Frank Atwood v. Charles Ryan
870 F.3d 1033
| 9th Cir. | 2017Background
- Defendant Frank Jarvis Atwood, a repeat sexual offender, was convicted of kidnapping and first-degree felony murder of eight-year-old Vicki Hoskinson (1984) and sentenced to death; conviction rested on eyewitness accounts, paint transfer on Atwood’s car matching the victim’s bicycle, and other physical and circumstantial evidence.
- Atwood had prior convictions for lewd acts with minors (1975) and kidnapping/sexual assault of a child (1981); Arizona relied on the 1975 conviction as a §13-703(F)(1) aggravating factor at sentencing.
- Post-conviction, Atwood raised multiple claims: Eighth Amendment challenge to use of the prior conviction as an aggravator; a law-enforcement-misconduct theory alleging FBI/Pima County planted pink paint on his bumper; ineffective assistance claims (trial counsel re: adipocere/grave and sentencing counsel re: mental-health mitigation).
- State courts rejected these claims; Atwood filed federal habeas under AEDPA. The district court denied relief, prompting this appeal on the Eighth Amendment, law-enforcement-misconduct, and two ineffective-assistance claims. The Ninth Circuit affirms.
- Key factual disputes included (1) interpretation of adipocere on the remains (whether burial was required), (2) authenticity/timing of multiple photo suites and paint scrapings, and (3) whether sentencing counsel should have pursued mental-health mitigation given Atwood’s records and lack of cooperation.
Issues
| Issue | Plaintiff's Argument (Atwood) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Eighth Amendment: use of prior 1975 lewd-conduct conviction as aggravator under §13-703(F)(1) | Use of the conviction is arbitrary because Arizona later removed life as a penalty for that offense; evolving standards make this prior offense no longer among the "worst" and thus its use is unconstitutional | The statute applies based on the law in effect when the prior offense was committed; §13-703(F)(1) reasonably narrows death-eligibility by identifying a propensity relevant to sentencing | Affirmed: Arizona’s construction was reasonable and not an unreasonable application of Supreme Court precedent; aggravator constitutional under Furman/Gregg/Zant framework |
| Law-enforcement-misconduct: claim FBI/Pima investigators planted pink paint and falsified photos/samples | Multiple photo-suites and sample-chain anomalies show planting/fabrication; expert photo analyses support tampering inference | Allegations are implausible and refuted by record; proffered experts lack requisite competence; no evidentiary hearing required | Affirmed: state court reasonably denied hearing and found claims not colorable or credible under §2254(d)(2) |
| Ineffective assistance of trial counsel re adipocere/grave (failure to investigate burial theory) | Trial counsel failed to develop adipocere/grave evidence that would undermine State’s timeline, prejudicing guilt determination | Counsel reasonably relied on multiple experts and records showing no indication of burial; post-hoc expert (Sperry) contradicted other credible sources; evidence against Atwood strong | Affirmed: state court reasonably applied Strickland; no deficient performance or prejudice |
| Ineffective assistance of sentencing counsel (failure to obtain mental-health experts; Martinez gateway) | Sentencing counsel failed to investigate/present mitigation (PTSD, drug abuse, childhood molestation); Martinez permits excusing procedural default | Counsel reasonably declined deeper mental-health inquiry given Atascadero records, risk of harmful rebuttal, and Atwood’s lack of cooperation; post-conviction counsel’s omission not ineffective because underlying claim lacks merit | Affirmed: claim lacks merit under Strickland; Martinez not satisfied because sentencing claim is not substantial |
Key Cases Cited
- Furman v. Georgia, 408 U.S. 238 (1972) (capital schemes invalid if they permit arbitrary death sentences)
- Gregg v. Georgia, 428 U.S. 153 (1976) (framework for constitutionally narrowing death-eligibility and individualized sentencing)
- Zant v. Stephens, 462 U.S. 862 (1983) (aggravating factors must narrow class eligible for death and justify harsher penalty)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard: deficient performance and prejudice)
- Williams v. Taylor, 529 U.S. 362 (2000) (AEDPA "contrary to" and "unreasonable application" standards)
- Lockyer v. Andrade, 538 U.S. 63 (2003) (deference to state-court applications of federal law under AEDPA)
- Harrington v. Richter, 562 U.S. 86 (2011) (presumption that unexplained state-court denial was on the merits; deference to counsel strategy)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (limits on federal evidentiary development under AEDPA review)
- Martinez v. Ryan, 566 U.S. 1 (2012) (narrow equitable exception allowing claim of ineffective trial counsel to excuse procedural default when state habeas counsel was ineffective)