Frank Jarvis Atwood v. DAVID SHINN , Director

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK J ARVIS ATWOOD ,
Petitioner,
v.
DAVID SHINN , Director,
Respondent.
No. 22-70084
OPINION
Application to File Second or Successive Petition
Under 28 U.S.C. § 2254
Argued and Submitted May 24, 2022
San Francisco, California
Filed May 27, 2022
Before: M. Margaret McKeown, Consuelo M. Callahan,
and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion

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2 ATWOOD V . SHINN
SUMMARY*
Application to File Second or Successive Habeas
Petition/Death Penalty
The panel denied Frank Jarvis Atwood’s motion under
28 U.S.C. § 2244(b)(3)(B) for an order authorizing the
district court to consider a second or successive habeas
petition challenging his Arizona conviction and death
sentence for kidnapping and first-degree felony murder.
Section 2244(b)(2) states that a new claim asserted in a
second or successive habeas corpus application under
28 U.S.C. § 2254 “shall be dismissed” unless one of two
criteria are met. First, the applicant may show that the claim
“relies on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court.”
Atwood’s motion does not invoke this ground.
Alternatively, the application may show that the “factual
predicate for the claim could not have been discovered
previously through the exercise of due diligence,” and the
alleged facts, if proven and viewed in the light of all the
evidence, “would be sufficient to establish by clear and
convincing evidence that, but for the constitutional error, no
reasonable factfinder would have found the applicant guilty
of the underlying offense.”
Atwood seeks to file a habeas petition raising three
claims.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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ATWOOD V . SHINN 3
Atwood’s first claim is that the use of his 1975 California
conviction for lewd and lascivious conduct with a child
under the age of fourteen years as an aggravating
circumstance to qualify him for the death penalty violates the
Eighth and Fourteenth Amendments. Atwood argues that
this claim ought to be excused from satisfying
§ 2244(b)(2)(B)’s requirements under the equitable
exception for claims of actual innocence of the death penalty
recognized by the Supreme Court in Sawyer v. Whitley,
505 U.S. 333 (1992). The panel disagreed because this
argument is foreclosed by Thompson v. Calderon, 151 F.3d
918 (9th Cir. 1998) (en banc), as amended (July 13, 1998),
which recognized that the Sawyer exception was subsumed,
with respect to § 2244(b)(2), by the amendments to that
provision enacted as part of the Antiterrorism and Effective
Death Penalty Act. The panel held that because Atwood
does not assert that his first claim otherwise meets the
§ 2244(b)(2)(B) requirements, Atwood’s first claim does not
make a prima facie showing that it meets the requirements
for an exception to the bar on second or successive petitions.
The panel wrote that even if it considered whether the first
claim could meet the requirements of § 2244(b)(2)(B), it
would conclude that the claim does not meet those
requirements, because the claim is not based on facts or a
factual predicate (§ 2244(b)(2)(B)(i), (ii)); and the claim
does not meet the diligence requirement of
§ 2244(b)(2)(B)(i), even assuming that prong addressed
legal issues.
Atwood’s second claim is that the State withheld
material exculpatory evidence in violation of the Fourteenth
Amendment and Brady v. Maryland, 373 U.S. 83 (1963).
The panel held that this claim does not meet the standard in
§ 2244(b)(2)(B)(ii) because Atwood has not made a prima
facie showing that the unreported anonymous phone call, if

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4 ATWOOD V . SHINN
proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence
that, but for the constitutional error, no reasonable factfinder
would have found him guilty.
Atwood’s third claim is that he is actually innocent and
his execution would violate the Eighth and Fourteenth
Amendments because the Brady material is new evidence
showing that Atwood is not guilty of the underlying offense.
The panel held that Atwood has not made a prima facie
showing in support of this freestanding actual innocence
claim because, as explained above, the anonymous phone
call does not approach demonstrating, by clear and
convincing evidence, that Atwood is not guilty.
COUNSEL
Amy P. Knight (argued), Knight Law Firm PC, Tucson,
Arizona; Joseph J. Perkovich, Phillips Black Inc., New
York, New York; for Applicant.
Laura P. Chiasson (argued), Assistant Attorney General;
Jeffrey L. Sparks, Acting Chief Counsel, Capital Litigation
Section; Office of the Attorney General, Tucson, Arizona;
for Respondent.

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ATWOOD V . SHINN 5
OPINION
PER CURIAM:
On May 4, 2022, Petitioner Frank Jarvis Atwood filed a
motion for an order authorizing the district court to consider
a second or successive habeas petition as required by
28 U.S.C. § 2244(b)(3)(A). Atwood seeks leave to file a
habeas petition raising three claims: (1) the use of his 1975
California conviction for lewd and lascivious conduct with a
child under the age of fourteen years as an aggravating
circumstance to qualify him for the death penalty violates the
Eighth and Fourteenth Amendments; (2) the State withheld
material exculpatory evidence in violation of the Fourteenth
Amendment and Brady v. Maryland, 373 U.S. 83 (1963);
and (3) he is actually innocent and his execution would
violate the Eighth and Fourteenth Amendments. Because
Atwood has failed to make a prima facie showing that his
proposed petition meets the criteria set forth in 28 U.S.C.
§ 2244(b)(2)(B), the motion is denied.
I
In 1985, Frank Jarvis Atwood was found guilty of
kidnapping and first-degree felony murder and sentenced to
death. On direct appeal, Atwood argued that his 1975
California conviction could not be used as an aggravating
circumstance under section 13-703(F)(1) of the later-revised
Arizona Revised Statutes. He also argued that use of section
13-703(F)(1) violated his Eighth Amendment rights (this is
referred to as the “Eighth Amendment claim”). The Arizona
Supreme Court rejected these claims and affirmed Atwood’s
conviction and sentence. State v. Atwood, 832 P.2d 593
(1992). The U.S. Supreme Court denied certiorari. Atwood
v. Arizona, 506 U.S. 1084 (1993).

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In 1996, Atwood filed his first state habeas petition for
post-conviction relief. The Arizona Superior Court denied
relief on all claims. The Arizona Supreme Court denied
review, and the U.S. Supreme Court denied certiorari.
Atwood filed his first habeas petition in federal district
court in 1998. In June 2005, the district court dismissed
some of Atwood’s claims on procedural grounds and in May
2007, it denied relief on the remaining claims but granted a
certificate of appealability on the Eighth Amendment claim
and one other claim.
In December 2007, Atwood filed his second state habeas
petition to exhaust a law enforcement misconduct claim.
Eventually, the law enforcement misconduct claim was
denied by the Arizona Superior Court and the Arizona
Supreme Court denied his petition for review. While this
petition was pending, the State offered Atwood access to
additional discovery. Atwood filed a motion for rehearing
based on this new discovery, but the state trial court denied
the motion and the Arizona Supreme Court again denied
Atwood’s petition for review.
Having exhausted his law enforcement misconduct
claim in state court, Atwood returned to federal district court
in January 2012 for a ruling on this claim. After permitting
additional briefing, the district court dismissed the law
enforcement misconduct claim. At this point, all of
Atwood’s federal habeas claims had been dismissed.
However, in light of the Supreme Court’s March 2012
opinion in Martinez v. Ryan, 566 U.S. 1 (2012), the district
court allowed Atwood to file a motion for reconsideration of
its prior dismissal of his ineffective assistance of sentencing
counsel claim as procedurally barred. In January 2014, after
a four-day evidentiary hearing, the district court denied the

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ATWOOD V . SHINN 7
motion for reconsideration. Consistent with a revised
certificate of appealability issued by the district court,
Atwood filed a notice of appeal raising three claims,
including the Eighth Amendment claim.
In September 2017, we affirmed the denial of Atwood’s
petition for a writ of habeas corpus. Atwood v. Ryan,
870 F.3d 1033 (9th Cir. 2017). We held, inter alia, that “the
state court could reasonably have concluded that section
13-703(F)(1) meets the requirements set forth in Furman and
Gregg for guiding a sentencing body’s decision as to death
eligibility.” Id. at 1049 (citing Furman v. Georgia, 408 U.S.
238 (1973), and Gregg v. Georgia, 428 U.S. 153 (1976)).
The Supreme Court denied Atwood’s motion to file a
petition for certiorari out of time. Atwood v. Ryan, 139 S.
Ct. 298 (2018).
In April 2019, Atwood initiated a third post-conviction
proceeding in the Arizona Superior Court raising several
sentencing claims, including an allegation that the (F)(1)
aggravating circumstance was constitutionally infirm. The
Arizona Superior Court denied relief in June 2020, and the
Arizona Supreme Court denied review in May 2021.
In June 2021, Atwood filed another successive post-
conviction notice in the Arizona Superior Court relating to
some of the physical evidence against him. Counsel was
appointed and a petition was filed in November 2021. The
petition was denied in February 2022.
On May 3, 2022, the Arizona Supreme Court issued a
warrant scheduling Atwood’s execution for June 8, 2022.

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II
A
We have jurisdiction to consider the motion pursuant to
28 U.S.C. § 2244(b)(3)(B) (“A motion in the court of
appeals for an order authorizing the district court to consider
a second or successive application shall be determined by a
three-judge panel of the court of appeals.”). Subsection (C)
states that we may authorize the filing of a successive
application only if we determine “that the application makes
a prima facie showing that the application satisfies the
requirements of this subsection.” Id. § 2244(b)(3)(C).
Section 2244(b)(2) states that a new claim asserted in a
second or successive habeas corpus application under § 2254
“shall be dismissed” unless one of two criteria are met. First,
the applicant may show that the claim “relies on a new rule
of constitutional law, made retroactive to cases on collateral
review by the Supreme Court.” Atwood’s motion does not
invoke this ground. Alternatively, the applicant may show
that “the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence”
and the alleged facts, if proven and viewed in the light of all
the evidence, “would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty
of the underlying offense.”
B
Atwood admits that he is seeking to file a successive
petition and that such a petition is “generally subject to the
provisions of § 2244(b).” But Atwood asserts that the
requirements of § 2244(b)(2)(B) are not applicable to a
claim of innocence of the death penalty. Therefore, he does

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ATWOOD V . SHINN 9
not argue that his first claim, regarding his 1975 California
conviction, meets the requirements of § 2244(b)(2)(B).
Instead, he argues that his first claim ought to be excused
from satisfying § 2244(b)(2)(B)’s requirements under the
equitable exception for claims of actual innocence of the
death penalty recognized by the Supreme Court in Sawyer v.
Whitley, 505 U.S. 333 (1992).
We disagree because this argument is foreclosed by our
decision in Thompson v. Calderon, 151 F.3d 918, 923–24
(9th Cir. 1998) (en banc), as amended (July 13, 1998), which
recognized that the Sawyer exception was subsumed, with
respect to § 2244(b)(2), by the amendments to that provision
enacted as part of the Antiterrorism and Effective Death
Penalty Act (AEDPA). Consequently, we assess all of
Atwood’s new claims against the criteria set out in
§ 2244(b)(2)(B). Because Sawyer provides no equitable
exception to § 2244(b)(2)(B)’s requirements, and because
Atwood does not assert that his first claim otherwise meets
those requirements, Atwood’s first claim does not make a
prima facie showing that it meets the requirements for an
exception to the bar on second or successive petitions. See
§ 2244(b)(3)(C).
Even if we considered whether Atwood’s claim could
meet the requirements of § 2244(b)(2)(B) (despite his lack
of argument on this point), we conclude that it could not.
Section 2244(b)(2)(B) requires that the “factual predicate for
the claim could not have been discovered previously through
the exercise of due diligence,” § 2244(b)(2)(B)(i), and that
the “facts underlying the claim, if proven and viewed in light
of the evidence as a whole,” would establish his innocence
by clear and convincing evidence. § 2244(b)(2)(B)(ii).
Because Atwood’s first claim is not based on facts or a
factual predicate, this language is inapplicable by its terms.

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And even if we read § 2244(b)(2)(B)(i) as permitting an
applicant to show that the legal “predicate for the claim
could not have been discovered previously through the
exercise of due diligence,” Atwood has not shown that he
acted diligently in pursuing his first claim. His California
conviction was the sole aggravating circumstance rendering
him eligible for the death penalty, and Atwood has
challenged it from the very beginning. See Atwood, 832 P.2d
at 664 (Atwood “argues that his 1975 conviction cannot be
used to establish a § 13-703(F)(1) aggravating
circumstance”). The constitutional challenge to the use of
the California conviction that was rejected by the Arizona
Supreme Court in 1992 is arguably different from the
constitutional challenge he now asserts, but his counsel at
oral argument on the motion admitted that the claim, as now
phrased, could have been raised earlier. Atwood has failed
to point to any intervening change in law or fact to excuse
this default. The first claim presented by Atwood’s proposed
petition does not meet the diligence requirement of
§ 2244(b)(2)(B)(i), even assuming that prong addressed
legal predicates.
C
Atwood’s Brady claim also fails to meet the
requirements of § 2244(b)(2)(B). Atwood contends that in
the summer of 2021, during an inspection of the Arizona
Attorney General’s case file, his counsel “discovered a
memorandum written by an FBI Special Agent on
September 19, 1984 (i.e., two days after the disappearance,
and before police had identified and arrested Mr. Atwood as
a suspect) noting that the Phoenix Police Department had
received an anonymous phone call from a woman who
reported seeing Vicki Lynn[e] Hoskinson in a vehicle with
Arizona license plate 3AM618.” Atwood further represents

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ATWOOD V . SHINN 11
that the referenced vehicle was not his car but belonged to
Annette Fries’s next-door neighbor. He argues that it is
likely “that Fries or her son called in the tip, and used a
convenient known license plate number that was not theirs
in an attempt to either exact revenge against a neighbor or
throw police off their trail.”
Atwood’s Brady claim does not meet the standard in
§ 2244(b)(2)(B)(ii) because he has not made a prima facie
showing that the unreported anonymous phone call, “if
proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder
would have found” him guilty.
In light of all the information Atwood had concerning
Fries at the time of his trial, it is unlikely that the disclosure
of the anonymous phone call would have changed anything.
The State alleged, and Atwood does not deny, that at the time
of trial Atwood had information that:
(1) witnesses reported seeing V.L.H. at a
local mall in the company of a woman
matching Fries’s description; (2) Fries “gave
shifting information about her whereabouts at
the time of the disappearance”; (3) Fries had
been charged with crimes related to her
attempt to burn down her trailer, but was
found incompetent to stand trial; (4) a woman
matching Fries’s description was seen “in the
days surrounding the disappearance driving a
car very similar to Mr. Atwood’s”;
(5) witnesses described seeing a woman
matching Fries’s description attempt “to
kidnap other children in the days surrounding
the disappearance”; and (6) a defense witness

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12 ATWOOD V . SHINN
“had experienced intimidation and
harassment . . . as potential revenge for her
testimony on Mr. Atwood’s behalf.”
As all of this did not sway the jury, it is unlikely that the
anonymous phone call would have made a difference, even
after it was determined that the reported license plate
belonged to Fries’s neighbor.
Moreover, § 2422(b)(2)(B)(ii) requires that the new
material be considered “in light of the evidence as a whole.”
Here, the Arizona Supreme Court in 1992 noted:
Although we cannot know from the facts
presented at trial exactly what happened to
the victim when she was taken to the desert,
we do know that (1) defendant, a convicted
pedophile, was seen within yards of the girl
literally seconds before she vanished;
(2) witnesses identified defendant as the man
they saw driving with a young child in his
car; (3) defendant was seen later that
afternoon with blood on his hands and
clothing; and (4) defendant was also seen
with cactus needles in his arms and legs.
Atwood, 832 P.2d at 616. We cannot conclude that the
disclosure of the unreported anonymous phone call would
have had any effect on Atwood’s trial and conviction.
D
Finally, Atwood has not made a prima facie showing in
support of his freestanding actual innocence claim. The
claim asserts that the Brady material is new evidence
showing that Atwood is not guilty of the underlying offense.

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ATWOOD V . SHINN 13
But as we explained above, the unreported anonymous
phone call does not approach demonstrating, by “clear and
convincing evidence,” that Atwood is not guilty. The phone
call is not evidence that Atwood did not commit the murder,
or that someone else committed the murder. Rather, Atwood
supposes that the phone call was made by Fries or her son
with the intent of leading the investigators away from Fries.
Even if this were true and Atwood could prove it, it still
would not be clear and convincing evidence that Atwood
was innocent.
III
Because Atwood has not made a prima facie showing
that his proposed petition meets the criteria set forth in
28 U.S.C. § 2244(b)(2)(B), the motion for an order
authorizing the district court to consider a second or
successive habeas petition is DENIED.

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