36 F.4th 834
9th Cir.2022Background
- In 1985 Atwood was convicted of kidnapping and first-degree felony murder in Arizona and sentenced to death; the sole aggravating circumstance was a 1975 California conviction for lewd conduct with a child, used under Ariz. Rev. Stat. §13–703(F)(1).
- Atwood challenged use of the 1975 conviction and related Eighth Amendment sentencing claims on direct appeal (Arizona Supreme Court affirmed 1992) and through multiple state and federal habeas proceedings; the Ninth Circuit affirmed denial of federal habeas relief in 2017.
- After additional state post-conviction filings and discovery in 2021–2022, defense counsel found an FBI memorandum from Sept. 19, 1984 reporting an anonymous tip that Vicki Ly nne Hoskinson was seen with a vehicle bearing license plate 3AM618 (not Atwood’s plate).
- Atwood sought authorization under 28 U.S.C. §2244(b)(3)(A) to file a second or successive §2254 petition raising three claims: (1) Eighth/14th Amendment challenge to using the 1975 conviction as an aggravator, (2) Brady violation based on the unreported anonymous tip, and (3) freestanding actual innocence of the underlying offense/death penalty.
- The Ninth Circuit considered whether Atwood made a prima facie showing under §2244(b)(2)(B) (new factual predicate not discoverable earlier through due diligence; and, when viewed with all evidence, clear and convincing proof of innocence) and denied authorization.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Sawyer equitable exception permits bypassing §2244(b)(2)’s gate for a claim that Atwood is innocent of the death penalty | Sawyer allows equitable actual-innocence claims to proceed despite statutory successive-petition bars | AEDPA and Thompson v. Calderon subsume Sawyer; §2244(b)(2) governs successive petitions | Denied — Sawyer does not override §2244(b)(2); Thompson controls, so statutory criteria apply |
| Whether Atwood’s challenge to using his 1975 California conviction meets §2244(b)(2)(B) (diligence/factual predicate) | The legal predicate for the Eighth Amendment challenge could not have been discovered earlier and should be excused from §2244(b)(2)(B) | Atwood challenged the conviction from the outset and counsel admitted the present formulation could have been raised earlier; no intervening change in law or facts | Denied — claim is legal (not new factual predicate) and Atwood failed to show due diligence |
| Whether the undisclosed 1984 FBI memorandum referencing an anonymous tip about plate 3AM618 satisfies §2244(b)(2)(B)(ii) (new evidence that would establish innocence) | The memo is new Brady material that points to Fries (or her family) as a suspect and undermines Atwood’s guilt | The record already contained extensive information about Fries and other exculpatory leads; the anonymous tip would not, in light of the whole evidence, produce clear and convincing proof of innocence | Denied — the undisclosed tip would not, viewed with all evidence, clearly and convincingly establish that no reasonable factfinder would find Atwood guilty |
| Whether Atwood’s freestanding actual innocence claim meets the clear-and-convincing standard | The Brady material and the new memo constitute new evidence proving Atwood’s innocence of the underlying murder | The memo is speculative and does not directly show someone else committed the murder; it falls far short of clear-and-convincing evidence of innocence | Denied — Atwood failed to make a prima facie showing of freestanding actual innocence |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose materially exculpatory evidence)
- Furman v. Georgia, 408 U.S. 238 (1972) (Eighth Amendment capital-sentencing guidance principles)
- Gregg v. Georgia, 428 U.S. 153 (1976) (constitutional framework for guided capital sentencing)
- Sawyer v. Whitley, 505 U.S. 333 (1992) (equitable actual-innocence claim in capital context)
- Martinez v. Ryan, 566 U.S. 1 (2012) (ineffective assistance in initial-review collateral proceedings may excuse procedural default)
- Thompson v. Calderon, 151 F.3d 918 (9th Cir. 1998) (AEDPA amendments subsume Sawyer with respect to §2244(b)(2))
- Atwood v. Ryan, 870 F.3d 1033 (9th Cir. 2017) (prior Ninth Circuit decision affirming denial of Atwood’s habeas petition)