Frank Atwood v. Charles Ryan

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 § 288

was 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. at

878–79. 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)

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63

64 ATWOOD V. RYAN

Photographs from Tucson Suite

ATWOOD V. RYAN 65

Photographs from Tucson Suite (cont’d)

66

Photograph from Tucson Suite

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Photograph from Tucson Suite

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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