Petition for Writ of Certiorari — Ernesto Salgado Martinez, Petitioner v. David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry, et al.
Supreme Court briefSep 28, 2022
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No. __________________
_________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 2022
_________________________________________________
ERNESTO SALGADO MARTINEZ,
Petitioner,
v.
DAVID SHINN, Director, Arizona Department of Corrections,
Respondent.
_________________________________________________
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_________________________________________________
JON M. SANDS
Federal Public Defender
TIMOTHY M. GABRIELSEN
(Counsel of Record)
Assistant Federal Public Defender
407 West Congress Street, Suite 501
Tucson, Arizona 85701
Telephone: (520) 879-7614
tim_gabrielsen@fd.org
Counsel for Petitioner
i
QUESTIONS PRESENTED FOR REVIEW
CAPITAL CASE
I.
Whether the district court abused its discretion by denying
Martinez’s Rule 60(b)(6) request to reopen the judgment in order
to compel discovery where it ruled that Martinez could not
prove, in the absence of discovery, the materiality prong of his
due process violation that was premised on a violation of Napue
v. Illinois, 360 U.S. 264 (1959)—and thus he could not prove the
“extraordinary
circumstances”
necessary
to
re-open
the
judgment under Gonzalez v. Crosby, 545 U.S. 524 (2005);
II.
Whether the Ninth Circuit violated the rule of Buck v. Davis, 137
S. Ct. 759 (2017), by rendering a merits ruling that Martinez had
not
demonstrated
“extraordinary
circumstances”
for
the
granting of his Rule 60(b)(6) motion under Gonzalez v. Crosby,
545 U.S. 524 (2005), where the sole question before the court at
the COA stage was the debatability of the district court’s
decision to deny discovery under Rule 60(b)(6).
i
PARTIES TO THE PROCEEDING
The parties to the proceeding are listed in the caption. The petitioner is not a
corporation.
RELATED PROCEEDINGS
Reporter’s Transcript of Proceedings, guilt phase verdict, State v. Martinez, CR-1995008782 (Maricopa Cty. Super. Ct. Sept. 26, 1997).
Reporter’s Transcript of Proceedings, penalty phase verdict, State v. Martinez, CR1995-008782 (Maricopa Cty. Super. Ct. Aug. 18, 1998).
Opinion (convictions and sentences affirmed), State v. Martinez, 999 P.2d 795 (Ariz.
2000).
Order (denying Petition for a Writ of Certiorari), Martinez v. Arizona, 531 U.S. 934
(2000).
Order (denying post-conviction relief), State v. Martinez, CR-1995-008782 (Maricopa
Cty. Super. Ct. Aug. 24, 2004).
Order (denying petition for review on denial of post-conviction relief), State v.
Martinez, CR-04-0432-PC (Ariz. Sup. Ct. May 24, 2005), Doc. No. 11.
Memorandum of Decision and Order (denying relief on petition filed pursuant to 28
U.S.C. § 2254), Martinez v. Schriro, CV-05-1561-PHX-EHC (D. Ariz. Mar. 21, 2008),
ECF No. 88.
Judgment in a Civil Case, Martinez v. Schriro, CV-05-1561-PHX-EHC (D. Ariz. Mar.
21, 2008), ECF No. 89.
Order (denying motion to alter or amend judgment under Rule 59(e)), Martinez v.
Schriro, CV-05-1561-PHX-EHC (D. Ariz. Apr. 15, 2008), ECF No. 91.
Order (granting motion to remand pursuant to Martinez v. Ryan, 566 U.S. 1 (2012)),
Martinez v. Schriro, No. 08-99009 (9th Cir. July 7, 2014), ECF No. 99.
Order (denying claims remanded pursuant to Martinez and Request for Indication
Whether the District Court Would Consider a Rule 60(b) Motion for relief from
judgment with respect to Brady and a potential Napue claims), Martinez v. Schriro,
CV-05-1561-PHX-ROS, (D. Ariz. Mar. 31, 2016), ECF No. 127.
ii
Order (denying Motion to Alter or Amend Judgment Pursuant to Rule 59(e)),
Martinez v. Schriro, CV-05-1561-PHX-ROS (D. Ariz. June 16, 2016), ECF No. 131.
Opinion, Martinez v. Ryan, 926 F.3d 1215 (9th Cir. 2019) (affirming denial of relief
on petition filed pursuant to 28 U.S.C. § 2254; declining jurisdiction to consider denial
of request for indication whether the district court would consider a Fed. R. Civ. P.
60(b) motion; denying request to expand the certificate of appealability; declining to
stay appeal and remand for consideration of claim brought under Brady v. Maryland,
383 U.S. 73 (1963).
Order (denying Petition for Panel Rehearing and Rehearing En Banc), Martinez v.
Ryan, No. 08-99009 (9th Cir. 2019), ECF No. 171.
Denial of Petition for Writ of Certiorari, Martinez v. Shinn, 140 S. Ct. 2771 (2020).
Order (denying Motion for Relief from Judgment Pursuant to Rule 60(b) and
certificate of appealability)), Martinez v. Shinn, CV-05-01561-PHX-ROS (D. Ariz.
March 23, 2021), ECF No. 141.
Order (denying Motion for Reconsideration), Martinez v. Shinn, CV-05-01561-PHXROS (D. Ariz. May 14, 2021), ECF No. 147.
Opinion (denying COA), Martinez v. Shinn, 33 F.4th 1254 (9th Cir. 2022).
Order (denying panel and en banc rehearing) Martinez v. Shinn, No. 21-99006 (9th
Cir. Jul. 1, 2022), ECF No. 8.
Order (denying motion for stay of mandate), Martinez v. Ryan, No. 21-99006 (9th Cir.
Jul. 12, 2022), ECF No. 10.
iii
TABLE OF CONTENTS
Questions Presented for Review ................................................................................... i
Parties to the Proceeding ............................................................................................. ii
Related Proceedings ................................................................................................. ii-iii
Table of Contents ......................................................................................................... iv
Table of Authorities ..................................................................................................... vi
Opinions and Orders Below .......................................................................................... 1
Jurisdiction ................................................................................................................... 2
Constitutional and Statutory Provisions Involved ...................................................... 3
Statement of the Case .................................................................................................. 4
I.
Statement of facts material to consideration of the Questions Presented ....... 4
II.
Brady litigation in the district court proceedings ........................................... 10
III.
Production of Brady and potential Napue evidence by a California
prosecutor .......................................................................................................... 12
IV.
Beatty Brady claim on remand to the district court........................................ 13
V.
The post-remand appeal to the Ninth Circuit ................................................. 14
Motion for Relief from Judgment ................................................................................ 15
Reasons For Granting the Writ................................................................................... 18
I.
The district court abused its discretion by denying Martinez’s Rule 60(b)(6)
request to reopen the judgment in order to compel discovery where it ruled
that Martinez could not prove, in the absence of discovery, the materiality
prong of his due process violation that was premised on a violation of Napue
v. Illinois, 360 U.S. 264 (1959)—and thus he could not prove the
“extraordinary circumstances” necessary to re-open the judgment under
Gonzalez v. Crosby, 545 U.S. 524 (2005) .......................................................... 18
iv
II.
The Ninth Circuit violated the rule of Buck v. Davis, 137 S. Ct. 759
(2017), by rendering a merits ruling that Martinez had not
demonstrated “extraordinary circumstances” for the granting of his
Rule 60(b)(6) motion under Gonzalez v. Crosby, 545 U.S. 524 (2005),
where the sole question before the court at the COA stage was the
debatability of the district court’s decision to deny discovery under
Rule 60(b)(6). ..................................................................................................... 22
Conclusion ................................................................................................................... 27
Appendix A
Order, Martinez v. Shinn, CV-05-01561-PHX-ROS (D. Ariz. March 23, 2021),
ECF No. 141 ................................................................................................... A-1
Appendix B
Order, Martinez v. Shinn, CV-05-01561-PHX-ROS (D. Ariz. May 14, 2021),
ECF No. 147 ................................................................................................... B-1
Appendix C
Opinion, Martinez v. Shinn, 33 F.4th 1254 (9th Cir. 2022) ......................... C-1
Appendix D
Order, Martinez v. Shinn, No. 21-99006 (9th Cir. July 1, 2022),
ECF No. 8 ....................................................................................................... D-1
v
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Bracy v. Gramley, 520 U.S. 899 (1997) ............................................................................10, 11, 19
Brady v. Maryland, 373 U.S. 83 (1963) ................................................................................ passim
Buck v. Davis, 137 S. Ct. 759 (2017) ..................................................................................... passim
Giglio v. United States, 405 U.S. 150 (1972) ................................................................................20
Gonzalez v. Crosby, 545 U.S. 524 (2005).............................................................................. passim
Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) ........................................................................20, 21
Jackson v. Brown, 513 F.3d 1057 (9th Cir. 2008) .........................................................................21
Martinez v. Ryan, 566 U.S. 1 (2012) .......................................................................................16, 24
Martinez v. Ryan, 926 F.3d 1215 (9th Cir. 2019) .................................................................. passim
Mitchell v. United States, 958 F.3d 775 (9th Cir. 2020) ........................................................ passim
Mooney v. Holohan, 294 U.S. 103 (1935) .....................................................................................20
Napue v. Illinois, 360 U.S. 264 (1959) .................................................................................. passim
Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009) ................................................................17, 24
Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010).....................................................9, 12, 13, 26
Sivak v. Hardison, 658 F.3d 898 (9th Cir. 2011) ...........................................................................20
Slack v. McDaniel, 529 U.S. 473 (2000) .................................................................................22, 23
Townsend v. Sain, 372 U.S. 293 (1963).....................................................................................9, 13
Trevino v. Thaler, 569 U.S. 413 (2013) ...................................................................................16, 24
Federal Statutes
28 U.S.C. § 1254(1) .........................................................................................................................2
28 U.S.C. § 2244(a) .......................................................................................................................14
28 U.S.C. § 2253(c) .........................................................................................................................3
vi
28 U.S.C. § 2253(c)(2)...................................................................................................................22
28 U.S.C. § 2254 .................................................................................................................... passim
Rules
Fed. R. Civ. P. 59(e) ........................................................................................................................2
Fed. R. Civ. P. 60(b)(6).......................................................................................................... passim
Fed. R. Civ. 60(b) .................................................................................................................. passim
Rule 6(a), Rules Governing Section 2254 Cases in the District Courts ........................................19
Constitutional Provisions
U.S. Const. Amendment XIV ..........................................................................................................3
vii
PETITION FOR A WRIT OF CERTIORARI
Petitioner Ernesto Salgado Martinez respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of Appeals for the
Ninth Circuit.
OPINIONS AND ORDERS BELOW
The Arizona Supreme Court affirmed Martinez’s convictions and death sentence on
direct appeal. Opinion, State v. Martinez, 999 P.2d 795 (Ariz. 2000).
Order (denying Petition for Writ of Certiorari), Martinez v. Arizona, 531 U.S. 934
(2000).
Order (denying post-conviction relief), State v. Martinez, CR-1995-008782 (Maricopa
Cty. Super. Ct. Aug. 24, 2004).
Order (denying petition for review on denial of post-conviction relief), State v.
Martinez, CR-04-0432-PC (Ariz. Sup. Ct. May 24, 2005), Doc. No. 11.
Memorandum of Decision and Order (denying relief on petition filed pursuant to 28
U.S.C. § 2254), Martinez v. Schriro, CV-05-1561-PHX-EHC (D. Ariz. Mar. 21, 2008),
ECF No. 88.
Order (denying Motion to Alter or Amend Judgment under Rule 59(e)), Martinez v.
Schriro, CV-05-1561-PHX-EHC (D. Ariz. Apr. 15, 2008), ECF No. 91.
Order (granting motion for remand pursuant to Martinez v. Ryan, 566 U.S. 1 (2012)),
Martinez v. Schriro, No. 08-99009 (9th Cir. July 7, 2014), ECF No. 99.
Order (denying claims remanded pursuant to Martinez and Request for Indication
Whether the District Court Would Consider a Rule 60(b) Motion for relief from
judgment with respect to Brady and a potential Napue claims), Martinez v. Schriro,
CV-05-1561-PHX-ROS, (D. Ariz. Mar. 31, 2016), ECF No. 127.
Order (denying Motion to Alter or Amend Judgment Pursuant to Rule 59(e)),
Martinez v. Schriro, CV-05-1561-PHX-ROS (D. Ariz. June 16, 2016), ECF No. 131.
Opinion, Martinez v. Ryan, 926 F.3d 1215 (9th Cir. 2019) (affirming denial of relief
on petition filed pursuant to 28 U.S.C. § 2254; declining jurisdiction to consider denial
of request for indication whether the district court would consider a Fed. R. Civ. P.
60(b) motion; denying request to expand the certificate of appealability; declining to
1
stay appeal and remand for consideration of claim brought under Brady v. Maryland,
383 U.S. 73 (1963).
Order (denying Petition for Panel Rehearing and Rehearing En Banc), Martinez v.
Ryan, No. 08-99009 (9th Cir. 2019), ECF No. 171.
Denial of Petition for Writ of Certiorari, Martinez v. Shinn, 140 S. Ct. 2771 (2020).
Order (denying Motion for Relief from Judgment Pursuant to Rule 60(b)), Martinez
v. Shinn, CV-05-01561-PHX-ROS (D. Ariz. March 23, 2021), ECF No. 141 (attached
as Appendix A).
Order (denying Motion for Reconsideration), Martinez v. Shinn, CV-05-01561-PHXROS (D. Ariz. May 14, 2021), ECF No. 147 (Attached as Appendix B).
Opinion (denying COA, Martinez v. Shinn, 33 F.4th 1254 (9th Cir. 2022)) (Attached
as Appendix C).
Order (denying panel and en banc rehearing), Martinez v. Shinn, No. 21-99006 (9th
Cir. Jul. 8, 2022), ECF No. 8 (Attached as Appendix D).
Order (denying motion for stay of mandate), Martinez v. Ryan, No. 21-99006 (9th Cir.
Jul. 12, 2022), ECF No. 10.
JURISDICTION
The United States District Court for the District of Arizona filed an order on
March 23, 2021, in which it denied Martinez’s motion for relief from judgment
pursuant to Fed. R. Civ. P. 60(b)(6) in his federal habeas corpus case brought
pursuant to 28 U.S.C. § 2254, and denied a certificate of appealability (COA). The
district court denied a motion to alter or amend the judgment under Fed. R. Civ. P.
59(e). The Ninth Circuit denied Martinez’s request for a COA in a published opinion
on May 16, 2022. The Ninth Circuit denied panel and en banc rehearing on July 1,
2022. The jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED
U.S. Const. amend. XIV, in pertinent part:
“[N]or shall any State deprive any person of life, liberty or property, without
due process of law.”
28 U.S.C. § 2253(c), in pertinent part:
(1)
Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from –
(A)
the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court;
***
(2)
A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a
constitutional right.
Federal Rule of Civil Procedure 60(b)(6):
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following reasons:
***
(6) any other reason that justifies relief.
/ / /
/ / /
3
STATEMENT OF THE CASE
I.
Statement of facts material to consideration of the Questions
Presented.1
Ernesto Martinez was convicted by a jury of the first degree murder of Arizona
Department of Public Safety (“DPS”) Officer Robert Martin and other felonies for
events that occurred on the Beeline Highway in Maricopa County, Arizona, on August
15, 1995. Appx. C-2. Martinez was 19 years old at that time. 6-ER-1463.
Oscar Fryer testified that he sat in a blue Monte Carlo with Martinez at a car
wash in Globe, Arizona, sometime prior to the shooting on the Beeline Highway. C-2;
2-ER-217.2 According to Fryer, Martinez said a warrant was issued for his arrest
related to his probation. 2-ER-221. Evidence showed Martinez had been convicted
of a felony in Gila County, 4-ER-971, and an arrest warrant issued for him on April
13, 1995. 5-ER-1144. According to Fryer, Martinez showed Fryer a .38 handgun with
a brown handle that bore black tape on the handle. 2-ER-222–23. Martinez said he
had the gun “[f]or protection and in case shit happens.” 2-ER-223. Fryer testified
that, after a squad car passed them at the carwash, Fryer asked what Martinez would
do if he were stopped by police, to which Martinez “said he wasn’t going back to jail.”
2-ER-225.
The Statement includes citations to Martinez’s Excerpts of Record filed in the
United States Court of Appeals for the Ninth Circuit in Ninth Cir. No. 08-99009, ECF
No. 119-1 to ECF No. 119-11.
1
The suppression by prosecutors of impeachment evidence with respect to
confidential informant Fryer gave rise to a Brady claim in Martinez’s § 2254 petition.
2
4
As the Ninth Circuit noted in its 2022 opinion in which it denied a COA, Fryer
recanted his trial testimony to the effect that Martinez told him he was not going
back to jail if he were pulled over. C-3. That recantation, referred to as “Disputed
Testimony” by the Ninth Circuit, C-2, is the subject of Martinez’s Rule 60(b) motion
and subsequent appeal. Fryer further acknowledged that he was intoxicated with
methamphetamine when he testified Martinez’s 1997 trial. C-3.
Fryer testified he had two prior felony convictions for escape. 2-ER-214. On
cross-examination, Fryer acknowledged that he left Gila County without
authorization of his probation officer, and there were warrants issued for his arrest
for that violation and new felony charges filed that included assault of a police officer,
escape and resisting arrest, and domestic battery. 2-ER-228, 2-ER-231. He pleaded
to a single count of misdemeanor assault, and he was restored to the original
probation. 2-ER-232–37. The Gila County Attorney negotiated Fryer’s plea, and
Fryer later turned himself in to Gila County Attorney Investigator Abraham
Castaneda. 2-ER-228–42.
There was no eyewitness to the shooting. Elizabeth Martin testified she saw
Martinez in Globe a few days before Officer Martin’s death and he drove a blue Monte
Carlo with a white top with California license plates. 2-ER-191–92. Michelle Miller
testified that she and Martinez each purchased gasoline at a Circle K in Payson,
Arizona, on an unspecified morning in August 1995.
2-ER-250.
Prosecution
witnesses testified to having seen Martinez or someone resembling him and the
Monte Carlo on the morning of August 15, 1995, on the Beeline Highway between
5
Payson and Phoenix. 2-ER-268, 2-ER-272, 2-ER-287, 2-ER-289, 2-ER-364–67, 2-ER374, 2-ER-393–94. Susan and Steve Ball, whom the Monte Carlo passed, later noticed
the car on the side of the road with a police car. 2-ER-290, 2-ER-326. Thomas
Pantera, who was also passed by the Monte Carlo, later saw a police car and a body
on the side of the Beeline Highway. 2-ER-273. Maricopa County Sheriff’s Detective
Douglas Beatty testified that a 911 call was received reporting the officer down at
12:36 p.m. 5-ER-1127, 5-ER-1145. The Balls later saw the Monte Carlo at the traffic
light, and Mrs. Ball wrote down the license plate number, 1 CUK 259. 2-ER-298, 2ER-308, 2-ER-338.
Douglas Chidester came to Officer Martin’s assistance and
radioed for help from Martin’s vehicle. 2-ER-405, 2-ER-407. Off-duty DPS Officer
Hiram Renfro heard the radio call and responded to the scene. 2-ER-427. Robert
Newcomer and Renfro testified that Martin’s service revolver was missing. 2-ER371, 2-ER-430–31. DPS Officer Steven Page identified Exhibit 152 as the registration
for Officer Martin’s Sig Sauer service revolver. 2-ER-449.
Maricopa County Chief Medical Examiner Phillip Keen, M.D., who did not
perform the autopsy, testified to its results at trial, including that Officer Martin was
shot in the right hand, neck, back and right cheek. 4-ER-1002, 4-ER-1004–05. Dr.
Keen testified that the last and fatal shot was to the head and may have occurred
while Officer Martin was prone which, he acknowledged, contradicted the opinion he
offered in a pretrial interview in which he said the last shot fired was to Officer
Martin’s back and occurred while he was standing. 4-ER-1013–15, 4-ER-1021.
6
Esther Martinez, Ernesto’s aunt, testified that Martinez called her from
Blythe, California, twice on August 15, 1995, asking that she wire him money. 3-ER570, 3-ER-573. She failed to do so. Anna Martinez and her husband David, a cousin
of Martinez, testified that Martinez spent the night at their residence in Indio,
California, and accompanied them to a restaurant the next day. 3-ER-593, 3-ER-622.
A community service officer spotted the blue Monte Carlo in Indio after 4 p.m. and
saw two adults and a child exit the vehicle. 3-ER-547, 3-ER-553. An officer allowed
them to approach a residence to use a phone. 3-ER-601–02, 3-ER-624–27. Tommy
Acuna testified that Anna used the restroom in his residence, where he later found a
handgun with black tape on the handle, which he identified as Trial Ex. 133. 3-ER676. Acuna retrieved the gun and gave it to police. 3-ER-677. Maricopa County
Sheriff’s criminalists testified that one of the two bullets recovered from Officer
Martin at autopsy was fired from Trial Ex. 133, a .38 revolver with black tape on the
handle, 4-ER-924–43, and Martinez’s fingerprint was found on the black tape
removed from the .38. 4-ER-951. Indio Police Officer Humberto Alvarez observed
the Monte Carlo stop and a Mexican male exit the vehicle and run south before
jumping a fence into a compound of trailers. 3-ER-558, 3-ER-563, 3-ER-566. Later,
Martinez exited one of the trailers and was arrested. 3-ER-763, 5-ER-1084.
Blythe Police Officers Jeffrey Wade and Robert Whitney responded to the
report of a shooting and theft at a mini-mart in Blythe on August 15, 1995. 3-ER721, 4-ER-844. The officers were at the mini-mart at 8 p.m. on August 15, 1995, but
found no shell casing and were notified at 2 p.m. the following day that employee
7
Melina Garcia had found a casing. 3-ER-721–724. Wade determined that the casing
was consistent with the ammunition used by the Maricopa County Sheriff’s Office in
their handguns. 3-ER-725. On August 17, 1995, Wade and Whitney participated in
the search of the trailer where Martinez was arrested, and found a .9mm Sig Sauer
handgun, Trial Ex. 130, with a serial number Wade was told matched the one issued
to Officer Martin.
3-ER-728–29, 3-ER-733–37, 4-ER-846–47.
California DOJ
Criminalist Philip Pelzel testified that the shell casing from the mini-mart was fired
by the Sig Sauer retrieved from the Indio trailer. 4-ER-919–20.
DPS Officer Benjamin Quezada testified that he interviewed Eric Moreno
concerning a phone call Martinez purportedly made to Moreno after his arrest in
which Martinez said he blasted a “placa,” a slang term for a police officer. 5-ER1095–97. Moreno, his brother, Mario Hernandez, and his mother, Patricia Baker,
testified that Martinez resided with them in Indio for several months prior to
Martinez’s arrest. 3-ER-459, 3-ER-461, 3-ER-521, 3-ER-527. Hernandez testified
that he took a call from Martinez around midnight on August 16, 1995, and passed
the phone to Moreno. 3-ER-522–524.3 Moreno testified that Martinez told him that
he blasted a “jura,” or police officer. 3-ER-466. Moreno testified that Martinez said
3 The suppression by prosecutors of Hernandez’s red weekly planner, which came to
be called the “Hernandez Brady Claim,” was unearthed in 2017 during the pendency
of Martinez’s appeal. It appeared to show that those in the Baker residence learned
of Martinez’s arrest from TV news accounts that occurred at 2:30 a.m. on August 17,
1995, later than the purported phone call from Martinez. Martinez’s motion to stay
the appeal and remand to the district court was denied in the Ninth Circuit opinion
in which the court affirmed the denial of habeas corpus relief. Martinez v. Ryan, 926
F.3d 1215, 1237–38 (9th Cir. 2019).
8
he had passed through Blythe before being apprehended in Indio and that he had two
handguns, including a “.9,” at the time of his arrest. 3-ER-472, 3-ER-475.
On August 16, 1995, the car was secured by Indio Police Officer Raymond
Elias, who identified the license plate and VIN, which matched a plate reported stolen
in Indio and the VIN of a Monte Carlo reported stolen in Cathedral City, California,
on July 29, 1995. 4-ER-837–840, 3-ER-540–43, 4-ER-889–91. Riverside County
Sheriff’s Department Investigators David Ortloff and Thomas Fisher photographed
and lifted fingerprints from the Monte Carlo. 4-ER-873–75, 4-ER-883, 4-ER-903–914.
Analyst Kelly Donaldson testified that Martinez’s prints were not found on the license
plate, but many of Martinez’s prints were found on the Monte Carlo. 4-ER-989, 4ER-953–57. Criminalist Lucian Haag testified that two chemical tests confirmed the
presence of gunshot residue inside the driver’s door. 4-ER-898–901.
Prosecutor Robert Shutts asked Detective Beatty whether he tested keys found
in the glove box in the Monte Carlo’s ignition after Martinez’s arrest. 5-ER-1185.
Beatty testified:
Well, I took the keys out of evidence out of our property room and I went
to the Monte Carlo, and actually there was really no need because the
ignition switch to the Monte Carlo was missing. It is a hollow cavity in
there, and then you can stick some kind of instrument in there, and then
turn what would have been the ignition without a key.
5-ER-1185. The prosecution failed to introduce a photo of the missing ignition.4
4 A photograph of an intact ignition at the time of Martinez’s arrest was produced by
a Riverside County district attorney in 2012 after Martinez’s extradition to
California. Martinez moved on March 9, 2012, for a remand for consideration of what
came to be called the “Beatty Brady Claim.” See Appellant’s Motion to Stay Appeal
and for Remand Pursuant to Townsend v. Sain, 372 U.S. 293 (1963), and Quezada v.
Scribner, 611 F.3d 1165 (9th Cir. 2010), Martinez, No. 08-99006 (9th Cir. Mar. 9,
9
On September 26, 1997, the jury returned verdicts finding Martinez guilty of
first degree murder and other charged offenses. 5-ER-1266–67. The court imposed
a sentence of death.
II.
Brady litigation in the district court proceedings.
On May 23, 2006, Martinez filed an Amended Writ of Habeas Corpus under 28
U.S.C. § 2254 in which he raised inter alia the Fryer Brady Claim. See Amended
Writ, Martinez, CV-05-01561-PHX-EHC, Doc. No. 30 at 61–67. He also raised a
Confrontation Clause Claim based on the admission of hearsay evidence to prove that
the Monte Carlo impounded at the time of his arrest and its license plate were stolen.
Doc. No. 30 at 34–40.
Martinez’s investigation of the Confrontation Clause Claim evolved into a
“theory” under Bracy v. Gramley, 520 U.S. 899, 908 (1997), that the Maricopa County
Attorney’s Office suppressed material exculpatory evidence in violation of Martinez’s
due process rights under Brady v. Maryland, 373 U.S. 83 (1963). Prosecutors did so
by suppressing exculpatory evidence that would have undermined Detective Beatty’s
2012), ECF No. 67-1. It was premised on the Riverside County district attorney’s
January 2012 court-ordered disclosure of the notes of a criminalist who processed the
Monte Carlo after Martinez’s arrest 1995, Ricci Cooksey, who failed to note a punched
ignition. On February 11, 2013, Martinez moved to supplement his Quezada remand
motion with the photograph of the intact ignition, also disclosed pursuant to a
Riverside County Superior Court order. See Motion for Leave to Supplement Motion
to Stay Appeal and for Remand Pursuant to Townsend and Quezada with NewlyDiscovered Exculpatory Photographic Evidence, Martinez, No. 08-99006 (9th Cir.
Feb. 11, 2013), ECF No. 87. The Ninth Circuit granted the remand motion but
“construed” it to be a Request for Indication Whether the District Court Would
Consider a Rule 60(b) Motion. See Order, Martinez, No. 08-99006 (9th Cir. Jul. 7,
2014), ECF No. 99 at 2–3.
10
guilt phase testimony that the Monte Carlo’s ignition was a “hollow cavity.” 5-ER1185. That Martinez punched the ignition, prosecutors later argued to the jury, was
evidence of the car’s theft and gave Martinez motive to kill Officer Martin; it
established premeditation, an element of first degree murder. 5-ER-1222. Martinez
pleaded that theory under this Court’s decision in Bracy in his first Motion for
Evidentiary Development on April 30, 2007. 5-ER-2124.
FPD Investigator John Castro found the ignition’s cylinder and chrome bezel
under the Monte Carlo’s front passenger seat during an inspection on the Maricopa
County Sheriff’s Office’s impound lot on June 8, 2007. 10-ER-2525 ¶ 4. Castro
executed a declaration to that effect and his photos of the ignition cylinder and bezel
were appended to the motion. 10-ER-2525–28, 10-ER-2537–45.
The FPD’s discovery of ignition parts on the floor of the Monte Carlo in June
2007, despite their omission from all three law enforcement inventories performed on
the Monte Carlo after Martinez’s arrest, 10-ER-2547–59, which included one
executed by California Criminalist Ricci Cooksey, 10-ER-2547, supported the
Supplemental Motion for Evidentiary Development Martinez filed on September 7,
2007.
10-ER-2508.
Martinez again sought discovery with which to prove a
freestanding Brady claim. 10-ER-2518. While the district court denied evidentiary
development as to Claim Four in its Memorandum of Decision and Order of March
21, 2008, including with respect to whether Martinez could prove actual innocence to
overcome the procedural default of his Confrontation Clause claim, 1-ER-48–50, it
failed even to acknowledge that Martinez sought evidentiary development in his
11
Supplemental Motion for Evidentiary Development of a freestanding Brady claim for
which he alleged a “theory” based on the discovery of ignition parts upon a defense
inspection of the Monte Carlo. See 10-ER-2509, 2518.
III.
Production of Brady and potential Napue evidence by a California
prosecutor.
While Martinez’s appeal pended in the Ninth Circuit, Martinez was extradited
to California in 2010 to stand trial for a Blythe convenience store homicide Martinez
was alleged to have committed on August 15, 1995. California prosecutors obtained
from the Maricopa County Attorney the handwritten notes of Criminalist Cooksey
who, in processing the Monte Carlo, omitted any reference to a punched ignition or
ignition parts on the floor. The notes were produced to Martinez’s Arizona counsel,
who attached them in support of the Quezada remand motion filed on March 9, 2012,
Ninth Cir. ECF Nos. 67-1, 67-2 at 8–17. Cooksey included in his notes the Phoenix
phone numbers of lead prosecutor Robert Shutts and Detective Beatty, including a
message left for Shutts on February 13, 1997, which suggest contact between Cooksey
and the Maricopa County prosecutor and case agent well prior to trial. ECF No. 672 at 16. Martinez proffered another theory, to wit, that Cooksey’s notes, which
implied an intact ignition, suggested that prosecutors may have violated Napue v.
Illinois, 360 U.S. 264 (1959), by eliciting false or misleading testimony from Detective
Beatty that the Monte Carlo’s ignition was punched by Martinez prior to his arrest.
Riverside County prosecutors also obtained from the Maricopa County
Attorney and produced to Martinez the photo of the intact ignition taken in California
12
after the car was impounded, see 10-ER-2705, which, Martinez alleged, eliminated
any need to draw an inference that the ignition was intact. As noted supra n.4,
Martinez attached the photo of the intact ignition to the Motion for Leave to
Supplement Motion to Stay Appeal and for Remand Pursuant to Townsend and
Quezada with Newly-Discovered Exculpatory Photographic Evidence. See 10-ER2610.
In granting Martinez’s Quezada remand motion, the Ninth Circuit “construed”
it to be “a motion for leave to file in the district court a renewed Request for Indication
Whether District Court Would Consider a Rule 60(b) Motion.” Order, Martinez v.
Ryan, No. 08-99006 (9th Cir. July 7, 2014), ECF No. 99 at 2.
IV.
Beatty Brady claim on remand to the district court.
Martinez presented the Beatty Brady Claim, attaching inter alia the photo of
the intact Monte Carlo ignition and Cooksey’s handwritten notes. 10-ER-2620–25
(summary of claim); 10-ER-2648–54 (narrative of the unearthing of evidence during
superior court discovery in California); and, 10-ER-2712–23 (Cooksey’s handwritten
notes). Additional evidence in support of the claim included: the Declaration of
California Investigator Randall Hecht, who averred that Cooksey stated
“conclusively” to him in an interview that the Monte Carlo ignition was intact or he
would have noted the missing ignition in his notes and report (11-ER-2876 ¶ 11); and
the Declarations of lead defense counsel at trial, Emmet Ronan, now a retired judge
of the Superior Court of Maricopa County, and his co-counsel, Todd Coolidge, to the
effect that they had no recollection of ever having seen the photo of the intact ignition
13
and would have introduced it to impeach Detective Beatty had it been produced at
trial. 10-ER-2792 ¶ 10; 10-ER -2796–97 ¶ 10. Appointed PCR counsel and an FPD
records custodian averred that the photo of the intact ignition was not found in trial
counsel’s files. 10-ER-2755 ¶ 8; 11-ER-2800 ¶¶ 3, 4.
The court denied the Request for Indication on the basis “Petitioner’s Brady
and possible Napue claims are properly characterized as second or successive claims
because Petitioner is asserting new bases for relief from the underlying convictions,”
citing Gonzalez v. Crosby, 545 U.S. 524 (2005), and, because Martinez failed to obtain
authorization to file an SOS petition from the Ninth Circuit, see 28 U.S.C. § 2244(a),
the court could not consider the claims. 1-ER-112. The court further concluded that
Martinez failed to establish a defect in the integrity of the proceedings that would
have rendered its outcome suspect. 1-ER-111–12 (citing United States v. Buenrostro,
638 F.3d 720, 722 (9th Cir. 2011)). On those bases, the district court also denied
Martinez’s request for evidentiary development of his Brady and potential Napue
claims. 1-ER-112.
V.
The post-remand appeal to the Ninth Circuit.
While the Ninth Circuit granted a COA as to the denial of the Rule 60(b)
request, Ninth Cir. ECF No. 109 at 1, it nonetheless ruled that it lacked jurisdiction
to review the district court’s denial that request. The court noted that 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. Because there is no final judgment on the
merits, the underlying issues raised by the Rule 60(b) Motion are not reviewable on
14
appeal.” Martinez, 926 F.3d at 1229. As such, the district court’s decision to decline
to consider the claim constituted a non-final, non-appealable interlocutory order. Id.
Martinez raised in the § 2254 petition in the district court a Brady claim based
on the prosecution’s suppression of impeachment evidence with respect to Oscar
Fryer. The evidence included his drug use prior to his trial testimony and benefits
bestowed in exchange for his testimony. Martinez, 926 F.3d at 1227-29. The Ninth
Circuit ruled the Fryer Brady Claim procedurally defaulted and that Martinez could
not establish cause to excuse the default. Id.
MOTION FOR RELIEF FROM JUDGMENT
On July 29, 2020, Martinez filed a Motion for Relief from Judgment Pursuant
to Rule 60(b)(6) of the Federal Rules of Civil Procedure. Martinez v. Shinn, CV-0501561-PHX-ROS, (D. Ariz. July 29, 2020), ECF No. 136. Consistent with the relief
sought by a capital § 2255 petitioner in Mitchell v. United States, 958 F.3d 775 (9th
Cir. 2020), Martinez sought to reopen his judgment in order to secure discovery inter
alia of a potential claim pursuant to Napue, 360 U.S. 264, that trial prosecutors
knowingly elicited or failed to correct false or misleading guilt phase testimony from
Maricopa County Sheriff’s Deputy Beatty that the ignition of the Monte Carlo seized
at the time of Martinez’s arrest had been punched and could be started with an object
other than the vehicle’s ignition key—which evidence assisted the prosecution in
proving motive for the murder of a Department of Public Safety officer and, thus,
premeditation, an element of first degree murder under state law and necessary
predicate to death-eligibility. Martinez further alleged that prosecution trial witness
15
Oscar Fryer had recanted his guilt phase evidence that Martinez told him at the
Globe, Arizona, car wash prior to the homicide that if he were stopped by police, he
would not go back to jail.
Mitchell cited Gonzalez, 545 U.S. 524, for the proposition that a motion for
relief from judgment pursuant to Rule 60(b)(6), which does not itself allege a
substantive merits-based federal constitutional claim for which relief from conviction
is being sought, is permissible even though the AEDPA’s interests in comity and
finality of state court judgments require “extraordinary circumstances” to reopen a
judgment in habeas.
Mitchell, 958 F,3d at 786–87.
Gonzalez ruled that such
circumstances “will rarely occur in the habeas context.” 545 U.S. at 535.
The Mitchell Court ruled that an intervening change in the law may constitute
an extraordinary circumstance that would allow for the reopening of a state court
judgment in habeas. 958 F.3d at 786–87. See Buck v. Davis, 137 S. Ct. 759, 779–80
(2017) (intervening decisions in Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v.
Thaler, 569 U.S. 413 (2013), allow merits review of procedurally defaulted ineffective
assistance of trial counsel claim where ineffective assistance of state post-conviction
relief counsel constitutes cause and prejudice to excuse the default).
Martinez cited Mitchell for the proposition that the district court possessed
jurisdiction to consider the Rule 60(b)(6) motion because it failed to allege a claim.
Motion, Martinez, CV-05-01561-PHX-ROS, ECF No. 136 at 10. The district court,
App. A at 2-3, and, later, the Ninth Circuit agreed, the Ninth Circuit finding “[t]here
is no question that Mitchell established new law in this circuit as to the district court’s
16
jurisdiction to hear Rule 60(b) motions for post-judgment discovery in habeas cases.”
Martinez, 33 F.4th at 1264.
Martinez pleaded in the district court both that the change in the law in
Mitchell and other extraordinary circumstances suggested by Ninth Circuit
precedent, see Phelps v. Alameida, 569 F.3d 1120, 1136–40 (9th Cir. 2009) (citing
Gonzalez), required that the judgment be reopened and that he be permitted
discovery.
Motion, Martinez, CV-05-01561-PHX-ROS, ECF No. 136 at 12–15.
Initially the district court assumed arguendo that Martinez’s assertions as to
Mitchell’s providing an extraordinary circumstance was valid. See Appx. A-3. The
court ruled that the balance of circumstances, however, did not favor re-opening the
judgment and the court declined to do so. Appx. A-4. The court ruled that Martinez
possessed no vehicle with which he could bring a claim, even if he were successful in
obtaining evidence in discovery to prove his Napue claim, and that “there is no
meaningful likelihood that his convictions or sentences would be upset.” Appx. A-4
With respect to the Fryer recantation, the court ruled that “what a witness
may or may not have heard Martinez say seem[s] “highly unlikely to lead to a
different result.” Appx. A-4.
On reconsideration, the court rejected Martinez’s argument that the court had
“grafted onto Mitchell” a requirement that Martinez identify with precision the legal
vehicle he would employ to bring his Napue claim were he successful in discovery.
See Appx. B-2. The court again stated that even if Martinez demonstrated that
Detective Beatty’s guilt phase testimony were proven to be false, there was “ample
17
evidence . . . that the Monte Carlo was stolen and the murder was premeditated.”
Appx. B-4–5. Specifically, the court stated:
For the purpose of the materiality analysis, the Court assumes Martinez
could prove the ignition switch was intact at the time of his arrest, that
Maricopa County prosecutors were told by Detective Beatty or
California criminalist Ricci Cooksey that the ignition in the Monte Carlo
driven by Martinez when it was impounded after his arrest, and that
Fryer’s testimony regarding Martinez’s statements about what he would
do if stopped by police were successfully impeached.
Appx. B-5 n.2.
The court concluded “there is no reasonable likelihood that the false testimony
could have affected the judgment of the jury because the evidence supporting
premeditation was overwhelming and uncontroverted.” Appx. B-7. The court denied
a certificate of appealability (COA) in its initial order, Appx. A-5, and did not revisit
that determination on reconsideration. Appx. B.
Martinez moved in the Ninth Circuit for a COA. Motion for Certificate of
Appealability, Martinez v. Shinn, Ninth Cir. No. 21-99006 (Jun. 29, 2021), ECF NO.
2. The court denied the certificate on May 16, 2022. Martinez, 33 F.4th 1254 (9th
Cir. 2022). The court denied Martinez’s petition for panel and en banc rehearing on
July 1, 2022. Appx. D.
REASONS FOR GRANTING THE WRIT
I.
The district court abused its discretion by denying Martinez’s Rule
60(b)(6) request to reopen the judgment in order to compel discovery
where it ruled that Martinez could not prove, in the absence of discovery,
the materiality prong of his due process violation that was premised on
a violation of Napue v. Illinois, 360 U.S. 264 (1959)—and thus he could
18
not prove the “extraordinary circumstances” necessary to re-open the
judgment under Gonzalez v. Crosby, 545 U.S. 524 (2005)
In Bracy v. Gramley, 520 U.S. 899 (1997), when confronted with a habeas
petitioner’s “theory” that an Illinois state trial judge engaged in a compensatory bias
to favor the prosecution in a capital murder trial—to deflect suspicion that he
accepted bribes to fix cases for other capital defendants—the Court found “good
cause” for discovery under Rule 6(a) of the Rules Governing Habeas Corpus Cases in
the United States District Courts. The Seventh Circuit had ruled that an appearance
of impropriety on the judge’s part, in the absence of discovery: 1) provided a weak
basis for supposing the original trial to be an unreliable test of the issues before it; 2)
failed sufficiently to compel a presumption of actual judicial bias; and, 3) failed to
provide good cause for discovery that any compensatory bias on the judge’s part
infected the petitioner’s own trial. Id. at 903. This Court reversed on the basis that
Bracy had, in fact, demonstrated good cause under Rule 6(a) for the facts he sought
in discovery, facts that ultimately might support his theory of a presumption of actual
judicial bias. Id.
Tension exists between Bracy and the procedure employed here to determine
whether Martinez was entitled to discovery in habeas pursuant to Rule 60(b). The
district court described the untenability of application of the Ninth Circuit’s decision
in Mitchell thusly:
Unfortunately, the Ninth Circuit did not explain clearly how courts
should resolve such motions. And, in practice, this approach seemingly
contemplates an unorthodox sequence of events. In most cases, valid
judgment cannot be set aside to allow a party to pursue discovery that
may or may not impact the correctness of the judgment. Normally, a
19
party must present a valid reason for setting aside the judgment beyond
mere hopes that discovery will be somehow helpful. However, the
analysis in Mitchell appears to contemplate a situation where 1) a
petitioner requests to set aside the judgment so he can conduct
discovery; 2) the court sets aside the judgment; 3) the petitioner
conducts discovery; and 4) the court then decides whether to reissue a
judgment similar to the vacated judgment or issue a judgment that
differs from the original judgment in material ways.
Appx. A-3 n.2. Regrettably, that was not the path chosen by the district court here.
The
district
court
minimized
Martinez’s
showing
of
extraordinary
circumstances in ruling that he was not entitled to relief from judgment and discovery
to establish whether a Napue violation existed and the extent to which any such
violation infected Martinez’s state court trial—even though Martinez unearthed
during his § 2254 appeal evidence that trial prosecutors and, later, Respondents
suppressed exculpatory evidence consisting of the photograph of the intact Monte
Carlo ignition and criminalist Cooksey’s notes that gave rise to a showing of an intact
ignition.
Moreover, Cooksey’s notes appeared to demonstrate telephone contact
between him, Detective Beatty and lead prosecutor Shutts prior to trial.
In Giglio v. United States, 405 U.S. 150, 153 (1972), the Court stated, “As long
ago as Mooney v. Holohan, 294 U.S. 103, 112 (1935), this Court made clear that
deliberate deception of a court and jurors by the presentation of known false evidence
is incompatible with ‘rudimentary demands of justice.’” See Hayes v. Brown, 399 F.3d
972, 978 (9th Cir. 2005) (same). The Ninth Circuit noted that a claim under Napue
will succeed when: “(1) the testimony or evidence was actually false, (2) the
prosecution knew or should have known that the testimony was actually false, and
(3) the false testimony was material.” Sivak v. Hardison, 658 F.3d 898, 909 (9th Cir.
20
2011) (quoting Jackson v. Brown, 513 F.3d 1057, 1071–72 (9th Cir. 2008)). If it is
established that the prosecution knowingly permitted the introduction of false
testimony, reversal is “virtually automatic.” Jackson, 513 F.3d at 1076; Hayes, 399
F.3d at 978. That is because “the prosecution’s knowing use of perjured testimony is
more likely to affect our confidence in the jury’s decision, and hence more likely to
violate due process than will a failure to disclose evidence favorable to the defendant.”
Jackson, 513 F.3d at 1076 n.12. The test of Napue materiality, which the district
court took to mean “whether there is a reasonable likelihood that the false testimony
could have affected the judgment of the jury,” Appx. B-4 (citations omitted), could
simply not be made the absence of the discovery necessary to ascertain whether
Detective Beatty testified falsely and whether Maricopa County, Arizona, prosecutors
suborned that testimony and engaged in other misconduct at trial.
The prosecution’s and Respondents’ later suppression of the photograph of the
intact Monte Carlo ignition and Cooksey’s notes until disclosed after Martinez’s 2010
extradition to California came to be called in the proceedings in the district court
and Ninth Circuit evidence of a “Beatty Brady claim.” Martinez diligently sought
the production of such Brady evidence beginning with the filing of his Supplemental
Motion for Evidentiary Development in 2007.
Respondents blithely dismissed
Martinez’s requests for discovery of Beatty Brady evidence as a search for evidence
“which may not even exist” and “a fishing expedition.” Martinez, Dist. Ct. No. CV05-01561-PHX-ROS, ECF No. 66 at 31, No. 77 at 2. The district court credited those
assertions in denying evidentiary development. If Maricopa County prosecutors
21
deliberately deceived the judge and jury at Martinez’s state court trial by eliciting
false or misleading testimony in support of the premeditation element of first degree
murder, and Respondents made material misrepresentations to the district court as
to the existence of such evidence, calling such requests speculative and a fishing
expedition—even when placed on notice by Martinez since 2007 that such evidence
likely existed—the rudimentary demands of justice have been violated and Gonzalez
would require a finding that there has been a defect in the integrity of Martinez’s
§ 2254 proceeding.
With that defect clearly established, the district court abused its discretion in
failing to order the discovery Martinez sought in his Rule 60(b)(6) motion.
II.
The Ninth Circuit violated the rule of Buck v. Davis, 137 S. Ct. 759
(2017), by rendering a merits ruling that Martinez had not
demonstrated “extraordinary circumstances” for the granting of his Rule
60(b)(6) motion under Gonzalez v. Crosby, 545 U.S. 524 (2005), where
the sole question before the court at the COA stage was the debatability
of the district court’s decision to deny discovery under Rule 60(b)(6).
While 28 U.S.C. § 2253(c)(2) states that a COA may issue under the AEDPA
“only if the applicant has made a substantial showing of the denial of a constitutional
right,” the Court acknowledged in Slack v. McDaniel, 529 U.S. 473 (2000), that the
statute must be elastic enough to allow a § 2254 petitioner to appeal an adverse
procedural ruling that prevented the district court from reaching a constitutional
claim. In Slack, the Court rejected the State of Nevada’s argument that § 2253(c)(2)
did not apply to procedural grounds employed by a district court to deny relief on a
22
federal constitutional claim, which would have barred review altogether. The Court
ruled:
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.
Id. at 484.
In Buck, 137 S. Ct.at 777, the Court ruled that the Fifth Circuit erred in
denying a COA from the denial of a capital petitioner’s Rule 60(b) motion. The Court
first ruled that the Fifth Circuit denied Rule 60(b) relief on the merits without having
first determined whether the petitioner had shown that “jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Id. at 773 (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).
The Court found that the Fifth Circuit’s consideration of whether the petitioner had
demonstrated “extraordinary circumstances” as required under Gonzalez, 545 U.S. at
535, for a grant of relief under Rule 60(b)(6), constituted a merits ruling rather than
a determination as to the debatability of the district court’s decision, which is the sole
question before the court of appeals on a motion for COA. Buck, 137 S. Ct. at 772–
774. Having identified the error in the Fifth Circuit’s conflation of merits review and
the COA standard, the Buck Court ruled that the petitioner met the requirement of
showing that “a reasonable jurist could conclude that the District Court abused its
discretion in declining to re-open the judgment” based on the change in the law
23
wrought by Martinez, 566 U.S. 1, and Trevino, 569 U.S. 413, a procedural ruling. Id.
at 777.
As noted above, Martinez pleaded in the district court in his Rule 60(b) motion
extraordinary circumstances, apart from the change in the law of Mitchell, that the
Ninth Circuit has found to be compelling in its controlling precedent, Phelps v.
Alameida, 569 F.3d 1120, 1136–40 (9th Cir. 2009). See Motion, Martinez, CV-0501561-PHX-ROS, ECF No. 136 at 12–15. Martinez relied for support of his motion
for COA in the Ninth Circuit on his district court pleadings. See Ninth Cir. No. 2199006, ECF 2 at 1–2.
In ruling on his motion for COA, however, the Ninth Circuit concluded,
“Applying the factors set forth in Phelps, 569 F.3d at 1134–40, we find that the
holding in Mitchell falls short of satisfying the extraordinary circumstances
requirement here.” Martinez, 33 F.4th at 1264. The court failed to address the other
factors identified in Phelps and cited by Martinez as supporting the “extraordinary
circumstances” required by Gonzalez. As Martinez noted, Martinez, CV-05-01561PHX-ROS, ECF No. 136 at 12–15, extraordinary circumstances included:
(1)
the grant of discovery “would not undo ‘past executed effects of the judgment’
upon which the parties have relied. Phelps, 569 F.3d at 1137 (quoting Ritter v. Smith,
811 F.2d 1398, 1402 (11th Cir. 1987). Because this is a death penalty case, and
because Martinez has pursued remedies provided under state and federal law, no
effects of judgment have been executed.”
24
(2)
“[t]he court’s grant of Napue and Fryer recantation discovery would not upset
the 2008 judgment, as Martinez would not be stating a habeas claim per se and, thus,
finality would not be disturbed.”
(3)
the discovery sought here is not available through other sources.
(4)
Respondents suppressed Beatty Brady and potential Napue evidence in the
earlier § 2254 proceeding where Martinez could have requested evidentiary
development outside the narrow parameters of Rule 60(b) and Gonzalez.
(5)
comity would not be offended by the discovery requested because Detective
Beatty was a state actor whose potentially false or misleading testimony was elicited
by other state actors.
Two additional circumstances found extraordinary by this Court in Buck
further compel a finding of extraordinary circumstances and the grant of certiorari.
Martinez has been treated disparately from other Arizona prisoners. Buck stated
that disparate treatment of prisoners constituted an extraordinary circumstance
where, unlike five other Texas capital defendants against whom the psychologist
asserted future dangerousness on the basis of their race and the state confessed error,
the state sought to affirm Buck’s death sentence. 137 S. Ct. at 771, 778–80.
The Ninth Circuit remanded another Arizona capital appeal to the district
court for consideration of a possible Brady claim, where exculpatory material not
unearthed until the matter was on habeas appeal, was alleged to have been
suppressed by prosecutors at trial. See Order and Opinion, Gallegos v. Ryan, No. 0899029 (9th Cir. Apr. 7, 2016), ECF No. 72-1 at 4. The matter was not remanded for
25
the filing of a request for indication whether the district court would consider a Rule
60(b) motion, as occurred here, the result of which the court ruled to be an
unappealable interlocutory order. The Ninth Circuit simply remanded Gallegos and
the non-capital appeal upon which Martinez relied earlier for remand, Quezada v.
Scribner, 611 F.3d 1165 (9th Cir. 2010), for straight-up determinations of Brady
claims based on newly-discovered evidence and whether to grant the discovery
requested by the petitioners. The denials of relief on remand would have permitted
appeals.
In Buck, the Court ruled that one extraordinary circumstance to be considered
in the Gonzalez calculus was the fact that Buck had been sentenced to death. 137 S.
Ct. at 779; id. at 785 (Thomas, J., dissenting). Martinez’s capital conviction was
doubtless supported, at best, by the prosecution’s suppression of material exculpatory
evidence consisting of the photo of the intact ignition photo and criminalist’s notes;
and, at worst, by the fact that Detective Beatty’s false or misleading testimony may
have been elicited by lead prosecutor Shutts after criminalist Cooksey informed him
and Detective Beatty that the ignition was intact when it was searched after it was
impounded after Martinez’s arrest.
Even if the Ninth Circuit properly considered only the debatability of the
district court’s ruling, the court clearly erred in ignoring the above-described
extraordinary circumstances that compelled the re-opening of the judgment in order
to allow Martinez to engage in discovery of his Napue and Fryer recantation claims.
Those circumstances played no role in the Ninth Circuit’s debatability calculus.
26
CONCLUSION
For the foregoing reasons, Ernesto Martinez respectfully requests that the
Court grant the Petition for Writ .of Certiorari to the United States Court of Appeals
for the Ninth Circuit and order it to review the decision of the United States District
Court for the District of Arizona in which it denied Martinez's Motion for Relief from
Judgment Pursuant to Rule 60(b).
Respectfully submitted this 28th day of September, 2022.
JonM. Sands
Federal Public Defender
Timothy M. Gabrielsen
Assistant Federal Public Defender
By:,4kh~
~~.
Tim~thM. Gabrielsen
Counsel for Petitioner
September 28, 2022
27
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.