Application — In Re Frank Jarvis Atwood, Petitioner

No. 21-_________

IN THE

SUPREME COURT OF THE UNITED STATES

In Re:

FRANK JARVIS ATWOOD, Petitioner

ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS

FILED PURSUANT TO ARTICLE III § 2 OF THE UNITED STATES

CONSTITUTION, THE EIGHTH AMENDMENT TO THE UNITED STATES

CONSTITUTION, 28 U.S.C. §§ 2241, 2254,

AND MOTION FOR STAY OF EXECUTION

***CAPITAL CASE***

EXECUTION SCHEDULED FOR JUNE 8, 2022

MOTION FOR STAY OF EXECUTION

AMY P. KNIGHT

*Counsel of Record

KNIGHT LAW FIRM

3849 E. Broadway Blvd., #288

Tucson, AZ 85716-5407

(520) 878-5407

amy@amyknightlaw.com

JOSEPH J. PERKOVICH

PHILLIPS BLACK, INC.

P.O. Box 4544

New York, NY 10163

JOHN R. MILLS

PHILLIPS BLACK, INC.

1721 Broadway, Suite 201

Oakland, CA 94612

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... iii

INTRODUCTION ............................................................................................................. 1

STATEMENT OF THE CASE ........................................................................................ 2

CLAIM FOR RELIEF: ..................................................................................................... 4

A.

Mr. Atwood Is Not Death Eligible Because His Crime Does Not Fall

Within the Narrow Class of Murders Designated As Such, As the Eighth and

Fourteenth Amendment Require ......................................................................................... 4

B.

Mr. Atwood’s death sentence is unconstitutional even if Arizona did not

require a statutory elements test because no evidence whatsoever of the facts

of the prior conviction were presented, and the California statute covered

conduct that would not produce a life sentence in Arizona ..................................... 14

C.

No adequate state ground bars this Court’s review. ....................................... 16

D.

Timeliness ..................................................................................................................... 18

MOTION FOR STAY OF EXECUTION ..................................................................... 19

CONCLUSION ................................................................................................................ 21

ii

TABLE OF AUTHORITIES

Cases

Atwood v. Ryan,

870 F.3d 1033 (9th Cir. 2017) ..................................................................................... 3

Atwood v. Ryan,

No. CV-98-116-TUC-JCC, 2014 WL 289987 (D. Ariz. Jan. 27, 2014) ....................... 3

Barefoot v. Estelle,

463 U.S. 880 (1983).................................................................................................... 19

Bronshtein v. Horn,

404 F.3d 700 (3d Cir. 2005) ....................................................................................... 21

Brown v. Sanders,

546 U.S. 212 (2006).................................................................................................... 13

Burden v. United States,

141 S. Ct. 1817 (2021).................................................................................................. 5

Chafin v. Chafin,

568 U.S. 165 (2013).................................................................................................... 20

Cherry v. Araneta,

203 Ariz. 532 (App. 2002) ............................................................................................ 8

Comer v. Stewart,

215 F.3d 910 (9th Cir. 2000) ..................................................................................... 18

Dutzler v. State,

41 Ariz. 436 (1933) ..................................................................................................... 12

Faber v. State,

62 Ariz. 16 (1944) ....................................................................................................... 12

Felker v. Turpin,

518 U.S. 651 (1996)...................................................................................................... 2

Furman v. Georgia,

408 U.S. 238 (1972)................................................................................................ 4, 16

Garrison v. Hudson,

468 U.S. 1301 (1984).................................................................................................. 20

iii

Gillett v. State,

148 So.3d 260 (Miss. 2014) ........................................................................................ 15

Gregg v. Georgia,

428 U.S. 153 (1976)............................................................................................ 1, 4, 16

Hill v. McDonough,

547 U.S. 573 (2006).................................................................................................... 19

Hooper v. Shinn,

985 F.3d 594 (9th Cir. 2021) ..................................................................................... 14

In re Ohio Execution Protocol,

860 F.3d 881 (6th Cir. 2017) ..................................................................................... 21

In re Winship,

397 U.S. 358 (1970).................................................................................................... 14

Jackson v. Virginia,

443 U.S. 307 (1979).................................................................................................... 14

Johnson v. Mississippi,

486 U.S. 578 (1988).................................................................................................... 15

Johnson v. United States,

576 U.S. 591 (2015)...................................................................................................... 5

Kansas v. Marsh,

548 U.S. 163 (2006).................................................................................................... 14

May v. Ryan,

245 F. Supp. 3d 1145 (D. Ariz. 2017) ........................................................................ 13

May v. Ryan,

766 Fed. App’x 505 (9th Cir. 2019) ........................................................................... 13

Nken v. Holder,

556 U.S. 418 (2009).................................................................................................... 19

Roseberry v. Ryan,

2019 WL 3556931 (D. Ariz. Aug. 5, 2019) ................................................................ 17

Sawyer v. Whitley,

505 U.S. 333 (1992).......................................................................................... 2, 13, 19

iv

Sessions v. Dimaya,

138 S. Ct. 1204 (2018).................................................................................................. 5

State ex rel. Junes v. Superior Court,

78 Ariz. 367 (1955) ..................................................................................................... 12

State v. Atwood,

832 P.2d 593 (Ariz. 1992) ........................................................................................ 3, 8

State v. Ault,

157 Ariz. 516 (1988) ..................................................................................................... 8

State v. Baker,

26 Ariz. App. 255 (1976) ............................................................................................ 12

State v. Bateman,

113 Ariz. 107 (1976) ................................................................................................... 12

State v. Bateman,

25 Ariz. App. 1 (1975) ................................................................................................ 12

State v. Bible,

858 P.2d 1152 (Ariz. 1993) .......................................................................................... 7

State v. Bridges,

123 Ariz. 452 (App. 1979) .......................................................................................... 12

State v. Callaway,

25 Ariz. App. 267 (1975) ............................................................................................ 12

State v. Farmer,

61 Ariz. 266 (1944) ............................................................................................... 12, 13

State v. Gillies,

662 P.2d 1007 (Ariz. 1983) ...................................................................................... 7, 9

State v. Greenawalt,

624 P.2d 828 (Ariz. 1981) ............................................................................................ 7

State v. Henry,

176 Ariz. 569 (1993) ..................................................................................................... 7

State v. Hinchey,

165 Ariz. 432 (1990) ..................................................................................................... 9

v

State v. Howard,

97 Ariz. 339 (1965) ..................................................................................................... 12

State v. Jeruusek,

121 Ariz. 420 (1979) ................................................................................................... 12

State v. King,

110 Ariz. 36 (1973) ..................................................................................................... 12

State v. Kuntz,

209 Ariz. 276 (App. 2004) ........................................................................................ 8, 9

State v. Lee,

559 P.2d 657 (Ariz. 1976) ............................................................................................ 6

State v. Mann,

188 Ariz. 220 (1997) ................................................................................................... 17

State v. Mora,

252 Ariz. 122 (App. 2021) .......................................................................................... 10

State v. Morris,

26 Ariz. App. 342 (1976) ............................................................................................ 12

State v. Mortimer,

105 Ariz. 472 (1970) ................................................................................................... 12

State v. Muran,

232 Ariz. 528 (App. 2013) ............................................................................................ 8

State v. Murdaugh,

209 Ariz. 19 (2004) ....................................................................................................... 8

State v. Natzke,

25 Ariz. App. 520 (1976) ............................................................................................ 12

State v. Phillips,

102 Ariz. 377 (1967) ................................................................................................... 12

State v. Pickett,

121 Ariz. 142 (1978) ................................................................................................... 12

State v. Portillo,

182 Ariz. 592 (1995) ................................................................................................... 14

vi

State v. Roque,

141 P.3d 368 (Ariz. 2006) ........................................................................................ 7, 8

State v. Schaaf,

169 Ariz. 323 (1991) ..................................................................................................... 8

State v. Sheldon,

91 Ariz. 73 (1962) ....................................................................................................... 12

State v. Smallwood,

7 Ariz. App. 266 (1968) .............................................................................................. 12

State v. Smith,

610 P.2d 46 (Ariz. 1980) .............................................................................................. 6

State v. Snyder,

25 Ariz. App. 406 (1976) ............................................................................................ 12

State v. Spencer,

176 Ariz. 36 (Ariz. 1993) .............................................................................................. 8

State v. Taylor,

109 Ariz. 481 (1973) ................................................................................................... 12

State v. Thomas,

79 Ariz. 355 (1955) ..................................................................................................... 12

State v. Valdez,

23 Ariz. App. 518 (1975) ............................................................................................ 12

State v. Williams,

111 Ariz. 511 (1975) ................................................................................................... 12

State v. Wilson,

152 Ariz. 127 (1986) ..................................................................................................... 7

State v. Zakhar,

105 Ariz. 31 (1969) ..................................................................................................... 12

Thompson v. Calderon,

151 F.3d 918 (9th Cir. 1998) ....................................................................................... 2

Wainwright v. Booker,

473 U.S. 935 (1985).................................................................................................... 20

vii

Walton v. Arizona,

497 U.S. 639 (1990).................................................................................................... 14

Wells v. Maass,

28 F.3d 1005 (9th Cir. 1994) ..................................................................................... 17

Zant v. Stephens,

462 U.S. 862 (1983).................................................................................................... 13

Statutes

28 U.S.C. § 1651 ............................................................................................................ 19

28 U.S.C. § 2244 ............................................................................................................ 18

28 U.S.C. § 2251 ............................................................................................................ 19

28 U.S.C. § 2254 .............................................................................................................. 3

Ariz. Rev. Code § 4651 (1928) ....................................................................................... 13

Ariz. Rev. Stat. § 13-652 ......................................................................................... 11, 12

Ariz. Rev. Stat. § 13-703(F)(1) (West 1984) ........................................................... 1, 2, 5

Ariz. Rev. Stat. § 13-4035 ............................................................................................. 17

Cal. Penal Code § 288 ................................................................................................... 11

Laws 1917, §1, Ch. 2 ..................................................................................................... 13

Other Authorities

Brandon Garrett, Accuracy in Sentencing, 87 Cal. L. Rev. 499 (2014) ........................ 2

Rules

Supreme Court Rule 23 ................................................................................................ 19

viii

INTRODUCTION

Frank Jarvis Atwood’s eligibility for a sentence of death is premised on a single

aggravating circumstance, that his prior conviction was one “for which under Arizona

law a sentence of life imprisonment or death was imposable.” Ariz. Rev. Stat. § 13703(F)(1) (West 1984). Put another way, absent this aggravating circumstance, his

death sentence is unconstitutional. Gregg v. Georgia, 428 U.S. 153, 188 (1976).

No prior counsel of Mr. Atwood’s identified a fatal flaw with this aggravating

circumstance: that Mr. Atwood’s prior conviction does not qualify him for a sentence

of death under the only aggravating circumstance purporting to do so. Arizona state

courts engage in a categorical approach for assessing whether another state’s

criminal conviction qualifies under this aggravating circumstance, as it has since long

before Mr. Atwood’s conviction became final. This approach was never undertaken in

Mr. Atwood’s case. Had it been, Mr. Atwood would not today be facing imminent

execution. Indeed, he would not be eligible for a sentence of death at all. The two

statutes in question contain different elements from each other, which can be met by

conduct covered in one statute but not the other. Namely, the Arizona statute

requires the act to be in “any unnatural manner,” which Arizona courts have held

extends to fellatio, cunnilingus, or homosexual conduct; the California statute does

not. Under the controlling categorical approach, the California conviction cannot

render Mr. Atwood death eligible.

This original writ is the only opportunity for merits review of this claim. Mr.

Atwood’s current counsel presented this claim to Arizona state courts, where the state

1

Superior Court held the claim was procedurally barred. App. 3a. He then presented

it to the Ninth Circuit Court of Appeals in a request for permission to file a second or

successive petition for a writ of habeas corpus. That request was denied because the

Ninth Circuit is among those circuits where, after the passage of AEDPA, where

“innocence of the death penalty” is no longer a gateway for considering a second or

successive petition, as set forth in Sawyer v. Whitley, 505 U.S. 333 (1992). App. at 13a

(citing Thompson v. Calderon, 151 F.3d 918, 923–24 (9th Cir. 1998) (en banc), as

amended (July 13, 1998)).1 But as it stands, he must resort to this Court’s jurisdiction

and request that it invoke its equitable powers to issue a writ of habeas corpus to stop

the state from taking the life of a person who, according to the state’s own laws, is

not eligible to be put to death. See Felker v. Turpin, 518 U.S. 651, 660 (1996)

(explaining that AEDPA “has not repealed our authority to entertain original habeas

petitions”).

STATEMENT OF THE CASE

Following a jury trial, Petitioner Frank Jarvis Atwood was found guilty of one

count each of kidnapping and first-degree murder. The State sought the death

penalty, and just one aggravating factor was found: under former Arizona Revised

Statute § 13-703(F)(1), that Mr. Atwood had previously been convicted of a sentence

punishable in Arizona by life imprisonment or death. The State only presented

1 If Mr. Atwood was in the jurisdictions that still held open that equitable gateway, the jurisdictional

concerns arising from having no consideration of the merits his claim that he is not eligible for his

death sentence would fall away. See Brandon Garrett, Accuracy in Sentencing, 87 Cal. L. Rev. 499, 525

n.125 (2014) (noting courts are “divided” on treatment of Sawyer claims after the passage of AEDPA).

2

regarding that factor, a fingerprint examiner who testified that Mr. Atwood’s

fingerprints matched those from the California conviction. PCR Ex. 71, RT 3/26/87 at

18–20. In its sentencing pleading, the State quoted California’s and Arizona’s

lewd/lascivious statutes to show that both statutes allowed sentences of up to life in

prison. PCR Ex. 72. No one—not the judge, not the prosecutor, and not defense

counsel—actually considered each element of the two statutes or recognized the

significant differences between the elements, as discussed below.

The trial court, having found the presence of this aggravating factor, also found

no mitigating evidence sufficient to call for leniency and imposed a death sentence in

May, 1987.

The Arizona Supreme Court affirmed Mr. Atwood's conviction and sentence.

State v. Atwood, 832 P.2d 593 (Ariz. 1992). Thereafter, Mr. Atwood filed a postconviction petition. The state court denied all claims for relief on January 28, 1997.

Mr. Atwood then filed a petition for writ of habeas corpus in United States District

Court, pursuant to 28 U.S.C. § 2254. Habeas proceedings were temporarily stayed to

allow Mr. Atwood to exhaust certain claims in a successive post-conviction petition in

state court, which was denied on January 2, 2009. The District Court thereafter

denied Mr. Atwood’s habeas petition on January 27, 2014. Atwood v. Ryan, No. CV98-116-TUC-JCC, 2014 WL 289987 (D. Ariz. Jan. 27, 2014). The Ninth Circuit

affirmed. Atwood v. Ryan, 870 F.3d 1033 (9th Cir. 2017).

Mr. Atwood then filed a pro se successive post-conviction notice and petition in

state court on April 23, 2019, raising the issue he seeks to raise here regarding the

3

invalidity of his sole aggravating factor. After the appointment of counsel and filing

of an amended petition, the state trial court denied relief on June 22, 2020, finding

the claim precluded. App. at 3a (“The Court finds that this claim is precluded by Rule

32.2(a)(3) . . . and no exception to preclusion applies.”). It further held that the claim

had been “impliedly considered and rejected” by the Arizona Supreme Court during

direct appeal proceedings, although the claim was not briefed on direct appeal and

was not discussed in the direct appeal opinion. App. at 3a. On May 4, the Arizona

Supreme Court denied Mr. Atwood’s petition for review. App. at 7a.

The day before, on May 3, 2022, the Arizona Supreme Court had issued the

execution warrant, scheduling Mr. Atwood’s execution for June 8, 2022.

CLAIM FOR RELIEF:

Without a legally valid aggravating factor, Mr. Atwood’s death sentence

violates the Eighth and Fourteenth Amendments.

A. Mr. Atwood Is Not Death Eligible Because His Crime Does Not Fall

Within the Narrow Class of Murders Designated As Such, As the

Eighth and Fourteenth Amendment Require

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court required that

a valid death penalty scheme must meaningfully narrow the class of murders for

which the death penalty may be imposed. See also Gregg v. Georgia, 428 U.S. 153,

196–97 (1976) (approving Georgia’s new death penalty scheme because it “narrow[ed]

the class of murders subject to capital punishment by specifying 10 statutory

aggravating circumstances, one of which must be found by the jury to exist beyond a

reasonable doubt before a death sentence can be imposed.”). Like Georgia, Arizona

4

accomplished that by creating a list of aggravating circumstances, at least one of

which must be found before a death sentence is possible; if at least one is found, the

court would then proceed to considering any of the aggravating circumstances, and

whether any of five statutory mitigating circumstances was “sufficiently substantial

to call for leniency.” At the time Mr. Atwood was sentenced, nine aggravating factors

existed. The trial court found just one: the existence of a prior conviction for an offense

“for which under Arizona law a sentence of life imprisonment or death was

imposable.” Ariz. Rev. Stat. § 13-703(F)(l) (West 1987). The problem is that Mr.

Atwood's prior conviction, on which his death eligibility was premised, was not such

a crime. Accordingly, just as in cases where the qualifying prior conviction is vacated,

this prior does not satisfy the (F)(1) aggravating circumstance, and, regardless of the

fact that that aggravator was found at trial, it cannot support a death sentence.

1. Under Arizona law, a foreign conviction only satisfies the (F)(1)

aggravator if the statutory elements for the statute of conviction

would establish eligibility for a life sentence, without reference to the

facts of the individual crime.

Statues that give consequences to prior convictions, especially where they

might come from other jurisdictions, predictably raise the question of how to

determine which foreign convictions qualify. This quandary is familiar in federal

courts from the “categorical approach” cases that have repeatedly arisen in recent

years under the Armed Career Criminal Act, federal sentencing guidelines, § 237(a)

of the Immigration and Nationality Act, and others. See, e.g., Burden v. United States,

141 S. Ct. 1817 (2021); Sessions v. Dimaya, 138 S. Ct. 1204 (2018); Johnson v. United

States, 576 U.S. 591 (2015). For many of these statutes, federal courts have adopted

5

a “categorical approach” or “elements test” where the prior conviction suffices only if

its elements, on their face, would meet the requirements, and there is no way to

violate the underlying statute without also satisfying the requirement. Arizona has

adopted the same approach for its (F)(1) aggravating factor.

Long before Mr. Atwood’s 1987 sentencing, the Arizona Supreme Court

specifically held that the statutory elements approach, in which the evidence

underlying the foreign conviction does not matter, applied to (F)(l). First, in State v.

Lee, 559 P.2d 657 (Ariz. 1976), the court prohibited introduction of facts underlying a

prior conviction to prove (F)(1), explaining "[t]he proper procedure to establish the

prior conviction is for the state to offer in evidence a certified copy of the conviction .

. . and establish the defendant as the person to whom the document refers.” Id. at 661

(citations omitted).

In State v. Smith, the court again looked only to the elements, not the

underlying facts, in deciding a Texas murder with malice conviction supported (F)(l):

The court below did not err in considering appellant’s prior

conviction for murder as an offense for which under

Arizona law a sentence of life imprisonment was

imposable, since murder with malice is as a minimum

second degree murder and punishable under [former] § 13453 by imprisonment in the state prison for not less than

ten years.2

State v. Smith, 610 P.2d 46, 51 (Ariz. 1980).

2 Arizona’s indeterminate sentencing scheme, repealed in 1978, permitted life imprisonment when a

statute set no maximum term. State v. Jordan, 561 P.2d 1224, 1228 (Ariz. 1976), vacated on other

grounds, 436 U.S. 911, 911–12 (1978).

6

Next, in State v. Greenawalt, 624 P.2d 828 (Ariz. 1981), the court reaffirmed

Lee in even clearer language. In Greenawalt, the state alleged the (F)(2) aggravator,

which required conviction of a felony “involving the use or threat of violence on

another person.” Greenwalt argued that the court could not consider the underlying

facts to determine if his prior crime was violent, but the court rejected the argument

as applicable only to the (F)(l):

Appellant interprets our decision in [Lee] as precluding the

sentencing court from receiving any evidence other than

certified copies of prior convictions. Appellant errs in his

interpretation of our decision in State v. Lee, supra. There,

we were concerned with the introduction of evidence of

prior convictions as they related to the first aggravating

circumstance, A.R.S. § 13-454(E)(l) (now § 13-703(F)(l)) . . .

The limitation on proof which was adopted in [Lee] has no

application to the second aggravating circumstance.

Id. at 849.3

Arizona courts have also consistently applied this analysis in a range of

contexts calling for the use of foreign convictions. See, e.g., State v. Bible, 858 P.2d

1152, 1207 (Ariz. 1993) (holding error to find (f)(2) satisfied because “neither the use

nor the threat of violence was a necessary element for sexual assault.”) (emphasis in

original); State v. Roque, 141 P.3d 368, 391 (Ariz. 2006), quoting State v. Henry, 176

Ariz. 569, 587 (1993) (“statutory definition of the prior crime, not its specific factual

basis” used to determine whether foreign conviction established (F)(2)) (internal

quotation omitted); State v. Wilson, 152 Ariz. 127, 128, 131 (1986) (former A.R.S. §

3 Two years later, the Arizona Supreme Court clarified that as with (F)(1), only the prior conviction’s

elements can establish the aggravator, but underlying facts may be considered to determine the weight

that aggravator receives. See State v. Gillies, 662 P.2d 1007, 1018 (Ariz. 1983).

7

13-604(I)); State v. Ault, 157 Ariz. 516, 518 (1988) (former Ariz. Rev. Stat. § 13-604(N),

“historical felony conviction”)); Cherry v. Araneta, 203 Ariz. 532, 535 ¶11 (App. 2002)

(applying test to “violent crime” exempting defendant from mandatory probation);

State v. Kuntz, 209 Ariz. 276, 279 ¶9 (App. 2004) (determining whether new resident

must register as sex offender); State v. Muran, 232 Ariz. 528, 533–34, ¶15–16 (App.

2013) (prior conviction element of aggravated DUI under Ariz. Rev. Stat. § 28-1383).

Although overlooked in Mr. Atwood’s appeal, decided in 1992, the Court

continued applying the statutory elements test to (F)(l). See State v. Spencer, 176

Ariz. 36, 42–43 (Ariz. 1993) (recognizing (F)(l) focuses on “merely the elements of the

offense”); State v. Murdaugh, 209 Ariz. 19, 30 (2004) (newly recognized right to jury

trial on aggravators inapplicable to (F)(l) “because they involve a legal determination

that may be made by a judge, rather than a factual determination required to be

made by a jury.”); accord, Ault, 157 Ariz. at 520 (statutory elements test presents

“purely a legal question”).

Arizona’s courts have repeatedly recognized that the statutory elements test is

not an arbitrary rule, but rather is necessary to satisfy the Arizona and United States

Due Process Clauses, Ariz. Const. Art. II, § 4, and U.S. Const. Amend. XIV,

confirming that the (F)(l) aggravator cannot somehow be excluded from this

ubiquitous rule. See Roque, 213 Ariz. at 216 ¶ 81 quoting State v. Schaaf, 169 Ariz.

323, 333–34 (1991) (“To protect ‘a criminal defendant's due process rights,’ a court

'may not consider other evidence[] or bring in witnesses’ to establish the offense.”);

Atwood, 171 Ariz. at 654 (trial court “is forbidden on due process grounds from

8

considering the facts underlying a defendant’s prior convictions for purposes of

establishing [(F)(2)]”); State v. Hinchey, 165 Ariz. 432, 437 (1990) (“[C]ourt may

consider only evidence of the conviction; allowing other evidence to establish the

violence element violates defendant's due process rights.”); Gillies, 135 Ariz. at 511

(“[Statutory elements] reading of the statute guarantees due process to a criminal

defendant.”); Kuntz, 209 Ariz. at 279 ¶ 9 (citing due process in rejecting prosecution

argument elements test be limited to sentence enhancements). The test ensures

capital defendants receive sufficient notice of aggravating evidence and are sentenced

based on accurate evidence that is not unduly inflammatory.

In summary, Arizona's courts uniformly apply the statutory elements test

whenever a foreign conviction may impose duties or aggravate sentences. Mr. Atwood

was and is entitled to the same treatment as every other defendant. Notably, in the

litigation on this issue, the State has not actually argued that the statutory elements

test does not apply to the (F)(1). Rather, it has painstakingly argued only that the

state court should not consider the merits of the claim, and that there was no Arizona

Supreme Court opinion explicitly stating the statutory elements test applied to the

(F)(1), insisting Mr. Atwood simply “vastly overstate[ d] his position’s strength.”

Exhibit 74, State's PCR Response at 46. This reticence signals the State’s recognition

there is a constitutional problem with a foreign-prior-conviction aggravator that

cannot pass the elements test.

Indeed, the State of Arizona has recently taken the position that the statutory

elements test is broadly applicable when considering foreign prior convictions, even

9

conceding error and agreeing to a resentencing in the Court of Appeals. In State v.

Mora, 252 Ariz. 122 (App. 2021), the State took the position that the non-capital

sentencing enhancement statute, A.R.S. § 13-705, requires that “an out-of-state

felony must strictly conform to an Arizona felony for sentencing purposes.” Exhibit

75, State’s Supplemental Brief at 6. The State argued that the use of foreign

convictions in various contexts required that the foreign conviction “includes every

element that would be required to prove an enumerated Arizona offense,” and that a

prior opinion specifically stating that in one sentencing context, “its holding was not

limited to” that statute. Id. at 7–8. Finally, it explicitly conceded there was no “strict

conformity” between a Texas statute on “indecency with a child” and an Arizona

statute for molestation of a child, explaining, “[i]f under any scenario it would have

been legally possible for the defendant to have been convicted of the foreign offense

but not the Arizona offense, then the foreign offense fails the comparative elements

test,” and the Texas statute applied to contact with any child under 17, where the

Arizona law required the victim to be under 15. Id. at 12–13. The State recognized

that because the requisite contact with a 15- or 16-year-old would violate the Texas

but not the Arizona statute, the Texas convictions could not be used for the sentencing

enhancement. In its Mora briefing, the State was clear, thorough, and explicit,

revealing its true position. It seems to have carefully avoided taking a directly

contrary position here—an act that would raise serious due process questions.

2. Mr. Atwood’s California conviction indisputably does not qualify as

an offense for which under Arizona law a sentence of life

imprisonment or death was imposable.

10

Mr. Atwood’s foreign conviction was under California Penal Code § 288,

California’s version of the “lewd and lascivious conduct” law that in Arizona appeared

in Arizona Revised Statute § 13-652 (at the time that offense was committed, in 1974).

While the two statutes have a lot in common, it is indisputably possible to violate the

California statute without violating the Arizona one. Notably, the Arizona statute,

unlike the California statute, requires that the act be committed in “an unnatural

manner.”4

The inclusion of this additional element in the Arizona statute makes sense.

The Arizona statute applies to everyone, adults and children alike, albeit with

dramatically harsher sentences if the person is a child. Assuming the “unnatural

manner” requirement has some meaning (and it does, as explained below), it is

4 The Arizona statute reads in full:

A person who willfully commits, in any unnatural manner, any lewd or

lascivious act upon or with the body or any part or member thereof of a male

or female person, with the intent of arousing, appealing to or gratifying the

lust, passion or sexual desires of such persons, is guilty of a felony punishable

by imprisonment for not less than one nor more than five years. If such person

commits the act as described in this section upon or with a child under the

age of fifteen years, such person shall be punished by imprisonment in the

state prison for not less than five years nor more than life without the

possibility of parole until minimum sentence has been served.

Ariz. Rev. Stat. § 13-652 (emphasis added).

The California statute reads in full:

Any person who shall willfully and lewdly commit any lewd or

lascivious act including any of the acts constituting other crimes

provided for in part one of this code upon or with the body, or any part

or member thereof, of a child under age of fourteen years, with the

intent of arousing, appealing to or gratifying the lust or sexual desires

of such child, shall be guilty of a felony and shall be imprisoned in the

State prison for a term from one year to life.

Cal. Penal Code § 288 (emphasis added).

11

possible to violate the California statute without violating the Arizona one.

Accordingly, it fails the statutory elements test, and, in creating death eligibility, Mr.

Atwood's California conviction cannot stand in for an Ariz. Rev. Stat. § 13-652

conviction.

The Arizona Supreme Court has explicitly stated the language imposes an

additional requirement: “Under this statute there is the requirement not only that

the act be lewd and lascivious but also that it be done in an ‘unnatural manner.’”

State v. Valdez, 23 Ariz. App. 518, 522 (1975) (rejecting conviction based on defendant

“rubbing his penis on the victim’s buttocks and splashing water on her vagina” on

grounds those acts “were not ‘unnatural’”). In terms of what, exactly, that restriction

entails, “unnatural manner” has only ever been interpreted to extend to fellatio,

cunnilingus, or homosexual conduct.5 That leaves a wide swath of conduct

criminalized by California’s, but not Arizona’s, statute.

The history of§ 13-652 illuminates the centrality of the “unnatural manner”

element. Its precursor, “An Act Prohibiting Unnatural Sexual Relations,” was

5 State v. Jeruusek, 121 Ariz. 420, 423 (1979) (cunnilingus); State v. Pickett, 121 Ariz. 142, 145 (1978)

(fellatio); State v. Bateman, 25 Ariz. App. 1, 2-3 (1975) (fellatio); State v. Callaway, 25 Ariz. App. 267,

268 (1975) (“oral intercourse”), vacated on other grounds by State v. Bateman, 113 Ariz. 107 (1976);

State v. Williams, 111 Ariz. 511, 513 (1975) (fellatio); State v. King, 110 Ariz. 36, 38 (1973) (cunnilingus,

fellatio); State v. Taylor, 109 Ariz. 481, 482 (1973) (fellatio); State v. Mortimer, 105 Ariz. 472 (1970)

(“masturbation by one adult male upon another adult male”); State v. Hill, l04 Ariz. 238, 238 (1969)

(cunnilingus, fellatio); State v. Zakhar, 105 Ariz. 31, 31 (1969) (fellatio); State v. Phillips, 102 Ariz.

377, 381 (1967) (fellatio); State v. Howard, 97 Ariz. 339, 341 (1965) (fellatio, cunnilingus); State v.

Sheldon, 91 Ariz. 73, 74 (1962) (fellatio); State v. Thomas, 79 Ariz. 355, 357 (1955) (cunnilingus); State

ex rel. Junes v. Superior Court, 78 Ariz. 367, 373–74 (1955) (fellatio); Faber v. State, 62 Ariz. 16, 17–

18 (1944) (fellatio); State v. Farmer, 61 Ariz. 266, 268 (1944) (fellatio, cunnilingus); Dutzler v. State,

41 Ariz. 436, 436 (1933) (fellatio); State v. Bridges, 123 Ariz. 452, 453 (App. 1979) (fellatio); State v.

Snyder, 25 Ariz. App. 406, 407 (1976) (fellatio, anal copulation); State v. Morris, 26 Ariz. App. 342, 343

(1976) (fellatio); State v. Baker, 26 Ariz. App. 255, 256–57 (1976) (fellatio); State v. Natzke, 25 Ariz.

App. 520, 523 (1976) (cunnilingus); State v. Smallwood, 7 Ariz. App. 266, 267 (1968) (fellatio).

12

materially identical to §13-652, including the “unnatural manner” element and no

age requirement. Laws 1917, §1, Ch. 2; Ariz. Rev. Code § 4651 (1928); see State v.

Farmer, 61 Ariz. 266, 268 (1944). It targeted “acts between same-sex partners.” May

v. Ryan, 245 F. Supp. 3d 1145, 1153 n.3 (D. Ariz. 2017), rev’d in part on unrelated

grounds, May v. Ryan, 766 Fed. App’x 505 (9th Cir. 2019).

3. The legal invalidity of the sole aggravating factor requires vacating

Mr. Atwood’s death sentence.

Because the only aggravator was not legally valid, the sentence must be

vacated. As the Supreme Court has recognized, ineligibility for the death penalty is

assessed “under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336

(1992). The state's statutory aggravating circumstances “play a constitutionally

necessary function.” Zant v. Stephens, 462 U.S. 862, 878 (1983).

In Zant, the Supreme Court clearly distinguished the situation where the sole

aggravator is invalid from those where other aggravators were validly found. Id. at

884 (“[A] death sentence supported by at least one valid aggravating factor need not

be set aside . . . simply because another aggravating circumstance is ‘invalid’ in the

sense that it is insufficient by itself to support the death penalty.”); see also Brown v.

Sanders, 546 U.S. 212 (2006) (in a state that explicitly weighs aggravators and

mitigators, finding of invalid aggravators subject to harmless error analysis). In a

very recent Ninth Circuit case from Arizona involving an analogous situation-two

aggravating circumstances were based on invalid convictions-the Arizona court's and

Ninth Circuit’s reason for upholding the sentence was that “[t]wo valid aggravating

13

circumstances remain after excluding the two that were based on the invalid

convictions.” Hooper v. Shinn, 985 F.3d 594 (9th Cir. 2021). Obviously, if the

narrowing function is constitutionally required, and the mechanism set up for doing

that has not been satisfied, the sentence cannot stand.

B. Mr. Atwood’s death sentence is unconstitutional even if Arizona did

not require a statutory elements test because no evidence

whatsoever of the facts of the prior conviction were presented, and

the California statute covered conduct that would not produce a life

sentence in Arizona

The Eighth and Fourteenth Amendments require sufficient evidence not only

to convict, but also to aggravate, something plainly missing here. For convictions,

“the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979); accord State v. Portillo, 182 Ariz. 592, 594 (1995), quoting In re Winship,

397 U.S. 358, 364 (1970) (“It is well established that the Due Process Clause protects

criminal defendants against conviction ‘except upon proof beyond a reasonable doubt’

of every element of the crime charged.”) (footnote omitted).

The Eighth and Fourteenth Amendments impose the same requirement for

capital sentencing aggravators. Kansas v. Marsh, 548 U.S. 163, 170 (2006), quoting

Walton v. Arizona, 497 U.S. 639, 650 (1990) (“So long as a State's method of allocating

the burdens of proof does not lessen the State's burden . . . to prove the existence of

aggravating circumstances, a defendant’s constitutional rights are not violated”).

14

In Johnson v. Mississippi, 486 U.S. 578 (1988), the jury found three

aggravating factors, one of which was that the defendant “was previously convicted

of a felony involving the use or threat of violence to the person of another,” based on

a prior assault conviction in another state. The State’s only evidence on that

aggravator was an authenticated copy of a sentencing order; no evidence about the

underlying crime or conduct was presented. 486 U.S. at 581, 585 (“The possible

relevance of the conduct which gave rise to the assault charge is of no significance

here because the jury was not presented with any evidence describing that conduct the document submitted to the jury proved only the facts of conviction and

confinement, nothing more.”). That aggravating factor was subsequently invalidated

as to the defendant, because the prior assault conviction was reversed by the state

that had issued it. It thus could not be validly considered in aggravation-which

required resentencing even in a case where two other valid aggravating factors had

been found and left undisturbed. Id. at 586 (recognizing “a possibility that the jury's

belief that petitioner had been convicted of a prior felony would be ‘decisive’ in the

‘choice between a life sentence and a death sentence.’”). Where the evidence

supporting the aggravator consists of only the fact of foreign conviction, and the

foreign statute of conviction is broader than the Arizona statute, the evidence is

inherently insufficient. A Mississippi court has recently come to the same conclusion.

In Gillett v. State, 148 So.3d 260 (Miss. 2014), the jury found, as one of four

aggravating factors, that the defendant “had been convicted of a felony involving the

use or threat of violence to the person,” based on an out-of-state conviction for

15

aggravated escape. The court had recognized on direct appeal that "not every escape

can be considered a crime of violence under the Kansas statute, and the facts

surrounding and supporting the Kansas conviction for attempted aggravated escape

are unknown,” id. at 264, which meant the state had not presented sufficient evidence

to support the prior-violent-felony aggravator. (The court had then found that error

harmless, given the three other aggravators, but that decision was reversed in

postconviction proceedings, and resentencing was ordered).

This (F)(l) error renders Mr. Atwood innocent of the death penalty. Permitting

his execution would be “so wantonly and so freakishly imposed” as to violate the

Eighth and Fourteenth Amendments. Gregg v. Georgia, 428 U.S. 153, 188 (1976),

quoting Furman v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring).

C. No adequate state ground bars this Court’s review.

The state trial court (affirmed without comment by the state supreme court)

had two bases for refusing to consider the merits of the claim: first, it was not a

constitutional right that can only be waived knowingly, voluntarily, and personally

by the defendant, and second, that on deciding the direct appeal of the case in 1992,

the state supreme court, sub silentio, considered and rejected this claim that neither

side had presented to it in conducting an independent review of the appropriateness

of the death sentence. Neither is an adequate state ground.

In the direct appeal opinion, the Arizona Supreme Court stated, “We have

found no mitigating circumstances sufficiently substantial to call for leniency, and we

have found no fundamental error. We therefore affirm the trial court's finding of one

16

aggravating circumstance, A.R.S. § 13-703(F)(l).” That was all it said about the

aggravator.

The court was engaging in what it called “fundamental error review,”

something it did, at the time of Mr. Atwood's appeal, in every case (under a statute,

Ariz. Rev. Stat. § 13-4035, since repealed in 1995, and as the court’s practice, see State

v. Mann, 188 Ariz. 220 (1997) (ending the practice)). If that general review constituted

an implied rejection of the merits on every conceivable claim, there would be no such

thing as either (1) a claim that was unexhausted upon reaching federal court or (2)

state postconviction review, which has never been allowed for a claim already

considered on direct appeal. But Arizona, of course, has always taken the position

that claims must be actually presented to the state court to be considered adjudicated

for either of these purposes. The trial judge’s maneuver here was a true innovationexactly the sort of “infrequent, unexpected, or freakish” application that renders a

ground inadequate. Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994).

Nor did the “independent review” the Arizona Supreme Court was obligated to

conduct at the time constitute an implicit rejection of the claim on the merits. In the

very case the state invoked in state court proceedings to suggest independent review

constituted an implicit rejection of claims not raised, this court found 17

constitutional claims were not exhausted. See Roseberry v. Ryan, 2019 WL 3556931

at *3, *5 (D. Ariz. Aug. 5, 2019). The state did not argue otherwise. If the Arizona

Supreme Court’s independent review had constituted a consideration and rejection of

those claims, they would have been exhausted by virtue of that independent review.

17

In short, if the rule applied by Arizona here were actually used, no

constitutional claim could ever be raised in a case where the Arizona Supreme Court

had affirmed the conviction and sentence on direct appeal. But of course, the fact that

a court has never accepted an argument that has never been put to it simply cannot

establish that it has been resolved on the merits.

Regarding the non-waivable right, the right at issue here is the Eighth

Amendment’s requirement that a state capital punishment scheme genuinely narrow

the class of murders for which a death sentence can be imposed. It is hard to see how

that right could be waived at all, let alone without a personal waiver that is knowing,

intelligent, and voluntary-is the State free to execute anyone who volunteers for it,

no matter what their crimes (or lack thereof)?

Giving up appeals in a capital case requires not only a personal waiver, but

proceedings to determine the defendant’s competency to make such a decision and

the voluntariness of the decision, requirements far beyond the waiver simply being a

personal one. See, e.g., Comer v. Stewart, 215 F.3d 910 (9th Cir. 2000). There is no

indication Arizona has ever treated the right to be free from cruel and unusual

punishment as waivable. To suddenly do so as grounds for rejecting a federal claim

is not adequate.

D. Timeliness

This Petition is premised on this Court’s equitable power to issue a writ of

habeas corpus. As such, the timeliness limitations present in 28 U.S.C. § 2244(d)(1)

simply do not apply. Moreover, as discussed supra, this petition is also based on Mr.

18

Atwood’s innocence of the death penalty, which is itself a sound basis for permitting

an otherwise time-barred habeas petition. See generally Sawyer, 505 U.S. 333 (1992).

Mr. Atwood also made every effort to expeditiously bring this claim to federal court

in a timely fashion after exhausting it in state court. Regardless, because Mr. Atwood

is innocent of the death penalty, timeliness concerns should not bar this Court’s

review.

MOTION FOR STAY OF EXECUTION

Mr. Atwood requests a stay of execution to permit this Court sufficient time to

consider the meritorious arguments raised in this Petition for Writ of Habeas

Corpus. For the reasons stated herein, Mr. Atwood has met the standard warranting

a stay of execution under 28 U.S.C. § 2251, 28 U.S.C. § 1651, and Supreme Court

Rule 23.

This Court must consider four factors in evaluating whether to grant a stay

pending appeal: “(1) whether the stay applicant has made a strong showing that he

is likely to succeed on the merits; (2) whether the applicant will be irreparably injured

absent a stay; (3) whether issuance of the stay will substantially injure the other

parties interested in the proceeding; and (4) where the public interest lies.” Nken v.

Holder, 556 U.S. 418, 426 (2009); see also Hill v. McDonough, 547 U.S. 573, 584 (2006)

(similar). In the present context, there must be “a reasonable probability that four

members of the Court would consider the underlying issue sufficiently meritorious

for the grant of certiorari . . . .” Barefoot v. Estelle, 463 U.S. 880, 895 (1983) (citation

omitted).

19

Concerning the first requirement, there is a strong probability that should this

Court consider the merits of Mr. Atwood’s claim, the Court will grant relief. As

discussed supra, Mr. Atwood is ineligible for execution.

The second factor—whether the applicant will be irreparably injured absent a

stay—is necessarily met because the state will take Mr. Atwood’s life absent this

Court’s granting a stay and “foreclos[ing] . . . review” constitutes “irreparable harm.”

Garrison v. Hudson, 468 U.S. 1301, 1302 (1984); see also Wainwright v. Booker, 473

U.S. 935, 935 n.1 (1985) (Powell, J., concurring in decision to vacate stay of execution)

(noting that the irreparable harm requirement “is necessarily present in capital

cases”). The Court has recognized that a stay is generally warranted when mootness

is likely to arise during the pendency of the litigation—as it will if Mr. Atwood is

executed on Wednesday June 8, 2022. See Chafin v. Chafin, 568 U.S. 165, 178 (2013).

Turning to the third factor, a stay will not substantially injure the opposing

party. The relative harm to the state in terms of delaying Mr. Atwood’s execution is

negligible. It was the State’s failure to provide Mr. Atwood with competent counsel

that has given rise to the need to press this issue at this late date. And claim in

question undermines any valid interest in executing Mr. Atwood, as expressed by the

State’s own policies. Mr. Atwood has pursued this issue as soon as his counsel

recognized it, and the procedural underpinnings of this petition were brought as

expeditiously as possible.

Finally, the community as a whole will suffer harm if no stay is granted. The

public interest is not served by executing Mr. Atwood before he has the opportunity

20

to avail himself of the legal process to challenge the legality of his sentence. “[I]t is

always in the public interest to prevent the violation of a party’s constitutional

rights.” In re Ohio Execution Protocol, 860 F.3d 881, 901 (6th Cir. 2017). Indeed,

allowing government misconduct to go unremedied will erode the public’s confidence

that the court system offers a level playing field, providing a forum to redress grievous

wrongs.

And

there

is

an

“overwhelming

public

interest”

in

“preventing

unconstitutional executions.” Bronshtein v. Horn, 404 F.3d 700, 708 (3d Cir. 2005)

(citation omitted). A stay of execution, in fact, will serve the strong public interest—

an interest the government shares—in administering capital punishment in a

manner consistent with the Constitution and the expressed policies of the State.

CONCLUSION

WHEREFORE, this Court should order a stay of execution, order further briefing

on this case, remand the case to the District of Arizona to conduct an evidentiary

hearing on Mr. Atwood’s claim, and order any other relief just and necessary.

Respectfully submitted this 7th day of June, 2022.

AMY P. Knight

*Counsel of Record

KNIGHT LAW FIRM

3849 E. Broadway Blvd., #288

Tucson, AZ 85716-5407

(520) 878-5407

amy@amyknightlaw.com

JOSEPH J. PERKOVICH

PHILLIPS BLACK, INC.

P.O. Box 4544

New York, NY 10163

JOHN R. MILLS

PHILLIPS BLACK, INC.

1721 Broadway, Suite 201

Oakland, CA 94612

Counsel for Petitioner

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