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Atwood v. Ryan

United States District Court, Ninth Circuit

January 27, 2014

Frank Jarvis Atwood, Petitioner,
Charles L. Ryan, et al., Respondents.


JOHN C. COUGHENOUR, District Judge.

Pending before the Court is Petitioner's motion for reconsideration of the Court's order finding Claim 29 to be procedurally barred from merits review. The motion is based on Martinez v. Ryan, 132 S.Ct. 1309 (2012), in which the Supreme Court held that where ineffective-assistance-of-counsel (IAC) claims must be raised in an initial-review post-conviction proceeding, failure of counsel in that proceeding to raise a substantial trial IAC claim may provide cause to excuse the procedural default of that claim. For the reasons that follow, the motion is denied.


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 Vicki 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 12. Bernsienne 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.

Jonas Bowen, an inmate housed in the same jail pod as Petitioner following Petitioner's transport from Texas, provided further inculpatory information to investigators. Although ultimately not admitted at trial, Bowen took extensive notes of his conversations with Petitioner and drew a map of where he believed the victim's body might be found based on Petitioner's statements. Bowen claimed that during a conversation in December 1984, five months before the victim's remains were discovered near the end of a road in the desert in northwest Tucson, Petitioner described how he struck the victim's bicycle with his car, drove north on the freeway, exited into a desert area, forced the victim to perform fellatio, and murdered the victim by cutting her throat and stabbing her in the chest. Bowen further claimed that Petitioner was surprised investigators had not found the victim's body because they had been searching in the right area, and the two discussed ways to conceal Petitioner's involvement in the crime. According to Bowen, Petitioner also relayed that sex with children was at one time acceptable and questioned why it should be wrong.


Petitioner was initially charged with one count of kidnapping and provided court-appointed counsel Lamar Couser. After the victim's remains were discovered in April 1985, he was also charged with one count of first degree felony murder. Around this time, Couser was replaced as counsel by Stanton Bloom, who was retained by Petitioner's father. 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. Following an aggravation/mitigation hearing in May 1987, Pima County Superior Court Judge John G. Hawkins sentenced Petitioner to death for the murder and to a concurrent 25-year prison term for the kidnapping. In 1993, the Arizona Supreme Court affirmed on direct appeal. State v. Atwood, 832 P.2d 593 (Ariz. 1992), cert. denied, 506 U.S. 1084 (1993).

In 1998, following unsuccessful state post-conviction relief (PCR) proceedings, Petitioner initiated these federal habeas proceedings. He filed his first amended petition in May 2000, raising 89 claims for relief. (Doc. 103.) In June 2005, the Court dismissed 43 of the claims as procedurally barred, not cognizable, or plainly meritless. (Doc. 127.) In subsequent merits briefing, Petitioner alleged significant new facts in support of a law enforcement misconduct claim based on photographic "discoveries" by an individual researching Petitioner's case for a book. In May 2007, the Court ruled on the merits of all remaining claims except the misconduct claim, finding that none provided grounds for habeas relief. (Doc. 164.) With regard to the enhanced law enforcement misconduct claim, the Court determined that Petitioner's merits brief fundamentally altered the original misconduct claim, rendering it unexhausted, and concluded that the claim was neither plainly meritless nor clearly precluded from state post-conviction review. (Doc. 158 at 2-3; Doc. 172 at 5-6.) Because Respondents declined to waive exhaustion of the claim, the case was stayed pending resolution of a new PCR petition in state court.

State PCR proceedings on the misconduct claim concluded in August 2011. Thereafter, the Court lifted the stay of proceedings, Petitioner filed a second amended habeas petition, and the parties briefed the merits and propriety of further evidentiary development of the misconduct claim. The Court also substituted the Federal Public Defender as co-counsel in place of Daniel Davis, who had represented Petitioner from the inception of this habeas case and throughout both state PCR proceedings. (Doc. 272.) Following oral argument and an evidentiary proffer in June 2012, the Court denied habeas relief on the misconduct claim. (Doc. 338.) However, in lieu of entering judgment, the Court provided Petitioner the opportunity to brief the effect of the Supreme Court's decision in Martinez v. Ryan by filing a motion for reconsideration of the Court's dismissal of numerous IAC claims as procedurally barred, including a claim of ineffectiveness at sentencing for failing to thoroughly investigate Petitioner's background for mitigation ("Claim 29").

After granting two continuance motions for the filing of the reconsideration motion to permit the Federal Public Defender to conclude its background investigation of Petitioner, the Court denied a third request. In doing so, the Court noted that it appeared from the continuance motion that Petitioner intended to significantly expand the scope of Claim 29 by asserting a new theory of ineffectiveness based on the failure to retain experts for sentencing. Consequently, the Court provided an additional period of time for Petitioner to seek leave to file a third amended petition to present any newly-developed claims.

In January 2013, Petitioner filed the instant motion for reconsideration, seeking reconsideration only of Claim 29. In its June 2005 order finding this claim procedurally barred, the Court had concluded that Petitioner did not raise in state court any IAC claims based on counsel's representation during sentencing and that he had failed to establish cause and prejudice to excuse the default. (Doc. 127 at 40, 48-52.) One of the cause arguments asserted by Petitioner was the ineffectiveness of PCR counsel. Pursuant to Coleman v. Thompson, 501 U.S. 722, 755 (1991), the Court found that ineffective assistance of PCR counsel could not constitute cause because Petitioner had no constitutional right to the effective assistance of such counsel.

In February 2013, Petitioner also filed a memorandum regarding amendment, asserting that amendment to present new factual allegations is unnecessary and, alternatively, seeking leave to amend if the Court concludes otherwise. On March 7, 2013, the Court held oral argument. Because the briefs raised a significant question as to whether Martinez even applied to Petitioner's case (in light of state appellate counsel's assertion of trial-related IAC claims on direct appeal), the parties agreed that a ruling on the motion for reconsideration should await a decision by the United State Supreme Court in Trevino v. Thaler, 133 S.Ct. 1911 (2013). Following issuance of the Trevino opinion, Respondents withdrew their objection to applicability of Martinez (Doc. 400), and the Court set an evidentiary hearing to determine whether Claim 29 constituted a "substantial" claim of ineffective assistance of counsel at sentencing. (Doc. 401.) A four-day hearing was held October 7-9 and November 4, 2013. Petitioner, his trial counsel, his direct appeal counsel, trial counsel's paralegal, the prosecutor, and two experts testified.


I. Scope of Claim 29

Petitioner's motion for reconsideration significantly broadened the claim presented in the second amended habeas petition, which in its entirety reads:

The mitigation case was heard within less than 60 days of the verdict in this case. Defense counsel had neither the time nor the resources to prepare appropriately for a mitigation hearing. A thorough investigation of Mr. Atwood's background should have been undertaken, but was not. In failing to provide that investigation and mitigation development, Mr. Atwood was the victim of ineffective assistance of counsel.
This case is closely similar on this issue to a case decided by the Ninth Circuit Court of Appeals on July 21, of last year, Wallace v. Stewart, 184 F.3d 1112 (9th Cir. 1999). This is also a case in which Lamar Couser was trial counsel. In Wallace, however, Mr. Couser was also counsel at the first sentencing. As was true in Mr. Atwood's case, Mr. Couser did next to nothing to represent his client. As the Ninth Circuit observed, had counsel "only looked, [they] would have discovered a great deal." ( Id. at 12). See also Clabourne v. Lewis, 64 F.3d 1373 (9th Cir. 1995), yet another recent case in which Mr. Couser's performance at sentencing was held to constitute ineffective assistance of counsel.
The same may be said of this case. We have requested the appointment of a mitigation specialist to assist in developing the record that was developed in this case neither by Mr. Couser nor by Mr. Bloom. We believe that, if appointed, the record would provide ample basis for believing that the death sentence in this case was inappropriate. The appointment of a mitigation specialist will assist us in establishing that counsel were ineffective and deprived defendant of his rights to effective assistance of counsel at sentencing under the 6th, 8th and 14th Amendments.
One example might be cited. The Arizona Supreme Court, in rejecting arguments made by the defense on appeal, notes that the fact that Defendant may have been molested as a minor in no way "justifies, excuses or otherwise mitigates his crime here." Atwood, 171 Ariz. at 655, 832 P.2d at 672. The Supreme Court goes on to say that "the remedy for one who has been molested is not to molest others and ask to be excused, but rather to submit to therapy which, as noted above, Defendant has repeatedly refused." Id. The Court did not, of course, investigate whether Mr. Atwood had been amenable to therapy or whether therapy would have been productive. A wealth of literature is available today, and was 15 years ago, on the amenability to treatment of pedophiles. If one believes, as the Supreme Court apparently did, that Mr. Atwood is a pedophile, one must then ask whether his conduct was truly volitional or whether, to the contrary, his ability to control his behavior was in some way reduced. This was precisely the theme of the Hoskinson family's wrongful death action against Mr. Atwood's parents and the State of California. Aided by Dr. Hinton's evaluation of Mr. Atwood's history, these parties argued that as a "pedophile" he could have been predicted to have succumbed to acts of compulsion. If so, he would have available a statutory mitigator under subsection (G)(1).
This issue was addressed at the post-conviction stage. The United States Supreme Court has had occasion very recently to address this subject of ineffective assistance of counsel in connection with sentencing in Williams v. Taylor, 120 S.Ct. 1495 (2000). The discussion of counsel's sentencing duties provides an important template for counsel in the mitigation-development process.

(Doc. 269-2 at 110-11.)

In his motion for reconsideration, Petitioner alleges that counsel was ineffective for failing to provide the sentencing judge with "a thorough presentation of Atwood's background and character, " failing to support his "drug abuse" mitigating factor with evidence explaining the long-term damage Petitioner's drug use had upon Petitioner at the time of the crime, and failing to consult with a mental health expert given Petitioner's history of psychiatric problems, head injuries, and chronic drug use. He further alleges that had counsel undertaken such an investigation, he would have discovered that Petitioner suffers from post-traumatic stress disorder (PTSD) as a result of childhood molestation and that Petitioner's deviant sexual desires can be explained by the fact that his own sexual development was skewered as a result of multiple sexual traumas. He argues that presenting evidence of Petitioner's traumatic experiences during his formative years, and their resulting psychological effects, would have rebutted the overwhelming public portrayal of Petitioner as a monster and could have provided some explanation for the crime. Because defense counsel failed to provide a "complete picture" of Petitioner's background and character, confidence in his capital sentence is undermined. (Doc. 369 at 53-63.)

Petitioner argues that the claim as presented in the motion for reconsideration is not different from that raised in the amended petition because "in the capital defense field, research into a client's background unquestionably includes research into the client's mental health history" and that it is "common practice to consult and employ mental health experts in the background course of investigation." (Doc. 369 at 8.) Put another way, Petitioner asserts that the amended petition's allegation of ineffectiveness based on counsel's failure to investigate Petitioner's background necessarily included the failure to investigate Petitioner's mental health history. Therefore, according to Petitioner, the reconsideration motion's allegation concerning counsel's failure to consult with mental health experts does not constitute a new claim. Respondents disagree, asserting that the amended petition did not allege ineffectiveness based on counsel's failure to consult mental health experts and noting that such claims are often raised separately from claims of ineffectiveness alleging failure to investigate a defendant's background.

Pursuant to Rule 2(c) of the Rules Governing Section 2254 Cases, a petitioner is obligated to specify in a federal habeas petition all grounds for relief, as well as the facts supporting each of these grounds. See Mayle v. Felix, 545 U.S. 644, 661 (2005) (observing that Rule 2(c) requires pleading "separate congeries of facts" in support of each ground for relief); Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (observing that "notice" pleading in habeas is insufficient and that petition "is expected to state facts that point to a real possibility of constitutional error'") (quoting Advisory Committee Note to Rule 4, Rules Governing Section 2254 Cases). In the context of exhaustion under 28 U.S.C. § 2254(b)(1), federal law similarly requires that a claim raised in state court include "a statement of the facts that entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (emphasis added). To satisfy this "fair presentation" requirement, a petitioner must describe both "the operative facts and the federal legal theory on which his claim is based." Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005). While a petitioner may provide further facts to support a claim in federal court, this does not mean "that a petitioner who presented any ineffective assistance of counsel claim [in state court] can later add unrelated alleged instances of counsel's ineffectiveness to his claim." Poyson v. Ryan, ___ F.3d ___, No. 10-99005, 2013 WL 5943403, at *16 (9th Cir. Nov. 7, 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)).

Although it involved the question of exhaustion, Poyson is nevertheless instructive In that case, the petitioner asserted in state court that trial counsel was ineffective for failing "to request the appointment of experts in the field of mental health early in the case, " which resulted in the loss of mitigation evidence demonstrating brain damage. Id. The petitioner also argued in state court that counsel was ineffective for failing to show how the petitioner's abusive childhood was connected to his conduct during the murders. Id. at *17. However, in his federal habeas petition, the petitioner alleged ineffectiveness based on counsel's failure to investigate as mitigation the petitioner's possible fetal alcohol spectrum disorder. The Ninth Circuit concluded that the federal petition presented "a substantially different claim" because it was based on a new theory of counsel's ineffectiveness. Id. Similarly, in Dickens v. Ryan, an en banc panel of the Ninth Circuit determined that new evidence of Fetal Alcohol Syndrome and organic brain damage presented for the first time in federal court bore "little resemblance to the naked Strickland claim raised before the state court.... in which Dickens did not identify any specific conditions that sentencing counsel's allegedly deficient performance failed to uncover." Dickens v. Ryan, ___ F.3d ___, No. 08-99017, 2014 WL 241871 (9th Cir. Jan. 23, 2014) (en banc).

As in Poyson and Dickens, the Court concludes that Petitioner's allegation concerning counsel's failure to consult and utilize mental health experts effectively states a new claim for relief. The second amended petition asserted ineffectiveness based on the failure to conduct a thorough background investigation and demonstrate that Petitioner was unable to control his conduct due to pedophilia, not on the failure to enlist and present evidence from mental health experts regarding drug abuse and the traumatic effects of his childhood molestation.[1] Petitioner does not allege that the factual basis of his experts-related claim was unknown at the time he filed his federal habeas petition or subsequent amended petitions. Indeed, Petitioner's new theory of ineffectiveness is based on records that were available prior to trial that indicate Petitioner was the victim of sexual abuse at age 14 and a habitual drug user. In addition, Petitioner testified at the evidentiary hearing that he expressly asked counsel prior to sentencing to have him examined by a psychiatrist in light of his mental health history. Thus, the Court can discern no reason why federal habeas counsel could not have alleged counsel's ineffectiveness for failing to consult with mental health experts given the information about Petitioner's background contained in those records.

In Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), the Ninth Circuit held that a traverse "is not the proper pleading to raise additional grounds for relief" and that issues raised for the first time in the petitioner's traverse were not properly before the district court. Here, the Court permitted Petitioner to file a motion for reconsideration to address applicability of Martinez to the trial ineffectiveness claims previously found to be procedurally defaulted. This was an opportunity to present legal argument in support of reconsideration, "not to raise substantively new issues or claims." Id. Because Petitioner failed to include the reconsideration motion's new factual allegations in his federal habeas petition, the claim alleging ineffectiveness based on counsel's failure to consult with and present evidence from mental health experts is not properly before the Court.

II. Amendment

In the event the Court concludes that Petitioner's reconsideration motion presents a new claim for relief, Petitioner seeks leave to amend under Rule 15(a) of the Federal Rules of Civil Procedure. Respondents oppose the request, asserting that amendment would be futile because Petitioner's new claim is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). Respondents further argue that Petitioner has unduly delayed seeking amendment.

Under Rule 15(a), leave to amend "shall be freely given when justice so requires, " and courts must review motions to amend "in light of the strong policy permitting amendment." Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986). The factors that may justify denying a motion to amend are undue delay, bad faith or dilatory motive, futility of amendment, and undue prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Leave to amend may be denied based upon futility alone. See Bonin, 59 F.3d at 845. If proposed claims are untimely, unexhausted, or otherwise fail as a matter of law, amendment should be denied as futile.

A. Futility

Respondents argue that Petitioner's new allegations are barred by the statute of limitations and that amendment is futile. Petitioner asserts otherwise, arguing that his new allegations relate back to Claim 29 and are therefore timely pursuant to Rule 15(c)'s relation-back doctrine.

In Mayle v. Felix, 545 U.S. 644, 659 (2005), the Supreme Court held that new claims brought in an amended habeas petition relate back to the original petition for purposes of § 2244(d)'s statute of limitations only if they arise out of a common core of operative facts uniting the original and newly asserted claims. An amended petition does not relate back when it asserts a new ground for relief supported by facts that differ in both time and type from those set forth in the original pleading. Id. (emphasis added); see also Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013) (observing that the "time and type" language in Felix refers not to grounds for relief but to facts supporting habeas claims). "The facts alleged must be specific enough to put the opposing party on notice of the factual basis for the claim." Dodd v. United States, 614 F.3d 512, 515 (8th Cir. 2010); see also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149 n.3 (1984) (per curiam) (observing that pleadings must give defendant "fair notice" of plaintiff's claim and grounds upon which it rests). If a new claim merely clarifies or amplifies a claim or theory already in the original petition, the new claim may relate back to the date of the original petition and avoid a time bar. Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001).

Petitioner asserts in his memorandum that his new "failure to consult with experts" claim relates back to his timely-filed original petition because it amplifies Claim 29 by including new factual allegations relating to Petitioner's mental health that arise "out of events connected by time and type to counsel's general failure to properly investigate and prepare for the penalty phase hearing." ( Id. at 6.) He asserts that his reconsideration motion identifies a specific avenue of investigation and preparation that counsel failed to conduct and therefore shares a common core of operative facts with the more general "failure to investigate" claim raised in the timely filed amended petition. Respondents counter that Petitioner's proposed amendment does not relate back because Claim 29 challenged counsel's failure to investigate Petitioner's background and social history, whereas the proposed amendment challenges counsel's failure to retain experts to evaluate Petitioner's mental functioning, diagnose a mental condition, and testify at sentencing regarding that diagnosis. The Court concludes that, pursuant to Felix, Petitioner's new claim does not relate back to the timely filed amended petition because it is not tied to a common core of operative facts with Claim 29.

In Schneider v. McDaniel, the Ninth Circuit rejected the habeas petitioner's argument that a claim asserting ineffectiveness for failing to raise a voluntary intoxication defense shared a common core of operative facts with a new claim alleging ineffectiveness for failing to raise a defense based on diminished capacity. 674 F.3d 1144, 1151-53 (9th Cir.), cert. denied, 133 S.Ct. 579 (2012). "Presenting a claim that trial counsel rendered ineffective assistance because he failed to establish a particular defense cannot preserve for the petitioner any claim of ineffective assistance based on failure to establish a defense that the petitioner might later discover." Id. at 1152. This, the court observed, would stand Felix "on its head." Id. The court further found that an IAC claim identifying issues appellate counsel should have raised on appeal did not relate back to a claim of appellate ineffectiveness based on the failure to raise different issues. Id. at 1151.

Similarly, in Turner v. United States , the First Circuit held that a district court was within its discretion to deny amendment where both the original petition and the amended petition alleged ineffective assistance of counsel related to cross-examination of a government witness. 699 F.3d 578, 585 (1st Cir. 2012). The original petition claimed that trial counsel was ineffective for eliciting prejudicial testimony regarding the petitioner's illegal drug activities. Id. The amended petition claimed that trial counsel was ineffective for not asking the same government witness about prior inconsistent statements he made to the FBI. Id. The court concluded that the allegation in the timely filed petition about eliciting prejudicial testimony was "fundamentally different in type" from the claim that trial counsel was, in general, ineffective at cross-examining government witnesses. Id .; see also United States v. Ciampi , 419 F.3d 20, 24 (1st Cir. 2005) ("[A] petitioner does not satisfy the Rule 15 relation back' standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney malfeasance.").

Here, Petitioner raised in his timely filed amended petition only a very general claim of ineffectiveness based on counsel's alleged failure to conduct a "thorough" background investigation and demonstrate that Petitioner's ability to control his conduct was substantially impaired due to pedophilia. He now asserts ineffectiveness based on a new and substantially different mitigation theory-that counsel failed to consult with experts who would have diagnosed Petitioner as suffering from PTSD. Nothing in Petitioner's original petition put Respondents on notice that he was claiming ineffectiveness based on trial counsel's failure to develop expert PTSD evidence. Accordingly, Petitioner's new allegations do not "clarify" or "amplify" Claim 29; rather, they constitute a claim of ineffectiveness that differs in both time and type from the ineffectiveness claim raised in the amended petition.[2] As such, Petitioner's new claim of ineffectiveness based on counsel's failure to enlist and present evidence from mental health experts does not relate back and is untimely. Cf. Johnson v. United States , 860 F.Supp.2d 663, 723 (N.D. Iowa 2012) (finding no common core of operative facts between timely filed allegations of ineffectiveness based on failure to investigate and present specific mitigation evidence and allegations that counsel failed to present at sentencing (1) expert testimony regarding remorse and (2) evidence of the effect execution would have on petitioner's family). Petitioner does not assert that he has any grounds for equitable tolling. Consequently, the Court finds that Petitioner's new claim is barred by the one-year statute of limitations and that amendment is therefore futile.

B. Undue Delay

Even if not futile, the Court concludes that amendment should be denied because Petitioner waited nearly 13 years after filing his first amended petition to add his new claim. Petitioner's allegation that counsel should have retained mental health experts rests on information contained in records obtained by trial counsel before trial as well as Petitioner's own personal history. Petitioner also testified at the evidentiary hearing that he discussed his mental health history with Bloom and asked counsel to have him examined by an expert. Thus, Petitioner was aware of the facts supporting his new IAC claim since before he filed his initial habeas petition in 1998.

Tellingly, Petitioner does not assert otherwise. Rather, he argues in reply to Respondents' assertion of undue delay only that Martinez is new law and that he "could not ask this Court to amend the factual basis of a claim that the Court had already found to be procedurally defaulted under then-existing law." (Doc. 387 at 3.) Petitioner misses the point. He offers no explanation as to why his new factual allegations were not presented in the first amended petition, filed in May 2000, more than two years after the appointment of habeas counsel and five years before the Court ruled on the procedural status of Petitioner's claims. Moreover, the Court expressly stated at the start of these proceedings that the amended petition prepared by counsel "shall include every possible constitutional error or deprivation entitling Petitioner to habeas relief." (Doc. 5 at 3.) Inexplicably, it did not. Accordingly, the Court finds as a separate ground justifying denial of amendment that Petitioner unduly delayed raising an IAC claim based on counsel's alleged failure to consult with or present evidence from mental health experts concerning the impact of Petitioner's childhood sexual trauma and drug abuse.

III. Reconsideration of Claim 29

As an alternative ruling, the Court reconsiders Claim 29 under the assumption that the allegation concerning counsel's failure to consult with mental health experts is properly before the Court either because it does not constitute a substantially different claim than that raised in the second amended petition or because further amendment is appropriate.

A. Exhaustion

Before applying Martinez , the Court first addresses Respondents' assertion that the alleged ineffective assistance of PCR counsel cannot serve as cause because Petitioner failed to exhaust such an allegation in state court. See Edwards v. Carpenter , 529 U.S. 446, 451-54 (2000) (requiring that claim of appellate IAC be properly exhausted in state court before serving as cause to excuse default of other claims). The Ninth Circuit expressly rejected this argument in its recent en banc decision in Dickens , 2014 WL 241871 at *n.17. Moreover, this Court observes that unlike appellate-counsel IAC, which is grounded in the Sixth Amendment right to effective assistance of counsel, PCR-counsel IAC is not a freestanding constitutional claim. Concomitantly, because Arizona law does not recognize the ineffectiveness of PCR counsel as an independent claim, any exhaustion requirement is excused because such a claim cannot be raised under state law. See State v. Escareno-Meraz , 307 P.3d 1013, 1014 (Ariz.App. 2013) (holding that the Supreme Court's decision in Martinez does not entitle petitioner to raise claim of PCR counsel's ineffectiveness in state court).

B. Standard of Law

In Martinez , the Court outlined what a petitioner must show for a district court to reach the merits of an unexhausted and procedurally defaulted ineffective-assistance-of-trial-counsel claim. First, a petitioner must show that PCR counsel was ineffective under the standards of Strickland for not raising the ineffective-assistance-of-counsel (IAC) claim. Martinez , 132 S.Ct. at 1318. Second, the petitioner must demonstrate that the defaulted IAC claim is substantial. Id. at 1318-19. If both of these are met, then cause exists to excuse the default. However, before a court may reach the merits of a procedurally defaulted claim, the petitioner must also establish prejudice. Id. at 1316 ("A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law. ") (emphasis added). Thus, the third showing a petitioner must make is that he suffered prejudice. See Sexton v. Cozner , 679 F.3d 1150, 1159 (9th Cir. 2012), cert. denied , 133 S.Ct. 863 (2013) ("In applying this standard, Martinez made clear that a reviewing court must determine whether the petitioner's attorney in the first collateral proceeding was ineffective under Strickland , whether the petitioner's claim of ineffective assistance of trial counsel is substantial, and whether there is prejudice."); but see Detrich v. Ryan , ___ F.3d ___, No. 08-99001, 2013 WL 4712729, at *6 (9th Cir. Sep. 3, 2013) (en banc) (plurality opinion) ("A prisoner need not show actual prejudice resulting from his PCR counsel's deficient performance, over and above his required showing that the trial-counsel IAC claim be substantial' under the first Martinez requirement.").

As a practical matter, courts must evaluate the underlying IAC claim to evaluate any of the three showings that must be made to excuse a procedurally defaulted IAC claim. First, to find that PCR counsel was ineffective for not raising the defaulted IAC claim, a court must determine under Strickland whether PCR counsel's conduct fell below an objective standard of reasonableness and whether the petitioner was prejudiced. To this end, a court must evaluate whether there was any reason to raise the claim, which necessarily requires an inquiry into the merits of the claim. In addition, to show prejudice from PCR counsel's failure to raise the defaulted IAC claim, a reviewing court must find a reasonable probability of a different outcome had the claim been raised in state court. See Lopez v. Ryan , 678 F.3d 1131, 1138 (9th Cir.), cert. denied , 133 S.Ct. 55 (2012) ("To have a legitimate IAC claim a petitioner must be able to establish both deficient representation and prejudice."). This cannot be determined without considering the merits of the defaulted IAC claim. See Sexton , 679 F.3d at 1159 ("To establish that PCR counsel was ineffective, Sexton must show that trial counsel was likewise ineffective...."). Similarly, a court cannot determine whether a ...

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