Opposition Brief — Ernesto Salgado Martinez, Petitioner v. David Shinn, Director, Arizona Department of Corrections

No. 19-7627

IN THE

SUPREME COURT OF THE UNITED STATES

ERNESTO SALGADO MARTINEZ,

PETITIONER,

ayy

DAVID SHINN, et al.,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

MARK BRNOVICH

ATTORNEY GENERAL

O.H. SKINNER

SOLICITOR GENERAL

LACEY STOVER GARD

CHIEF COUNSEL

ELIZABETH T. BINGERT

ASSISTANT ATTORNEY GENERAL

CAPITAL LITIGATION SECTION

(COUNSEL OF RECORD)

2005 N CENTRAL AVENUE

PHOENIX, ARIZONA 85004

CADOCKET@AZAG.GOV

TELEPHONE: (602) 542-4686

ATTORNEYS FOR RESPONDENTS

CAPITAL CASE

QUESTIONS PRESENTED FOR REVIEW!

1) Should this Court grant certiorari to review the Ninth Circuit’s

determinations that Martinez’s judicial bias claim was procedurally

defaulted and his trial and appellate counsel were not ineffective for not

raising a meritless claim?

2) Should this Court grant certiorari to review the Ninth Circuit’s fact-bound

decision to dismiss his claim appealing the denial of his request to consider

a Rule 60(b) motion, where Martinez seeks only to correct perceived casespecific errors by the Ninth Circuit?

3) Should this Court grant certiorari to determine whether the Ninth Circuit

was obligated to conduct a cumulative-effect analysis of Martinez’s alleged

Brady claims, where none of his claims meet the standard set forth in Kyles

v. Whitley?

1 For simplicity of analysis, Respondents have consolidated Petitioner’s first and second questions

presented.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ...wcsccccssscssvesocsresseeessonvostsoevesean nveveccsanansnees 1

TABLE OF AUTHORITIES wssuesticecsssevsssqvensveiseaareueeeanwensunaviwssreetstessasssncsnivesenteateses iii

INTRODUCTION wrssscssessesssacosnvaxenessesssnsonceunnsevenussanenissoneeanensosvseressoniesesavsevcaevessveaverssvees 1

STATEMENT OF THE CASS sesssesetveccssxscnsvens svssavassresovsnes sneasvesersnenorssevsevves esssnssccrves eaves 2

REASONS FOR DENYING THE WRIT . sscssssscavccesvsssossnvoncsexcasnssvavsssvssnsereavnsroacersoveaees 6

GONCLUSION wwesscesnssesenacnsenceamens mor ersnnanaensn emma manunmenmnnrese 20

ii

TABLE OF AUTHORITIES

Cases

Ackermann v. United States, 340 U.S. 193 (1950)

Boag v. Raines, 769 F.2d 1341 (Oth Cir, 1985) .cccccccsscssssesssssssssssessccsssssssesescssssvsneessseessesennesees

Brady v. Maryland, 373 U.S. 83 (1968) ..ccccccssssssssssssscessssneseesssneseescerssneeeeesssnnnennenseen

Butler v. McKellar, 494 U.S. 407 (1990) ...cccccssssssssssscssssessssessssssssssssssesesssessssvessssecessseesesesecesseessnss {

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997)....... suseaveseescsueasesscsesussucsusausauesneassaneesesneeseanes 2

Defenders of Wildlife v. Bernal, 204 F.3d 920 (9th Cir. 2000)... 15

Gonzalez v. Crosby, 545 U.S. 524 (2005) s.ss:ussununnmunnnnnmnnnnnennnaiinnnnnnn 13, 16

Greenway v. Schriro, 653 F.3d 790 (Oth Cir. 2011) iccccssssescsssssesessssessssssnseeseeseremeesieeesnnnn 10

Haines v. Liggett Group Inc., 975 F.2d 81 (8d Cir. 1992) ..cccsccsssssssssceessssnnneessecesssssneetes 12

In re Murchison, 349 U.S. 133 (1955) ..ssscscsssssssssseessssssssssscsssecsseccssescsssssssssscssssessssesssrssesssnsessenees 10

Jackson v. Virginia, 443 U.S. 307 (1979) wecccccssssssssssssssssssenscscsssnsnsesseceessnnneeseesssssnaneeseeeeeensnnneeess 2

Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2008) ..cccccssssccsssssesseseesnsnnmeeeesenssnsnneeseees 12

Kyles v. Whitley, 514 U.S. 419 (1995) woccccsssssssssssssnsssssssesssssssssssssnsseseecsessnnssessessennmeeeeete passim

Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387 (1928)... 1

Martinez v. Ryan, 566 U.S. 1 (2012) ...ccsccsssssssssssssssssesscssssesessssecssssesecsssneessssneeeerssneeeessnnnneessensees 5

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) wvssssssssccssssssessenmusssesseeeeseseesseesnenenssennan 10

Napue v. Illinois, 360 U.S. 264 (1959)... 14

Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010). 5, 14

Rippo v. Baker, 137 S. Ct. 905 (2017) ..cccccsssssssssssssnssessccsssssscsecsssnsseescecsssnssseeeeesnsssnssseeeeeesssnnness 11

Scott v. Younger, 739 F.2d 1464, (Oth Cir. 1984) w.ccccccsessssssssssesssccssssnsncscesssssceneesseecseesseneees 15

State v. Carver, 771 P.2d 1382 (Ariz. 1989) cecsscccscssssessssssecssssssssssssssssssssesssssssessssssseseesssseeeessees 12

State v. Martinez, 999 P.2d 795 (Ariz. 2000) vsscccsscsssssessssssessssvescsssssescssssessssssssssscssseesssssseesen 2,4

Strickland v. Washington, 466 U.S. 668 (1984)....cccscsssseeccssssseeeseeesssssneteeseeeessnnuneeeessneat 9

Thompson v. Calderon, 151 F.3d 918 (Qth Cir. 1998) ....ccccsssssssccsssssseesescessssssenseceesessesnneesees 16

Townsend v. Sain, 372 U.S. 298 1968) sseccsinceccnnnsnininaanriisceramaneinnimnrnanacand 5, 14

Tumey v. Ohio, 273 U.S. 510 (1927) .ccccsssssssssssesessesessssessesecssnseseecessnssnnesseetssnnnmneeseesensannnaeeee 10

United States v. Buenrostro, 638 F.3d 720 (Oth Cir. 2011) cccecccsssessssssessssssseesssssssecen 16,17

Wildman v. Johnson, 261 F.3d 832 (Oth Cir, 2001) vccecccccssesssssssssesssssessssseesssesessseesssseesssseeens 13

Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) .....csscssccssssssccessseneseeesssssaneeeeeesssnssnes 11

iii

Withrow v. Larkin, 421 U.S. 35 (1975) vccccssssssssssessssssscssssecsssssssssssessesssssvessssseesssecssseeessseeesseceess 10

Rules

60(b), Federal Rule of Civil Procedure .......cccccsccessessescessesccscsseesee sessvesssecsseesssesssscesses passim

60(b)(6), Federal Rule of Civil Procedure vicccssscssessssssessssecssssesesssecssssecsssecssssssessuesssuesanseessneeas 16

Rule 10, Rules of the United States Supreme Court cece 1,6, 15

Statutes

28 U.S.C. § 2244(b)(3)

28 U.S.C. § 2254(d)(2)

28 U.S.C. § 2254(e)(1)

ALR.S. L3—TBLCE)(2) vcecccssssssssssssseesssssscssssssssssssssssssssssssssssssssseesssssvesesssessessssesesssssscssssssessessssvesessseesessssen 5

ALR.S. 18-761 (2)(S).......i.cuicsnasarcannnnmniarenrarcnannannenmanentinnnmnniiiaanenvantee 5

ALR.S. 18-75 LCB)(10) vccssssccscsssssssecssssssssssssssecssssssessssssssesssssssscessssssecsssssseesssssseesssssseessssesceessasecessseeeessane 5

iv

INTRODUCTION

Petitioner Ernesto Salgado Martinez presents no compelling reason for this

Court to grant certiorari in this aging capital case. He has not established that the

Ninth Circuit Court of Appeals’ decision conflicts with a decision from another

United States Court of Appeals or a state court of last resort, that the Ninth Circuit

decided an important question of federal law not yet settled by this Court, or that

the Ninth Circuit “decided an important federal question in a way that conflicts

with relevant decisions of this Court.” U.S. Sup. Ct. R. 10.

To the contrary, Martinez’s claims are fact-intensive and the errors he alleges

generally affect only his case. See Sup. Ct. R. 10 (“A petition for a writ of certiorari

is rarely granted when the asserted error consists of erroneous factual findings or

the misapplication of a properly stated rule of law.”); Butler v. McKellar, 494 U.S.

407, 429 (1990) (Brennan, J., dissenting) (‘[The] Supreme Court’s burden and

responsibility are too great to permit it to review and correct every misstep made by

the lower courts in the application of accepted principles. Hence the Court

generally will not grant certiorari just because the decision below may be

erroneous.”) (quotations omitted); Layne & Bowler Corp. v. Western Well Works,

Inc., 261 U.S. 387, 393 (1923) (“[I]t is very important that we be consistent in not

granting the writ of certiorari except in cases involving principles the settlement of

which is of importance to the public, as distinguished from that of the parties, and

in cases where there is a real and embarrassing conflict of opinion and authority

between the Circuit Courts of Appeals.”).

STATEMENT OF THE CASE

On August 15, 1995, almost 25 years ago, Ernesto Martinez shot and killed

Officer Robert Martin during a traffic stop on the Beeline Highway near Phoenix,

Arizona. State v. Martinez, 999 P.2d 795, 798 { 4 (Ariz. 2000).2 Before the murder,

Martinez drove from California to Globe, Arizona, in a stolen blue Monte Carlo to

visit family. Jd. at 798, §] 2. After learning his parents had moved to Payson,

Arizona, he met up with his friend, Oscar Fryer. Jd. Fryer asked Martinez where he

had been, to which Martinez responded he had been in California. /d. Martinez told

Fryer that he was on probation for eight years and had a warrant out for his arrest,

and then pulled out a .38 caliber handgun with a taped handle. Jd. When Fryer

asked Martinez why he had the gun, Martinez responded that it was for protection,

“and if shit happens.” Jd. (internal citation omitted). Fryer asked Martinez what he

would do if police stopped him and Martinez responded that “he wasn’t going back

to jail.” Jd. (internal citation omitted).

Eventually, Martinez left Globe and drove approximately 80 miles northwest

to Payson. /d. at | 3. There he purchased gas then headed southwest toward

Phoenix on Highway 87, commonly referred to as the “Beeline Highway.” Jd. On the

way, Martinez sped past witnesses Steve and Susan Ball; later they observed that a

police officer pulled him over near mile-marker 195. Jd.

After the Balls passed by, Martinez shot Officer Martin four times with the

.88 caliber handgun he had shown Fryer in Payson, causing wounds to the officer’s

2 Respondents derive their factual statement from the Arizona Supreme Court’s opinion affirming

Martinez’s convictions and sentences on direct appeal. AEDPA directs this Court to presume these

facts are correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Carriger v. Stewart, 132 F.3d 463, 473 (9th Cir. 1997).

2

hand, neck, back, and head. /d. at 798, { 4. A medical examiner concluded the hand

and neck wounds were not fatal and the back and head wounds were. /d. Martinez

took Officer Martin’s service weapon, a .9mm Sig Sauer, and continued down the

highway at speeds over 100 mph. /d. at 798, 4 5. Martinez passed the Balls shortly

thereafter, which they found strange because insufficient time had elapsed for him

to have received a speeding ticket. /d. The Balls followed Martinez, and when they

saw him go through a red light, they suspected something was wrong and wrote

down his license plate number. Jd.

Martinez drove approximately 180 miles west from the murder scene and

arrived in Blythe, California, at around 4:00 p.m., where he called his ‘aunt and

asked for money. Jd. at § 6. When Martinez’s aunt failed to wire the money he

requested, he robbed a Mini-Mart in Blythe and fatally shot the clerk. Jd. A .9mm

shell casing recovered from the Mini-Mart was consistent with the ammunition

used in Officer Martin’s service weapon. Jd.

Martinez next drove to Coachella, California, near Indio. Jd. at { 7. The

following day, August 16, 1995, Martinez took his cousin, David Martinez, and

David’s wife, Anna, to a restaurant in Indio. Jd. David noticed that a police car

began following them; he asked Martinez if the car was stolen, to which Martinez

replied, “I think so.” /d. Gnternal citation omitted). Martinez let David and Anna

out of the car and they went to a nearby trailer compound to call for a ride. Jd.

When they arrived at the trailer compound, David and Anna asked Tommy

Acuna? whether they could use his phone. Jd. at 8. Tommy refused, but did permit

Anna to use the restroom. /d. Tommy became suspicious when Anna did not take

very long, so he went inside and found a towel on the restroom floor with the .38

caliber handgun wrapped inside. /d. By the time Tommy walked outside with the

gun, police had surrounded the compound. /d. Tommy told officers that he had “the

murder weapon,” and the gun was later identified as the weapon that fired the

bullets that killed Officer Martin. /d. (internal citation omitted).

After Martinez let David and Anna out of the stolen Monte Carlo, he turned

around on a dirt road. /d. at 798, § 9. He saw another police car, left the Monte

Carlo, and then ran into Johnny Acuna’s trailer. /d. After a standoff with a SWAT

team, Martinez eventually came out of the trailer and was taken into custody. Jd. at

q{ 10.

While in custody, Martinez phoned a friend, Eric Moreno, and jokingly said

that, “he got busted for blasting a “jura.”4 Jd. at 4 11 Gnternal citation omitted).

Martinez told Moreno that a woman on the highway might have seen what

happened and that he secreted one of the guns. /d. Police obtained a warrant for

Johnny Acuna’s trailer and found Officer Martin’s service weapon under a mattress.

Id.

A jury convicted Martinez of first degree murder, a class 1 dangerous felony:

theft, a class 6 felony; theft, a class 5 felony; misconduct involving weapons

3 Tommy Acuna’s brother, Johnny Acuna, was Ernesto Martinez’s friend. Martinez, 999 P.2d at 798,

q 8n. 2.

4“Jura” is Spanish slang for police officer. /d. at 455, { 11 n. 3.

4

(prohibited possessor), a class 4 felony; and misconduct involving weapons (defaced

serial number), a class 6 felony. Jd. at 455, J 12.

The sentencing judge found two death-qualifying aggravating circumstances,®

and found Martinez’s mitigation insufficiently substantial to warrant leniency. The

trial court sentenced Martinez to death for the murder conviction, and to prison

terms for the noncapital offenses. Jd.

The Arizona Supreme Court affirmed Martinez’s convictions and sentences

on direct appeal, and Martinez unsuccessfully sought post-conviction relief. Pet.

App. J-1. Martinez thereafter filed a. federal habeas petition, which the district

court denied. Pet. App. C-1. The district court also denied Martinez’s motion to alter

or amend judgment and to expand the certificate of appealability ((COA”). Pet. App.

D-1. Martinez filed a notice of appeal, and the Ninth Circuit stayed appellate

proceedings and remanded the case to the district court pursuant to Martinez v.

Ryan, 566 U.S. 1 (2012); Townsend v. Sain, 372 U.S. 2938 (1963); and Quezada v.

Scribner, 611 F.3d 1165 (9th Cir. 2010). Pet. App. E-1. On remand, the district court

denied Martinez’s invitation to entertain a motion under Rule 60(b) and denied

Martinez’s motion for a COA on those claims. Pet. App. F-1, G-1.

Thereafter, Martinez filed a motion with the Ninth Circuit requesting to

expand the COA. The Ninth Circuit granted a COA as to all claims it had

remanded. Pet. App. A-9. The Ninth Circuit subsequently affirmed the district

court’s denial of a writ of habeas corpus as: to Martinez’s first-degree murder

5 See A.R.S. 13-751(F)(2) (defendant previously convicted of serious offense), and (F)(10) (victim was

an on-duty peace officer). Note, that effective January 1, 2020, the (F)(10) aggravating circumstance

of murdering an on-duty peace officer was renumbered to (F)(8). For clarity and consistency,

Respondents will refer to the statute as it existed at the time of Martinez’s conviction.

5

conviction and death sentence, dismissed for lack of jurisdiction Martinez’s claim

appealing the district court’s denial of his request to consider a Rule 60(b) motion,

declined to expand the COA, and denied Martinez’s motion to stay the appeal and

remand for consideration of another Brady claim. Pet. App. A-1-A-88.

REASONS FOR DENYING THE PETITION

“Review on a writ of certiorari is not a matter of right, but of judicial

»

discretion.” U.S. Sup. Ct. R. 10. Accordingly, this Court grants certiorari “only for

compelling reasons.” Jd. Martinez has not established that there is a conflict

among the courts on any of the issues he presents; that the Ninth Circuit decided an

important issue of federal law that is not yet settled by this Court; or that the Ninth

Circuit decided an important federal question in a way that conflicts with Supreme

Court precedent. Jd. For these general reasons, and the specific ones set forth below,

this Court should deny Martinez’s petition.

IL This Court Should Not Grant Certiorari to Review Martinez’s

Procedurally Defaulted Judicial Bias Claim because the Ninth

Circuit Correctly Applied This Court’s Law of Implied Judicial

Bias.

Martinez contends that he was denied his right to effective assistance of

counsel when his trial counsel failed to move for Judge Hotham’s recusal at the

guilt phase of the trial, and that his appellate counsel was ineffective for failing to

raise this claim on direct appeal. Pet. App. A-16. Contrary to Martinez’s

interpretation, the Ninth Circuit did not simply reject his judicial bias argument

because it “is not supported by precedent.” Pet. 17. In actuality, after correctly

analyzing his claim through the lens of this Court’s law on implied judicial bias, the

6 Brady v. Maryland, 373 US. 83 (1963).

court rejected his argument as meritless and “based on unfounded speculation.” Pet.

App. A-17. Because the judicial bias claim was without merit, the Ninth Circuit

correctly found that any ineffective assistance of counsel claims likewise fail. Pet.

App. A-18.

. A. Procedural Background

Martinez’s case was assigned to Judge Jeffrey Hotham for trial. Before trial,

the parties learned that Judge Hotham’s bailiff, Ron Mills, knew Officer Martin,

and his widow, Sandy Martin. Defense counsel Emmet Ronan indicated a concern

about Mills’ impartiality because he saw Mills embrace Mrs. Martin in the

courthouse hallway and heard them exchange pleasantries. (Ninth Circuit Excerpts

of Record (“ER”) 150-163.) Because of counsel’s concerns, the trial court held a

hearing. Ud) At the hearing, Ronan sought to establish what type of relationship

existed between Mills and the Martins, because Mills would have frequent contact

with the jury. (ER 151.)

Mills confirmed that he had worked with Officer Martin on a daily basis

while he was employed with the Maricopa County Sheriffs Office, and knew Sandy

Martin beginning in high school. (ER 153-54.) Martinez’s counsel established that

Mills and the Martins knew each other and were good friends, but that Mills did not

have any contact with Mrs. Martin since the incident defense counsel witnessed in

the hallway. (ER 157.)

During the State’s cross examination, Mills described the oath he took as a

bailiff; specifically, that he was “to take care of the jury and not to divulge the

deliberations of the verdict,” and that he was not to “in any fashion influence the

jurors by way of [his] personal feelings about a case.” (ER 158.)

Judge Hotham denied the motion to replace Mills and informed the parties of

the admonishment he gave to his bailiff, specifically:

[Tlhat any casual conversation that he has with the jurors is to omit

the fact that he’s ever been connected with law enforcement. He’s not

to officially greet or say hello or show any emotion or any kind of

sympathy during the trial whatsoever, and I am confident he is going

to be able to do that.

(ER 165.)

During testimony about Officer Martin’s autopsy, Judge Hotham,

unbeknownst to counsel at the time, excluded Mills from the courtroom “so that no

one could ever later question that [his] bailiff reacted to the gory photographs in

any inappropriate manner and that that would have some effect on the jury.” Pet.

App. A-11—A-12.

After the guilty verdicts but before sentencing, Martinez filed a motion to

remove Judge Hotham for cause. Pet. App. A-8. Judge Ronald Reinstein, presiding

judge of the Criminal Division, heard the motion and ultimately granted it, but

stated that Martinez had demonstrated no prejudice from Judge Hotham presiding

over the trial. /d. Judge Reinstein agreed that any appearance of impropriety

should be avoided, and that in conjunction with Martinez’s right to have a

«

sentencing judge free from any potential bias, “...the victim’s family deserves a

sentencing free of any unnecessary appellate issues which might cause the case to

be returned years later...” Pet. App. H-3.

Judge Reinstein noted that there was no evidence that Judge Hotham could

not be fair and impartial, and that defense counsel had confirmed that Judge

Hotham did not witness any of Mills’ reactions after the verdicts in court or in the

hallway; specifically, after the verdicts were read and Judge Hotham left the

courtroom, Mills became “teary-eyed” and then a short time later, went into the

hallway, hugged Mrs. Martin, and cried. (ER 1284). Judge Christopher Skelly

sentenced Martinez to death.

Judge Hotham presided over Martinez’s post-conviction relief (“PCR”)

proceedings and found Martinez’s judicial bias claim precluded because he did not

raise it on direct appeal. Pet. App. I-1. The district found the claim procedurally

defaulted, rejected Martinez’s claim that ineffective assistance of appellate counsel

excused the procedural default because Martinez’s ineffective assistance of counsel

claims were meritless, and noted that Martinez did not argue that a fundamental

miscarriage of justice would occur if his judicial bias claims were not addressed on

the merits. (ER 39-40.) The Ninth Circuit affirmed. (ER 39-40); Pet. App. A-16. The

Ninth Circuit also held that Martinez failed to demonstrate cause and prejudice to

overcome the default of the claim. Pet. App. A-15.

The Ninth Circuit conducted a Strickland analysis and applied this Court’s

well-settled law of implied judicial bias. Strickland v. Washington, 466 U.S. 668

(1984). It rejected his ineffective assistance of counsel claims for both trial and

appellate counsel. Pet. App. A-16—A-18.

B. The Ninth Circuit correctly applied this Court’s settled law of

implied judicial bias when it reviewed Martinez’s ineffective

assistance of trial and appellate counsel claims.

Martinez claims that the Ninth Circuit erroneously applied this Court’s law

of implied judicial bias, or alternatively, created its own legal standard because it

did not explicitly consider all of this Court’s implied judicial bias jurisprudence. Pet.

17-18. Petitioner is mistaken. In order to prevail on an implied judicial bias claim,

Petitioner must demonstrate “facts sufficient to create actual impropriety or an

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

Martinez failed to meet this requirement.

At oral argument, the Ninth Circuit inquired as to whether either party could

cite a case where the relationship between a judge’s bailiff and the victims created

an appearance of impropriety, and the parties acknowledged that there is not a case

directly on point. Pet. App. A-17. The Ninth Circuit correctly turned to this Court’s

jurisprudence where it has found an appearance of impropriety. Those cases are

consistent with the cases Petitioner asks this Court to turn to for guidance;

specifically, the Ninth Circuit cited to Mayberry v. Pennsylvania, 400 U.S. 455, 465-

66 (1971) Gudge whom the defendant had insulted presided over contempt

proceedings); In re Murchison, 349 U.S. 1338, 187 (1955) Gudge acted as both the

grand jury and the trier of the accused); and Tumey v. Ohio, 273 U.S. 510, 532-34

(1927) Gudge profited from every defendant he convicted). Pet. App. A-17. The Court

correctly held that none of the circumstances in those cases exist in Martinez’s case.

The Ninth Circuit also cited Withrow v. Larkin, in which this Court held that

there is a “presumption of honesty and integrity in those serving as adjudicators.”

421 U.S. 35, 47 (1975). After reviewing the underlying facts in Martinez’s case, the

court found that “[a]t bottom, Martinez’s judicial bias claim is based on unfounded

10

speculation,” and that his “fanciful theory of bias” cannot overcome Withrow’s

presumption. Pet. App. A-17.

Although the Ninth Circuit did not reference the cases Martinez relies upon

in his petition, Rippo v. Baker, 137 S. Ct. 905, 907 (2017), and Willams v.

Pennsylvania, 136 S. Ct. 1899, 1905 (2016), the Ninth Circuit’s analysis in

Martinez’s case is consistent with both.

In Rippo, the defendant was convicted of first-degree murder and sentenced

to death. Jd. at 906. During Rippo’s trial, he received information that the trial

judge was being investigated by the Clark County District Attorney’s Office—the

same agency prosecuting Rippo—and moved for the judge’s disqualification. Jd. The

judge refused to recuse himself and a different judge later denied Rippo’s motion for

a new trial. Jd. In Rippo, this Court faulted the Nevada Supreme Court for failing to

“ask the question our precedents require: whether, considering all the

circumstances alleged, the risk of bias was too high to be constitutionally tolerable.”

Id. at 907 (emphasis added). In this case, the Ninth Circuit did consider all of the

“circumstances alleged” and found Martinez’s implied bias claim meritless. Jd.; Pet.

App. A-17-A-18.

In Williams, the then-district attorney of Philadelphia authorized pursuing

the death penalty against Williams. /d. at 1903. The same district attorney later

became the Chief Justice of the Pennsylvania Supreme Court and refused to recuse

himself from the case, without explanation. Jd. at 1904. This Court held that “under

the Due Process Clause there is an impermissible risk of actual bias when a judge

earlier had significant, personal involvement as a prosecutor in a critical decision

11

regarding the defendant's case.” Jd. at 1905. Here, Martinez’s case is

distinguishable from Williams: Judge Hotham never had a previous adversarial

relationship with Martinez, and Judge Reinstein granted the motion to change

judge for sentencing for the very purpose of ensuring Martinez’s proceedings were

fair. Pet. App. H-1.

Martinez’s argument that there was at least the appearance of judicial bias

fails because it is based on mere speculation regarding conversations that may have

occurred between Mills and Judge Hotham. This is insufficient to support a claim of

the appearance of bias.

Appearance of interest or prejudice is more than the speculation suggested by

the defendant. It occurs when the judge abandons his judicial role and acts

in favor of one party or the other. ... Bare allegations of bias and prejudice,

unsupported by factual evidence, are insufficient to overcome the

presumption of impartiality and do not require recusal.

State v. Carver, 771 P.2d 1382, 1388 (Ariz. 1989); see also Jorgensen v. Cassiday,

320 F.3d 906 (9th Cir. 2003) (Judge Munson’s refusal to recuse himself where

Jorgensen had clerked for Munson 8 years prior was not an abuse of discretion

because Jorgensen’s threats to use his influence to guarantee a judgment in his

favor spoke “only to the conduct and statements of Jorgensen rather than to Judge

Munson’s possible bias”); cf Haines v. Liggett Group Inc., 975 F.2d 81, 97-98 (3d

Cir. 1992) Gudge removed for appearance of impartiality because of statements he

made in the prologue to his opinion).

The Ninth Circuit’s rejection of Martinez’s claim of ineffective assistance of

trial and appellate counsel, predicated upon his implied judicial bias theory, was

neither contrary to nor an unreasonable application of Strickland. Martinez failed

12

to produce any evidence that Judge Hotham’s relationship with Mills created an

appearance of impropriety. Because Martinez’s claim of implied judicial bias lacks

merit, the Ninth Circuit correctly held that his trial counsel was not ineffective for

not moving for Judge Hotham’s recusal. Pet. App. A-16. See Boag v. Raines, 769

F.2d 1341, 1344 (9th Cir. 1985) (“the failure to raise a meritless argument does not

constitute ineffective assistance.”). Similarly, appellate counsel cannot be held to

have been ineffective for failing to raise a meritless claim on appeal. See Wildman v.

Johnson, 261 F.3d 832, 840 (9th Cir. 2001).

Given the reasons above, the Ninth Circuit correctly held that Martinez’s

judicial bias claim was without merit and that neither his trial nor appellate

counsel was ineffective. This Court should deny certiorari.

II. This Court Should Not Grant Certiorari in this AEDPA case to Review

the Ninth’s Circuit’s Decision to Dismiss Martinez’s Request to

Consider a Rule 60(b) Motion.

Martinez argues that the Ninth Circuit misapplied this Court’s jurisprudence

in Gonzalez v. Crosby, 545 U.S. 524 (2005), when it dismissed his claim appealing

the district court’s denial of his request to consider a Rule 60(b) motion. Pet. at 20;

Pet. App. A-28. Petitioner is mistaken and seeks error correction where no error

exists. The district court properly found that the Beatty Brady claim was a second

or successive (“SOS”) habeas petition and the Ninth Circuit correctly dismissed

Martinez’s claim for lack of jurisdiction.

A. Procedural Background

In 2008, several months after the district court denied Martinez’s amended

habeas petition and his motion to alter or amend the judgment, and before he filed

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his opening brief in the Ninth Circuit, Martinez moved the district court for a

request for an indication whether it would consider a Rule 60(b) motion. Pet. App.

A-8-A-9. Martinez asserted that he had uncovered new evidence supporting his

motion for evidentiary development and proving that he was not guilty of

premeditated murder. Pet. App. A-9.7 The district court summarily denied the

motion. Jd.

On March 9, 2012, after his case had been fully briefed in the Ninth Circuit,

Martinez moved to stay the proceedings and remand, pursuant to

Townsend/Quezada, based on alleged newly-discovered evidence supporting a

Brady—Napueé claim. Jd. Over Respondents’ opposition, the Ninth Circuit ordered a

limited remand to determine whether the district court would consider a renewed

Rule 60(b) motion for reconsideration “of Claim 4 and for consideration of a possible

Brady—Napue claim in light of newly discovered evidence.” Jd. After the parties

filed supplemental briefing, the district court denied this claim finding that because

Martinez’s Rule 60(b) motion did not “establish a defect in the integrity of these

proceedings, but rather, slought] to raise new substantive claims,” it was “therefore

a second or successive petition,” and the court lacked “jurisdiction to consider the

Brady/Napue claims absent authorization from” the Ninth Circuit under 28 U.S.C. §

2244(b)(3). (ER 94, 112.)

Martinez filed a motion requesting that the Ninth Circuit expand the

certificate of appealability (“COA”) and the court granted the motion as to all claims

7 The alleged new evidence consists primarily of a photograph of a seemingly intact ignition in the

Monte Carlo. Petitioner argued that this photograph is inconsistent with Detective Beatty’s trial

testimony. Pet. 8, 11-14, 21-23.

8 Napue v. Illinois, 360 U.S. 264 (1959).

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and ordered the parties to file replacement briefs. Pet. App. A-9. The Ninth Circuit

dismissed Martinez’s claim appealing the denial of his request to consider a Rule

60(b) motion because that order was procedural and not a final adjudication on the

merits.

B. The district court properly characterized Martinez’s Beatty

Brady claim as a second or successive habeas petition under

Rule 60(b) when it denied his claim, and the Ninth Circuit

correctly dismissed it.

“A petition for a writ of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication ofa properly stated rule

of law.” U.S. Sup. Ct. R. 10. The district court’s decision here is fact-based and casespecific. The Ninth Circuit took no issue with the district court’s procedural

treatment of Martinez’s Rule 60(b) motion and correctly concluded that it lacked

jurisdiction to review the lower court’s ruling. Pet. App. A-3 (citing Defenders of

Wildlife v. Bernal, 204 F.3d 920, 930 (9th Cir. 2000) (‘A district court order

declining to entertain or grant a Rule 60(b) Motion is a procedural ruling and not a

final determination on the merits...the underlying issues raised by the 60(b) Motion

are not reviewable on appeal.”); Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir.

1984) (“[Ilf 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.”)).

Martinez claims that the Ninth Circuit erred in dismissing his claim

appealing the denial of his request to consider a Rule 60(b) motion because the court

mischaracterized his request and misinterpreted Gonzalez. Pet. at 20. Federal Rule

of Civil Procedure 60(b) “allows a party to seek relief from a final judgment, and

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request reopening of his case, under a limited set of circumstances.” Gonzalez, 545

U.S. at 528. A proper Rule 60(b) motion challenges “not the substance of the federal

court’s resolution of a claim on the merits, but ‘some defect in the integrity of the

federal habeas proceedings.” /d. at 582. If a motion “seeks to add a new ground” for

relief, however, it constitutes a second or successive petition. Jd see also

Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (treating petitioner’s Rule

60(b) motion as an SOS petition where the motion’s factual predicate stated a claim

for a successive petition).

A movant seeking relief under Rule 60(b)(6) must show “extraordinary

circumstances’ justifying the reopening of a final judgment.” Gonzalez, 545 U.S. at

535 (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). That is, a

petitioner “must point to something that happened during that proceeding that

rendered its outcome suspect.” United States v. Buenrostro, 638 F.3d 720, 722 (9th

Cir. 2011). “Such circumstances will rarely occur in the habeas context.” Gonzalez,

545 U.S. at 535.

Here, the district court correctly concluded that the alleged suppressed

ignition switch evidence did not undermine the court’s ability to properly assess

Martinez’s other claims because it had previously found that Martinez was driving

a stolen car when he was pulled over, that he had absconded from police and had a

warrant for his arrest, that he shot Officer Martin not once, but four times, and that

he later bragged about “blasting” a police officer. (ER 108.) Consequently,

Martinez’s purported newly-discovered Beatty Brady evidence regarding the

ignition did not affect the integrity of Martinez’s habeas proceedings—z.e., it did not

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vender its outcome suspect. Buenrostro, 638 F.3d at 722. The district court

correctly found that “additional or stronger evidence in support of Petitioner’s

allegation that the ignition was intact does not change” the court’s previous analysis

and fails to undermine the integrity of these proceedings. (ER 111.) This Court

should deny certiorari.

III. The Ninth Circuit Did Not Violate the Rule of Kyles v. Whitley

Because No Brady Violations Occurred. Therefore, No Aggregate

Cumulative-Effect Analysis was Required.

Martinez contends that the Ninth Circuit violated this Court’s decision in

Kyles v. Whitley, 514 U.S. 419 (1995), when it did not aggregate, or collectively

consider, his Brady violation claims. Pet. at 25. Martinez appears to argue that

those claims include the alleged Oscar Fryer drug use and plea benefit claims; the

Beatty claim, discussed supra; and a claim involving a red planner. Pet. at 25-26.

Martinez misses the mark. In each alleged Brady violation, the evidence was either

not suppressed or not favorable to the defense. Therefore, Kyles is not implicated

and the Ninth Circuit had no obligation to aggregate meritless claims and conduct a

cumulative-effect analysis.

In Kyles, the government suppressed a plethora of exculpatory evidence,

including: contradictory physical descriptions of the suspect from eyewitnesses;

inconsistent statements of the states key witness; and evidence that the

defendant’s car was in fact not at the scene of the crime (a fact that undermined one

of the state’s key arguments). Jd. at 423-28. Kyles appealed, and this Court held

that “the state’s disclosure obligation turns on the cumulative effect of all

suppressed evidence favorable to the defense, not on the evidence considered item

by item.” /d. at 420 (emphasis added).

Here, the three alleged Brady claims do not implicate a Kyles analysis. First,

the Ninth Circuit correctly held that the prosecution did not suppress evidence that

Fryer was charged with drug use in Gila County after he testified in Martinez’s case

(implying he was using drugs during Martinez’s trial) because there was “nothing in

the record that suggests the prosecution knew of Fryer’s alleged drug use before the

end of Martinez’s trial” and “the prosecution does not have an obligation to disclose

exculpatory evidence it discovers after trial.” Pet. App. A-20-A-21. Martinez also

contended that “the prosecution withheld evidence concerning benefits conferred on

Fryer.” Jd. at A-21 (internal quotations omitted). The Ninth Circuit held that the

claim was “wholly speculative” and that the facts showed that the plea agreement

was disclosed to Martinez and introduced at trial. /d. Fryer was also impeached

with that information during his testimony, therefore, “that evidence...cannot

support a Brady violation.” Jd. at A-21—-A-22. Regarding Oscar Fryer, the Ninth

Circuit properly held that the state did not violate Brady, therefore, the claims fail

to meet Kyles’requirements.

The Ninth Circuit correctly dismissed Martinez’s underlying claim regarding

the Beatty Brady evidence for lack of jurisdiction and was under no obligation to

conduct a merits analysis, discussed supra. But even if this Court believes the

Ninth Circuit should have considered the merits of Martinez’s claim, it still fails

under Kyles. Martinez argued that he was deprived of the opportunity to impeach

Detective Beatty with a picture of an intact ignition, thereby undermining his

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ability to disprove premeditated murder. Pet. at 27; Pet. App. K-1. As discussed,

supra, the district court correctly concluded that whether the ignition was intact at

the time Martinez was arrested did not undermine the integrity of his federal

proceedings.

Moreover, because the evidence surrounding the ignition switch is not

favorable to the Petitioner, neither Brady nor Kyles applies. Whether the ignition

switch was broken or intact would not negate the fact that the owner had reported

the Monte Carlo stolen, Martinez admitted to police that he had stolen the car, or

that the license plate on the Monte Carlo had been stolen from another car. (ER

49.)

Finally, Martinez argues that a red weekly planner belonging to witness

Mario Hernandez undermines Hernandez’s trial testimony. Martinez asserts that

because Hernandez testified that he received a phone call from Martinez confessing

to Officer Martin’s murder, a note in the planner indicating he saw Martinez’s

arrest on television somehow demonstrates his testimony was false. Pet. at 25. This

claim is not properly before this Court because the Ninth Circuit declined to remand

his claim to the district court. A-39—A-41. In any event, the claim fails because the

evidence was not suppressed and is not favorable to Martinez. The search inventory

listing the planner was disclosed to Martinez before his Arizona trial and the

planner’s contents disclosed on July 30, 2012. Ernesto Martinez v. Charles Ryan,

08-99009, Dkt. 141; 142-2.

The planner is not favorable to Martinez and merely aligns with Hernandez’s

trial testimony that he saw Martinez’s arrest on television before Martinez called.

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(ER 520-23.) Nothing in the planner contradicts Hernandez’s statements and the

Ninth Circuit correctly held that “Martinez cannot establish that the planner was

material evidence.” Pet. App. A-41. Because the planner was not suppressed and

was immaterial, it does not trigger a Kyles analysis.

Therefore, because none of Martinez’s alleged Brady claims meet the

requirements of Kyles v. Whitley, the Ninth Circuit did not violate this Court’s law

and was under no obligation to conduct a cumulative-effect analysis. This Court

should deny certiorari.

CONCLUSION

Based on the foregoing authorities and arguments, Respondent respectfully

requests this Court to deny the petition for writ of certiorari.

Respectfully submitted,

Mark Brnovich

Attorney General

OH Skinner

Solicitor General

Lacey Stover Gard

Chief Counsel

in #2120U4U

izabeth T. gert

Assistant Attorney General

(Counsel of Record)

Attorneys for Respondent

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