiary hearing on his fabrication claim. This argument is
meritless; where AEDPA applies to a habeas petition, as it does here, a
district court is limited to considering the state court record unless the
petitioner satisfies the requirements of § 2254(d). See Pinholster,
563 U.S. at 185 n.7.
ATWOOD V. RYAN 37
V
We next turn to Atwood’s two ineffective assistance of
counsel claims. The clearly established federal law for
ineffective assistance of counsel claims is Strickland v.
Washington, 466 U.S. 668 (1984). See Pinholster, 563 U.S.
at 189. To establish ineffective assistance of counsel under
Strickland, a petitioner must prove (1) that “counsel’s
performance was deficient,” and (2) that “the deficient
performance prejudiced the defense.” 466 U.S. at 687.
Performance is deficient when counsel’s representation
falls “below an objective standard of reasonableness” and is
therefore outside of “the range of competence demanded of
attorneys in criminal cases.” Id. at 687–88 (citation omitted).
Counsel’s performance can be deficient if counsel fails to
conduct a sufficient investigation, but it is not deficient if
counsel reasonably decides to limit the investigation. Id. at
690–91. Counsel may reasonably base investigation
decisions on information supplied by the defendant. Id. at
691. We apply “a heavy measure of deference to counsel’s
judgments” regarding the scope of an investigation, id., and
presume “that counsel’s attention to certain issues to the
exclusion of others reflects trial tactics rather than sheer
neglect,” Harrington v. Richter, 562 U.S. 86, 109 (2011)
(citation omitted) (internal quotation marks omitted). When
evaluating counsel’s choices, we must make “every effort . . .
to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. “[C]ounsel should be strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable
38 ATWOOD V. RYAN
professional judgment.” Pinholster, 563 U.S. at 189 (citation
omitted) (internal quotation marks omitted).
Counsel’s deficient performance is prejudicial if “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. More specifically,
“[w]hen a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt.” Id. at 695. And when a defendant
challenges a death sentence, “the question is whether there is
a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. “The
likelihood of a different result must be substantial, not just
conceivable.” Richter, 562 U.S. at 112.
“Under AEDPA, we do not apply the Strickland standard
de novo.” Gulbrandson v. Ryan, 738 F.3d 976, 988 (9th Cir.
2013). “The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable.”
Richter, 562 U.S. at 101. “The standards created by
Strickland and § 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly so.” Id. at
105 (citations omitted) (internal quotation marks omitted).
A
We first consider Atwood’s adipocere ineffective
assistance of trial counsel claim. Atwood argues that Bloom
rendered ineffective assistance of counsel by failing to
develop information regarding the adipocere on Vicki’s
bones, which would have allowed Bloom to challenge the
ATWOOD V. RYAN 39
State’s chronology implicating Atwood in the murder.
According to Atwood, the state habeas court’s rejection of
this claim was an unreasonable application of Strickland.
Under the State’s theory of the case, Atwood murdered
Vicki some time after 3:30 p.m. on the afternoon of
September 17, 1984, dumped her body in the desert, and
returned to De Anza Park approximately one hour before
sunset. In explaining the presence of adipocere on Vicki’s
bones, Froede, one of the State’s experts, testified that
adipocere takes two to six months to develop and that the
climatic records showed “a good deal of rain” in late
September 1984 after Vicki’s disappearance, which would
have allowed the formation of adipocere on her bones.
Following his conviction, Atwood obtained the testimony
of a new expert, Dr. Kris Lee Sperry, who reviewed the trial
testimony and evidence from post-mortem examinations
conducted in this case and concluded that the adipocere on
Vicki’s remains could be formed only if Vicki had been
buried in the ground to a depth of at least one foot. Atwood
argues that because it would have taken several hours to bury
Vicki’s body to that depth in the hard desert soil, he would
not have had time to dig a grave and return to De Anza Park
approximately an hour before sunset. Had Bloom
investigated the adipocere issue and found evidence of burial
of the remains, Atwood contends, it would have undermined
the State’s timeline. Therefore, Atwood’s petition to the state
court argued that Bloom’s “[f]ailure to discover the existence
of the grave amounted to ineffective assistance of counsel.”
The state court rejected this argument, holding that
Atwood did not carry “his burden of proving that there ever
was a grave” and therefore “the factual predicate for this
40 ATWOOD V. RYAN
claim of failure on the part of Mr. Bloom to discover a grave
also fails.” The court also rejected Sperry’s testimony as
contrary to the facts of the case and inconsistent with credible
sources. The opinion states:
In drawing the conclusion that the victim’s
body must have been buried (because of the
existence of adipocere) and that the skeletal
remains must have been later exhumed by a
human, Dr. Sperry’s opinion fails to consider
the known evidence, such as the weather
conditions recorded at the weather station
closest to the site where the remains were
found, the absence of tool marks on the
skeletal remains, and the absence of dirt
imbedded in the openings of the bones and
skull.
Further, the court found that Sperry’s opinion was contrary to
the published articles of other experts. The court concluded
that “[b]ecause the factual basis for his opinion is
contradicted by other credible sources, the probative value of
Dr. Sperry’s opinion is minimal” and that Atwood “failed to
show that Dr. Sperry’s opinion evidence probably would have
changed the jury’s verdict.”
We review Atwood’s adipocere ineffective assistance of
counsel claim “[u]nder the doubly deferential judicial review
that applies to a Strickland claim evaluated under the
§ 2254(d)(1) standard,” Mirzayance, 556 U.S. at 123, and
hold that the state court reasonably applied both the
deficiency and prejudice prongs of Strickland.
ATWOOD V. RYAN 41
First, the state court reasonably applied Strickland in
holding that Bloom’s performance was not deficient. Bloom
had “a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691. The state court
could reasonably conclude that Bloom fulfilled these duties.
Prior to trial, Bloom reviewed the report written by Keen, one
of the two experts hired by Couser. He also hired four
additional experts, and questioned both of the State’s experts
about adipocere. None of the numerous pathologists and
anthropologists who examined the remains before trial
indicated that burial was a precondition to adipocere
formation. In an interview at the state medical examiner’s
office, the State’s experts told Bloom and the prosecutor that
there was “no indication of burial.” Under the “heavy
measure of deference” afforded to counsel’s judgments under
Strickland, the state court could reasonably conclude that
Bloom made a reasonable decision not to further investigate
a burial theory. See Strickland, 466 U.S. at 691; see also
Wiggins v. Smith, 539 U.S. 510, 533 (2003) (holding that
“Strickland does not require counsel to investigate every
conceivable line of mitigating evidence” or every possible
defense).
The state court could also have concluded that Bloom
adopted a reasonable defense strategy at trial by seeking to
discredit the use of adipocere by Froede and Birkby to
estimate Vicki’s time of death. Bloom succeeded in eliciting
testimony from the State’s experts that adipocere cannot be
used in isolation to develop a precise timeline for the
decomposition of remains. Moreover, the State’s experts
conceded that the remains could have been deposited in the
desert as late as February 1985 or as early as April 1984. In
closing argument, Bloom relied on these concessions to argue
42 ATWOOD V. RYAN
that “maybe [Vicki] didn’t die right out there at that time,”
and to suggest that she could have died at a later date or her
body could have been placed in the desert at a later date.
Given the deference to counsel’s judgment and strategy
required by Strickland, the state court did not unreasonably
apply Strickland in concluding that Bloom adopted a
reasonable strategy with respect to the adipocere evidence.
Second, the state court reasonably applied Strickland in
holding that Bloom’s allegedly deficient performance was not
prejudicial. Given the “totality of the evidence” before the
jury and the disputed nature of the potential testimony, the
state court could reasonably have determined that there was
no “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694–95. The state
court could have reasonably determined that Atwood’s theory
that Vicki’s body had been buried was not strong, given that
the State and defense experts who examined the bones found
no indications of burial and that Sperry’s opinion failed to
rely on known evidence and was contradicted by credible
sources.18 Conversely, the jury heard significant evidence
linking Atwood to the crime. The jury heard testimony that
Atwood’s car was seen at Vicki’s school the day of her
disappearance, Atwood, 171 Ariz. at 592–93; Atwood was
seen driving a Datsun in Vicki’s neighborhood before she
disappeared, id. at 593; and Atwood was seen leaving Vicki’s
neighborhood with a small child in his car, id. at 595.
18
In his reply brief, Atwood argues that the State’s experts would
have testified that burial was a necessary precondition to the formation of
adipocere and that Vicki must have been buried. This argument is
meritless. The State’s experts stated shortly before trial, and after trial,
that burial was not a necessary precondition to the formation of adipocere.
ATWOOD V. RYAN 43
Testimony also placed Atwood in the vicinity of the site
where Vicki’s remains were found, id., and witnesses testified
that they saw Atwood with a knife and with blood on his
hands and clothes on the afternoon of Vicki’s disappearance,
id. at 596. The jury also heard evidence that Atwood had
admitted he was attracted to children and had told Bernsienne
that the next time he picked up a child, he would make sure
that the child did not talk. Id. Finally, physical evidence
linked Atwood’s car to Vicki’s bicycle. Id. at 595.19 Given
the weakness of the evidence supporting Atwood’s adipocere
claim and the strength of the evidence against Atwood, the
state court reasonably found that any deficient performance
by Bloom did not give rise to a “reasonable probability that,
absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.” Strickland, 466 U.S. at 695.20
19
On appeal, Atwood contends that a court should not consider the
physical evidence linking Atwood to Vicki’s bicycle because it was a
product of law enforcement misconduct. As we have already indicated,
the state court did not err in concluding that the law enforcement
misconduct claim was not credible.
20
Atwood states that “[t]he state court’s decision was an unreasonable
determination of facts,” but does not develop this argument; therefore, it
is waived. Christian Legal Soc. Chapter of Univ. of Cal. v. Wu, 626 F.3d
483, 487 (9th Cir. 2010) (per curiam). In any event, the state court was
not required to hold an evidentiary hearing because “the record refutes
[Atwood’s] factual allegations or otherwise precludes habeas relief.”
Hibbler, 693 F.3d at 1148 (quoting Schriro v. Landrigan, 550 U.S. 465,
474 (2007)).
Atwood also argues that the district court erred in failing to conduct
an evidentiary hearing to resolve disputed issues of fact. Again, this
argument fails under Pinholster, 563 U.S. at 185 n.7.
44 ATWOOD V. RYAN
B
We now turn to Atwood’s ineffective assistance of
sentencing counsel claim. Atwood argues that Bloom
rendered ineffective assistance by failing to present evidence
from mental health experts regarding Atwood’s drug abuse
and the traumatic effects of his childhood molestation.
Atwood acknowledges that he failed to raise this claim to the
state court, and that it is procedurally defaulted.
Nevertheless, Atwood argues that he has met the
requirements set forth in Martinez v. Ryan, 566 U.S. at 9–10,
to overcome the procedural default. Atwood asserts that the
district court erred in rejecting this argument.
“Federal review is generally not available for a state
prisoner’s claims when those claims have been denied
pursuant to an independent and adequate state procedural
rule.” Clabourne v. Ryan, 745 F.3d 362, 375 (9th Cir. 2014),
overruled in part on other grounds, McKinney v. Ryan,
813 F.3d 798 (9th Cir. 2015) (en banc). A state prisoner may
be able to obtain federal habeas review of a procedurally
defaulted claim if “the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation
of federal law.” Coleman v. Thompson, 501 U.S. 722, 750
(1991). “An attorney error does not qualify as ‘cause’ to
excuse a procedural default unless the error amounted to
constitutionally ineffective assistance of counsel.” Davila v.
Davis, 137 S. Ct. 2058, 2062 (2017). “Because a prisoner
does not have a constitutional right to counsel in state
postconviction proceedings,” as a general rule “ineffective
assistance in those proceedings does not qualify as cause to
excuse a procedural default.” Id. (citing Coleman, 501 U.S.
722).
ATWOOD V. RYAN 45
The Supreme Court has created a “narrow, equitable . . .
qualification” of this rule. Id. at 2065 (alteration in original)
(citation omitted) (internal quotation marks omitted). Where
a prisoner fails to raise an ineffective assistance of trial
counsel claim in state court, “a procedural default will not bar
a federal habeas court from hearing a substantial claim of
ineffective assistance at trial” if (1) “state law requires
prisoners to raise claims of ineffective assistance of trial
counsel in an initial-review collateral proceeding,” id.
(emphasis added) (citation omitted) (internal quotation marks
omitted), and (2) “the default results from the ineffective
assistance of the prisoner’s counsel in the collateral
proceeding,” id.21 A claim of ineffective assistance of trial
counsel is “substantial” if the prisoner demonstrates that “the
claim has some merit.” Martinez v. Ryan, 566 U.S. at 14.
In evaluating whether the failure to raise a substantial
claim of ineffective assistance of trial counsel in state court
21
Trevino v. Thaler described this narrow exception as allowing a
federal habeas court to find “cause to excuse [a defendant’s] procedural
default,” 133 S. Ct. 1911, 1917 (2013) (emphasis added) (citation
omitted), but did not indicate whether the federal habeas court was also
required to find “actual prejudice as a result of the alleged constitutional
violations” in order to overcome the procedural default, Coleman,
501 U.S. at 745. We subsequently held that under Martinez v. Ryan, a
prisoner satisfies the prejudice prong of the “cause and prejudice”
standard for overcoming a procedural default when the prisoner’s claim
of trial-level ineffective assistance of counsel claim is substantial. See
Detrich v. Ryan, 740 F.3d 1237, 1245–46, 1261 (9th Cir. 2013) (en banc);
see also Clabourne, 745 F.3d at 377 (interpreting Detrich as reaching this
conclusion based on the agreement of nine of the eleven judges in separate
opinions). This analysis is consistent with Davila, which provides that “a
procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial” if the “cause” prong set
forth in Trevino is satisfied. Davila, 137 S. Ct. at 2065 (citation omitted).
46 ATWOOD V. RYAN
resulted from ineffective assistance of state habeas counsel
under Strickland, we must evaluate the strength of 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. Clabourne, 745 F.3d at 377 (“The reasonable
probability that the result of the post-conviction proceedings
would have been different, absent deficient performance by
post-conviction counsel, is necessarily connected to the
strength of the argument that trial counsel’s assistance was
ineffective.”).22
Here, Arizona law required Atwood to raise his claim of
ineffective assistance of trial counsel in a collateral
proceeding. Martinez v. Ryan, 566 U.S. at 4. Because the
“initial review in a collateral proceeding” requirement of
Martinez v. Ryan is met, we consider the merits of Atwood’s
claim of ineffective assistance of trial counsel at sentencing
in order to determine whether this claim is substantial and
whether the failure of his post-conviction counsel (Daniel
Davis) to raise this claim in state habeas court constituted
constitutionally ineffective assistance.
22
Even if a court determines that a defendant has shown cause and
prejudice sufficient to overcome a procedural default, that determination
“does not entitle the prisoner to habeas relief.” Martinez v. Ryan,
566 U.S. at 17. Rather, it allows a federal court to consider de novo “the
merits of a claim that otherwise would have been procedurally defaulted.”
Id.; see also Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en
banc).
ATWOOD V. RYAN 47
We first consider whether Bloom’s representation at
sentencing was deficient because he failed to sufficiently
investigate and present evidence regarding Atwood’s mental
heath. Atwood argues that had Bloom obtained professionals
to look into Atwood’s background and mental health, Bloom
could have presented powerful mitigating evidence that
Atwood suffered from a trauma-related mental impairment,
such as post-traumatic stress disorder (PTSD), which
developed after Atwood was molested at the age of fourteen
by a twenty-four-year-old. Atwood contends that his
childhood molestation initiated a downward spiral, skewing
his sexual development and causing him to engage in
disruptive behavior.
The district court conducted a four-day evidentiary
hearing on this issue. The records from Atwood’s three-year
incarceration at the Atascadero State Hospital were submitted
to the district court as part of this hearing. Psychological
reports in these records diagnosed Atwood with pedophilia.
The records contained further details of Atwood’s sexual
offenses against minors. Among other items in the records,
a report included Atwood’s statement that a four-year-old girl
that he molested “deserved it” because she was the block
“tattletail.” Atwood also stated that he molested the ten-year-
old girl because he felt like “scaring someone.” The records
documented Atwood’s aggressive pre-incarceration behavior,
describing an incident in which Atwood threatened his
mother “with a butcher knife and generally terroriz[ed] the
family,” and another incident in which Atwood threatened his
cousin with a knife. While at Atascadero, Atwood was
uncooperative and deemed “basically unamenable to
treatment.” A staff report noted that Atwood “kn[ew] the
proper words to use in therapy,” but did not make actual
progress. Finally, the records contained details of Atwood’s
48 ATWOOD V. RYAN
threatening and antisocial behavior at the hospital, describing
multiple incidents in which Atwood verbally and physically
assaulted patients and staff.
The district court also heard testimony from Bloom
regarding the scope of his investigation. Bloom stated that he
met with Atwood, consulted with Atwood’s parents, and
reviewed Atwood’s Atascadero records.23 Bloom testified
that after reviewing the records from Atascadero, he decided
that introducing the records would be “going down a wrong
path,” because they could be used to support the State’s
theory that Atwood “was predisposed to committing these
kind of offenses and that it may have been premeditated
conduct.” Moreover, it might lead the prosecutor to highlight
damaging evidence regarding Atwood’s prior sexual
molestation convictions.
Bloom also testified that he “[t]hought about [retaining a
mental health expert] but decided not to” for a number of
reasons. Most important, nothing in Bloom’s research or his
personal observations of Atwood suggested that such an
inquiry would have provided helpful mitigation evidence.
The Atascadero records showed that multiple social workers,
psychiatrists, and psychologists had interviewed Atwood or
considered his case, and none of these professionals indicated
that Atwood had any significant mental impairment or
disease. Nor did Atwood himself display symptoms of
trauma. According to Bloom, Atwood did not take being
molested by the twenty-four-year-old “very seriously” (he
had told Bernsienne that he enjoyed the experience), and he
did not appear traumatized by it. Atwood’s parents believed
23
Bloom was assisted by his paralegal, who performed the functions
of a mitigation specialist.
ATWOOD V. RYAN 49
that drugs caused Atwood’s problems and that Atwood did
not have any mental impairment. Bloom was also concerned
that the State would obtain a rebuttal mental health expert
that could provide damaging testimony about Atwood.24
Finally, Bloom testified that Atwood was opposed to a
mental impairment theory: Atwood “did not want [Bloom] to
bring in anything about his mental problems or anything
about his sexual past,” and indicated “that he was not going
to cooperate.”25 Given these considerations, and after
discussing the issue with Atwood, Bloom concluded that the
best strategic decision was to limit the prejudicial evidence
24
Bloom testified that he reached an agreement with the prosecutor
about the evidence to be introduced at sentencing. Under the alleged
agreement, Bloom would not open the door to Atwood’s mental state if
the prosecutor would not seek admission of the Atascadero records or
offer testimony from Atascadero personnel concerning Atwood’s
behavior. The prosecutor initially agreed with Bloom’s recollection of
this agreement, but later concluded that there must not have been an
agreement after reviewing the transcript of his cross-examination, which
referenced Atascadero records.
25
Atwood denied making these statements, and claimed that he
requested a mental evaluation. However, the district court found
Atwood’s testimony on this issue was not credible. The district court
found “that Bloom was a highly credible witness and credit[ed] fully his
testimony that petitioner did not want to be examined. The Court also
[found] credible Bloom’s assertion that he contemplated a mental health
exam but feared [Atwood] . . . would not cooperate.” “Because the district
judge is able to hear testimony live and to view the witnesses as they
testify, his credibility findings are entitled to deference on appeal.” United
States v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995); see also Anderson v.
City of Bessemer City, 470 U.S. 564, 575 (1985) (“[W]hen a trial judge’s
finding is based on his decision to credit the testimony of one of two or
more witnesses, each of whom has told a coherent and facially plausible
story that is not contradicted by extrinsic evidence, that finding, if not
internally inconsistent, can virtually never be clear error.”).
50 ATWOOD V. RYAN
considered by the sentencing judge and develop mitigating
evidence on Atwood’s drug use and family background,
rather than develop a mental impairment defense.
The four-day evidentiary hearing also included the
testimony of mental health professionals who evaluated
Atwood for purposes of the hearing. Atwood presented
testimony from Dr. Donna Schwartz-Watts, a psychiatrist
who evaluated Atwood in October 2012. At the evidentiary
hearing, Schwartz-Watts testified that Atwood currently
exhibited many of the symptoms of PTSD, but that she could
not determine whether Atwood developed PTSD when he
was molested at the age of fourteen or in response to other
adverse events, such as his experiences in prison. Schwartz-
Watts conceded that the Atascadero records did not report
that Atwood had been traumatized. She also conceded that
the records documented a pattern of behavior consistent with
antisocial personality disorder, and stated, “it’s very fair to
say a lot of [Atwood’s] actions [once he was confined] were
sociopathic. They were to get something he wanted. They
were to manipulate.” Schwartz-Watts also testified that
Atwood “technically meets the criteria” for pedophilia.
The State presented expert testimony from Dr. Erin
Nelson, a psychologist who conducted a mental health
evaluation of Atwood in June 2013. Nelson testified that she
had diagnosed Atwood with substance abuse disorder,
pedophilic disorder, and antisocial personality disorder. She
stated that there was a “plausible argument” that Atwood
satisfied the criteria of PTSD “as we sit here today,” but that
PTSD was “not evident at the time of [Atwood’s] arrest or
when he was first incarcerated.” Nelson concluded that “a
large amount of the evidence” indicated that Atwood may
have developed PTSD “post incarceration,” pointing out that
ATWOOD V. RYAN 51
the Atascadero records contained no discussion of trauma,
and that Atwood bragged about his ability to manipulate
psychologists. Nelson also stated that, regardless of whether
Atwood had PTSD or antisocial personality disorder, he was
able to control his behavior pre- and post-offense.
On January 27, 2014, after reviewing the evidence
presented at the evidentiary hearing, the district court held
that Atwood’s claim of ineffective assistance of counsel at
sentencing was meritless and that therefore Atwood failed to
satisfy the requirements of Martinez v. Ryan to excuse
procedural default. The court denied Atwood’s motion for
reconsideration.26
Based on this record, we agree with the district court that
Atwood’s claim of ineffective assistance of sentencing
counsel lacked merit. First, Bloom’s failure to conduct
further investigation into Atwood’s mental health did not fall
below an objective standard of reasonableness. Bloom could
have reasonably determined that further investigation of
Atwood’s background and mental state would not have
provided useful support for the mitigation theory that Atwood
suffered from a mental impairment. See Gonzalez v.
26
The court also denied Atwood’s motion on the ground that Atwood
had raised a new claim for ineffective assistance of counsel in his motion
for reconsideration that was not raised in his federal habeas petition and
that leave to amend his petition would be futile because the new claim was
barred by AEDPA’s one-year statute of limitations in 28 U.S.C.
§ 2244(d)(1). See supra at 18. We need not address whether Atwood
presents a claim that was not raised in his federal habeas petition or
whether the district court abused its discretion in denying leave to amend.
Even assuming that Atwood properly raised his claim, we agree with the
district court’s alternative holdings that Atwood’s claim fails to satisfy the
requirements of Martinez v. Ryan and fails on the merits.
52 ATWOOD V. RYAN
Knowles, 515 F.3d 1006, 1015 (9th Cir. 2008) (“Absent any
objective indication that [Petitioner] suffered from any mental
illness, [counsel] cannot be deemed ineffective for failing to
pursue this avenue of mitigation . . . .”). As Bloom testified,
the evidence available to him at the time did not indicate that
Atwood was traumatized; neither the Atascadero records, nor
Bloom’s own observations of Atwood, nor interviews with
Atwood’s parents supported such a theory. Moreover,
Atwood did not want Bloom to pursue this form of mitigation
and indicated that he would not cooperate with a mental
health examination. Strickland, 466 U.S. at 691 (“[W]hen a
defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless or even harmful,
counsel’s failure to pursue those investigations may not later
be challenged as unreasonable.”).
Bloom’s “decision to present a limited defense to restrict
the prosecution’s rebuttal evidence was a legitimate strategy.”
Elmore v. Sinclair, 799 F.3d 1238, 1251 (9th Cir. 2015). We
have held that counsel’s decision not to pursue a mental
health defense is a reasonable strategic decision under
Strickland where it avoided the introduction of “dueling
mental health experts,” evidence of the petitioner’s “past acts
of sexual abuse as rebuttal evidence,” and “details of the
crime.” Id. at 1246, 1251; see also Wong v. Belmontes,
558 U.S. 15, 25 (2009) (per curiam) (recognizing that “[a]
heavyhanded case to portray [the defendant] in a positive
light, with or without experts, would have invited” strong
evidence in rebuttal and stating that counsel had “a lot to
lose” by taking a “more-evidence-is-better” approach).
Bloom could have reasonably concluded that adopting a
mental health defense would open the door to rebuttal
testimony that Atwood has pedophilic disorder and antisocial
personality disorder. As we have noted, evidence of an
ATWOOD V. RYAN 53
antisocial personality disorder may be highly damaging.
Beardslee v. Woodford, 358 F.3d 560, 583 (9th Cir. 2004)
(acknowledging that an antisocial personality diagnosis can
be damaging and noting that we assume that competent
counsel regularly evaluate the potential impact of psychiatric
testimony); Clabourne v. Lewis, 64 F.3d 1373, 1384 (9th Cir.
1995) (noting that records showing the defendant had an
antisocial personality were not helpful); Crittenden v. Ayers,
624 F.3d 943, 968 n.15 (9th Cir. 2010) (holding that counsel
made a reasonable decision to keep evidence of a defendant’s
antisocial personality disorder away from sentencing jury).
In addition, adopting a mental health defense could open the
door to damaging information from the Atascadero records,
including details of Atwood’s prior offenses, reports that
Atwood was unamenable to treatment, and descriptions of
Atwood’s threatening and antisocial behavior at Atascadero.
Given the detrimental rebuttal evidence that could have been
introduced, Bloom reasonably focused his efforts on
developing other areas of mitigation, such as Atwood’s drug
use and his good family background.27 Accordingly, Bloom’s
strategic decision not to pursue a mental health investigation
27
Atwood suggests that Bloom rendered ineffective assistance of
counsel by failing to investigate and introduce further corroborating
evidence regarding Atwood’s drug use. We disagree, because any such
evidence would have been merely cumulative. Atwood and his father
both testified during the mitigation hearing about his extensive drug use.
Producing additional documentation to support this testimony would have
been redundant and “would have offered an insignificant benefit, if any at
all.” Belmontes, 558 U.S. at 23; cf. Bland v. Sirmons, 459 F.3d 999, 1031
(10th Cir. 2006) (finding no prejudice when counsel failed to present
additional, redundant testimony about defendant’s drug use).
Accordingly, the failure to introduce such evidence was neither deficient
nor prejudicial.
54 ATWOOD V. RYAN
appears to be a reasonable choice given the totality of the
circumstances. Strickland, 466 U.S. at 695–96.
Atwood argues that even if Bloom could have reasonably
decided not to pursue a PTSD theory, a mental health expert
might have come up with some other useful theory, and there
would have been no harm in hiring such an expert. But the
Supreme Court’s precedent does not support the theory that
if counsel had “nothing to lose” by pursuing a defense, then
counsel is deficient for failing to pursue it. Cf. Mirzayance,
556 U.S. at 122. “[T]he relevant inquiry under Strickland is
not what defense counsel could have pursued, but rather
whether the choices made by defense counsel were
reasonable.” Siripongs v. Calderon, 133 F.3d 732, 736 (9th
Cir. 1998). An argument that counsel could have relied on
“any number of hypothetical experts . . . whose insight might
possibly have been useful” is speculative and insufficient to
establish that counsel was deficient. Richter, 562 U.S. at 107.
In sum, Atwood fails to present evidence that Bloom’s
performance was outside “the range of competence demanded
of attorneys in criminal cases” under the “prevailing
professional norms” in Arizona in 1987. Strickland, 466 U.S.
at 687–88 (citation omitted); see also Pinholster, 563 U.S. at
196 (rejecting the dissent’s argument that counsel’s
performance was deficient where the dissent provided no
evidence that counsel’s chosen mitigation strategy was
“inconsistent with the standard of professional competence in
capital cases that prevailed in Los Angeles in 1984”). This is
“a case, like Strickland itself, in which defense counsel’s
decision not to seek more mitigating evidence from the
defendant’s background than was already in hand fell well
within the range of professionally reasonable judgments.”
Bobby v. Van Hook, 558 U.S. 4, 11–12 (2009) (per curiam)
ATWOOD V. RYAN 55
(citation omitted) (internal quotation marks omitted).
Accordingly, we hold that Bloom’s representation was not
deficient under the deferential standard set out in Strickland.
Second, even if Bloom’s performance had been deficient,
Atwood could not establish that this deficiency “prejudiced
the defense.” Strickland, 466 U.S. at 687. Atwood argues
that if Bloom had investigated his mental health, there is a
reasonable probability that the sentencer “would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695. We
disagree. As noted above, nothing in the Atascadero records
indicated that Atwood suffered trauma-related symptoms, and
Atwood’s own expert admitted that she could not determine
when Atwood might have developed his alleged trauma-
related impairment. Speculation that Atwood may have some
type of brain dysfunction or disorder “is not sufficient to
establish prejudice.” Bible v. Ryan, 571 F.3d 860, 871 (9th
Cir. 2009). Moreover, even if such evidence could have been
presented, it may well have opened the door to the damaging
rebuttal evidence described above. Therefore, taking into
account “the totality of the evidence,” we hold that Atwood
failed to establish “a reasonable probability that, but for
[sentencing] counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694–95.
Because Atwood’s claim of ineffective assistance of
sentencing counsel claim lacks merit, Davis, Atwood’s post-
conviction counsel, was not deficient for failing to raise it.
Further, Davis’s failure to raise the meritless ineffective
assistance of sentencing counsel claim was not prejudicial,
because there was not a reasonable probability that the state
habeas court would have granted Atwood relief had Davis
56 ATWOOD V. RYAN
raised it. Therefore, Atwood cannot meet Martinez v. Ryan’s
standard for excusing his procedural default in failing to bring
this claim before the state habeas court. See Davila, 137 S.
Ct. at 2065. Accordingly, Atwood’s ineffective assistance of
sentencing counsel claim is procedurally barred. Coleman,
501 U.S. at 745.28
AFFIRMED.
28
Because we have concluded that Atwood’s claim of ineffective
assistance of sentencing counsel is meritless, see supra at 51–55, Atwood
would not be entitled to relief even if his claim were not procedurally
barred. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.”).
ATWOOD V. RYAN 57
APPENDIX
58 ATWOOD V. RYAN
Photographs from Kerrville Suite
Kerrville Photo Suite Court Record Exhibits 26 & 27 *
*
Frame Numbers assigned in accordance with the Kerrville Photo
Log sequence
ATWOOD V. RYAN 59
Photographs from Kerrville Suite (cont’d)
60 ATWOOD V. RYAN
Photographs from Kerrville Suite (cont’d)
ATWOOD V. RYAN 61
Frame 9 of Kerrville Suite (Top)
and Frame 1 of Kerrville Suite (Bottom)
62 ATWOOD V. RYAN
San Antonio Suite—Alleged Counterfeit Additions
Photograph Comparing
Exhibit 25-10 (left—San Antonio Suite) and Exhibit 26-1 (right—Kerrville Suite)
ATWOOD V. RYAN
63
64 ATWOOD V. RYAN
Photographs from Tucson Suite
ATWOOD V. RYAN 65
Photographs from Tucson Suite (cont’d)
66
Photograph from Tucson Suite
ATWOOD V. RYAN
Photograph from Tucson Suite
ATWOOD V. RYAN
67
68 ATWOOD V. RYAN
Enhanced Image from Photograph in Tucson Suite
ATWOOD V. RYAN 69
Photograph from Couser Suite
70 ATWOOD V. RYAN
Photographs of Gravel Pan in San Antonio
Before Accident Reconstruction
ATWOOD V. RYAN 71
Photograph of Gravel Pan After Accident Reconstruction