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

Ask Donna

What actually matters in this document.

Text

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.