Petition for Writ of Certiorari — Cody James Martinez, Petitioner v. Ryan Thornell, Director, Arizona Department of Corrections, Rehabilitation and Reentry, et al.

No.

In the

Supreme Court of the United States

CODY JAMES MARTINEZ, Petitioner

v.

DAVID SHINN, ET AL., Respondents

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Petition for Writ of Certiorari

Erin M. Carrillo

The Carrillo Law Firm, PLLC

23 N. Stewart Avenue

Tucson, AZ 85716

Phone: (520) 398-7369

AZ Bar No. 024613

erin@thecarrillolawfirm.com

S. Jonathan Young

Law Office of S. Jonathan Young, P.C.

P.O. Box 42245

Tucson, AZ 85733-2245

(520) 795-0525

AZ Bar No. 012598

sjonathanyoung@icloud.com

Counsel of Record for Petitioner

Questions Presented For Review

I.

Whether Arizona, having refused Strickland cumulative error

determination of prejudice, is entitled to AEDPA deference for a

decision made using the wrong standard?

II.

Whether Mr. Martinez has made a substantial showing of the denial

of a constitutional right to support a certificate of appealability

where the trial court granted sentencing relief as to Count 1 (Murder)

but denied relief as to Count 2 (Kidnapping) even though its

determination as to Count 1 (Murder) was based on a determination

of ineffective assistance of trial counsel as to many of the same

aggravating factors that resulted in the aggravated sentence as to

Count 2 (Kidnapping)?

2

List of All Parties to the Proceeding in the Court Whose

Judgment is Sought to be Reviewed

Cody James Martinez

Petitioner/Appellant

David Shinn, Director Arizona Department of Corrections

Respondent/Appellee

Jeff Van Winkle, Warden Arizona State Prison

Respondent/Appellee

Attorney General of the State of Arizona

Respondent/Appellee

Ryan Thornell, Director Arizona Department of Corrections

Respondent/Appellee

3

Table of Contents

Question Presented For Review .................................................................... 2

List of All Parties to the Proceeding in the Court Whose

Judgment is Sought to be Reviewed ............................................................. 3

Table of Contents ........................................................................................... 4

Table of Cited Authorities ............................................................................. 4

Citations of the Official and Unofficial Reports of the

Opinions and Orders Entered In The Case by Lower Courts ........................ 6

Statement of the Basis for Jurisdiction .......................................................... 6

Constitutional and Federal Provisions Involved ........................................... 7

Statement of the Case .................................................................................... 7

Argument

I Because Arizona Refused to Apply Strickland’s Clearly

Established Rule of Cumulative Consideration of Prejudice

in Ineffective-Assistance Claims, its Decision Rests on an

Incorrect Constitutional Standard and is Not Entitled to

AEDPA Deference ........................................................................ 10

II Having Determined That Ineffective Assistance of Counsel

Undermined Many of the Same Aggravating Factors Supporting

the Murder Sentence, the Trial Court’s Grant of Sentencing

Relief on That Count Necessarily Demonstrates That Mr.

Martinez Has Made a Substantial Showing of the Denial of a

Constitutional Right With Respect to the Kidnapping Sentence

as Well .......................................................................................... 17

Conclusion ................................................................................................... 18

4

Table of Cited Authorities

CASES

Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691

(9th Cir. 2004) ............................................................................................. 16

Fernandez v. Roe, 286 F.3d 1073 (9th Cir. 2002) ........................................ 16

Hardy v. Chappell, 849 F.3d 803 (9th Cir. 2017) ........................................ 15

Kyles v. Whitley, 514 U.S. 419 (1995) ......................................................... 11

Lockhart v. Fretwell, 506 U.S. 364 (1993) .................................................. 14

Miller-El v. Cockrell, 537 U.S. 322 (2003) ................................................. 18

Pizzuto v. Arave, 385 F.3d 1247 (9th Cir. 2004) .......................................... 12

Smith v. Schriro, 813 F.3d 1175 (9th Cir. 2016) .......................................... 15

State v. Hughes, 193 Ariz. 72 (1998) ........................................................... 11

State v. Cody James Martinez, 218 Ariz. 421 (2008) .................................... 8

State v. Pandeli, 242 Ariz. 175 (2017) ......................................................... 11

Strickland v. Washington, 466 U.S. 668 (1984) .......................... 10-15, 18-19

United States v. Bagley, 473 U.S. 667 (1985) ............................................. 11

Wiggins v. Smith, 539 U.S. 510 (2003) .........................................................11

Williams v. Taylor, 529 U.S. 362 (2000) ...................................................... 11

5

STATUTES

28 U.S.C. § 2253 ......................................................................................... 18

28 U.S.C. § 2254 ................................................................................... 16, 18

Citations of the Official and Unofficial Reports of the Opinions

and Orders Entered In The Case by Lower Courts

Martinez v. Shinn, No. 25-6539, 2026 U.S. App. LEXIS 11902 (9th Cir. Apr.

24, 2026)

Martinez v. Shinn, No. 25-6539, 2026 U.S. App. LEXIS 9200 (9th Cir. Mar.

30, 2026)

Martinez v. Shinn, No. CV-21-00163-TUC-RM, 2025 U.S. Dist. LEXIS

185433 (D. Ariz. Sep. 19, 2025)

Martinez v. Shinn, No. CV-21-00163-TUC-RM, 2025 U.S. Dist. LEXIS

187522 (D. Ariz. Sep. 18, 2025)

Martinez v. Shinn, No. CV 21-00163-TUC-RM (LCK), 2024 U.S. Dist.

LEXIS 248507 (D. Ariz. June 26, 2024)

State v. Martinez, 218 Ariz. 421, 189 P.3d 348 (2008)

State v. Martinez, No. 2 CA-CR 2022-0052, 2023 Ariz. App. Unpub. LEXIS

373 (Ct. App. Apr. 12, 2023)

Statement of the Basis for Jurisdiction

The order of the United States Court of Appeals for the Ninth Circuit

denying Petitioner’s Motion for Certificate of Appealability was entered on

March 30, 2026. Petitioner’s motion for rehearing was denied on April 24,

2026. This Petition for Writ of Certiorari is timely filed within 90 days of

6

that date, pursuant to Supreme Court Rule 13. The jurisdiction of this court

is invoked under 28 U.S.C. § 1254(1).

Pursuant to Rule 29.4, service has been made on the Arizona Attorney

General.

Constitutional and Federal Provisions Involved

28 U.S.C. § 2253(c)(2) provides in pertinent part:

“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.”

28 U.S.C. § 2254(e)(1) provides in pertinent part:

“In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the judgment

of a State court, a determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of correctness by

clear and convincing evidence.”

Statement of the Case

The district court had subject matter jurisdiction pursuant to 28 U.S.C.

§ 2254 because the petitioner is in state custody. The Ninth Circuit Court of

Appeals had jurisdiction over the direct appeal pursuant to 28 U.S.C. § 1291

based on the entry of the final judgment by the district court on September

19, 2025.

7

Cody James Martinez, Arizona Prisoner No. 151281, is a prisoner in

state custody since June 12, 2003, currently serving a murder sentence of 25life with a consecutive 20-year sentence on the underlying kidnapping

charge. He is presently incarcerated in the Arizona State Prison – La Palma

CLS I, 5501 North La Palma Road, Eloy, AZ 85131.

Mr. Martinez was convicted in Arizona of premeditated first-degree

murder, felony-murder, and kidnapping after a jury. He was originally

sentenced to death in the Pima County Superior Court No. CR-20031993 on

November 18, 2005. He was sentenced to a consecutive aggravated term of

20 years on the underlying kidnapping conviction on December 16, 2005.

His convictions and death sentence were affirmed by the Arizona

Supreme Court on July 25, 2008, in State v. Cody James Martinez, 218 Ariz.

421 (2008).

Mr. Martinez was resentenced on Count 1 (Murder), on

December 17, 2021, to the minimum available sentence of 25-life and is no

longer under sentence of death. His consecutive aggravated sentence of 20

years as to Count 2 (Kidnapping) imposed on December 16, 2005, remains

in place.

Mr. Martinez’s petition for postconviction relief was granted in part

(sentencing phase) and precluded in part (guilt and aggravation phases) by

the state trial court on May 18, 2017. On May 1, 2019, the Arizona Supreme

Court granted review of Mr. Martinez’s petition for review from the guilt

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and aggravation phases and remanded for merits consideration of the guilt

and aggravation phase claims. At the same time the Arizona Supreme Court

denied the State’s cross-petition for review of the grant of penalty phase

relief.

On March 4, 2020, the state trial court denied relief on the guilt and

aggravation phase relief claims. On February 2, 2021, The Arizona Supreme

Court denied review of the trial court’s denial of relief on the guilt and

aggravation phase claims.

On December 17, 2021, Mr. Martinez was resentenced on the murder

charge in Pima County Superior Court CR-20031993 to the minimum

available term of 25-life. The previously imposed aggravated 20-year

kidnapping sentence remained consecutive because the trial court concluded

that it was constrained by Arizona caselaw.

9

Argument

I

BECAUSE ARIZONA REFUSED TO APPLY STRICKLAND’S CLEARLY

ESTABLISHED RULE OF CUMULATIVE CONSIDERATION OF

PREJUDICE IN INEFFECTIVE-ASSISTANCE CLAIMS, ITS DECISION

RESTS ON AN INCORRECT CONSTITUTIONAL STANDARD AND IS

NOT ENTITLED TO AEDPA DEFERENCE1

The State of Arizona, the Arizona Supreme Court and the trial court

have all explicitly refused the well-established Strickland cumulative error

determination of prejudice, both in this case and in published Arizona

Supreme Court caselaw, and have all decided to address ineffectiveness

claims on an item-by-item, piecemeal basis rather than cumulatively.

As to the cumulative error doctrine argued by the defense that

trial counsel’s mistakes as to F(6) aggravating factor was just

one of many errors that collectively renders trial counsel

ineffective, this Court cannot grant relief. ‘[T]his court does not

recognize the so-called cumulative error doctrine.’ State v.

Hughes, 193 Ariz. 72, 78, 969 P.2d 1184, 1190 (1998); see also

State v. Ellison, 213 Ariz. 116, 133 (2006). Here, there is no

legal basis to grant relief under this argument as the cumulative

error doctrine is not recognized in Arizona law outside of the

context of prosecutorial misconduct. For these reasons,

1 The inappropriateness of AEDPA deference to a state court IAC

determination made in explicit rejection of Strickland cumulative error

consideration of prejudice was addressed in Mr. Martinez’s April 13, 2026

Motion for Reconsideration (DE 11.1), pp.3-4; in Mr. Martinez’s January 1,

2026, Motion for Certificate of Appealability (DE 8.1), pp.31-37, 41; in Mr.

Martinez’s September 9, 2024, Objection to Report and Recommendation

(CR 34), pp.31-34, 48; and in Mr. Martinez’s June 14, 2022, Amended

Petition for Habeas Corpus (CR 18), pp.132-139.

10

Martinez cannot prove he suffered prejudice and this claim is

denied.

(March 3, 2020, Ruling of the Trial Court, p.5) (emphasis added).

See also, State v. Pandeli, 242 Ariz. 175, 191 (2017) (“This Court has

not recognized the cumulative error doctrine for IAC claims …”); State v.

Hughes, 193 Ariz. 72, 78 (1998) (“This court does not recognize the socalled cumulative error doctrine.”).

Strickland v. Washington, 466 U.S. 668 (1984), cumulative error

determination of prejudice stemming from ineffectiveness claims is

exceedingly well-established and Arizona’s refusal to make a Strickland

cumulative error determination is contrary to clearly established federal law

as determined by this Court. Wiggins v. Smith, 539 U.S. 510, 538 (2003)

(“We thus conclude that the available mitigating evidence, taken as a whole,

might well have influenced the jury’s appraisal of Wiggins’ moral

culpability.”); Williams v. Taylor, 529 U.S. 362, 399 (2000) (“…the entire

postconviction record, viewed as a whole and cumulative of mitigation

evidence presented originally, raised ‘a reasonable probability that the result

of the sentencing proceeding would have been different’ if competent

counsel had presented and explained the significance of all the available

evidence.”); Kyles v. Whitley, 514 U.S. 419, 436 (1995) (Brady claim);

United States v. Bagley, 473 U.S. 667, 682 (1985) (the “materiality” test

11

under Brady is the same as the prejudice test in Strickland); Pizzuto v. Arave,

385 F.3d 1247 (9th Cir. 2004) (“individual deficiencies in representation

which may not by themselves meet the Strickland standard may, when

considered cumulatively, constitute sufficient prejudice to justify issuing the

writ”).

This Court’s analysis in Strickland entailed six different categories of

errors in which trial counsel was alleged to be deficient. This Court

repeatedly analyzed the prejudice stemming from trial counsel’s “errors”

which it addressed in the plural:

the Court of Appeals turned its attention to the question of the

prejudice to the defense that must be shown before counsel’s

errors justify reversal of the judgment.

Strickland v. Washington, 466 U.S. 668, 681-682 (1984) (emphasis added).

Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984) (emphasis added).

Even if a defendant shows that particular errors of counsel were

unreasonable, therefore, the defendant must show that they

actually had an adverse effect on the defense.

Strickland v. Washington, 466 U.S. 668, 693 (1984) (emphasis added).

The result of a proceeding can be rendered unreliable, and

hence the proceeding itself unfair, even if the errors of counsel

12

cannot be shown by a preponderance of the evidence to have

determined the outcome.

Strickland v. Washington, 466 U.S. 668, 694 (1984) (emphasis added).

The defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the

outcome.

Strickland v. Washington, 466 U.S. 668, 694 (1984) (emphasis added).

In making the determination whether the specified errors

resulted in the required prejudice, a court should presume,

absent challenge to the judgment on grounds of evidentiary

insufficiency, that the judge or jury acted according to law.

Strickland v. Washington, 466 U.S. 668, 694 (1984) (emphasis added).

The governing legal standard plays a critical role in defining the

question to be asked in assessing the prejudice from counsel’s

errors. When a defendant challenges a conviction, the question

is whether there is a reasonable probability that, absent the

errors, the fact finder would have had a reasonable doubt

respecting guilt. When a defendant challenges a death sentence

such as the one at issue in this case, the question is whether

there is a reasonable probability that, absent the errors, the

sentencer -- including an appellate court, to the extent it

independently reweighs the evidence -- would have concluded

that the balance of aggravating and mitigating circumstances

did not warrant death.

In making this determination, a court hearing an ineffectiveness

claim must consider the totality of the evidence before the judge

or jury. Some of the factual findings will have been unaffected

by the errors, and factual findings that were affected will have

been affected in different ways. Some errors will have had a

pervasive effect on the inferences to be drawn from the

evidence, altering the entire evidentiary picture, and some will

13

have had an isolated, trivial effect. Moreover, a verdict or

conclusion only weakly supported by the record is more likely

to have been affected by errors than one with overwhelming

record support. Taking the unaffected findings as a given, and

taking due account of the effect of the errors on the remaining

findings, a court making the prejudice inquiry must ask if the

defendant has met the burden of showing that the decision

reached would reasonably likely have been different absent the

errors.

Strickland v. Washington, 466 U.S. 668, 695-696 (1984) (emphasis added).

Lack of confidence in the outcome of the trial is how Strickland error

is defined.

The defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the

outcome.

Strickland v. Washington, 466 U.S. 668, 694 (1984) (emphasis added). The

prejudice test of Strickland “focuses on the question whether counsel’s

deficient performance renders the result of the trial unreliable or the

proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372

(1993) (emphasis added).

If deficient performance of counsel leads to a loss of confidence in the

outcome of the proceeding, it does not matter whether there was one error or

twenty. Either way, there is no confidence in the outcome of the proceeding

and the outcome should not stand.

14

Under Arizona’s formulation, however, even if the cumulative effect

of trial counsel’s unprofessional errors is sufficient to undermine confidence

in the outcome of the proceeding, Arizona still regards the defendant as

having received constitutionally adequate representation unless the lack of

confidence can be ascribed to a single error. Arizona gives no explanation

for how several errors better fulfills the Sixth Amendment guarantee of

counsel than a single error. Either way, counsel’s performance was deficient

and there is a lack of confidence in the outcome.

Even though the trial court used a plainly erroneous legal standard in

assessing prejudice, the district court applied AEDPA deference, and doubledeference even, to the trial court’s consideration of Mr. Martinez’s claims

beginning at p.8 of the district court’s September 24, 2025, Amended Order.

(Dkt. 42.)

Having applied an incorrect and unconstitutional standard, the state

court’s factual determinations are not entitled to a presumption of

correctness. Smith v. Schriro, 813 F.3d 1175, 1196 (9th Cir. 2016) (“a state

court’s factual determination rendered under a constitutionally impermissible

legal standard is not entitled to a presumption of correctness. … It is

elemental that fact finding made under an erroneous view of the governing

law cannot be presumed correct.”). See also, Hardy v. Chappell, 849 F.3d

803, 824 (9th Cir. 2017) (“Even though the California Supreme Court recited

15

the proper Strickland prejudice standard, it failed to apply the proper

standard, and thus the decision is not protected from review for 28 U.S.C. §

2254(d) purposes.”); Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d

691, 698 (9th Cir. 2004) (“The state courts determined that no prejudice

resulted from the incident, yet we may not defer to this finding. AEDPA’s

presumption of correctness does not apply to state court findings arrived at

through the use of erroneous legal standards.”); Fernandez v. Roe, 286 F.3d

1073, 1077 (9th Cir. 2002) (“However, where the trial court has applied the

wrong legal standard, AEDPA’s rule of deference does not apply.”).

This decision of the U.S. Court of Appeals has so far departed from

the accepted and usual course of judicial proceedings and has sanctioned the

same departure by the lower court, that it warrants this Court’s exercise of its

supervisory power as it resolved an important federal question in a way that

directly conflicts with this Court’s decisions.

16

II

HAVING DETERMINED THAT INEFFECTIVE ASSISTANCE OF

COUNSEL UNDERMINED MANY OF THE SAME AGGRAVATING

FACTORS SUPPORTING THE MURDER SENTENCE, THE TRIAL

COURT’S GRANT OF SENTENCING RELIEF ON THAT COUNT

NECESSARILY DEMONSTRATES THAT MR. MARTINEZ HAS MADE

A SUBSTANTIAL SHOWING OF THE DENIAL OF A

CONSTITUTIONAL RIGHT WITH RESPECT TO THE KIDNAPPING

SENTENCE AS WELL2

Mr. Martinez made a substantial showing of the denial of a

constitutional right in 2017 when the trial court determined that several of

Mr. Martinez’s sentencing aggravators resulted from ineffective assistance of

trial counsel and ordered a resentencing on the capital count of first-degree

murder based on trial counsel’s ineffectiveness with respect to each of those

aggravating factors. Mr. Martinez was ultimately resentenced to the

minimum available sentence of 25-life on the first-degree murder count.

Mr. Martinez’s kidnapping sentence remains aggravated with those

very same sentencing aggravators. Each of those sentencing aggravators has

been conclusively determined to have resulted from deficient performance of

2 The substantial showing of the denial of a constitutional right based on the

trial court’s finding of IAC as to the same aggravating factors as to Count 1

(Murder) but not as to Count 2 (Kidnapping) was addressed in Mr.

Martinez’s April 13, 2026 Motion for Reconsideration (DE 11.1), p.2; in Mr.

Martinez’s January 1, 2026, Motion for Certificate of Appealability (DE

8.1), pp.15-31; in Mr. Martinez’s September 9, 2024, Objection to Report

and Recommendation (CR 34), pp.9, 21-23, 25-29, 52-53; and in Mr.

Martinez’s June 14, 2022, Amended Petition for Habeas Corpus (CR 18),

pp.22, 63-78, 87-128, .

17

trial counsel. And each of those sentencing aggravators has conclusively

been determined, individually, to have been prejudicial with regard to the

capital sentence. Prejudice would ordinarily be determined cumulatively.

The trial court has simplified the analysis, however, by explicitly

determining prejudice on an item-by-item, piecemeal basis in express

reliance on Arizona Supreme Court precedent unequivocally rejecting

Strickland cumulative error determination of prejudice.

This decision of U.S. Court of Appeals with regard to a substantial

showing of the denial of a constitutional right has decided an important

federal question in a way that has so far departed from the accepted and

usual course of judicial proceedings or sanctioned such a departure by a

lower court as to call for an exercise of this Court’s supervisory power and

has decided an important federal question in a way that conflicts with

relevant decisions of this Court. 28 U.S.C. § 2253(c)(2); see also, Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003)

Conclusion

Arizona cannot expect AEDPA deference for a decision made using

the wrong standard. In 28 U.S.C. § 2254(e)(1) AEDPA terms, the factual

issue of whether trial counsel’s deficient performance violated Strickland

was never determined as the Strickland standard was never applied. At the

18

same time, the trial court’s decision rebuts the presumption of correctness all

by itself as the trial court stated, in clear and convincing language, that it

was not applying cumulative error determination of prejudice.

Arizona’s piece-meal, item-by-item review of trial counsel’s errors is

contrary to the reasoning in Strickland as Arizona’s formulation would leave

intact a conviction even where deficient performance of counsel has led to a

loss of confidence in the outcome of the proceeding.

Even under its erroneous item-by-item determination of prejudice,

Arizona has determined that several of Mr. Martinez’s sentencing

aggravators individually resulted from ineffective assistance of trial counsel

and has conducted a resentencing on Count 1 (Murder) based on trial

counsel’s ineffectiveness with respect to each of those aggravating factors. It

is not too much of a stretch, then, to say that Mr. Martinez has made a

substantial showing of a denial of his right to effective counsel as to each of

those same aggravating factors, especially when considered collectively,

with respect to his sentence as to Count 2 (Kidnapping).

19

Dated July 17, 2026.

/s/S. Jonathan Young

S. JONATHAN YOUNG

Law Office of S. Jonathan Young, P.C.

Counsel of Record for Petitioner

/s/Erin M. Carrillo

ERIN M. CARRILLO

The Carrillo Law Firm, PLLC

20