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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Case 2:05-cv-01561-ROS Document 141 Filed 03/23/21 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Ernesto Salgado Martinez,

No. CV-05-01561-PHX-ROS

Petitioner,

David Shinn1, et al.,

DEATH PENALTY CASE

ORDER

Respondents.

Petitioner Ernesto Salgado Martinez, an Arizona death row inmate, seeks relief

under Federal Rule of Civil Procedure Rule 60(b)(6). (Doc. 136). Martinez argues he is

entitled to discovery and to issuance of an appealable order regarding arguments made in

a prior Rule 60 motion. For the reasons set forth below, Martinez is not entitled to discovery

and the arguments he made in a previous Rule 60 motion will be rejected again.

BACKGROUND

In 1997, Martinez was convicted and sentenced to death in state court. After his

convictions and sentence were affirmed, Martinez filed a federal petition for writ of habeas

corpus. That petition was denied in 2008 but the Court granted a certificate of appealability

(“COA”) on three claims. Shortly thereafter, Martinez filed a request to alter or amend the

judgment and to expand the COA. Those requests were denied and Martinez filed a notice

of appeal. (Doc. 92).

Before Martinez filed his opening brief with the Ninth Circuit, he filed a request in

David Shinn, Director of the Arizona Department of Corrections, Rehabilitation

& Reentry is substituted for his predecessor pursuant to Fed. R. Civ. P. 25(d)(1).

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this court for an “indication” whether it would consider a Rule 60(b) motion. (Docs. 95).

The Court summarily denied the request. (Doc. 101). After the completion of appellate

briefing, the Ninth Circuit stayed the appeal and issued a limited remand. In describing part

of that limited remand, the Ninth Circuit explained it was granting leave for Martinez to

file “a renewed request for indication whether the district court would consider a rule 60(b)

motion . . . for consideration of a possible Brady-Napue claim in light of newly discovered

evidence.” Martinez v. Ryan, 926 F.3d 1215, 1222–23 (9th Cir. 2019).

Upon receiving the limited remand, this Court ruled it would not consider a Rule 60

motion. Proceedings then resumed at the Ninth Circuit and, in 2020, that court affirmed

the denial of relief. In doing so, the Ninth Circuit concluded it lacked jurisdiction to review

the denial of Martinez’s “request for indication” whether this Court would entertain a Rule

60 motion.

A few months after the Ninth Circuit issued its mandate, Martinez filed a “Motion

for Relief from Judgment Pursuant to Rule 60(b).” Martinez’s motion seeks two forms of

relief. First, he seeks “discovery” regarding a “Napue claim.” (Doc. 136 at 3). That is,

Martinez seeks to set aside the judgment so that he can pursue discovery in support of a

potential future claim involving the alleged presentation of fabricated evidence. Second,

Martinez seeks a ruling on the merits of the arguments set forth in his “request for

indication” filed in 2015 after the Ninth Circuit’s “limited remand.” (Doc. 136 at 6).

Martinez explains he needs such a ruling because the Ninth Circuit concluded it lacked

jurisdiction to reach those issues and he is entitled to appellate review.

ANALYSIS

The Court will begin with Martinez’s request for discovery and then, briefly,

address the arguments he made in his 2015 “request for indication.”

Rule 60 Motion Seeking Discovery

Pursuant to AEDPA, a Rule 60 motion presenting a “claim” cannot proceed in the

district court if the petitioner has not first obtained “certification from the court of appeals.”

Mitchell v. United States, 958 F.3d 775, 784 (9th Cir. 2020). However, a Rule 60 motion

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seeking discovery in support of possible claims does not require such a certification. Id.

Therefore, to the extent Martinez’s Rule 60 motion is seeking discovery and merely “the

opportunity to attempt to develop a claim,” the Court has jurisdiction to resolve the motion.

Id. at 786.2 While the legal rule that a petitioner can file a Rule 60 motion for the sole

purpose of obtaining post-judgment discovery appears to be new, Martinez still must

establish “extraordinary circumstances” to justify reopening the judgment. Id.

There are six factors to guide the Court’s determination of “extraordinary

circumstances” in this context.3 Phelps v. Alameida, 569 F.3d 1120, 1135 (9th Cir. 2009).

Those “factors are not a rigid or exhaustive checklist.” Hall v. Haws, 861 F.3d 977, 987

(9th Cir. 2017). Rather, they are meant to provide guidance when assessing “the competing

policies of the finality of judgments and the incessant command of the court’s conscience

that justice be done in light of all the facts.” Id.

The first factor is whether there has been a “change in intervening law.” Id. at 787.

According to Martinez, the Ninth Circuit’s decision in Mitchell comprised an

“extraordinary change in the law.” For present purposes, the Court will assume Mitchell

represented a change in the law regarding post-judgment discovery requests. Thus, after

Mitchell, such post-judgment discovery requests are possible. But nothing in Mitchell

indicates a court must grant such discovery. In fact, in Mitchell itself the Ninth Circuit

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 judgments cannot be set aside to allow a party to

pursue discovery that may or may not impact the correctness of the judgment. Normally, a

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 in material ways.

The factors are whether (1) there has been an intervening change in law; (2) the

petitioner exercised diligence in pursuing the issue; (3) granting the motion would disturb

the parties’ reliance interest in the finality of the judgment; (4) there is delay between the

finality of the judgment and the motion for Rule 60(b)(6) relief; (5) there is a close

connection between the original and intervening decisions at issue in the Rule 60(b)

motion; and (6) relief from judgment would upset the principles of comity governing the

interaction between coordinate sovereign judicial systems. Phelps v. Alameida, 569 F.3d

1120, 1135–40 (9th Cir. 2009).

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affirmed the denial of post-judgment discovery. Thus, even assuming Mitchell represented

an “extraordinary change in the law,” the precise change Mitchell wrought does not support

Martinez’s request.

After Mitchell, the question is not whether discovery can be permitted but whether

it should be. Here, Martinez has outlined the evidence he wishes to seek in discovery but

even if he secured that evidence, there is no significant likelihood Martinez would obtain

relief. First, Martinez would have “to determine which vehicle the law provides for [him]

to vindicate the right violated.” (Doc. 136 at 4). Given the constraints imposed by AEDPA,

that would be a difficult task. Second, assuming Martinez found a legitimate “vehicle” to

present claims using the new evidence, there is no meaningful likelihood his convictions

or sentences would be upset. At this point in Martinez’s criminal proceedings, and in light

of the other evidence in the record, disputes about the car’s ignition switch or what a

witness may or may not have heard Martinez say seem highly unlikely to lead to a different

result. Discovery is not required after Mitchell and the Court concludes, in its discretion,

that discovery is not merited here.

In addition to the alleged change in the law set forth in Mitchell, Martinez argues

other factors support his request for Rule 60 relief. Martinez argues he has pursued

“discovery relief” diligently, allowing him to pursue discovery would not impact any

reliance interests, there is a “close relationship” between the discovery he seeks and a claim

he may wish to assert, and allowing the discovery would have no negative impact on the

principles of comity. (Doc. 136 at 14-15). These factors are not enough to support relief

because, again, there is no meaningful likelihood the discovery would lead to a different

result. The attenuated circumstances of Martinez pursuing possible evidence to support

possible claims do not present a situation where vacating the judgment would be

“appropriate to accomplish justice.” Hall, 861 F.3d at 987.

At the end of his discovery-related arguments, Martinez argues that if he is allowed

to pursue discovery, and that discovery results in favorable evidence, he “may be able to

establish a defect in the integrity of the earlier proceeding.” (Doc. 136 at 15). It is not clear

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if Martinez is asserting this as a separate basis for Rule 60 relief or if he is merely observing

that it is possible, if discovery were allowed, that he would have other arguments to make.

To the extent he intends for it to be an independent basis for Rule 60 relief, it is not

persuasive.

A Rule 60 motion can be used to attack “some defect in the integrity of the federal

habeas proceedings.” Jones v. Ryan, 733 F.3d 825, 836 (9th Cir. 2013). But that concept

refers to “the integrity of the prior proceeding with regard to the claims that were actually

asserted in that proceeding.” Id. Martinez has not clearly identified the claims previously

asserted that he believes would now come out differently if he were allowed discovery.

Martinez is not entitled to Rule 60 relief to pursue discovery.

II.

In addition to his discovery-related arguments, Martinez seeks a final order on the

arguments presented in his renewed Request for Indication filed in 2015. (Doc. 115). As

previously indicated, this Court lacks jurisdiction to entertain that motion:

Rule 60 Motion Seeking Ruling on Prior Arguments

Petitioner has not demonstrated any defect in the integrity of these habeas

proceedings, but instead seeks to raise new substantive claims that his rights

under Brady and Napue were violated. It is therefore a second or successive

petition, and this Court lacks jurisdiction to consider the Brady and Napue

claims absent authorization from the court of appeals pursuant to 28 U.S.C.

§ 2244(b)(3).

(Doc. 127 at 25). The Court rejects Martinez’s arguments for the same reasons stated in its

previous order. (See Doc. 127 at 1–25).

III.

Certificate of Appealability

For the reasons stated in this order, the Court finds that reasonable jurists could not

debate its application of Rule 60(b) to Petitioner’s Rule 60(b) motion regarding discovery

or to the Court’s finding that it is without jurisdiction to consider Martinez’s arguments set

forth in his Request for Indication.

Accordingly,

IT IS ORDERED Martinez’s Motion for Relief from Judgment Pursuant to Rule

60(b) (Doc. 136) is DENIED.

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IT IS FURTHER ORDERED Martinez’s Motion for Relief from Judgment

Pursuant to Rule 60(b) (Doc. 136) is also DENIED to the extent it incorporates the

arguments set forth Doc. 115.

IT IS FURTHER ORDERED a Certificate of Appealability is DENIED.

Dated this 23rd day of March, 2021.

Honorable Roslyn O. Silver

Senior United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Ernesto Salgado Martinez,

No. CV-05-01561-PHX-ROS

Petitioner,

Charles L. Ryan, et al.,

DEATH PENALTY CASE

ORDER

Respondents.

On March 23, 2021, the Court denied Martinez’s motion for relief from judgment

pursuant to Rule 60(b)(6). (Docs. 136, 141 at 5.) Martinez has filed a motion for

reconsideration. (Doc. 142.) The motion is fully briefed. (Docs. 145, 146.) The Court will

deny the motion for reconsideration.

Discussion

A motion for reconsideration will be denied absent a showing of manifest error or a

showing of new facts or legal authority that could not have been brought to the Court’s

attention earlier with reasonable diligence. LRCiv 7.2(g)(1); see United Nat’l Ins. Co. v.

Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). The motion may not repeat

previously made arguments. See id.; Motorola, Inc. v. J.B. Rodgers Mech. Contractors,

215 F.R.D. 581, 582 (D. Ariz. 2003) (reconsideration cannot “be used to ask the Court to

rethink what it has already thought” through).

Martinez’s Rule 60(b) motion was premised on the grounds that the Ninth Circuit’s

decision in Mitchell v. United States, 958 F.3d 775 (9th Cir. 2020), entitled him to discovery

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regarding a potential Napue1 claim. (Doc. 141.) Martinez now asserts that the Court

“overlooked or misapprehended” several points in denying his request for discovery and a

certificate of appealability. The Court disagrees.

In denying Martinez’s Rule 60(b) motion, the Court found it had jurisdiction to

resolve the motion because he sought only the opportunity to develop the potential Napue

claim, and, unlike his previous attempts to reopen the judgment, did not separately assert

the Napue claim itself. (See id. at 3.) For purposes of the analysis, the Court assumed

without deciding that Mitchell was an “extraordinary change in the law.” (Doc. 141 at 4.)

The Court then denied the requested discovery, finding there was no significant likelihood

Martinez would be entitled to relief because, “given the constraints imposed by AEDPA,”

it would be difficult to determine a vehicle for vindicating the right violated. (Id.)

Assuming he could find a legitimate “vehicle” to present his claim using the new evidence,

the Court found no meaningful likelihood his convictions or sentence would be upset. (Id.)

The Court did not, as Martinez asserts, “graft[] onto Mitchell a requirement that

Martinez identify the legal vehicle that would allow Martinez habeas relief if he obtained

the Napue evidence he seeks.” (Doc. 142 at 2.) The Court’s suggestion that Martinez would

have difficulty identifying the vehicle is not a “disapprobation of the rule announced in

Mitchell,” (see id.), rather, it is merely the application of the law controlling discovery in

§ 2254 habeas. Whether a petitioner has established “good cause” for discovery under Rule

6(a) requires a habeas court to determine the essential elements of the underlying

substantive claim and evaluate whether “specific allegations before the court show reason

to believe that the petitioner may, if the facts are fully developed, be able to demonstrate

that he is . . . entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908–09 (1997) (quoting

Harris v. Nelson, 394 U.S. 286, 300 (1969)) (emphasis added).

A habeas petitioner is not entitled to discovery “as a matter of ordinary course.”

Bracy, 520 U.S. at 904. “[A] district court abuse[s] its discretion in not ordering Rule 6(a)

discovery when discovery [i]s ‘essential’ for the habeas petitioner to ‘develop fully’ his

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

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underlying claim.” Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005) (quoting Jones v.

Wood, 114 F.3d 1002, 1009 (9th Cir. 1997)). The Ninth Circuit has explained that in habeas

proceedings “discovery is available only in the discretion of the court and for good cause

shown,” Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999) (citing Rules Governing

Section 2254 Cases, Rule 6(a) 28 U.S.C. foll. § 2254), and is not “meant to be a fishing

expedition for habeas petitioners to ‘explore their case in search of its existence.’” Id. at

1067 (quoting Calderon v U.S.D.C. (Nicolas), 98 F.3d 1102, 1106 (9th Cir. 1996)).

Thus, in determining whether discovery should be permitted, the Court properly

focused on whether specific allegations before the court demonstrated a significant

likelihood of relief. (See Doc. 141 at 4.) The Court suggested Martinez’s ability to ever

present a claim on which it would permit discovery would be a difficult task because of the

procedural hurdles AEDPA imposes and because, even if Martinez could prove the

allegations set forth in his Rule 60(b) motions, there was no significant likelihood he would

obtain relief. (Doc. 141 at 4.)

Assuming, as this Court did, that Mitchell was a change in the law, it is not one that

permits the Court to ignore the constraints of AEDPA, which contains provisions such as

28 U.S.C. § 2244(b)(3)(A), that prohibits the filing of second or successive petitions absent

authorization from the court of appeals, and §§ 2254(d)(1) and (e)(2) that “strongly

discourage[s]” state prisoners from submitting new evidence. Cullen v. Pinholster, 563

U.S. 170, 186 (2011). “Federal courts sitting in habeas are not an alternative forum for

trying facts and issues which a prisoner made insufficient effort to pursue in state

proceedings.” Williams v. Taylor, 529 U.S. 420, 437 (2000).

Put another way, the Court cannot find good cause to grant discovery where

Martinez has no procedurally proper mechanism for demonstrating entitlement to relief.

As Martinez notes, the Ninth Circuit in Mitchell “ruled that Peña-Rodriguez did not set

aside the bar on juror interviews in the absence of good cause. Mitchell, 958 F.3d at 790-

91.” (Doc. 146 at 2.) Similarly, Mitchell did not set aside the bar on discovery in state

habeas cases in the absence of good cause. Good cause cannot be shown if Martinez, after

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fully developing the evidence, would still be unable to demonstrate that he is entitled to

relief. See Bracy, 520 U.S. at 908–09. The Court suggested it would be difficult

procedurally to do so, but moreover found that, assuming Martinez uncovered the evidence

he hoped to uncover, there was no significant likelihood that such a claim would be

successful.

Martinez contends that in doing so, the Court misapprehended the materiality

standard of Napue, and should reconsider its conclusion that “assuming Martinez found a

legitimate ‘vehicle’ to present claims using the new evidence, there is no meaningful

likelihood his convictions or sentences would be upset” and, in its discretion, denied

discovery on these grounds. (Doc. 141 at 4)

Assuming, arguendo, that Martinez uncovered evidence supporting his Napue

claim, reversal would not be “virtually automatic,” as he claims. (Doc. 136 at 16) (citing

Jackson v. Brown, 513 F.3d 1057, 1076 (9th Cir. 2008), and Hayes v. Brown, 399 F.3d

972, 978 (9th Cir. 2005) (en banc); see also (Doc. 142 at 3.). Though both Jackson and

Hayes cited this language from the Second Circuit with approval, both cases clarified that

Napue did not create a “per se rule of reversal.” Jackson, 513 F.3d at 1076; Hayes, 399

F.3d at 984. If error is established, the proper test under Napue is materiality; the Court

must determine whether there is any reasonable likelihood that the false testimony could

have affected the judgment of the jury; if so, then the conviction must be set aside. Hayes,

399 F.3d at 984 (quoting Belmontes v. Woodford, 350 F.3d 861, 881 (9th Cir. 2003)).

Martinez has failed to demonstrate how the Napue violation, if true, could have

affected the judgment of the jury. Martinez asserts Sheriff Detective Douglas Beatty

testified at the guilt phase of trial that the ignition was missing from a 1975 Monte Carlo

driven by Martinez at the time of his arrest, which led prosecutors to argue Martinez had

stolen the car and, therefore, had motive to shoot the victim, a state police patrolman,

during a traffic stop and premeditated the homicide. (Doc. 142 at 2.) But there was ample

evidence, aside from Detective Beatty’s testimony about the missing ignition switch, that

the Monte Carlo was stolen and that the murder was premeditated. The Court previously

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summarized the evidence offered during the guilt phase of Martinez’s trial relevant to the

determination that the Monte Carlo was stolen and that Officer Martin’s murder was

premeditated, and will not restate that testimony here. (Doc. 127 at 12–16.)

Martinez argued in his Rule 60(b) motion that:

Prosecutors argued repeatedly in closing that the evidence showed that

Martinez stole the vehicle and therefore had motive to shoot Arizona DPS

Officer Robert Martin at a traffic stop, which contributed significantly to the

element of premeditation necessary to be proved beyond a reasonable doubt

to convict of first degree murder. See ECF No. 115-5, Appx. 2 at 8-9, 12, 1920, 28-29.

(Doc. 136 at 7) (emphasis added). He also asserted that the Respondents’ arguments

regarding premeditation are “disingenuous” and ignore “the critical significance

prosecutors placed on that testimony in closing argument to prove beyond a reasonable

doubt that Martinez acted with premeditation.” (Doc. 139 at 4.)

Martinez’s characterization of the significance placed on Det. Beatty’s testimony is

misleading. The Court has reviewed the closing arguments and the prosecutor did not assert

that Martinez stole the Monte Carlo, only that the Monte Carlo he was driving was stolen,

an uncontroverted fact whether the ignition switch was missing or not. The prosecution

highlighted this and additional facts not contested in these proceedings to establish motive:

“A stolen car, a handgun, a warrant for his arrest, on the run, and a prior felony conviction.”

(Doc. 115-5, Appx. 2 at 12; see also id. at 29 (“Motive. He’s got a warrant for his arrest.

He was on the run, a prior felony conviction, a stolen car. He was illegally in possession

of a handgun, and he stated, ‘If I am stopped by the police, I am not going back to jail.’.”)

Even if the fact that the car was stolen was removed from the equation, along with

Martinez’s statement that he intended not to go back to jail if stopped by police,2 the fact

remains that Martinez had a warrant for his arrest and was illegally in possession of a

For purposes of the materiality analysis, the Court assumes Martinez could prove

that 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 was intact 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.

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handgun. Moreover, Martinez admits the state’s theory of premeditation also relied on the

testimony of Maricopa County Chief Medical Examiner, Phillip Keen, M.D., as to the

sequence of shots allegedly fired by Martinez that struck Officer Martin. (See Doc. 115 at

39). In addition, to prove premeditation the state also relied heavily in closing arguments

on the amount of time it would have taken Officer Martin to walk the distance from his

vehicle to the stolen Monte Carlo, where he was shot at the driver’s side door.

From 45 feet away, Bob Martin got out of his car and started walking toward

the defendant’s car. His body was found 37 feet in front of -- the front of his

police car, and the location where he would have gotten out of that car is an

additional 8 feet. 45 feet. 45 feet. How many steps is that for the defendant

to keep thinking what is it? What is it that I am going to do when he gets to

my car? However long it takes for Bob Martin to walk up to that car, that’s

how long the defendant is reflecting on what he’s going to do when he gets

there.

...

Four times he pulled this trigger, and four times he struck Bob Martin each

time in the location designed to murder this police officer. In the neck, in the

hand area, and then as the police officer spun, as he gets to the back of his

car and perhaps to safety he shot him in the back. And then when he was

down -- and we have scuff marks on both of Bob Martin’s knees -- when he

was down he pulled that trigger again. That’s four, four times he shot this

man. Premeditation each time he pulls that trigger he’s thinking what I am

doing to this man in the uniform? I am trying to kill him so I can get out of

here. Four times. And then after he was dead or shortly before he died, he

shot at him twice more and missed. Six times.

(Doc. 115-5, App. 2 at 17-19, see also id., App. 3 at 73-74).

Further, Martinez has repeatedly, explicitly and incorrectly stated throughout these

proceedings that “it is clear from closing argument that the prosecution sought to prove

‘premeditation’ through . . . the testimony of Det. Beatty concerning the condition of the

ignition of the 1975 Chevrolet Monte Carlo at the time of [Martinez’s] arrest.” (Doc. 115

at 39) (citing Doc. 115-5, App. 2 at 8, 12, 19–20, 28–29) (emphasis added).3 In fact, the

Additional misstatements attributed to the prosecutor’s closing arguments include:

“The prosecution argued in closing argument that the absence of an ignition meant

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missing ignition was not mentioned at all during closing argument. It was mentioned only

briefly in rebuttal closing argument in the context of one of several reasons why an

eyewitness in Payson was able to remember and identify Martinez from a brief encounter

at a gas station:

. . . [I]t is significant because of the vehicle that was being driven, she told

you that the person left the car running. And that is something because if you

are driving a stolen vehicle you don’t have any keys that work it, and you

have to possibly use a screwdriver. And when you go to the gas station and

somebody is looking right at you and, remember, she says there is an eye

contact here, you don’t want that person seeing you stick a screwdriver there

in the ignition switch, do you, because right away they are going to know

that something is up.

(Id., Appx. 3 at 66.)

Thus, even if Martinez establishes the alleged Napue violation, 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. See

Hayes, 399 F.3d at 984. Martinez has stated in these proceedings that the “Supreme Court

has indicated that closing argument is the barometer for the significance the prosecution

attaches to its evidence.” (Doc. 115 at 39) (citing Kyles v. Whitley, 514 U.S. 419, 444

(1995) (for materiality purposes, “[t]he likely damage [to the prosecution’s case had it

complied with its duty under Brady] is best understood by taking the word of the

prosecutor” in closing argument). If this is true, the prosecution placed no significance on

that Petitioner knew the vehicle to be stolen and, therefore, that he had a motive to kill

Officer Martin, to wit, a desire not to be returned to prison for stealing the Monte Carlo.

R.T., September 25, 1997, at 8, 12, 16, 19-20.” (Doc. 95 at 6) (emphasis added).

“Prosecutors argued repeatedly in closing that the evidence showed that Martinez

stole the vehicle.” (Doc. 136 at 7) (emphasis added).

“Sheriff’s Detective Douglas Beatty testified at the guilt phase of trial that the

ignition was missing from a 1975 Monte Carlo driven by Martinez at the time of his arrest,

which led prosecutors to argue Martinez had stolen the car.” (Doc. 142 at 2) (emphasis

added).

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the testimony of Det. Beatty regarding the missing ignition switch.

Finally, as the Court previously stated, whatever change in law Mitchell may have

wrought does not support Martinez’s request in these circumstances to permit evidentiary

development with respect to the Napue claim. (Doc. 141 at 4); see Phelps v. Alameida, 569

F.3d 1120, 1133 (9th Cir. 2009) (“[T]he proper course when analyzing a Rule 60(b)(6)

motion predicated on an intervening change in the law is to evaluate the circumstances

surrounding the specific motion before the court.”).

The court in Mitchell addressed a jurisdictional issue; it rejected the Government’s

argument that the Fifth Circuit’s decision in In re Robinson, 917 F.3d 856, 861–66 (5th

Cir. 2019), was controlling in the circumstances present in Mitchell, and reaffirmed that

“[a]s explained in Gonzalez, an argument is a ‘claim’ if it ‘substantively addresses federal

grounds’ for setting aside a prisoner’s conviction.” Mitchell, 958 F.3d at 784. Finding that

the district court indeed had jurisdiction to decide the Rule 60(b) motion, the Ninth Circuit

proceeded to analyze the motion under the strictures of Gonzalez.

Similarly, Martinez argued, and this Court agreed, that under Gonzalez and the

Ninth Circuit’s holding in Mitchell, the Court has jurisdiction over Martinez’s Rule 60(b)

motion because it is not a disguised second or successive petition.

After addressing the jurisdictional issue, the Court in Mitchell turned to Mitchell’s

argument that a recently-decided Supreme Court case, Peña-Rodriguez v. Colorado, 137

S. Ct. 855 (2017), was an extraordinary change in the law which would “give Mitchell

relief from the prior order denying his request to interview jurors.” Mitchell, 958 F.3d at

787.

Like Mitchell, Martinez has failed to demonstrate how a change in case law would

upset or overturn a settled legal principle relied on by this court in denying his previous

requests for discovery. Previously, the Court analyzed Martinez’s renewed request for an

“indication” whether it would consider a Rule 60(b) motion (Doc. 115) and found that he

failed to demonstrate a defect in the integrity of the underlying habeas proceedings, but

instead sought to raise new substantive claims under Brady and Napue. (Doc. 127 at 24–

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25.) In doing so, this Court applied the then-controlling law regarding Rule 60(b)(6)

motions, Gonzalez v. Crosby, 545 U.S. 524, 528 (2005), and denied the motion, and

consequently the related discovery request, as a disguised second or successive petition.

The Ninth Circuit’s holding in Mitchell did not change that law.

Martinez’s arguments are premised on flawed understandings of both the holding in

Mitchell and the purpose of a Rule 60(b) motion. First, Martinez incorrectly states that the

Court in Mitchell “explicitly understood the import of Gonzalez to be . . . [that] a petitioner

may seek discovery via Rule 60(b) so long as he is not raising a merits-based substantive

claim in his Rule 60(b) motion.” (Doc. 146 at 3.) Mitchell neither explicitly nor implicitly

said this; a Rule 60(b) motion is not a discovery device, much less a post-judgment one.

Martinez’s assertion also ignores the fact, as this Court pointed out, that the Court in

Mitchell ultimately denied Mitchell’s request for discovery because Peña-Rodriguez did

not unsettle that court’s previous order denying Mitchell’s request to interview jurors.

Mitchell, 958 F.3d at 790 (“[T]his change in law left untouched the law governing

investigating and interviewing jurors.”).

Martinez fails to point to a controlling or well-settled principle of law, relied on by

the Court in denying either habeas relief or relief on the motions for indication, that is now

unsettled as a result of the holding in Mitchell. Martinez has consistently argued that he is

entitled to relief on the grounds of the Beatty Brady and Napue violations and has sought

to support his claims with newly discovered evidence, and the Court has denied those

requests, and the attendant discovery requests, as disguised second or successive petitions.

Beginning with his Motion to Remand before the Ninth Circuit, Martinez argued

for a stay of his appeal and a remand “for consideration of newly-discovered evidence that

supports claims that Maricopa County prosecutors violated . . . Napue . . . where they

deliberately elicited critical testimony from Detective Beatty they knew or should have

known was false.” Martinez v. Ryan, No. 08-99009, (Dkt. 67 at 1) Martinez asserted he

was entitled to habeas relief under Brady, Kyles and Napue. (Id., Dkt. 67 at 12–16.) He

requested a remand for evidentiary development and for preparation of findings of fact and

B-9

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Case 2:05-cv-01561-ROS Document 147 Filed 05/14/21 Page 10 of 11

conclusions of law with respect to both the Brady and Napue claims. (Id. at 20.) In his reply

brief, Martinez clarified that his Quezada motion “alleges a violation of Napue, . . . which

identifies a due process violation where the prosecution fails to correct trial testimony it

knows or should know is false.” (Id., Dkt. 86 at 3.) Martinez asserted he had established

colorable Brady and Napue claims that should be remanded for discovery and evidentiary

hearings. (Id. at 5.) Subsequently, the discovery of the photograph showing the apparently

intact ignition prompted Martinez to file a motion for leave to supplement the motion to

stay and remand stating “[t]he presence of the photo in the Maricopa County Attorney’s

file conclusively proves the Napue claim in the Quezada Motion because it is ‘material,’

as defined by the Supreme Court and this Court, and it establishes that prosecutors knew

or should have known Beatty’s testimony was false or misleading.” (Id., Dkt. 87 at 3.)

After the court granted Martinez’s motion to remand for consideration of a possible

Brady-Napue claim in light of the newly discovered evidence, Martinez asserted in the

renewed request that “[t]he Napue violation would require that the writ issue.” (Doc. 115

at 44.) He alleged that if in fact the ignition was intact, then he had stated a claim which,

upon full factual development, might entitle him to habeas corpus relief. (Id. at 115 at 45.)

Further, Martinez asserted that he was entitled to evidentiary development because he had

“alleged claims which, if proven true, would establish the violation of the right to federal

due process but, despite his diligence, he ha[d] not been able to assemble all of the evidence

in support of the claims due to lack of cooperation of Arizona and California law

enforcement in his investigation.” (Id. at 45–46) (emphasis added).

Mitchell did not change the law governing the presentation of newly discovered

evidence and new claims in Rule 60(b) motions and does not upset or overturn any legal

principle relied on by the Court in previously denying Martinez’s Rule 60(b) motions to

reopen the judgment as disguised second or successive petitions.

Finally, as this Court previously ruled, in determining whether Martinez’s claims of

evidence of an intact ignition or false assertions by Detective Beatty would entitle Martinez

to relief:

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Case 2:05-cv-01561-ROS Document 147 Filed 05/14/21 Page 11 of 11

Even if Petitioner could demonstrate the assertions were false and part of

such a scheme, he cannot demonstrate a defect in the integrity of the

proceedings because the assertions had no effect on the outcome of the

proceedings. The Court found Claim 4 procedurally barred and denied

further evidentiary development of Petitioner’s theory that the ignition was

intact at the time the vehicle was impounded. The Court considered the

evidence proffered in support of Claims 9, 16, and 17, and assumed that

Petitioner’s new evidence would demonstrate that “the ignition was intact at

the time Petitioner was arrested,” but nonetheless concluded that Petitioner

failed to establish that no reasonable juror would have found him guilty of

premeditated first degree murder because “whether the ignition was intact at

the time Petitioner was arrested does not negate the fact that the owner had

reported it stolen.” (Doc. 88 at 26-27) (emphasis added).

Thus, Martinez has failed to demonstrate that Mitchell is an intervening change in

law that constitutes extraordinary circumstances sufficient to permit him to reopen the

judgment in these circumstances. See Phelps, 569 F.3d at 1133.

Accordingly,

IT IS ORDERED Martinez’s motion for reconsideration (Doc. 142) is DENIED.

Dated this 13th day of May, 2021.

Honorable Roslyn O. Silver

Senior United States District Judge

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Martinez v. Shinn, 33 F.4th 1254 (2022)

22 Cal. Daily Op. Serv. 5005, 2022 Daily Journal D.A.R. 4939

Procedural Posture(s): Appellate Review; Post-Conviction

Review.

33 F.4th 1254

United States Court of Appeals, Ninth Circuit.

*1256 Appeal from the United States District Court for

the District of Arizona, Roslyn O. Silver, District Judge,

Presiding, D.C. No. 2:05-cv-01561-ROS

Ernesto Salgado MARTINEZ, Petitioner-Appellant,

David SHINN, Director; James Kimble, *

Warden, Arizona State Prison - Eyman

Complex, Respondents-Appellees.

Attorneys and Law Firms

Jon M. Sands, Federal Public Defender; Timothy M.

Gabrielsen, Assistant Federal Public Defender; Office of the

Federal Public Defender, Tucson, Arizona; for PetitionerAppellant.

No. 21-99006

Submitted May 27, 2021 ** San Francisco, California

Filed May 16, 2022

Synopsis

Background: After affirmance on direct appeal, 196 Ariz.

451, 999 P.2d 795, of petitioner's state-court murder

conviction and death sentence, and denial of federal habeas

relief, 2008 WL 783355 and 2008 WL 1776500, prisoner

again sought federal habeas relief. The United States District

Court for the District of Arizona, Roslyn O. Silver, Senior

District Judge, 2016 WL 1268344, denied relief, and denied

petitioner's motion to alter or amend the judgment to

include certificate of appealability with respect to petitioner's

renewed request for indication whether the court would

consider a motion for relief from judgment, 2016 WL

3345480. Petitioner appealed. The United States Court of

Appeals for the Ninth Circuit stayed the appellate proceedings

and remanded. The District Court, Earl H. Carroll, J., denied

certificate for renewed motion for relief from judgment and

denied petition. Petitioner again appealed. The United States

Court of Appeals for the Ninth Circuit, 926 F.3d 1215,

affirmed in part, and dismissed in part. The United States

District Court for the District of Arizona, Roslyn O. Silver,

Senior District Judge, denied petitioner's motion for relief

from judgment, 2021 WL 1102205, and subsequently, 2021

WL 1947510, denied motion for reconsideration. Petitioner

again sought certificate of appealability.

The Court of Appeals held that intervening change in law did

not amount to extraordinary circumstances to support motion

for relief from judgment denying habeas petition.

Certificate denied.

Mark Brnovich, Attorney General; Lacy Stover Gard, Deputy

Solicitor General/Chief of Capital Litigation; Laura P.

Chiasson, Assistant Attorney General; Office of the Attorney

General, Tucson, Arizona; for Respondents-Appellees.

Before: M. Margaret McKeown, William A. Fletcher, and

Milan D. Smith, Jr., Circuit Judges.

OPINION

PER CURIAM:

Ernesto Salgado Martinez moves for a certificate of

appealability (“COA”) that would allow him to challenge the

district court's denial of his Rule 60(b)(6) motion for relief

from final judgment. Martinez was convicted of first-degree

murder of an Arizona police officer after a jury trial in 1997

and was sentenced to death by the state court. We affirmed

the district court's denial of his federal habeas corpus petition

under 28 U.S.C. § 2254. See Martinez v. Ryan, 926 F.3d 1215

(9th Cir. 2019).

After we affirmed the district court's denial, Martinez moved

in the district court under Rule 60(b)(6) for additional

discovery to develop (1) a potential claim under Napue v.

Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959),

that the prosecution knowingly elicited false testimony from

witness Detective Douglas Beatty about the condition of the

ignition of the stolen car Martinez was driving at the time of

the crime; and (2) a potential claim of actual innocence after

the apparent *1257 recantation of key guilt-phase testimony

by his acquaintance Oscar Fryer. Martinez argued in the

district court that our decision in Mitchell v. United States, 958

F.3d 775 (9th Cir. 2020), is a change of law that constitutes an

“extraordinary circumstance,” permitting him to reopen his

final judgment and obtain the requested discovery.

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22 Cal. Daily Op. Serv. 5005, 2022 Daily Journal D.A.R. 4939

The district court denied Martinez's Rule 60(b)(6) motion

and declined to issue a COA. The court also denied

Martinez's motion for reconsideration. Because no reasonable

jurist could find that Mitchell constitutes an extraordinary

circumstance justifying the reopening of his final judgment

under Rule 60(b)(6), we deny Martinez's request for a COA.

I. Background

A. Factual Background

In August 1995, Martinez drove from California to Globe,

Arizona, to visit friends and family in a stolen blue Monte

Carlo with stolen license plates registered to another car.

Martinez had an outstanding felony warrant for his arrest

in Arizona. He met a friend, Oscar Fryer, in Globe. Fryer

testified at trial that he spoke with Martinez for half an

hour at a carwash while sitting inside his Monte Carlo, and

that Martinez showed him a .38 caliber handgun with tape

wrapped around the handle. Precisely what Martinez said to

Fryer during this conversation is now disputed and is a subject

of his instant motion.

A few days later, on August 15, Martinez left Globe and

drove to Payson, Arizona, on the Beeline Highway. At

approximately 11:30 am, Martinez bought gas at a Circle K

in Payson and drove south toward Phoenix, Arizona. Driving

at a high rate of speed, he passed several cars, including one

driven by Steve and Susan Ball, who noticed his blue Monte

Carlo.

Officer Robert Martin pulled Martinez over at Milepost 195.

The Balls drove past them and saw Officer Martin's patrol

car stopped behind Martinez's Monte Carlo. The Balls both

testified that they saw Martinez's driver's side door open,

with Officer Martin standing inside the door, and both Officer

Martin and Martinez “looking backwards” into the backseat

of the car. Susan Ball recalled them remarking, “Oh, good, he

got the speeding ticket.” After the Balls passed, Martinez shot

Officer Martin four times with a .38 caliber handgun. He shot

him in the hand, neck, back, and face, killing him.

Shortly after Martinez killed Officer Martin, the Balls again

saw him speeding in the blue Monte Carlo. Martinez passed

them about a minute after they had passed him and Officer

Martin on the side of the road. The Balls later saw Martinez

run a red light and drive erratically. They also saw two

police officers coming from the opposite direction with lights

flashing. The Balls caught up with Martinez at a stop light

and saw him “playing with something in the glove box.” They

wrote down his license plate numbers.

Martinez drove through Phoenix and reached Blythe,

California, at around 4:00 pm, when he called his aunt, asking

her to wire him money. At 6:00 pm, he called his aunt again

asking her to wire him money. At approximately 8:00 pm,

he entered a Mini-Mart in Blythe. He stole money from the

cash register and shot and killed the clerk. Ballistics reports

showed that a shell casing was consistent with the .9 mm

ammunition used in Officer Martin's service weapon.

Martinez then drove to his cousin's home in Coachella,

California. When police officers apprehended Martinez, they

recovered a .38 caliber handgun from his friend Tommy

Acuna, who identified it to police *1258 as “the murder

weapon.” Martinez had abandoned the Monte Carlo while

fleeing on foot.

While in jail awaiting trial, Martinez called a friend, Eric

Moreno. He told Moreno that “he got busted for blasting a

jura”—slang for police officer. He also told him that one

of his guns had been “stashed.” Police officers obtained a

warrant to search Martinez's friend Johnny Acuna's trailer and

found Officer Martin's .9 mm handgun under a mattress.

An Arizona jury convicted Martinez of first-degree murder

for killing Officer Martin, two counts of theft, and two counts

of misconduct involving weapons. The judge sentenced

Martinez to death for the murder conviction, and terms of

imprisonment for the other crimes.

Martinez was separately indicted for the murder of the clerk

of the Mini-Mart in Blythe, California. After he was tried

and sentenced in Arizona, he was extradited to stand trial in

Riverside County, California.

B. Disputed Testimony

Martinez now seeks discovery to dispute two pieces of

evidence—Detective Beatty's testimony that the Monte Carlo

had a “punched ignition,” and Oscar Fryer's testimony that

Martinez had told him that he was “not going back to jail.”

This evidence was used at trial to help prove that Martinez

killed Officer Martin with premeditation. Martinez's defense

counsel argued lack of premeditation as an alternative defense

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22 Cal. Daily Op. Serv. 5005, 2022 Daily Journal D.A.R. 4939

in closing argument. Martinez's primary defenses throughout

trial, however, were mistaken identity and failure of the

prosecution to carry its burden of proof. In his instant motion,

Martinez argued to the district court, and now argues to us,

that the evidence he seeks under Rule 60(b)(6) would show

that he did not kill Officer Martin with premeditation and that

he is therefore actually innocent of first-degree murder. See

Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120

L.Ed.2d 269 (1992).

1. Testimony of Detective Beatty

At trial, the prosecution called as a witness Detective Douglas

Beatty, a Maricopa County homicide detective who was

assigned to investigate Officer Martin's death. The court

permitted the State to recall Detective Beatty to the stand

to question him about the condition of the ignition of

the Monte Carlo when it was recovered in California, in

order to help prove that Martinez knew that it was stolen.

Detective Beatty testified that when he attempted to turn

on the recovered Monte Carlo with keys found in its glove

compartment, he discovered that “the ignition switch to the

Monte Carlo was missing.” He described the ignition switch

as “a hollow cavity” that could be turned on with “some sort

of instrument,” such as a screwdriver.

The prosecution indirectly referred to Detective Beatty's

“punched” ignition testimony once during its rebuttal closing

argument. The prosecution used the testimony to rehabilitate

a witness who had identified Martinez as purchasing gas at the

Circle K shortly before the shooting. The State referred to the

Monte Carlo as stolen multiple times, in its opening statement

and closing arguments, as part of its argument that Martinez

had premeditated Officer Martin's killing.

After Martinez's trial in Arizona, he was tried in California

for killing the clerk in the Mini-Mart. Prosecutors in the

California case gave to Martinez files that they had obtained

from the Arizona prosecutors. Those files included notes

and a report from Ricci Cooksey, a California forensic

examiner. Martinez argues that Cooksey's report “failed to

note a punched *1259 ignition when the Monte Carlo was

impounded at the time of Martinez's arrest.” Cooksey's notes

included the names and phone numbers of “Doug Beatty,”

of the “Maricopa Co. Sheriff,” and of the lead prosecutor,

“Bob Shutz [sic],” in Martinez's Arizona case. Martinez

argues that these notes are evidence that Cooksey spoke to

Arizona prosecutors prior to the Arizona trial. The California

prosecutors also gave Martinez a photograph of the Monte

Carlo showing an intact ignition. Martinez argues that this

photograph shows that the ignition was not “punched” at the

time of the crime, and that the photograph was “previously

suppressed” by the Arizona prosecutors.

2. Testimony of Oscar Fryer

Also at trial, the prosecution called Oscar Fryer as a witness

to testify about his conversation with Martinez at the Globe

carwash prior to Officer Martin's murder. Fryer testified that

Martinez had told him there was a warrant out for his arrest,

that he was on probation, that he had a gun, and that if he was

stopped by police, “he wasn't going back to jail.”

In its closing argument, the prosecution repeatedly referred

to Fryer's testimony, emphasizing Martinez's statement that

“he wasn't going back to jail,” as central evidence of both his

motive and premeditation. The prosecution also emphasized

two additional pieces of evidence showing premeditation: (1)

the time between the traffic stop and the shooting, and (2)

the four times that Officer Martin was shot. That additional

evidence was (and is) undisputed.

Seventeen years after Martinez's Arizona trial, Fryer spoke

about his testimony to defense investigator Gerald Monahan,

who had been appointed to work on Martinez's subsequent

California case. Monahan declares that Fryer told him that

he “was high on methamphetamine at the time he testified

against Mr. Martinez at trial”; that “it was his opinion that Mr.

Martinez would shoot it out with police if he were pulled over

by police, rather than be arrested”; and that “Mr. Martinez did

not tell Mr. Fryer that he would shoot it out with police if he

were pulled over.” Martinez argues that Fryer's statements,

as reported by Monahan, support his claim that he did not

premeditate the murder of Officer Martin, and that he is

therefore actually innocent of the death penalty.

C. Procedural History

The Supreme Court of Arizona affirmed Martinez's

conviction and death sentence in May 2000. State v. Martinez,

196 Ariz. 451, 999 P.2d 795 (2000). Martinez sought postconviction relief in state court, which the Superior Court

denied. The Arizona Supreme Court denied his petition for

review in May 2005.

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Martinez v. Shinn, 33 F.4th 1254 (2022)

22 Cal. Daily Op. Serv. 5005, 2022 Daily Journal D.A.R. 4939

Martinez filed a federal habeas petition on May 25, 2005.

On April 30, 2007, Martinez filed a motion for evidentiary

development in the district court. He sought to inspect

the Monte Carlo's ignition switch to assess the veracity

of Detective Beatty's testimony. He also sought to develop

evidence that prosecutors withheld evidence undermining

Oscar Fryer's credibility, in violation of Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), including

evidence of Fryer's drug use and of a favorable plea deal. On

September 7, 2007, Martinez filed a supplemental motion for

evidentiary development, requesting the court's permission,

inter alia, to test the keys found in the glove box of the Monte

Carlo.

The district court denied Martinez's motions for evidentiary

development. The court concluded that further discovery as

to both Detective Beatty and Oscar Fryer would not establish

Martinez's actual innocence *1260 of premeditated, firstdegree murder. The court denied Martinez's habeas petition

on March 20, 2008.

Martinez appealed from the district court's decision. While

the appeal was pending, he filed a motion in the district

court, styled as a “Request for Indication Whether Court

Would Consider Motion for Relief from Judgment Pursuant

to Rule 60(b) of the Federal Rules of Civil Procedure.”

The motion sought to reopen the court's final judgment to

revisit the court's denial of his earlier motions for evidentiary

development. The district court denied the motion.

Martinez then moved to stay appellate proceedings and for

a limited remand to the district court. On July 7, 2014, we

granted Martinez's motion for a limited remand to the district

court for possible consideration of several procedurally

defaulted claims in light of the Supreme Court's intervening

decision in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182

L.Ed.2d 272 (2012). We also remanded to allow Martinez to

move for leave to file in the district court a motion styled

as “a renewed Request for Indication Whether District Court

Would Consider a Rule 60(b) Motion ... for consideration of

a possible Brady-Napue claim in light of newly discovered

evidence.”

Martinez filed a “Renewed Request for Indication Whether

the District Court Would Consider a Rule 60(b) Motion and

Supplemental Martinez Brief” in the district court. Martinez

argued that under Gonzalez v. Crosby, 545 U.S. 524, 125

S.Ct. 2641, 162 L.Ed.2d 480 (2005), his motion met the

requirements for Rule 60(b)(6) relief on the grounds that he

was attacking the integrity of the earlier habeas proceeding,

that relief “is appropriate to accomplish justice,” and that

the basis for the relief was truly “extraordinary.” He argued

that the newly discovered photograph of the intact ignition

of the Monte Carlo, and handwritten investigative notes

suggesting that the ignition was intact when Martinez was

driving the car, should have been produced to his defense

counsel in Arizona. Martinez also sought evidence to develop

the related Napue claim that prosecutors knowingly elicited

false ignition testimony from Detective Beatty.

The district court declined Martinez's request to entertain

a Rule 60(b)(6) motion. The district court characterized

Martinez's request as raising new substantive claims, and

therefore, as a second-or-successive petition. The district

court denied Martinez's request to issue a COA. Martinez

moved in this court for leave to file a motion for a COA, which

we granted on October 7, 2016, expanding the COA to include

all of his remanded claims.

In our opinion issued June 18, 2019, we affirmed the

district court's denial of habeas corpus relief. Martinez, 926

F.3d at 1221. We declined to reach the discovery requests

relevant to the potential Brady and Napue claims because the

district court's ruling on Martinez's “Request for Indication”

constituted a non-reviewable order that was procedural and

“interlocutory in nature.” Id. at 1229 (quoting Scott v.

Younger, 739 F.2d 1464, 1466 (9th Cir. 1984)). The Supreme

Court of the United States denied certiorari. ––– U.S. ––––,

140 S.Ct. 2771, 206 L.Ed.2d 942 (2020).

On July 29, 2020, Martinez renewed his request in the district

court under Rule 60(b)(6) for relief from judgment to obtain

additional discovery to develop a potential Napue claim

based on Detective Beatty's ignition testimony and an actual

innocence claim based on the 2014 purported recantation of

Oscar Fryer's guilt-phase trial testimony.

The district court denied Martinez's Rule 60(b)(6) motion and

his request for a *1261 COA on March 23, 2021. Martinez

moved for reconsideration, which the court also denied. The

court explained in its order denying reconsideration that

Martinez lacked “good cause” for discovery because the

evidence, even if obtained, would not unsettle his conviction

for first-degree premeditated murder. The court wrote, “Even

if the fact that the car was stolen was removed from the

equation, along with Martinez's statement that he intended

not to go back to jail if stopped by police, the fact remains

that Martinez had a warrant for his arrest and was illegally

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Martinez v. Shinn, 33 F.4th 1254 (2022)

22 Cal. Daily Op. Serv. 5005, 2022 Daily Journal D.A.R. 4939

in possession of a handgun.” Further, the court noted that to

prove premeditation, “the state also relied heavily in closing

arguments on the amount of time it would have taken Officer

Martin to walk the distance from his vehicle to the stolen

Monte Carlo, where he was shot at the driver's side door.” The

court determined that “the evidence supporting premeditation

was overwhelming and uncontroverted.” The court concluded

that “Martinez has failed to demonstrate that Mitchell is

an intervening change in law that constitutes extraordinary

circumstances sufficient to permit him to reopen the judgment

in these circumstances.”

Cir. 2000) (internal quotation marks and brackets omitted)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct.

3383, 77 L.Ed.2d 1090 (1983)).

III. Discussion

A. Rule 60(b)

Rule 60(b) provides for relief from a district court's final

judgment on six grounds:

Martinez timely filed a notice of appeal and moved for a COA

in this court.

(1) mistake, inadvertence, surprise,

or excusable neglect; (2) newly

discovered evidence that, with

reasonable diligence, *1262 could

not have been discovered in

time to move for a new trial

under Rule 59(b); (3) fraud

(whether previously called intrinsic

or extrinsic), misrepresentation, or

misconduct by an opposing party;

(4) the judgment is void; (5) the

judgment has been satisfied, released,

or discharged; it is based on an earlier

judgment that has been reversed or

vacated; or applying it prospectively is

no longer equitable; or (6) any other

reason that justifies relief.

II. Standard of Review

A COA is required in order to appeal the denial of a Rule 60(b)

motion for relief from a district court's judgment denying

federal habeas relief. See United States v. Winkles, 795 F.3d

1134, 1141–43 (9th Cir. 2015); see also 28 U.S.C. § 2253(c)

(1) (establishing the general COA requirement for habeas

petitioners); Payton v. Davis, 906 F.3d 812, 817–18 (9th

Cir. 2018) (extending the COA requirement to a Rule 60(d)

motion in a § 2254 habeas petition). A COA may only issue

if the movant shows that (1) jurists of reason would find it

debatable whether the district court abused its discretion in

denying the Rule 60(b) motion, and (2) jurists of reason would

find it debatable whether the underlying section 2255 motion

or section 2254 petition states a valid claim of the denial of a

constitutional right. See Winkles, 795 F.3d at 1143 (explaining

that this test accords with the standard governing COAs for

procedural rulings set forth in Slack v. McDaniel, 529 U.S.

473, 484–85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), while

also incorporating the standard of review applicable to Rule

60(b) motions—abuse of discretion).

The COA inquiry is a threshold inquiry that “is not

coextensive with a merits analysis.” Buck v. Davis, ––– U.S.

––––, 137 S. Ct. 759, 773, 197 L.Ed.2d 1 (2017). At the

COA stage, we ask “only if the District Court's decision was

debatable.” Id. at 774 (quoting Miller-El v. Cockrell, 537 U.S.

322, 327, 348, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

To meet this standard, the petitioner “must demonstrate that

the issues are debatable among jurists of reason; that a court

could resolve the issues in a different manner; or that the

questions are adequate to deserve encouragement to proceed

further.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th

Fed. R. Civ. P. 60(b). A court's power to vacate judgments

under Rule 60(b) in order “to accomplish justice” is balanced

against “the strong public interest in the timeliness and

finality of judgments.” Phelps v. Alameida, 569 F.3d 1120,

1135 (9th Cir. 2009) (alterations and internal quotation marks

omitted).

Some Rule 60(b) motions are available to federal habeas

petitioners despite the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). In relevant

part, AEDPA establishes three requirements for second or

successive habeas petitions:

First, any claim that has already been

adjudicated in a previous petition

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22 Cal. Daily Op. Serv. 5005, 2022 Daily Journal D.A.R. 4939

must be dismissed. [28 U.S.C.] §

2244(b)(1). Second, any claim that

has not already been adjudicated

must be dismissed unless it relies

on either a new or retroactive rule

of constitutional law or new facts

showing a high probability of actual

innocence. § 2244(b)(2). Third, before

the district court may accept a

successive petition for filing, the court

of appeals must determine that it

presents a claim not previously raised

that is sufficient to meet § 2244(b)

(2)'s new-rule or actual-innocence

provisions. § 2244(b)(3).

“Rule 60(b)(6) can and should be ‘used sparingly as an

equitable remedy to prevent manifest injustice,’ ” Hall v.

Haws, 861 F.3d 977, 987 (9th Cir. 2017) (quoting United

States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049

(9th Cir. 1993)).

Gonzalez, 545 U.S. at 529–30, 125 S.Ct. 2641. However,

“[w]hen no ‘claim’ is presented, there is no basis for

contending that the Rule 60(b) motion should be treated like a

habeas corpus application,” and therefore the motion may be

considered by a district court. Id. at 533, 125 S.Ct. 2641. Rule

60(b) motions alleging a “previous ruling which precluded

a merits determination was in error—for example, a denial

for such reasons as failure to exhaust, procedural default, or

statute-of-limitations bar,” or alleging “some defect in the

integrity of the federal habeas proceedings,” such as “[f]raud

on the federal habeas court,” do not advance a “claim” and are

permitted despite AEDPA. Id. at 532, 532 nn.4–5, 125 S.Ct.

2641. On the other hand, motions asking “for a second chance

to have the merits determined favorably” are not. Id. at 532,

125 S.Ct. 2641 n.5.

Rule 60(b)(6), upon which Martinez relies, is a catchall

provision that depends on the “exercise of a court's ample

equitable power ... to reconsider its judgment.” Phelps, 569

F.3d at 1135. A movant seeking relief under Rule 60(b)(6)

is required “to show ‘extraordinary circumstances’ justifying

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

535, 125 S.Ct. 2641 (quoting Ackermann v. United States,

340 U.S. 193, 199, 71 S.Ct. 209, 95 L.Ed. 207 (1950)).

“Extraordinary circumstances occur where there are ‘other

compelling reasons’ for opening the judgment” that prevented

the movant from raising the basis of the motion during the

pendency of the case. Bynoe v. Baca, 966 F.3d 972, 979,

983 (9th Cir. 2020) (quoting Klapprott v. United States,

335 U.S. 601, 613, 69 S.Ct. 384, 93 L.Ed. 266 (1949)).

Although “[s]uch circumstances will rarely occur in the

habeas context,” Gonzalez, 545 U.S. at 535, 125 S.Ct. 2641,

*1263 We held in Phelps that an intervening change in

law can constitute an “extraordinary circumstance” justifying

relief under Rule 60(b)(6) for habeas petitioners, but that

courts must analyze motions under Rule 60(b)(6) using a

“case-by-case inquiry” that balances numerous factors. 569

F.3d at 1133. “A relevant alteration to constitutional rights, for

example, may be sufficient, but a narrow change in peripheral

law is ‘rarely’ enough.” Bynoe, 966 F.3d at 983 (citations

omitted). In Phelps, we outlined six non-exhaustive factors

that are to be flexibly considered to determine whether a

post-judgment change in the law meets the “extraordinarycircumstances” requirement:

(1) [T]he nature of the legal change,

including whether the change in law

resolved an unsettled legal question;

(2) whether the movant exercised

diligence in pursuing reconsideration

of his or her claim; (3) the parties'

reliance interests in the finality of the

judgment; (4) the delay between the

finality of the judgment and the Rule

60(b)(6) motion; (5) the relationship

between the change in law and the

challenged judgment; and (6) whether

there are concerns of comity that

would be disturbed by reopening a

case.

Id. at 983 (summarizing Phelps, 569 F.3d at 1134–40).

Relevant here, “only [legal rulings] that may have affected the

outcome of the judgment the petitioner seeks to review should

weigh toward a finding of extraordinary circumstances.” Id.

at 986. “[W]e consider ... whether the change in law affects an

issue dispositive to the outcome of the case.” Id. In the case

before us, as we explain below, Mitchell does not substantially

affect either Martinez's underlying case or his request for

discovery. The only effect of Mitchell is to make clear that

the district court had jurisdiction to consider his Rule 60(b)

(6) request.

C-6

Martinez v. Shinn, 33 F.4th 1254 (2022)

22 Cal. Daily Op. Serv. 5005, 2022 Daily Journal D.A.R. 4939

B. Mitchell

In Mitchell, Lezmond Mitchell, a Navajo citizen sentenced

to death for a carjacking resulting in death, moved under

Rule 60(b)(6) for relief from final judgment following his

unsuccessful § 2255 habeas proceedings. 958 F.3d at 780,

783. Mitchell challenged the court's earlier procedural rulings

denying him authorization to interview the jurors at his

criminal trial to investigate juror misconduct. Id. at 779.

In 2009, the district court found that Mitchell did not

show good cause for the requested interviews because he

identified no evidence of juror misconduct. Id. In 2018,

Mitchell moved for relief from the district court's 2009 ruling,

arguing that the Supreme Court's intervening decision in

Peña-Rodriguez v. Colorado, ––– U.S. ––––, 137 S. Ct.

855, 197 L.Ed.2d 107 (2017), significantly changed the

law governing requests to interview jurors for racial bias

and therefore constituted an “extraordinary circumstance”

justifying reopening his habeas proceeding under Rule

60(b)(6). Mitchell, 958 F.3d at 779. The Court in PeñaRodriguez had held that juror statements demonstrating racial

animus could be admissible as evidence notwithstanding the

longstanding no-impeachment rule barring juror testimony

about deliberations and Rule 606(b) of the Federal Rules of

Evidence. Peña-Rodriguez, 137 S. Ct. at 869–70.

In Mitchell, we considered the district court's jurisdiction

to entertain Mitchell's Rule 60(b)(6) motion. We held, as a

matter of first impression, that a “prisoner's request to develop

evidence for a potential new claim” does not qualify as a

“claim” under Gonzalez if it does not assert a federal basis

for relief from the prisoner's conviction or sentence, but rather

simply gives a prisoner “the opportunity to attempt to develop

a claim” that might entitle him or her to relief. *1264

Mitchell, 958 F.3d at 786 (emphasis added). Therefore, such a

request for discovery brought under Rule 60(b) was not barred

as a “disguised second or successive” habeas application, and

“the district court had jurisdiction to decide [Mitchell's] Rule

60(b)(6) motion.” Id.

We then turned to the question of whether Mitchell had

established “extraordinary circumstances” that would justify

the reopening of his case under Rule 60(b)(6). Id. (“[W]e

consider whether the alleged extraordinary circumstance,

such as a change in the law, was material to the

prisoner's claim.”). We explained, “a mere development in

jurisprudence, as opposed to an unexpected change, does

not constitute an extraordinary circumstance for purposes of

Rule 60(b)(6).” Id. at 787. We considered the legal change

wrought by the Supreme Court's decision in Peña-Rodriguez

and rejected Mitchell's contention that it represented such

a “fundamental change in the law relevant to his request

to interview jurors ... [that] the district court was obliged

to grant his Rule 60(b)(6) motion.” Id. at 790. Rather,

we held, “[a]lthough Peña-Rodriguez established a new

exception to Rule 606(b), this change in law left untouched

the law governing investigating and interviewing jurors.”

Id. We concluded that because Mitchell failed to present an

extraordinary circumstance that would justify reopening in

his case, “the district court did not abuse its discretion by

denying Mitchell's Rule 60(b) motion.” Id. at 792.

C. Martinez's Rule 60(b)(6) Motion

In his Rule 60(b)(6) motion, Martinez relied on Mitchell

for two propositions: (1) that Mitchell provided the district

court with jurisdiction to consider his motion requesting

discovery to develop potential Napue and actual innocence

claims under Rule 60(b)(6) because it is not a disguised

second or successive petition; and (2) that Mitchell constitutes

an extraordinary change in the law governing post-judgment

requests for discovery and therefore authorizes the district

court to grant his motion under Rule 60(b)(6). Martinez's first

proposition is correct, but his second is not.

We agree with Martinez's assertion that, under our holding

in Mitchell, the district court had jurisdiction to consider

his Rule 60(b)(6) motion for discovery to develop potential

claims. The district court correctly declined to dismiss

Martinez's Rule 60(b)(6) motion as a disguised second or

successive petition.

The district court initially assumed that Mitchell constituted

an “extraordinary change in the law” such that it could

entertain Martinez's motion. Based on that assumption, the

district court denied his motion on the merits. We do not

assume, as the district court initially did, 1 that Mitchell

constitutes an “extraordinary circumstance” under Rule 60(b)

(6). 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.

There is no question that Mitchell established new law in

this circuit as to the district court's jurisdiction to hear Rule

60(b) motions for post-judgment discovery in habeas cases.

Our new holding in Mitchell was that a district court has

C-7

Martinez v. Shinn, 33 F.4th 1254 (2022)

22 Cal. Daily Op. Serv. 5005, 2022 Daily Journal D.A.R. 4939

jurisdiction to consider discovery requests brought pursuant

to Rule 60(b). *1265 Mitchell, 958 F.3d at 785–86. But there

was no new law with respect to the discovery request itself.

See id. at 790. Rather, we held that Peña-Rodriguez was not

an extraordinary change in the law governing access to jurors

such that a Rule 60(b)(6) motion was authorized. Id. at 791.

Because Mitchell did not change the substantive law

governing Martinez's discovery requests, it does not

constitute an extraordinary circumstance justifying relief

from final judgment under Rule 60(b)(6). Just as we held in

Mitchell that Peña-Rodriguez did not disturb the longstanding

rules giving trial courts discretion over granting requests to

interview jurors, we hold here that Mitchell did not disturb

the underlying rules governing the discovery that Martinez

seeks. See id. at 789. The district court therefore did not err in

applying our well-settled rules governing discovery in habeas

proceedings in denying Martinez's Rule 60(b)(6) motion for

additional discovery. See Rule 6(a), Rules Governing § 2254

Cases (allowing discovery for “good cause”); see also Bracy

v. Gramley, 520 U.S. 899, 908–909, 117 S.Ct. 1793, 138

L.Ed.2d 97 (1997) (defining “good cause” for discovery).

No reasonable jurist would disagree with the district court's

decision.

IV. Conclusion

It is beyond debate among reasonable jurists that the district

court did not abuse its discretion in denying Martinez's motion

under Rule 60(b)(6). We therefore decline to grant Martinez's

requested COA.

Certificate of Appealability DENIED.

All Citations

33 F.4th 1254, 22 Cal. Daily Op. Serv. 5005, 2022 Daily

Journal D.A.R. 4939

Footnotes

James Kimble has been substituted for his predecessor, Charles Goldsmith, as Warden of the Arizona State

Prison - Eyman Complex under Fed. R. App. P. 43(c)(2).

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App.

P. 34(a)(2).

Although the district court initially assumed arguendo that Mitchell was an extraordinary change in the law, in

its order denying reconsideration, the court concluded that “Martinez has failed to demonstrate that Mitchell

is an intervening change in law that constitutes extraordinary circumstances sufficient to permit him to reopen

the judgment in these circumstances.”

End of Document

C-8

Case: 21-99006, 07/01/2022, ID: 12484809, DktEntry: 8, Page 1 of 1

FILED

JUL 1 2022

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 21-99006

ERNESTO SALGADO MARTINEZ,

D.C. No. 2:05-cv-01561-ROS

District of Arizona, Phoenix

Petitioner-Appellant,

DAVID SHINN, Director; JAMES

KIMBLE, Warden, Arizona State Prison Eyman Complex,

ORDER

Respondents-Appellees.

Before: McKEOWN, W. FLETCHER, and M. SMITH, Circuit Judges.

Petitioner–Appellant filed a petition for panel rehearing and rehearing en

banc on May 31, 2022 (Dkt. Entry No. 7). The panel has unanimously voted to

deny the petition for panel rehearing. Judges McKeown and M. Smith have voted

to deny the petition for rehearing en banc, and Judge W. Fletcher so recommends.

The full court has been advised of the petition for rehearing en banc and no

judge of the court has requested a vote on whether to rehear the matter en banc.

Fed. R. App. P. 35.

The petition for panel rehearing and rehearing en banc is DENIED.

D-1

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