Atwood v. Schriro
| Decision Date | 01 May 2007 |
| Docket Number | No. CV-98-116-TUC-JCC.,CV-98-116-TUC-JCC. |
| Parties | Frank Jarvis ATWOOD, Petitioner, v. Dora B. SCHRIRO, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Daniel F. Davis, Daniel F. Davis, Tucson, AZ, Larry A. Hammond, Osborn Maledon PA, Phoenix, AZ, for Petitioner.
Robert John Gorman, Office of the Attorney General, Tucson, AZ, for Respondents.
DEATH PENALTY CASE
Frank Jarvis Atwood (Petitioner), a state prisoner under sentence of death, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is imprisoned and sentenced in violation of the United States Constitution. This Order addresses the merits of all but one of Petitioner's claims and determines that he is not entitled to habeas relief.
The procedural history of this case is, regrettably, long. As detailed below, almost three years passed before trial began, and the state appellate and post-conviction proceedings consumed an additional ten years. Much of the delay in state court was attributable to an extensive investigation, voluminous evidence and a vigorous defense presented at trial, and an extraordinary number of issues presented on direct appeal and in post-conviction proceedings.
These federal proceedings were initiated in 1998, but were delayed by litigation over a change of judge as well as successive significant decisions by the Ninth Circuit Court of Appeals and the United States Supreme Court that effectively stayed the case for several years. In addition, the large number of habeas claims raised by Petitioner, along with the Court's bifurcated briefing procedure in which the parties first briefed the procedural status of Petitioner's claims before addressing merits, required that the extensive state appellate and post-conviction records, which exceed 35,000 pages, be reviewed twice. In sum, the Court is cognizant that a significant amount of time has passed; however, a case of this magnitude cannot be resolved without careful consideration of the record, the briefs, and the relevant caselaw.
The following facts are taken from the Court's review of the extensive record. On September 17, 1984, eight-year-old Vicki Lynn Hoskinson disappeared. At trial, her mother testified that she had left their home at 3:30 p.m. to mail a card at a mailbox near their neighborhood. The pink bike she had been riding was found abandoned on Pocito Place, an unpaved road a few blocks from her home. Seven months later, skeletal remains determined to be Vicki Lynn's were found in the desert northwest of Tucson.
The victim was last seen by two boys from her neighborhood, who passed her on Pocito Place while riding their bikes in the opposite direction. One testified at trial that before turning on Pocito and seeing Vicky Lynn, he saw a dark "Datsun Z" car with California plates driving very slowly near the intersection of Pocito and Root Lane, the main road into their neighborhood. The driver had long dark hair, a moustache, and appeared not to have shaved recently.
On the same day, Sam Hall, a teacher at Vicki Lynn's elementary school (located near her neighborhood), observed a dark "Z" car with California plates parked in an alley next to the school. The driver had long, unkempt dark hair and a beard and moustache. Hall noticed the driver making strange gestures and having difficulty getting his car into gear. Because the driver appeared out of place and made him nervous, Hall wrote down the vehicle's license plate information. After learning of Vicki Lynn's disappearance, Hall contacted the police, who traced the vehicle's registration to Petitioner.
On September 20, three days after the victim's disappearance, FBI agents learned from Petitioner's mother that Petitioner and a traveling companion, James McDonald, were at a Texas auto repair shop. Petitioner and McDonald were arrested, and Petitioner's black Datsun 280-Z impounded. At trial, an FBI examiner testified that pink paint found on the front bumper of Petitioner's car "matched" the victim's bicycle and that Petitioner's bumper was the "source" of nickel particles found on the bike. An accident reconstructionist who testified for the State opined that the pedal of the victim's bike fit a deformation on the gravel pan of Petitioner's car and supported a theory that the car had struck the bicycle at a low speed, causing the bike to become lodged underneath.
In a statement to police following his arrest, Petitioner said he had been at DeAnza Park near downtown Tucson around noon on September 17. After a fight with McDonald, he left to find other acquaintances and returned to the park between 4:00 and 5:00 p.m. In a subsequent interview, Petitioner changed the time of his return to 3:30 p.m. At trial, McDonald and Thomas Parisien, who lived near the park, testified they saw blood on Petitioner's hands, clothes, and knife the afternoon of September 17. Petitioner told them he had stabbed a man who tried to rip him off during a drug deal and then had taken the body out into the desert.
Following Vicki Lynn's disappearance, numerous individuals reported seeing a dark "Z" car on September 17 and positively identified Petitioner as the driver. Several claimed they saw Petitioner in the victim's neighborhood; one saw Petitioner drive out of the neighborhood with a small child in his car, and others placed Petitioner in the general vicinity of the site where the victim's remains were ultimately found.
During the investigation, detectives also learned of Petitioner's contacts with Ernest Bernsienne, a resident of Oklahoma who had been corresponding with Petitioner for about four years. Portions of letters to Bernsienne were admitted at trial, including Petitioner's "confession" that he is attracted to children between the ages of seven and twelve. Bernsienne also testified that Petitioner told him, during a phone conversation several months before the victim's disappearance, that he planned to go out and pick up a child and would make sure the child would not report it.
Petitioner was initially charged with one count of kidnapping. After the victim's remains were discovered in April 1985, he was also charged with one count of first degree felony murder. Trial commenced in January 1987 and lasted approximately two months, with more than 75 witnesses testifying. On March 26, 1987, the jury returned a guilty verdict on both counts. Pima County Superior Court Judge John G. Hawkins sentenced Petitioner to death for the murder and a concurrent 25-year prison term for the kidnapping.
In 1993, the Arizona Supreme Court issued a lengthy, comprehensive opinion affirming Petitioner's conviction and sentence on direct appeal. State v. Atwood, 171 Ariz. 576, 592, 832 P.2d 593, 609 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993). In 1996, Petitioner filed in the trial court an amended petition for post-conviction relief ("PCR") under Rule 32 of the Arizona Rules of Criminal Procedure. Pima County Superior Court Judge Raner C. Collins, substituted for the deceased Judge Hawkins, denied the petition in January 1997.1 A motion for rehearing was denied, and the Arizona Supreme Court summarily denied discretionary review in November 1997.
Petitioner filed a Petition for Writ of Habeas Corpus in this Court on March 12, 1998, and a 130-page amended petition raising 89 claims on May 2, 2000. (Dkts. 1, 103.)2 Respondents filed an answer (limited by the Court's order to issues of exhaustion and procedural default), Petitioner filed a traverse, and Respondents filed a reply. (Dkts. 110, 113, 116.) In March 2001, the Ninth Circuit Court of Appeals issued a decision in Smith v. Stewart, 241 F.3d 1191 (9th Cir.2001), that called into question Arizona's doctrine of procedural default. The Court stayed proceedings pending further review of Smith. (Dkt. 119.) In June 2002, the United States Supreme Court reversed. Stewart v. Smith, 536 U.S. 856, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (per curiam). This Court lifted the stay (Dkt. 120), and in September 2002 Petitioner filed a sur-reply, limited to issues of cause, prejudice, and fundamental miscarriage of justice (Dkt. 122).
Around the same time the United States Supreme Court resolved the Smith issue, it also decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which invalidated Arizona's capital-sentencing scheme to the extent that it provided for a judge, not a jury, to determine capital-eligibility factors. In light of Ring, it was unclear whether Petitioner would be entitled to relief from his capital sentence. In June 2004, in Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the Court held that Ring does not apply retroactively to cases, such as Petitioner's, whose direct appeals were final at the time Ring was decided.
On June 6, 2005, the Court issued an extensive order identifying the procedural status of Petitioner's claims. (Dkt. 127.) The Court determined that nearly half of Petitioner's claims were either procedurally barred, not cognizable, or plainly meritless, and directed the parties to file supplemental briefs addressing the merits of the remaining claims under the standards set forth in the AEDPA.3 (Id.) The Court also directed Petitioner to identify the claims for which he contends further evidentiary development is warranted. (Id.)
On November 14, 2005, Petitioner filed a 196-page opening merits brief. (Dkt. 140.) With respect to Claim 1-B, Petitioner set forth extensive new factual allegations that were not presented in his May 2000 amended petition. In response to Respondents' assertion that the new factual...
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