FRANK JARVIS ATWOOD v. DAVID SHINN, Director
No. 22-70084
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MAY 27, 2022
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS; FOR PUBLICATION; Application to File Second or Successive Petition Under 28 U.S.C. § 2254
Argued and Submitted May 24, 2022 San Francisco, California
Before: M. Margaret McKeown, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.
On May 4, 2022, Petitioner Frank Jarvis Atwood filed a motion for an order authorizing the district court to consider a second or successive habeas petition as required by
I
In 1985, Frank Jarvis Atwood was found guilty of kidnapping and first-degree felony murder and sentenced to death. On direct appeal, Atwood argued that his 1975 California conviction could not be used as an aggravating circumstance under section 13-703(F)(1) of the later-revised Arizona Revised Statutes. He also argued that use of section 13-703(F)(1) violated his Eighth Amendment rights (this is referred to as the “Eighth Amendment claim“). The Arizona Supreme Court rejected these claims and affirmed Atwood‘s conviction and sentence. State v. Atwood, 832 P.2d 593 (1992). The U.S. 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. The Arizona Superior Court denied relief on all claims. The Arizona Supreme Court denied review, and the U.S. Supreme Court denied certiorari. Atwood filed his first habeas petition in federal district court in 1998. In June 2005, the district court dismissed some of Atwood‘s claims on procedural grounds and in May 2007, it denied relief on the remaining claims but granted a certificate of
In December 2007, Atwood filed his second state habeas petition to exhaust a law enforcement misconduct claim. Eventually, the law enforcement misconduct claim was denied by the Arizona Superior Court and the Arizona Supreme Court denied his petition for review. While this petition was pending, the State offered Atwood access to additional discovery. Atwood filed a motion for rehearing based on this new discovery, but the state trial court denied the motion and the Arizona Supreme Court again denied Atwood‘s petition for review.
Having exhausted his law enforcement misconduct claim in state court, Atwood returned to federal district court in January 2012 for a ruling on this claim. After permitting additional briefing, the district court dismissed the law enforcement misconduct claim. At this point, all of Atwood‘s federal habeas claims had been dismissed.
However, in light of the Supreme Court‘s March 2012 opinion in Martinez v. Ryan, 566 U.S. 1 (2012), the district court allowed Atwood to file a motion for reconsideration of its prior dismissal of his ineffective assistance of sentencing counsel claim as procedurally barred. In January 2014, after a four-day evidentiary hearing, the district court denied the motion for reconsideration. Consistent with a revised certificate of appealability issued by the district court, Atwood filed a notice of appeal raising three claims, including the Eighth Amendment claim.
In September 2017, we affirmed the denial of Atwood‘s petition for a writ of habeas corpus. Atwood v. Ryan, 870 F.3d 1033 (9th Cir. 2017). We held, inter alia, that “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.” Id. at 1049 (citing Furman v. Georgia, 408 U.S. 238 (1973), and Gregg v. Georgia, 428 U.S. 153 (1976)). The Supreme Court denied Atwood‘s motion to file a petition for certiorari out of time. Atwood v. Ryan, 139 S. Ct. 298 (2018).
In April 2019, Atwood initiated a third post-conviction proceeding in the Arizona Superior Court raising several sentencing claims, including an allegation that the (F)(1) aggravating circumstance was constitutionally infirm. The Arizona Superior Court denied relief in June 2020, and the Arizona Supreme Court denied review in May 2021.
In June 2021, Atwood filed another successive post-conviction notice in the Arizona Superior Court relating to some of the physical evidence against him. Counsel was appointed and a petition was filed in November 2021. The petition was denied in February 2022.
On May 3, 2022, the Arizona Supreme Court issued a warrant scheduling Atwood‘s execution for June 8, 2022.
II
A
We have jurisdiction to consider the motion pursuant to
B
Atwood admits that he is seeking to file a successive petition and that such a petition is “generally subject to the provisions of
We disagree because this argument is foreclosed by our decision in Thompson v. Calderon, 151 F.3d 918, 923-24 (9th Cir. 1998) (en banc), as amended (July 13, 1998), which recognized that the Sawyer exception was subsumed, with respect to
Even if we considered whether Atwood‘s claim could meet the requirements of
And even if we read
C
Atwood‘s Brady claim also fails to meet the requirements of
Atwood‘s Brady claim does not meet the standard in
In light of all the information Atwood had concerning Fries at the time of his trial, it is unlikely that the disclosure of the anonymous phone call would have changed anything. The State alleged, and Atwood does not deny, that at the time of trial Atwood had information that:
(1) witnesses reported seeing V.L.H. at a local mall in the company of a woman matching Fries‘s description; (2) Fries “gave shifting information about her whereabouts at the time of the disappearance“; (3) Fries had been charged with crimes related to her attempt to burn down her trailer, but was found incompetent to stand trial; (4) a woman matching Fries‘s description was seen “in the days surrounding the disappearance driving a car very similar to Mr. Atwood‘s“; (5) witnesses described seeing a woman matching Fries‘s description attempt “to kidnap other children in the days surrounding the disappearance“; and (6) a defense witness “had experienced intimidation and harassment . . . as potential revenge for her testimony on Mr. Atwood‘s behalf.”
As all of this did not sway the jury, it is unlikely that the anonymous phone call would have made a difference, even after it was determined that the reported license plate belonged to Fries‘s neighbor.
Moreover,
Although we cannot know from the facts presented at trial exactly what happened to the victim when she was taken to the desert, we do know that (1) defendant, a convicted pedophile, was seen within yards of the girl literally seconds before
she vanished; (2) witnesses identified defendant as the man they saw driving with a young child in his car; (3) defendant was seen later that afternoon with blood on his hands and clothing; and (4) defendant was also seen with cactus needles in his arms and legs.
Atwood, 832 P.2d at 616. We cannot conclude that the disclosure of the unreported anonymous phone call would have had any effect on Atwood‘s trial and conviction.
D
Finally, Atwood has not made a prima facie showing in support of his freestanding actual innocence claim. The claim asserts that the Brady material is new evidence showing that Atwood is not guilty of the underlying offense. But as we explained above, the unreported anonymous phone call does not approach demonstrating, by “clear and convincing evidence,” that Atwood is not guilty. The phone call is not evidence that Atwood did not commit the murder, or that someone else committed the murder. Rather, Atwood supposes that the phone call was made by Fries or her son with the intent of leading the investigators away from Fries. Even if this were true and Atwood could prove it, it still would not be clear and convincing evidence that Atwood was innocent.
III
Because Atwood has not made a prima facie showing that his proposed petition meets the criteria set forth in