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.
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,
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, 832 P.2d 593. 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 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, 832 P.2d 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, 832 P.2d 593.
After he was released on parole in May 1984, Atwood began traveling across country in his black 1975 Datsun 280Z. Id. at 593, 832 P.2d 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, 832 P.2d 593. 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, 832 P.2d 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, 832 P.2d 593. Two 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, 832 P.2d 593. The boys also passed a man with "long
Atwood returned to De Anza Park "approximately one hour before sunset." Id. at 593, 832 P.2d 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, 832 P.2d 593. 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, 832 P.2d 593. 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, 832 P.2d 593. McDonald later testified that he observed Atwood repeatedly sandpapering the blade of his knife during this trip. Id. at 599, 832 P.2d 593.
On September 18, Hall told the authorities about his observations, including the license plate number of the car. Id. at 593, 832 P.2d 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, id. at 596, 832 P.2d 593. The FBI also obtained a warrant for Atwood's arrest on kidnapping charges. Id. at 593, 832 P.2d 593.
While driving through Texas, Atwood's Datsun had mechanical problems. Id. at 636, 832 P.2d 593. 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, 832 P.2d 593. 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, 832 P.2d 593.
On September 20, 1984, the FBI arrested Atwood at the garage and impounded his car. Id. at 593-94, 832 P.2d 593. FBI agents interviewed Atwood in Kerrville for approximately two hours after his arrest. Id. at 594, 832 P.2d 593. 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 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
On September 27, 1984, Atwood was charged with kidnapping. Id. at 594, 832 P.2d 593. 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, 832 P.2d 593. Both experts noted the presence of adipocere on some of the bones during their evaluation.
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, 832 P.2d 593. 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, 832 P.2d 593. 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, 832 P.2d 593. The State consolidated the kidnapping and murder charges for trial. Id. The Arizona Supreme Court summarized the State's theory at trial as follows:
Id. at 594-95, 832 P.2d 593.
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, 832 P.2d 593. 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, 832 P.2d 593.
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, 832 P.2d 593.
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, 832 P.2d 593. At the time of sentencing, this statute provided:
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).
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
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, 832 P.2d 593. Applying this interpretation, the 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.
In 1996, Atwood filed his first state habeas petition for post-conviction relief.
Atwood filed his first habeas petition in federal district court in 1998. As amended, his habeas petition raised forty-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 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 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 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, 132 S.Ct. 1309, 182 L.Ed.2d 272 (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 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.
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).
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, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011) (emphasis
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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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, 123 S.Ct. 1166, 155 L.Ed.2d 144 (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, ___ U.S. ___, 134 S.Ct. 1697, 1706, 188 L.Ed.2d 698 (2014) (quoting Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 173 L.Ed.2d 251 (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, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (citation omitted) (internal quotation marks omitted).
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).
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. Greene, 565 U.S. at 38, 132 S.Ct. 38. Under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (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, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (citation omitted) (internal quotation marks omitted); see also Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 49 L.Ed.2d 859 (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, 103 S.Ct. 2733. 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, 103 S.Ct. 2733. As Zant summarized the state of the law, aggravating factors are constitutionally adequate so long as they (1) are not "so vague that they would fail adequately to channel the sentencing decision," id. (quoting Gregg, 428 U.S. at 195 n.46, 96 S.Ct. 2909 (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, 103 S.Ct. 2733 (emphasis omitted) (citing, inter alia, Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586, 601-05, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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, 102 S.Ct. 869.
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,
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, 103 S.Ct. 2733 (citing Gregg, 428 U.S. at 195, 96 S.Ct. 2909 (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, 124 S.Ct. 2140, 158 L.Ed.2d 938 (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, 129 S.Ct. 1411.
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, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (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, 103 S.Ct. 2733. 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, 659 P.2d 1 (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, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (plurality opinion) (holding that the
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 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. "[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
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 Suite), which he claims raise inferences of law enforcement misconduct.
We first consider the alleged anomalies in the Kerrville Suite of photos.
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.
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."
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 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.
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.
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.
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 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.
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.
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 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.
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.
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
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.
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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Pinholster, 563 U.S. at 189, 131 S.Ct. 1388. 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, 104 S.Ct. 2052.
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, 104 S.Ct. 2052 (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, 104 S.Ct. 2052. Counsel may reasonably base investigation decisions on information supplied by the defendant. Id. at 691, 104 S.Ct. 2052. 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, 131 S.Ct. 770, 178 L.Ed.2d 624 (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, 104 S.Ct. 2052. "[C]ounsel should be strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Pinholster, 563 U.S. at 189, 131 S.Ct. 1388
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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052. 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, 131 S.Ct. 770.
"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, 131 S.Ct. 770. "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, 131 S.Ct. 770 (citations omitted) (internal quotation marks omitted).
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 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 claim of failure on the part of Mr. Bloom to discover a grave also fails." The court also rejected Sperry's testimony as
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, 129 S.Ct. 1411, and hold that the state court reasonably applied both the deficiency and prejudice prongs of Strickland.
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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 156 L.Ed.2d 471 (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 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.
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
"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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (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, ___ U.S. ___, 137 S.Ct. 2058, 2062, 198 L.Ed.2d 603 (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, 111 S.Ct. 2546, 115 L.Ed.2d 640).
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.
In evaluating whether the failure to raise a substantial claim of ineffective assistance of trial counsel in state court resulted from ineffective assistance of state habeas counsel under Strickland, we must evaluate the strength of the prisoner's underlying ineffective assistance of trial
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, 132 S.Ct. 1309. 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.
We first consider whether Bloom's representation at sentencing was deficient because he failed to sufficiently investigate and present evidence regarding Atwood's mental health. 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 threatening and antisocial behavior at the hospital, describing multiple
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.
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 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.
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."
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 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.
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. Knowles, 515 F.3d 1006, 1015 (9th Cir. 2008) ("Absent any objective indication
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, 130 S.Ct. 383, 175 L.Ed.2d 328 (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 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.
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, 129 S.Ct. 1411. "[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, 131 S.Ct. 770.
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, 104 S.Ct. 2052 (citation omitted); see also Pinholster, 563 U.S. at 196, 131 S.Ct. 1388 (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, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009) (per curiam) (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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052.
Because Atwood's claim of ineffective assistance of sentencing counsel claim lacks merit, Davis, Atwood's postconviction 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
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, 131 S.Ct. 1388.
