Ernesto Martinez v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERNESTO SALGADO MARTINEZ, No. 08-99009

Petitioner-Appellant,

D.C. No.

v. 2:05-cv-01561-EHC

CHARLES L. RYAN,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge, Presiding

Argued and Submitted March 27, 2019

San Francisco, California

Filed June 18, 2019

Before: M. MARGARET McKEOWN, WILLIAM A.

FLETCHER, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

2 MARTINEZ V. RYAN

SUMMARY *

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of a writ of

habeas corpus as to Ernesto Martinez’s claims relating to his

first-degree murder conviction and death sentence,

dismissed for lack of jurisdiction Martinez’s claim appealing

the district court’s denial of his request to consider a Fed. R.

Civ. P. 60(b) motion, declined to expand the certificate of

appealability, and denied Martinez’s motion to stay the

appeal and remand for consideration of another claim under

Brady v. Maryland.

The panel held that Rule 32.2(a) of the Arizona Rules of

Criminal Procedure, pursuant to which the Arizona post-

conviction review court imposed a procedural default as to

Martinez’s judicial bias claim, is independent of federal law

and adequate to warrant preclusion of federal review; and

that Martinez failed to demonstrate cause to overcome the

procedural default of that claim.

The panel held that because Martinez’s judicial bias

claim is based on unfounded speculation, (1) his trial counsel

did not perform deficiently by not moving for the trial

judge’s recusal, and (2) his appellate counsel was not

ineffective for failing to raise on direct appeal the claim that

trial counsel was ineffective for failing to move to disqualify

the trial judge.

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

MARTINEZ V. RYAN 3

The panel held that Martinez did not establish cause and

prejudice to overcome his procedural default of his claim

that the prosecution violated Brady v. Maryland by failing to

disclose impeachment evidence about a prosecution witness.

The panel dismissed for lack of jurisdiction Martinez’s

claim appealing the district court’s procedural ruling

declining to consider Martinez’s Rule 60(b) motion to alter

or amend the judgment.

The panel denied Martinez’s claims relating to the jury

instruction on pre-meditation. The panel wrote that the

instruction properly conveyed to the jury that Martinez could

not be found guilty of first-degree murder if it believed he

acted impulsively. The panel held that even if the instruction

was somehow erroneous, Martinez did not show that the

instruction so infected the entire trial that the resulting

conviction violated due process. Considering the totality of

the circumstances, the panel held that an oral hiccup by the

trial court likewise did not cause the conviction to violate

due process.

The panel held that trial counsel’s failure to retain an

independent pathologist to impeach a prosecution expert’s

testimony did not prejudice Martinez; that Martinez

therefore cannot establish under Martinez v. Ryan that his

post-conviction-review counsel was ineffective for failing to

raise the claim that trial counsel’s failure to retain a

pathologist amounted to ineffective assistance; and that, as a

result, Martinez failed to overcome the procedural default on

that claim.

Because of the overwhelming evidence introduced at

sentencing that Martinez could appreciate the wrongfulness

of his conduct, the panel concluded that Martinez did not

4 MARTINEZ V. RYAN

establish prejudice, and thus cannot overcome the procedural

default of his claim that trial counsel was ineffective by

failing to recall an expert at sentencing to rebut testimony by

another expert retained by the prosecution.

The panel held that under Eddings v. Oklahoma, the

Arizona Supreme Court applied an unconstitutional causal

nexus test in concluding that Martinez’s family history is not

entitled to weight as a mitigating factor at sentencing. The

panel determined that Martinez was not prejudiced by the

Arizona Supreme Court’s constitutional error.

The panel declined to expand the COA to include a

Brady claim that relates to evidence of premeditation.

Because Martinez cannot establish materiality, the panel

denied Martinez’s motion to stay the appeal and to remand

for the district court to consider a weekly planner belonging

to a prosecution witness.

COUNSEL

Timothy M. Gabrielson (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender; Office of

the Federal Public Defender, Tucson, Arizona; for

Petitioner-Appellant.

Julie Ann Done (argued), Assistant Attorney General; Lacey

Stover Gard, Chief Counsel; Mark Brnovich, Attorney

General; Office of the Attorney General, Phoenix, Arizona;

for Respondent-Appellee.

MARTINEZ V. RYAN 5

OPINION

M. SMITH, Circuit Judge:

After being pulled over for speeding in Payson, Arizona,

Ernesto Martinez fatally shot Arizona Department of Public

Safety Officer Robert Martin. A jury convicted Martinez of,

among other crimes, first-degree murder. He was sentenced

to death.

Martinez appeals the district court’s denial of his petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

We affirm. We also deny Martinez’s motion to stay the

appeal and decline to remand the case for consideration of

another Brady claim.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Murder of Officer Martin

In August 1995, Martinez stole a blue Monte Carlo and

used it to drive from California to Arizona. Martinez met

with his friend, Oscar Fryer, in Globe, Arizona “shortly

before the [murder] of” Officer Martin. 1

Fryer and Martinez spoke in Martinez’s car for about

thirty minutes. Fryer asked Martinez where he had been;

Martinez responded that he had been in California. Fryer

asked Martinez if he was still on probation; Martinez

responded that he was, and that he had a warrant out for his

1

Oscar Fryer did not remember exactly when he met with Martinez.

The sentencing court stated that Martinez met with Fryer “three days

before the murder,” but nothing in the record supports that claim.

6 MARTINEZ V. RYAN

arrest. Martinez told Fryer that he had come to Arizona to

visit friends and family.

While in the car with Fryer, Martinez removed a .38

caliber handgun with black tape wrapped around the handle

from underneath his shirt and showed it to Fryer. Fryer

asked Martinez why he had the gun; Martinez responded that

it was “[f]or protection and if shit happens.”

As Martinez was showing the gun to Fryer, they spotted

a police officer in the area. Fryer asked Martinez what he

would do if he was stopped by the police. Martinez

responded that “he wasn’t going back to jail.”

Following that conversation, Martinez drove from Globe

to Payson on a stretch of State Route 87—better known as

the Beeline Highway. Several witnesses testified to having

seen Martinez and his car around Payson that morning.

Susan and Steve Ball were among those witnesses.

Martinez tailgated them on the Beeline Highway “for a long

time” before passing their car “very quickly on the left-hand

side.” Shortly after that, the Balls saw Martinez’s car pulled

over to the side of the road, with a police car stopped behind

him and a police officer standing outside the driver’s side

door. As they drove by, they said to each other that it was

“good” that the driver “got the speeding ticket.”

But shortly after the Balls saw Martinez’s car pulled

over, “the same blue car passe[d] [them] on the left-hand

side going very quickly.” The couple found it “very strange”

because “there was no time [for the driver] to have gotten a

speeding ticket.” When Martinez’s car ran a red light, the

Balls knew that “[s]omething [was] going on.”

MARTINEZ V. RYAN 7

The Balls were suspicious for good reason. After being

pulled over for speeding by Officer Martin, and after the

Balls had passed Martinez’s car, Martinez shot Officer

Martin four times with a .38 caliber handgun—the same gun

he had shown Fryer days earlier. The bullets struck Officer

Martin’s right hand, neck, back, and head. The back and

head wounds were fatal.

After shooting Officer Martin, Martinez stole Officer

Martin’s .9mm Sig Sauer service weapon and continued

driving down the Beeline Highway. The Balls wrote down

Martinez’s license plate number when they spotted his car

again. 2

Martinez was arrested in Indio, California the day after

the murder of Officer Martin. Hours after his arrest,

Martinez called Mario Hernandez, a friend. After

Hernandez passed the phone to his brother, Eric Moreno,

Martinez laughingly told Moreno that “he got busted for

blasting a jura”—a slang term in Spanish for a police officer.

II. Conviction

Martinez was charged with one count of first-degree

murder, two counts of theft, and two counts of misconduct

involving weapons. Judge Jeffrey Hotham of the Superior

Court in Maricopa County, Arizona presided over the guilt

phase of Martinez’s trial. The jury returned a verdict of

guilty on all accounts.

2

Hours after murdering Officer Martin, Martinez robbed a

convenience store in Blythe, California, and fatally shot the store clerk.

Martinez’s convictions and sentences for that robbery and murder,

however, are not before us.

8 MARTINEZ V. RYAN

III. Sentencing and Direct Appeal

Before sentencing, Martinez filed a motion for change of

judge for cause. Another judge—Judge Ronald Reinstein,

the presiding judge of the Criminal Division—heard the

motion. Martinez argued that recusal was warranted because

Judge Hotham’s bailiff was friends with Officer Martin’s

widow.

Judge Reinstein granted the motion. He stated that

Martinez had demonstrated no prejudice resulting from

Judge Hotham presiding over his case. Because “death is

different,” however, Judge Reinstein concluded that “the

better course to follow for all concerned is to assign another

judge to the sentencing.”

Judge Christopher Skelly, the sentencing judge, imposed

a sentence of death. Martinez’s convictions and sentence

were affirmed by the Arizona Supreme Court on direct

appeal.

IV. State Postconviction Review

Martinez filed a post-conviction review (PCR) petition

challenging his conviction and sentence. Judge Hotham,

who had been assigned the PCR petition, denied it. The

Arizona Supreme Court denied discretionary review.

V. Federal Habeas Corpus Proceedings

Martinez filed a federal habeas petition in the district

court. The district court denied the petition. The court also

denied Martinez’s motion to alter or amend judgment and to

expand the certificate of appealability (COA). Martinez

filed a notice of appeal.

MARTINEZ V. RYAN 9

After completion of appellate briefing, Martinez filed

several motions, requesting that we: (1) stay the appeal and

remand to the district court on three claims based on our

decision in Martinez v. Schriro, 623 F.3d 731 (9th Cir.

2010); (2) stay the appeal and remand to the district court

pursuant to Townsend v. Sain, 372 U.S. 293 (1963), and

Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010); (3) stay

the appeal and remand to the district court based on Martinez

v. Ryan, 566 U.S. 1 (2012); and (4) grant leave to supplement

his Townsend/Quezada motion.

We granted Martinez’s motion to remand pursuant to

Martinez v. Ryan. We also granted Martinez’s motion to

remand pursuant to Townsend/Quezada, construing it as “a

motion for leave to file in the district court a renewed request

for indication whether the district court would consider a

rule 60(b) motion for reconsideration of Claim 4 and for

consideration of a possible Brady-Napue claim in light of

newly discovered evidence.” Accordingly, we stayed

appellate proceedings.

On remand, the district court declined Martinez’s

invitation to entertain a Rule 60(b) motion. The court also

denied his Confrontation Clause and ineffective assistance

of counsel (IAC) claims, and denied a COA as to those

claims.

Martinez filed a motion requesting that we expand the

COA. We granted a COA as to all claims we had remanded

and ordered the parties to file replacement briefs.

On appeal, Martinez raises eight certified claims and

requests that we issue a COA for another Brady claim.

Martinez also moves to stay the appeal and remand his case

for the district court to consider another Brady claim.

10 MARTINEZ V. RYAN

JURISDICTION AND STANDARD OF REVIEW

Because Martinez filed his petition for habeas corpus

after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,

110 Stat. 1214, we have jurisdiction over the certified claims

pursuant to 28 U.S.C. § 2253.

We review de novo a district court’s decision to deny a

habeas petition under 28 U.S.C. § 2254. Bean v. Calderon,

163 F.3d 1073, 1077 (9th Cir. 1998). Under AEDPA, we

may not grant habeas relief unless the state’s adjudication of

Martinez’s claim (1) “was contrary to . . . clearly established

Federal law, as determined by the Supreme Court,”

(2) “involved an unreasonable application of” such law, or

(3) “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

“In making this determination, we look to the last

reasoned state court decision to address the claim.” White v.

Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018)). The PCR court’s

decision is the last reasoned state court decision addressing

Martinez’s judicial bias claim, his IAC claim for his

counsel’s failure to raise the judicial bias claim in state court,

and his claim that the court’s jury instructions were

erroneous.

ANALYSIS

I. Judicial Bias

Martinez’s judicial bias claim stems from the

relationship between Ron Mills, Judge Hotham’s bailiff, and

Sandy Martin, Officer Martin’s widow. When the parties

MARTINEZ V. RYAN 11

learned of that relationship before trial, Martinez asked the

court to replace Mills. The court held a hearing to consider

that motion.

At the hearing, Mills testified that he had been Judge

Hotham’s bailiff for five years. He said that he had known

Sandy Martin for over thirty years—from high school—and

kept “close contact” with her and her late husband since

then. Mills testified that he considered the Martins good

friends, but that he had not attended Officer Martin’s funeral.

Mills said that, at a pretrial hearing, he had gone up to

Sandy Martin and “asked her how she was doing and put

[his] arm around her, and . . . just expressed some

pleasantries.” Mills also testified, however, that he could

“complete [his] duties as a bailiff and not influence the jury

in any way” in Officer Martin’s case. He said he had taken

an oath “[t]o take care of the jury and not to divulge the

deliberations or the verdict.” He also testified that he would

have no contact with the victims in the view of the jury and

would “not [] in any fashion influence the jurors by way of

[his] personal feelings about a case.”

The court denied Martinez’s motion to replace Mills.

Judge Hotham reasoned that he had “the greatest confidence

in my bailiff, Mr. Mills,” that he had “specifically already

admonished him about his responsibilities,” and that he was

“confident that [Mills] is going to be able to [abide by

them].”

During the trial, the court excluded Mills from the

courtroom during a portion of an expert’s testimony. At a

recess (during which the jury was not present), Judge

Hotham explained to the parties that “due to defense

counsel’s concerns about my bailiff . . . I requested [him] not

to be present during the autopsy report of [the expert] so that

12 MARTINEZ V. RYAN

no one could ever later question that my bailiff reacted to the

gory photographs in any inappropriate manner and that that

would have some effect on the jury.”

Martinez argues that the PCR court erred in holding that

his judicial bias claim was procedurally defaulted. He

contends, in the alternative, that even if his judicial bias

claim is procedurally defaulted, he has demonstrated cause

and prejudice to overcome that default.

A. Independent and Adequate State Ground

Federal courts generally cannot review a habeas

petitioner’s claim if the “state court declined to address a

prisoner’s federal claim[] because the prisoner had failed to

meet a state procedural requirement.” Coleman v.

Thompson, 501 U.S. 722, 730 (1991). The procedural bar

on which the state court relies must be independent of federal

law and adequate to warrant preclusion of federal review.

See Harris v. Reed, 489 U.S. 255, 262 (1989).

The PCR court “explicitly impose[d] a procedural

default,” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), by

stating that Martinez “waived [his judicial bias claim] by

failing to appeal [it]” and citing Rule 32.2(a)(3) of the

Arizona Rules of Criminal Procedure. Martinez does not

dispute that Arizona’s preclusion rule is independent of

federal law. See Stewart v. Smith, 536 U.S. 856, 860 (2002)

(per curiam). Nor does he dispute that Arizona’s preclusion

rule is an adequate bar to federal review of a claim. See Ortiz

v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998), overruled on

other grounds by Martinez v. Ryan, 566 U.S. 1 (2012);

Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).

Instead, Martinez argues that Rule 32.2(a) was not

adequate because the PCR court misinterpreted the scope of

MARTINEZ V. RYAN 13

the rule. He contends that “Arizona’s preclusion rules

simply do not apply where there were insufficient facts on

the record to have raised the claim on direct appeal.”

Because “Martinez’s substantive judicial bias claim

depended on facts [outside] the record,” he argues that

Rule 32.2(a) did not require him to raise that claim on direct

appeal.

We lack jurisdiction to address that contention. See

Poland, 169 F.3d 573, 584 (9th Cir. 1999) (“Federal habeas

courts lack jurisdiction . . . to review state court applications

of state procedural rules.”); accord Johnson v. Foster,

786 F.3d 501, 508 (7th Cir. 2015) ( “[A] federal habeas court

is not the proper body to adjudicate whether a state court

correctly interpreted its own procedural rules, even if they

are the basis for a procedural default.”). And even if we did

have jurisdiction, Martinez’s argument fails because he was

aware of the facts underlying his judicial bias claim before

filing his direct appeal. Martinez conceded at oral argument

that he learned of the relationship between Mills and Sandy

Martin before trial. Indeed, Martinez cited that relationship

as the reason Judge Hotham could not be “completely free

of any improper emotion or bias” when he moved for a

change of judge before sentencing—which was before he

filed his direct appeal. Martinez was present during trial

when Judge Hotham told the parties that he had asked his

bailiff to remain outside the courtroom during Dr. Keen’s

testimony. These facts belie the suggestion that Martinez

could not have raised his judicial bias claim on direct appeal.

Rule 32.2(a) is independent of federal law and adequate

to warrant preclusion of federal review. Accordingly, we

may not review Martinez’s judicial bias claim unless he

establishes cause and prejudice.

14 MARTINEZ V. RYAN

B. Cause and Prejudice

There is a narrow exception to the general rule outlined

above if the habeas petitioner can “demonstrate cause for the

default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage

of justice.” Coleman, 501 U.S. at 750. Martinez presents

four arguments to establish cause for why he did not raise

his judicial bias claim on direct appeal. We reject all of

them.

Martinez’s first argument is part and parcel of an

argument we have already addressed: He contends that he

can establish cause because “Judge Hotham’s ongoing

failure to comply with his ethical dut[ies] . . . constituted

facts not reasonably available with which to ask for the

judge’s recusal at trial or to raise the claim on direct appeal.”

That argument falls short because, as we explain above,

Martinez knew of, and objected to, Judge Hotham’s alleged

biased conduct before he filed his direct appeal. He cannot

now claim ignorance.

Second, Martinez relies on a non-binding case, Porter v.

Singletary, 49 F.3d 1483 (11th Cir. 1995), for the

proposition that “a judge’s [breach] of the canons governing

judicial conduct constitutes ‘cause’ to excuse a procedural

default of a judicial bias claim in state court.” Porter,

however, does not support the weight that Martinez hoists on

it. There, the clerk of court submitted a declaration over a

decade after the defendant’s trial stating that “before or

during [the] trial,” the trial judge had said that “he would

send [the defendant] to the chair.” Porter, 49 F.3d at 1487

(quoting declaration). The court held that the defendant had

established cause because he could not reasonably have been

expected to discover the judge’s statements to the clerk of

MARTINEZ V. RYAN 15

court before he filed his direct appeal. Id. at 1489. Here, by

contrast, Martinez could have discovered—and did

discover—the evidence that underlies his judicial bias claim

before he filed his direct appeal. Unlike in Porter, Martinez

has identified no evidence, such as “specific [statements]

that the judge had a fixed predisposition to sentence this

particular defendant to death if he were convicted by the

jury,” id., that demonstrate Judge Hotham’s alleged bias or

impropriety. For these reasons, Porter’s reasoning does not

support Martinez’s argument for cause.

Third, Martinez argues that the ineffective assistance of

his PCR counsel establishes cause. That argument lacks

merit, however, because ineffective assistance of PCR

counsel can constitute cause only to overcome procedurally

defaulted claims of ineffective assistance of trial counsel.

See Martinez, 566 U.S. at 9; see also Trevino v. Thaler,

569 U.S. 413, 429 (2013). We have rejected, and reject

again, the argument that ineffective assistance of PCR

counsel can establish cause to overcome procedurally

defaulted claims of judicial bias. See Pizzuto v. Ramirez,

783 F.3d 1171, 1176–77 (9th Cir. 2015) (“[O]nly the

Supreme Court could expand the application of Martinez to

other areas.”).

Martinez’s fourth and final argument leapfrogs over the

cause and prejudice analysis to reach the merits of his

judicial bias claim. He contends that Judge Hotham’s bias

constituted structural error that automatically entitles him to

habeas relief. But that argument misses the mark because

we cannot reach the merits of Martinez’s judicial bias claim

unless he demonstrates cause and prejudice to overcome the

procedural default of that claim. Because Martinez has

failed to do so, we do not address the merits of his claim.

16 MARTINEZ V. RYAN

Martinez fails to demonstrate cause to overcome the

procedural default of his judicial bias claim, so we need not

address prejudice. We affirm the district court’s denial of

Martinez’s judicial bias claim.

II. Ineffective Assistance of Counsel (Judicial Bias)

Martinez argues that the PCR court unreasonably applied

clearly established federal law when it denied his IAC claim

based on trial counsel’s failure to move to disqualify Judge

Hotham for judicial bias. He also contends that his appellate

counsel was ineffective for failing to raise the IAC claim on

direct appeal. We reject both arguments.

To prevail on an IAC claim, the defendant must show

both that counsel’s performance was deficient, and that he

suffered prejudice due to counsel’s deficiency. Strickland v.

Washington, 466 U.S. 668, 687 (1984). On federal habeas

review, “the question is not whether counsel’s actions were

reasonable[,]” but “whether there is any reasonable

argument that counsel satisfied Strickland’s deferential

standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011).

The Supreme Court has described this standard of review as

“doubly” deferential. Harrington, 562 U.S. at 105.

Martinez’s trial counsel did not perform ineffectively by

not moving for Judge Hotham’s recusal. Martinez’s claim

that Judge Hotham was biased lacks merit, and the “[f]ailure

to raise a meritless argument does not constitute ineffective

assistance.” Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir.

1985).

A judicial bias claim requires facts sufficient to create

actual impropriety or an appearance of impropriety.

Greenway v. Schriro, 653 F.3d 790, 806 (9th Cir. 2011).

Martinez does not point to anything in the record that

MARTINEZ V. RYAN 17

demonstrates actual impropriety by Judge Hotham. He

contends that Judge Hotham’s bailiff’s relationship with

Officer Martin’s widow created an appearance of

impropriety, but that argument is not supported by

precedent. When asked at oral argument for a case in which

a bailiff’s relationship to the victim’s family was found to

have created an appearance of impropriety, Martinez could

not provide an answer. The Supreme Court, for its part, has

recognized an appearance of impropriety in only a few cases

in which the judge had a direct pecuniary interest in the case,

was involved in a controversy with a litigant, or was part of

the accusatory process. See, e.g., Mayberry v. Pennsylvania,

400 U.S. 455, 465–66 (1971) (judge whom the defendant

had insulted presided over contempt proceedings); In re

Murchison, 349 U.S. 133, 137 (1955) (judge acted as both

the grand jury and the trier of the accused); Tumey v. Ohio,

273 U.S. 510, 532–34 (1927) (judge profited from every

defendant he convicted). None of those circumstances

existed here.

At bottom, Martinez’s judicial bias claim is based on

unfounded speculation. He contends that Judge Hotham’s

decision to remove his bailiff from the courtroom during an

expert witness’s testimony “was merely the first public

manifestation as to how deep his bailiff’s feelings ran and

the judge’s sympathy for his bailiff and his concern that the

bailiff’s feelings might spill over inappropriately.” But

Martinez’s fanciful theory of bias cannot “overcome [the]

presumption of honesty and integrity in those serving as

adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 (1975).

As Judge Hotham explained to the parties during trial, he

asked Mills to remain outside the courtroom during an

expert’s testimony solely to prevent any later complaint that

Mills “reacted to the gory photographs in any inappropriate

manner.”

18 MARTINEZ V. RYAN

Because Martinez’s judicial bias claim lacks merit, his

trial counsel did not perform deficiently by not moving for

Judge Hotham’s recusal. See Boag, 769 F.2d at 1344.

Martinez’s claim that his appellate counsel deficiently

performed likewise fails, for “appellate counsel’s failure to

raise issues on direct appeal does not constitute ineffective

assistance when appeal would not have provided grounds for

reversal.” Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir.

2001). We therefore affirm the district court’s denial of

Martinez’s IAC claim.

III. Oscar Fryer Brady Claim

Before the district court, Martinez argued for the first

time that the prosecution violated Brady v. Maryland by

failing to disclose impeachment evidence about Fryer, a

witness for the prosecution. 373 U.S. 83 (1963). The district

court denied the claim because Martinez did not establish

cause and prejudice to overcome the procedural default of

his Brady claim. We agree.

Martinez argues that the prosecution violated its Brady

obligations in two ways. First, he argues that the prosecution

failed to disclose that Fryer was using drugs when he

testified at Martinez’s trial. Second, he argues that the

prosecution withheld evidence of benefits they bestowed on

Fryer in exchange for his testimony against Martinez. He

contends that the withheld evidence establishes cause and

prejudice to overcome the procedural default of his Brady

claim.

Cause and prejudice necessary to overcome the default

of a Brady claim parallel the second and third elements of a

Brady violation. See Banks v. Dretke, 540 U.S. 668, 691

(2004). Those elements are “[(2)] that evidence must have

been suppressed by the State, either willfully or

MARTINEZ V. RYAN 19

inadvertently; and [(3)] prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 282 (1999). Thus, a

petitioner establishes cause when the reason for his failure to

bring a timely Brady claim is the government’s suppression

of the relevant evidence, and establishes prejudice when the

suppressed evidence is material for Brady purposes. Banks,

540 U.S. at 691. Evidence is material “when there is a

reasonable probability that, had the evidence been disclosed,

the result of the proceeding would have been different.”

Cone v. Bell, 556 U.S. 449, 470 (2009).

A. Fryer’s Illegal Drug Use

Martinez’s first argument—that the government

improperly withheld evidence of Fryer’s drug use—relies on

his allegation that Fryer was under the influence of

methamphetamine on the day he testified against Martinez.

That allegation stems from the following facts. On

February 5, 1998, Fryer was charged with illegal drug use in

Gila County, Arizona. On February 23, 1998, Fryer pleaded

guilty to using amphetamine or methamphetamine between

August 18–20 and between November 14–17, 1997. In a

presentence report update filed on March 13, 1998, a

probation officer wrote that Fryer “stated that he ha[d] been

addicted to methamphetamine for at least the past 6 months.

He got to where he was using up to 4 grams of

methamphetamine a day.” That statement, Martinez argues,

demonstrates that Fryer was using methamphetamine on

September 9, 1997—when Fryer testified against Martinez.

We acknowledge that evidence that a witness—

especially one as critical to the prosecution’s case as was

Fryer—“was using drugs during the trial would reflect on his

competence and credibility as a witness.” Benn v. Lambert,

283 F.3d 1040, 1056 (9th Cir. 2002). But Martinez’s Brady

claim fails because he does not demonstrate that the

20 MARTINEZ V. RYAN

prosecution knew, or had a duty to know, of Fryer’s drug use

or his drug convictions before the end of Martinez’s trial.

Brady claims apply in situations that “involve[] the

discovery, after trial of information which had been known

to the prosecution but unknown to the defense.” United

States v. Agurs, 427 U.S. 97, 103 (1976) (emphasis added).

If the prosecution does not discover, or does not have a duty

to discover, certain evidence until after the trial ends, then

there can be no Brady claim against it even if exculpatory

evidence later surfaces. Several circuits have adopted this

commonsense conclusion. See, e.g., United States v.

Barroso, 719 F. App’x 936, 941 (11th Cir. 2018) (no Brady

violation when “there is no evidence the government

possessed that information prior to trial, much less

suppressed it”); United States v. Edwards, No. 97-5113,

1998 WL 172617, at *2 (10th Cir. Apr. 14, 1998) (“The

government’s obligation under Brady cannot apply to

evidence not in existence at the time of the criminal

proceeding.”); United States v. Dimas, 3 F.3d 1015, 1019 n.3

(7th Cir. 1993) (“[L]ater developments in the investigation,

if any, are irrelevant because the question is whether the

result would have changed if the prosecutors disclosed the

evidence at the time [of trial], not whether the outcome

would differ if the case were tried today.”).

We agree. Martinez’s trial ended on September 26,

1997, and Fryer was not charged with drug use until

February 5, 1998. Even assuming Maricopa County

prosecutors had a duty to discover the charges brought

against Fryer by Gila County, that duty did not arise until

after Martinez’s trial. Martinez identifies nothing else in the

record that suggests the prosecution knew of Fryer’s alleged

drug use before the end of Martinez’s trial. Because the

prosecution does not have an obligation under Brady to

MARTINEZ V. RYAN 21

disclose exculpatory evidence it discovers after trial,

Martinez fails to establish cause.

B. Benefits Bestowed on Fryer

Martinez also alleges that the prosecution “withheld

evidence concerning benefits conferred on Fryer.” He

argues that, because Fryer testified against Martinez, he was

not charged for several crimes, including making a false

report to law enforcement, a domestic violence incident, and

possessing drug paraphernalia. Martinez also argues that

Fryer’s testimony caused the prosecution not to seek several

sentencing enhancements against Fryer.

Martinez’s contentions, however, are wholly

speculative. He does not identify any evidence that shows

Fryer was not charged with crimes or that he was otherwise

treated favorably because of his testimony. Instead,

Martinez’s argument relies on the baseless theory that

“[k]eeping Fryer happy prior to Martinez’s capital

sentencing hearing was necessary to prevent any possibility

Fryer might recant his trial testimony.” We require more to

establish a Brady violation. See, e.g., Benn, 283 F.3d

at 1057–58 (evidence that the prosecution’s key witness was

released from jail during the defendant’s trial when he called

the prosecutor); Singh v. Prunty, 142 F.3d 1157, 1162 (9th

Cir. 1998) (evidence of an agreement to provide benefits to

witness).

The only evidence of an agreement that Martinez

identifies is Fryer’s 1997 plea agreement, which required

him “to cooperate with [the] [Maricopa] county attorney’s

office in the prosecution of [Martinez’s] case.” That plea

agreement, however, was disclosed to Martinez and

introduced at his trial. Indeed, Martinez cross-examined

Fryer about the plea agreement and used it to impeach his

22 MARTINEZ V. RYAN

testimony. That evidence, therefore, cannot support a Brady

violation.

Because Martinez has failed to demonstrate that the

prosecution withheld any evidence of benefits conferred on

Fryer in exchange for his testimony against Martinez, he

fails to establish cause to overcome the procedural default of

his Brady claim. Accordingly, we affirm the district court’s

denial of that claim.

IV. Rule 60(b) Motion

After the district court denied Martinez’s habeas petition

and his motion to alter or amend the judgment, but before

Martinez filed his opening brief in this court, Martinez filed

a motion styled “request for indication whether [the] district

court would consider a rule 60(b) motion.” The district court

denied that motion. After we later remanded the case,

Martinez filed a renewed request for indication of whether

the district court would consider a Rule 60(b) motion for

reconsideration. The court denied that motion, and Martinez

appeals.

We lack jurisdiction to review the district court’s denial

of Martinez’s motion. Our decision in Defenders of Wildlife

v. Bernal, 204 F.3d 920 (9th Cir. 2000), is controlling.

There, we stated:

While this appeal was pending Defenders

filed a motion under Federal Rule of Civil

Procedure 60(b) . . . . On September 23,

1998, the district court issued an order

declining to entertain or grant the Rule 60(b)

Motion. A district court order declining to

entertain or grant a Rule 60(b) Motion is a

procedural ruling and not a final

MARTINEZ V. RYAN 23

determination on the merits. Because there is

no final judgment on the merits, the

underlying issues raised by the 60(b) Motion

are not reviewable on appeal.

Bernal, 204 F.3d at 930 (citation omitted).

That is precisely what happened here. The district court

declined to consider Martinez’s Rule 60(b) motion. Because

that order was a procedural ruling, it is not reviewable on

appeal. See Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir.

1984) (“[I]f the district court’s order is construed as a denial

of Scott’s request to ‘entertain’ the motion to vacate, that

denial is interlocutory in nature and not appealable.”). As a

result, we dismiss Martinez’s claim appealing the denial of

his request to consider a Rule 60(b) motion.

V. Jury Instruction on Premeditation

Martinez contends that the court erred in instructing the

jury about what the government needed to establish to

demonstrate that Martinez committed first-degree murder.

In reading the instructions, the court stated, in relevant part:

The crime of first degree murder requires

proof of the following[:] . . . number three,

the defendant acted with premeditation.

“Premeditation” means that the defendant’s

intention or knowledge existed before the

killing long enough to permit reflection;

however, the reflection differs from the intent

or knowledge that conduct will cause death.

It may be as instantaneous as successive

thoughts in the mind, but it must be actual

reflection, and it may be actual reflection, and

it may be proved by direct or [circumstantial]

24 MARTINEZ V. RYAN

evidence. It is this period of reflection

regardless of its length which distinguishes

first degree murder from intentional or

knowing second degree murder. An act is not

done with premeditation if it is the instant

effect of a sudden quarrel or heat of passion.

Martinez contends that the instruction was flawed in two

ways. First, he argues that the instruction was erroneous

under Arizona law because it did not require the jury to find

that Martinez actually reflected before murdering Officer

Martin. Second, he argues that the court’s oral instruction

that premeditation “must be actual reflection, and it may be

actual reflection” was an “ambivalent statement [that]

permitted Martinez’s jury to find the element of

premeditation on less than proof beyond a reasonable

doubt.” We reject both arguments.

When a challenge to jury instructions comes before us in

a habeas petition, “[t]he only question . . . is ‘whether the

ailing instruction by itself so infected the entire trial that the

resulting conviction violates due process.’” Estelle v.

McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v.

Naughten, 414 U.S. 141, 147 (1973)). “[T]he instruction . . .

must be considered in the context of the instructions as a

whole and the trial record.” Id. “If the charge as a whole is

ambiguous, the question is whether there is a ‘reasonable

likelihood that the jury has applied the challenged instruction

in a way that violates the Constitution.’” Middleton v.

McNeil, 541 U.S. 433, 437 (2004) (per curiam) (quoting

Estelle, 502 U.S. at 72). A “reasonable likelihood” is lower

than “more likely than not” but higher than a mere

“possibility.” See Boyde v. California, 494 U.S. 370, 380

(1990).

MARTINEZ V. RYAN 25

Martinez relies heavily on State v. Ramirez to support his

first argument, but the facts in that case are distinct.

945 P.2d 376 (Ariz. Ct. App. 1997). There, the

premeditation instruction stated: “[T]he time for reflection

must be longer than the time required merely to form the

knowledge that conduct will cause death. It may be as

instantaneous as successive thoughts in the mind, and it may

be proven by circumstantial evidence.” Id. at 378. The court

held that the instruction erred in two ways. First, it “fail[ed]

to be clear that premeditation requires actual reflection.” Id.

Second, the instruction stated that the time for reflection can

be “‘instantaneous as successive thoughts in the mind’ but

provided no balancing language to the effect that an act

cannot be both impulsive and premeditated.” Id.

Neither of those errors was present in the jury

instructions in this case. Unlike in Ramirez, the court

specifically instructed that premeditation requires “actual

reflection.” And whereas the instruction in Ramirez did not

provide balancing language stating that an act cannot be

impulsive and premeditated, the instruction here did provide

such language: It stated that “[a]n act is not done with

premeditation if it is the instant effect of a sudden quarrel or

heat of passion.” That statement conveyed to the jury that

Martinez could not be found guilty of first-degree murder if

they believed he acted impulsively. Even if we assume that

the jury instructions were somehow erroneous, Martinez is

not entitled to relief, for he has not shown that the

premeditation instruction “so infected the entire trial that the

resulting conviction violate[d] due process.” Cupp, 414 U.S.

at 147.

Martinez’s second argument also falls short. He relies

on the fact that the court erroneously stated that the reflection

required for a finding of premeditation “may be actual

26 MARTINEZ V. RYAN

reflection” after saying that it “must be actual reflection”

when reading the instructions to the jury. Such an oral

hiccup, however, did not violate Martinez’s due process

rights. Before the court read the instructions, the bailiff

distributed copies of the jury instructions to each juror, and

the court told them that they could “read along.” The written

instructions correctly stated that the jury had to find that

Martinez reflected before murdering Officer Martin.

Considering the totality of the circumstances—the jury

possessed copies of the instructions, the court correctly read

the phrase in the instructions (before misreading it), and the

prosecution twice stated during closing arguments that

premeditation requires actual reflection—we conclude that

the court’s oral misstatement did not cause Martinez’s

conviction to violate due process. See Estelle, 502 U.S. at

72. We deny Martinez’s claim challenging the jury

instructions.

VI. Ineffective Assistance of Counsel (Failure to

Retain Pathologist)

In his federal habeas petition, Martinez argued for the

first time that his trial counsel was constitutionally deficient

by failing to retain an independent pathologist to impeach a

prosecution expert’s testimony. The district court denied his

claim because it was procedurally defaulted and Martinez

had not established prejudice to overcome the default.

At trial, Dr. Phillip Keen, the Maricopa County Chief

Medical Examiner, testified about the results of an autopsy

on Officer Martin. He told the jury that, of the shots to

Officer Martin’s hand, back, neck, and head, the shot to his

head was fired last and may have occurred when Officer

Martin was already lying on the ground.

MARTINEZ V. RYAN 27

Martinez argues that, had his counsel retained an

independent pathologist to impeach Dr. Keen’s testimony

about the sequence of shots, the prosecution’s theory of

premeditation would be undermined. Martinez concedes

that his IAC claim is procedurally defaulted, but contends

that he can overcome that procedural default under Martinez

v. Ryan.

In Martinez, the Supreme Court held that where a

petitioner fails to raise an IAC 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,’” and (2) “the default results from the

ineffective assistance of the prisoner’s counsel in the

collateral proceeding.” Davila v. Davis, 137 S. Ct. 2058,

2065 (2017) (quoting Martinez, 566 U.S. at 16–17). To

show that his claims are “substantial,” a petitioner must

demonstrate that they have “some merit.” Martinez,

566 U.S. at 14. The parties do not dispute that Arizona law

required Martinez to raise his IAC claim in a collateral

proceeding, so our analysis focuses on whether Martinez’s

PCR counsel was ineffective. Id. at 4. That necessarily

requires us to evaluate the strength of Martinez’s underlying

IAC claim. See Atwood v. Ryan, 870 F.3d 1033, 1060 (9th

Cir. 2017).

Martinez’s trial counsel was not ineffective because,

even if the retention of an expert would have undermined the

prosecution’s theory of premeditation, Martinez was not

prejudiced. There is not a reasonable probability that the

jury would have reached a different verdict had Martinez’s

counsel retained an independent pathologist. There was

28 MARTINEZ V. RYAN

significant evidence in the record supporting a finding that

Martinez acted with premeditation.

Fryer testified that, before the shooting, Martinez told

him he had a warrant out for his arrest. When Martinez

revealed a handgun from underneath his shirt, Fryer asked

Martinez what it was for, to which Martinez responded “for

protection and if shit happens.” When Fryer saw a police car

and asked Martinez what he would do if he was stopped by

the police, Martinez responded that “he wasn’t going back

to jail.” When he was pulled over by Officer Martin,

Martinez was driving a stolen vehicle—a fact which he did

not dispute during trial. These facts all support the

prosecution’s argument that Martinez planned to murder

Officer Martin before he shot him.

Moreover, Dr. Keen’s testimony was relatively weak

evidence of premeditation. The prosecution argued that his

testimony supported a finding that Martinez shot Officer

Martin “when he was down” as a “coup de grace.” But the

only portion of Dr. Keen’s testimony supporting that

assertion was his testimony that he believed Officer Martin’s

“head wound was last.” Dr. Keen qualified that testimony

by stating that it relied on hypothetical possibilities and

assumptions based on the evidence. The jury considered

those qualifications when assessing the reliability of Dr.

Keen’s testimony.

Martinez’s impeachment of Dr. Keen also underscores

our conclusion that Martinez did not suffer prejudice. Upon

questioning by Martinez, Dr. Keen conceded that the

opinions he expressed at trial conflicted with what he had

said during a pretrial interview, in which he stated that “the

head, hand, and neck could have been [shot] at any sequence

with the back being the last shot.” Dr. Keen also admitted

that he had previously concluded that Officer Martin was

MARTINEZ V. RYAN 29

standing when he was shot. Even without the testimony of

an opposing expert, therefore, the veracity and reliability of

Dr. Keen’s testimony was undermined.

Because of the limited value of Dr. Keen’s testimony in

the prosecution’s case for premeditation, and because of the

significant other evidence presented at trial supporting

premeditation, Martinez’s trial counsel’s failure to retain an

independent expert did not prejudice Martinez. Martinez

therefore cannot establish that his PCR counsel was

ineffective for failing to raise the IAC claim. Because

Martinez fails to overcome the procedural default of his IAC

claim, we affirm the district court’s denial of that claim.

VII. Ineffective Assistance of Counsel (Failure to

Rebut the Prosecution’s Expert During

Sentencing)

Martinez also argued, again for the first time in his

habeas petition, that his trial counsel was deficient for a

different reason: He failed to recall an expert at sentencing

to rebut testimony by another expert retained by the

prosecution. He argues that he can establish cause and

prejudice under Martinez v. Ryan to overcome the

procedural default of this claim.

At sentencing, Dr. Susan Parrish, an expert psychologist

retained by Martinez, testified that Martinez’s shooting of

Officer Martin resulted from Martinez’s post-traumatic

stress disorder (PTSD). Dr. Parrish testified that Martinez

demonstrated characteristics commonly “associated with

someone who comes from an environment where there was

a prolonged exposure to violence,” “[i]mpulsivity or failure

to plan,” “[i]rritability and aggressiveness,” and “[r]eckless

disregard for [the] safety of self and others.” Based on her

diagnosis, Dr. Parrish testified that she believed Martinez’s

30 MARTINEZ V. RYAN

actions on the day of the shooting were “really more

reactive.” She testified that Martinez “felt he had no choice”

but to shoot Officer Martin.

In rebuttal, the prosecution presented testimony by Dr.

Michael Bayless, another expert psychologist. Dr. Bayless

disagreed with Dr. Parrish’s diagnosis of PTSD. He testified

that Martinez suffered from antisocial personality disorder,

and thus “understands the rules and regulations. He just

chooses not to abide by them.” Dr. Bayless testified that

Martinez killed Officer Martin “because he didn’t want to go

back to prison.”

Martinez argues that, had his counsel recalled Dr. Parrish

to rebut Dr. Bayless’s testimony, Dr. Parrish could have

established that Martinez was unable to appreciate the

wrongfulness of his conduct or conform his conduct to the

requirements of the law. That evidence would create “a

reasonable probability the Arizona Supreme Court would

have found [a] statutory mitigating factor [pursuant to

A.R.S. § 13-703(G)(1)] and imposed a life sentence,” rather

than affirm Martinez’s death sentence.

Because of the overwhelming evidence introduced at

sentencing that Martinez could appreciate the wrongfulness

of his conduct, we conclude that Martinez does not establish

prejudice, and thus that he cannot overcome the procedural

default of his IAC claim. Even if Martinez’s trial counsel

had recalled Dr. Parrish to refute Dr. Bayless’s testimony,

the sentencing court likely would have concluded that

Martinez had not established the statutory mitigating

circumstance in § 13-703(G)(1).

When sentencing Martinez, the court recognized the

inconsistency between the testimony of Dr. Parrish and Dr.

Bayless. The court determined, however, that “[Martinez]

MARTINEZ V. RYAN 31

killed Officer Martin because he did not want to return to

prison as a result of a probation violation warrant.” The

court recounted several pieces of evidence that supported

such a finding: Martinez told Fryer that he had a warrant out

for his arrest and would not go back to prison; Martinez told

Fryer he had a gun in case something happened; Martinez

took Officer Martin’s service weapon after murdering him;

and Martinez committed another murder shortly after

murdering Officer Martin. As the court explained, “[t]hese

choices belie the notion that the homicide of Officer Martin

was the result of being in a dissociative state or a mere

impulsive reaction.”

Moreover, Dr. Parrish’s rebuttal testimony would not

necessarily have established the statutory mitigating

circumstance, and thus would not have entitled Martinez to

relief. Dr. Parrish’s testimony focused on why Martinez’s

murder of Officer Martin resulted from PTSD. But in

Arizona, “a mere character or personality disorder alone is

insufficient to constitute a mitigating circumstance.” State

v. Brewer, 826 P.2d 783, 802 (Ariz. 1992); see also State v.

Clabourne, 983 P.2d 748, 754 (Ariz. 1999) (“In every case

in which we have found the (G)(1) factor, the mental illness

was ‘not only a substantial mitigating factor . . . but a major

contributing cause of [the defendant’s] conduct that was

“sufficiently substantial” to outweigh the aggravating

factors present.’” (alterations in original) (quoting State v.

Jimenez, 799 P.2d 785, 800 (Ariz. 1990))). Accordingly, the

other evidence in the record was sufficient to support the

sentencing court’s conclusion that Martinez failed to

establish the statutory mitigating circumstance in § 13-

703(G)(1).

Because of the significant evidence introduced at

sentencing establishing that Martinez could appreciate the

32 MARTINEZ V. RYAN

wrongfulness of his conduct and conform his conduct to the

requirements of the law, Martinez was not prejudiced by his

counsel’s failure to recall an expert to rebut the prosecution’s

witness. Martinez’s PCR counsel was therefore not

ineffective for failing to raise that claim. Because Martinez

cannot overcome the procedural default of his IAC claim, we

affirm the district court’s denial of that claim.

VIII. Application of the Causal Nexus Test During

Sentencing

Martinez next argues that the Arizona State Court

applied a “causal nexus” test, in violation of Eddings v.

Oklahoma, 455 U.S. 104 (1982), under which a

circumstance is not mitigating unless causally connected to

the commission of the crime. He contends that the court’s

failure to consider his family history as a mitigating

circumstance was an unreasonable application of clearly

established federal law.

The Supreme Court has held that “a State [cannot],

consistent with the Eighth and Fourteenth Amendments,

prevent the sentencer from considering and giving effect to

evidence relevant to the defendant’s background or character

or to the circumstances of the offense that mitigate against

imposing the death penalty.” Penry v. Lynaugh, 492 U.S.

302, 318 (1989), abrogated on other grounds by Atkins v.

Virginia, 536 U.S. 304 (2002); see also Eddings, 455 U.S.

at 113; Lockett v. Ohio, 438 U.S. 586, 606–08 (1978). “[I]t

is not enough simply to allow the defendant to present

mitigating evidence to the sentencer. The sentencer must

also be able to consider and give effect to that evidence in

imposing sentence.” Penry, 492 U.S. at 319.

As a result, a sentencing court may not treat mitigating

evidence of a defendant’s background or character as

MARTINEZ V. RYAN 33

“irrelevant or nonmitigating as a matter of law” just because

it lacks a causal connection to the crime. Towery v. Ryan,

673 F.3d 933, 946 (9th Cir. 2012), overruled on other

grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015)

(en banc). The sentencer may, however, consider “causal

nexus . . . as a factor in determining the weight or

significance of mitigating evidence.” Lopez v. Ryan,

630 F.3d 1198, 1204 (9th Cir. 2011), overruled on other

grounds by McKinney, 813 F.3d 798. “[T]he use of the

nexus test in this manner is not unconstitutional because

state courts are free to assess the weight to be given to

particular mitigating evidence.” Schad v. Ryan, 671 F.3d

708, 723 (9th Cir. 2011), overruled on other grounds by

McKinney, 813 F.3d 798. As the Court explained in

Eddings:

Just as the State may not by statute preclude

the sentencer from considering any

mitigating factor, neither may the sentencer

refuse to consider, as a matter of law, any

relevant mitigating evidence. . . . The

sentencer, and the Court of Criminal Appeals

on review, may determine the weight to be

given relevant mitigating evidence. But they

may not give it no weight by excluding such

evidence from their consideration.

455 U.S. at 113–15.

These principles bear on Martinez’s case. In McKinney,

we held that “[f]or a little over fifteen years [beginning in the

late 1980s], the Arizona Supreme Court routinely articulated

34 MARTINEZ V. RYAN

and insisted on [an] unconstitutional causal nexus test.”3

813 F.3d at 815. Under this test, “[a]s a matter of law, a

difficult family background or mental condition did not

qualify as a nonstatutory mitigating factor unless it had a

causal effect on the defendant’s behavior in committing the

crime at issue.” Id. at 816. The Arizona Supreme Court

“finally abandoned its unconstitutional causal nexus test for

nonstatutory mitigation” in the mid-2000s. Id. at 817.

McKinney included a string cite of cases in which the

Arizona Supreme Court had applied its unconstitutional

causal nexus test, which included Martinez’s case. Id.

at 816.

Here, the Arizona Supreme Court stated:

The trial court found that Martinez’[s] family

background qualified as a non-statutory

mitigating factor, but did not give it

substantial weight . . .

Although Dr. Parrish testified that Martinez

adopted a “survival” state of mind due to his

violent upbringing, this did not affect his

conduct on August 15, 1995. There is simply

no nexus between Martinez’[s] family history

and his actions on the Beeline Highway. His

family history, though regrettable, is not

entitled to weight as a non-statutory

mitigating factor.

3

“We did not say, however, that [the Arizona Supreme Court]

always applied it.” Greenway v. Ryan, 866 F.3d 1094, 1095 (9th Cir.

2017) (per curiam).

MARTINEZ V. RYAN 35

The court’s analysis demonstrates that it applied an

unconstitutional causal nexus test to Martinez’s family

history. Because it concluded that there was “no nexus

between Martinez’[s] family history and his actions on the

Beeline Highway,” it granted it no weight. Under Eddings,

that is erroneous. See Penry, 492 U.S. at 318.

Having concluded that AEDPA is satisfied, we review

Martinez’s claim de novo. See Frantz v. Hazey, 533 F.3d

724, 735 (9th Cir. 2008) (en banc). Martinez has established

a Constitutional violation, so our analysis focuses on

whether Martinez was prejudiced. See Poyson v. Ryan,

879 F.3d 875, 891 (9th Cir. 2018).

Martinez can establish prejudice if the court’s error “had

[a] substantial and injurious effect or influence” on the

challenged decision. See Brecht v. Abrahamson, 507 U.S.

619, 631 (1993) (quoting Kotteakos v. United States,

328 U.S. 750, 776 (1946)). He is not entitled to relief,

however, unless he can establish that the error “resulted in

‘actual prejudice.’” Davis v. Ayala, 135 S. Ct. 2187, 2197

(2015) (quoting Brecht, 507 U.S. at 637); see also

McKinney, 813 F.3d at 822.

We determine that Martinez was not prejudiced by the

court’s constitutional error. Several considerations lead us

to that conclusion.

First, the Arizona Supreme Court considered Martinez’s

family history in its analysis of another mitigating factor:

impaired capacity. In that section of its opinion, the court

recounted Martinez’s “violent childhood,” which included

“Martinez and his sister, Julia, both suffer[ing] physical

abuse at the hands of their father. . . . To protect himself,

Martinez began sleeping with a knife.” The court also

recounted Dr. Parrish’s testimony that, on the day he was

36 MARTINEZ V. RYAN

stopped by Officer Martin, “Martinez probably thought, ‘I’m

not going back to prison. This man intends to put me in

prison. It’s me or him [sic].’” Accordingly, the court appears

to have considered the family history evidence Martinez

argues they should have considered—albeit in the context of

a different mitigating circumstance—and decided not to

assign that family history great weight. Such a conclusion

did not violate the Constitution. See Hedlund v. Ryan,

854 F.3d 557, 587 n.23 (9th Cir. 2017) (stating that, under

Eddings, “a court is free to assign less weight to mitigating

factors that did not influence a defendant’s conduct at the

time of the crime”); Styers v. Ryan, 811 F.3d 292, 298–99

(9th Cir. 2015) (holding that the Arizona Supreme Court did

not violate Eddings in assigning little weight to the

petitioner’s PTSD when it lacked a causal connection to the

crime).

Second, although we review the Arizona Supreme

Court’s decision, the sentencing court’s analysis is

instructive. 4 There, the court “considered family history,”

but concluded that it should “not [be] given substantial

weight.” The sentencing court reasoned that “the domestic

violence and parental drug abuse ended 7 or 8 years before

the murder when [Martinez’s] father became very religious

. . . . [Martinez’s] mother testified that the parental drug

4

The last reasoned state court decision addressing Martinez’s causal

nexus claim is the Arizona Supreme Court’s decision affirming

Martinez’s death sentence on direct appeal. See Crittenden v. Ayers,

624 F.3d 943, 950 (9th Cir. 2010). “We look to the decision of the

sentencing judge only to the degree it was adopted or substantially

incorporated by the Arizona Supreme Court.” McKinney, 813 F.3d

at 819. Because the Arizona Supreme Court reviewed Martinez’s

sentence de novo and does not appear to have adopted the sentencing

judge’s reasoning, we review only the Arizona Supreme Court’s

decision.

MARTINEZ V. RYAN 37

abuse was kept from the children and that it ended when they

moved to Globe.” This analysis illustrates how an objective

factfinder would have ruled had the Arizona Supreme Court

not committed an Eddings error. See Kayer v. Ryan,

923 F.3d 692, 724 (9th Cir. 2019). Because Martinez’s

violent family history was far removed from the murder, we

conclude that the court would have accorded it little weight

as a mitigating circumstance.

Third, this case is distinct from other cases in which we

have found prejudice. In Poyson v. Ryan, for example, the

Arizona Supreme Court “improperly disregarded evidence

concern[ing] the defendant’s traumatic childhood and

mental health issues.” 879 F.3d at 892. We found that

evidence—that the defendant had “suffered a number of

physical and developmental problems as a child,” was

“involuntarily intoxicated as a young child,” was “lured to

the home of a childhood friend and violently raped,” and had

survived the suicide of “the one true father figure” he had—

“particularly compelling.” Id. at 892–93. The evidence of

Martinez’s family history, although unfortunate, is not so

grim. Martinez does not claim to have suffered from mental

health issues and endured significantly less frequent and

severe physical abuse as a child.

Our decision in Spreitz v. Ryan is also distinct. 916 F.3d

1262 (9th Cir. 2019). There, we found prejudice when the

court disregarded “evidence regarding [the defendant’s]

history of alcohol and substance abuse—spanning nearly

half his life by the time when he committed the crime at the

age twenty-two.” Id. at 1279. Critically, we stated that the

mitigating evidence was “linked to his emotional

immaturity, another nonstatutory mitigating circumstance

recognized by the Arizona Supreme Court but described as

not ‘significant.’” Id. at 1280 (quoting State v. Spreitz,

38 MARTINEZ V. RYAN

945 P.2d 1260, 1281 (Ariz. 1997)). The court’s erroneous

application of the unconstitutional nexus standard therefore

“minimized the value of other mitigating evidence as well.”

Id. at 1281.

Not so here. As we have already noted, the court

recounted and considered Martinez’s family when

considering other mitigating factors. Martinez’s family

history bore no connection to his age, the other statutory

mitigating factor considered by the Arizona Supreme Court.

Unlike Spreitz, therefore, the Arizona Supreme Court was

not “left with a critical void in [Martinez’s] narrative”

because of its nexus rule; it considered Martinez’s family

history in other contexts and granted it little weight. Id.

at 1281.

We also note that this case involves an aggravating factor

absent from cases in which we have found Eddings error:

The murder of an on-duty peace officer. See A.R.S. § 13-

703(F)(10). That factor, as the sentencing court noted,

“carries significant weight. The unprovoked murder of a

peace officer, so the defendant can avoid his obligation

under the law, is really no less than a personal declaration of

war against a civilized society.” The substantial weight of

that aggravating factor leads us to believe that Martinez’s

family history, had it been considered a mitigating factor,

would not have affected his death sentence.

Because Martinez cannot demonstrate that the Eddings

error had a substantial and injurious effect on his sentence,

he cannot establish prejudice. Accordingly, Martinez is not

entitled to relief.

MARTINEZ V. RYAN 39

IX. Expansion of the Certificate of Appealability

Martinez asks us to issue a COA as to one Brady claim

that the district court declined to certify. We may not issue

a COA unless the applicant “make[s] a substantial showing

of the denial of a constitutional right, a demonstration that

. . . includes showing that reasonable jurists could debate

whether . . . the petition should have been resolved in a

different manner or that the issues presented were ‘adequate

to deserve encouragement to proceed further.’” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983)). Because Martinez’s

Brady claim relates to evidence of premeditation, and

because we conclude that overwhelming evidence supported

the prosecution’s theory of premeditation, we decline to

issue a COA.

X. Motion to Stay Appeal and Remand for

Consideration of Brady Claim

Having concluded that Martinez is not entitled to habeas

relief, we turn to his motion to remand. Martinez argues that

remand is warranted so the district court can consider “a red

[w]eekly [p]lanner belonging to, and annotated by, Mario

Hernandez, a prosecution witness at Martinez’s . . . trial.”

He contends that the planner, which Martinez discovered

after it was introduced into evidence during his separate

murder trial in California, demonstrates “that Hernandez

learned of Martinez’s arrest for the homicide of Officer

Martin from watching television news at 2:30 a.m. on

August 17, 1995 . . . rather than from a phone call Hernandez

purportedly answered from Martinez earlier that morning.”

Martinez argues that the planner would have impeached

Hernandez’s testimony that he answered a call from

Martinez earlier that morning in which Hernandez said he

“got busted for blasting a jura.” He concedes that “there was

40 MARTINEZ V. RYAN

little question at the Arizona trial as to whether Martinez was

responsible for the officer’s death,” and argues only that the

planner would have proven a lack of premeditation.

We decline to remand because, even if the prosecution

failed to disclose the planner to Martinez, the withheld

evidence did not prejudice Martinez. As we have concluded,

overwhelming evidence supported the prosecution’s

argument that Martinez acted with premeditation.

Other considerations also support our decision to deny

Martinez’s motion to remand. Martinez argues that

introduction of the planner would have demonstrated that he

did not call Hernandez after the murder, but Martinez

introduced other evidence at trial to support that same

argument. Martinez summarized that evidence during his

closing argument: “[T]here is a problem with what

[Hernandez and Moreno] claim[] to have heard Mr. Martinez

say in a telephone call.” Martinez told the jury that, although

he allegedly called Hernandez around 1:00 a.m., “[w]e know

from several witnesses that at 1:00 o’clock Mr. Martinez is

still at the Indio County jail, and he’s in an interview room

there somewhere.” He asked the jury “if [it] makes any

sense at all that [the police] would give [] Martinez a

telephone without any supervision at all . . . . isn’t it a

reasonable inference . . . that some officer would have

overheard what was being said?” Martinez also argued that

Moreno, who testified about the call during Martinez’s trial,

had “a motive to lie” and “a motive to want to hurt []

Martinez.” Admission of the journal may have helped

Martinez further undermine the evidence of his phone call,

but it wouldn’t have added much.

That is so because the journal is weak impeachment

evidence of the testimony that Martinez called Hernandez

after Officer Martin’s murder. Even if Hernandez’s journal

MARTINEZ V. RYAN 41

entry is accurate and he learned of Martinez’s arrest on the

television news at 2:30 a.m., that doesn’t necessarily mean

Martinez didn’t call him in the early morning hours after the

murder. Perhaps Hernandez was simply mistaken about the

time of the call—indeed, during trial, Hernandez testified

that he referred to Martinez’s arrest on television while

speaking to Martinez, suggesting that he found out about

Hernandez’s arrest from television. Or perhaps the journal

entry demonstrates that Hernandez saw Martinez’s arrest on

television after speaking to Martinez by phone. In short, the

value of the journal as impeachment evidence isn’t nearly as

probative as Martinez makes it out to be.

For these reasons, Martinez cannot establish that the

planner was material evidence. We decline to remand.

CONCLUSION

We AFFIRM the district court’s denial of a writ of

habeas corpus as to Martinez’s claims relating to his first-

degree murder conviction and death sentence and DISMISS

for lack of jurisdiction Martinez’s claim that the court erred

in denying his request to consider a Rule 60(b) motion. We

DECLINE to expand the COA. We also DENY Martinez’s

motion to stay the appeal and remand for consideration of

another Brady claim.