Martinez, et al v. Ryan, et al

Filing 127

ORDER: Petitioner's Renewed Request for Indication Whether the District Court Would Consider a Rule 60(b) Motion 115 is denied; Claims 4, 11, 12, 16, and 17 are denied as procedurally barred; Petitioner's request to expand the record, for evidentiary development, and for an evidentiary hearing is denied except as to the Court's consideration of the expanded record for the purpose of evaluating cause and prejudice; a Certificate of Appealability is denied, re: 08-99009. Signed by Senior Judge Roslyn O Silver on 3/30/16. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ernesto Salgado Martinez,
Petitioner,

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v.

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No. CV-05-01561-PHX-ROS
DEATH PENALTY CASE

Charles L. Ryan, et al.,

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ORDER

Respondents.

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This matter is before the Court on limited remand from the Court of Appeals for

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the Ninth Circuit for reconsideration of five procedurally defaulted claims—Claims 4, 11,

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12, 16, and 17 of Petitioner’s amended habeas petition—in light of Martinez v. Ryan,

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132 S. Ct. 1309 (2012) (“Martinez”). (Doc. 104.) The Ninth Circuit also granted

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Petitioner’s motion for leave to file a renewed request for indication whether the District

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Court would consider a Rule 60(b) motion for reconsideration of Claim 4 and for

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consideration of a possible claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and

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Napue v. Illinois, 360 U.S. 264 (1959), in light of newly discovered evidence. (Id.)

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Petitioner has now filed one brief comprising both his renewed request and his

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supplemental Martinez brief, and seeking evidentiary development and an evidentiary

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hearing with respect to both issues. (Doc. 115.) Respondents filed a response, and

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Petitioner filed a reply. (Docs. 121, 126.) For reasons set forth below, the Court declines

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Petitioner’s invitation to entertain a motion under Rule 60(b), and finds that Petitioner has

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failed to overcome the procedural default of Claims 4, 11, 12, 16, and 17, and is not

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entitled to evidentiary development or hearing.

I.

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BACKGROUND

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In 1997, a jury convicted Petitioner of theft, weapons-related charges, and first-

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degree murder for the killing of Robert Martin, a Department of Public Safety Officer

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who had stopped Petitioner on the Beeline Highway between Mesa and Payson, Arizona.

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The trial court sentenced Petitioner to death for the murder conviction and to terms of

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imprisonment on the other counts. The following facts concerning the crime are derived

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from the Arizona Supreme Court’s opinion affirming Petitioner’s convictions and

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sentences.

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Martinez drove from California to Globe, Arizona in a stolen blue
Monte Carlo to visit friends and family. After learning that his parents had
moved to Payson, Arizona, Martinez met his friend Oscar Fryer. Fryer
asked Martinez where he had been. Martinez told Fryer that he had been in
California. Fryer then asked Martinez if he was still on probation. Martinez
responded that he was on probation for eight years and had a warrant out
for his arrest. Martinez then pulled a .38 caliber handgun with black tape on
the handle from under his shirt and showed it to Fryer. Fryer asked
Martinez why he had the gun, to which Martinez responded, “[f]or
protection and if shit happens.” Tr. Sept. 9, 1997 at 83. Fryer then asked
Martinez what he would do if he was stopped by the police. Martinez told
Fryer, “he wasn’t going back to jail.” Id. at 85.
Sometime after his conversation with Fryer, Martinez left Globe and
drove to Payson. On August 15, 1995, at approximately 11:30 a.m.,
Martinez was seen at a Circle K in Payson. He bought ten dollars worth of
gas and proceeded south down the Beeline Highway toward Phoenix.
Martinez was driving extremely fast and passed several motorists, including
a car driven by Steve and Susan Ball. Officer Martin was patrolling the
Beeline Highway that morning and pulled Martinez over at Milepost 195.
Steve and Susan Ball saw Officer Martin’s patrol car stopped behind
Martinez’ Monte Carlo and commented, “Oh, good, he got the speeding
ticket.” Tr. Sept. 10, 1997 at 32. As they passed by, Susan Ball noticed
Officer Martin standing at the driver’s side door of the Monte Carlo while
Martinez looked in the backseat.
Shortly after Steve and Susan Ball passed, Martinez shot Officer
Martin four times with the .38 caliber handgun. One shot entered the back
of Officer Martin’s right hand and left through his palm. Another shot
passed through Officer Martin’s neck near his collar bone. A third shot
entered Officer Martin’s back, proceeded through his kidney, through the
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right lobe of his liver, through his diaphragm, and lodged in his back. A
fourth shot entered his right cheek, passed through his skull, and was
recovered inside Officer Martin’s head. The hand and neck wounds were
not fatal. The back and head wounds were.
After murdering Officer Martin, Martinez took Officer Martin’s
.9mm Sig Sauer service weapon and continued down the Beeline Highway
at speeds over 100 mph. Martinez again passed Steve and Susan Ball,
which they found strange. They began discussing how not enough time had
passed for Martinez to have received a speeding ticket because it had only
been a couple of minutes since they had seen him pulled over. They stayed
behind Martinez for some time and watched him go through a red light at
the Fort McDowell turnoff. Steve Ball commented, “Yeah, he just ran that
red light. Something is up here. Something is going on.” Tr. Sept. 10, 1997
at 69. Steve and Susan Ball continued down the Beeline Highway and lost
sight of Martinez until they reached Gilbert Road. At the red light on
Gilbert Road, they caught up to him and took down his license plate.

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Martinez passed through Phoenix and arrived in Blythe, California at
around 4:00 p.m. where he called his aunt for money. At 6:00 p.m.,
Martinez called his aunt again because she failed to wire the money he
requested. Growing impatient, at approximately 8:00 p.m., Martinez
entered a Mini–Mart in Blythe and, at gunpoint, stole all of the $10 and $20
bills from the register. Martinez killed the clerk with a single shot during
the robbery.FN1 A .9mm shell casing was recovered at the Mini–Mart the
following day. Ballistics reports determined that this shell casing was
consistent with the ammunition used in Officer Martin’s .9mm Sig Sauer.
FN1: The trial court excluded evidence of the murder under
Rule 403, Ariz. R. Evid.
Later that night, Martinez drove to his cousin’s house in Coachella,
California, near Indio. Around 12:00 p.m. the next day, August 16, 1995,
Martinez took David Martinez, his cousin, and Anna Martinez, David’s
wife, to a restaurant in Indio. After leaving the restaurant, Martinez noticed
that a police car was following him. David asked Martinez if the car was
stolen to which Martinez responded, “I think so.” Tr. Sept. 15, 1997 at 146–
47. Martinez turned onto a dirt road and instructed David and Anna to get
out of the car. They left the car and went to a nearby trailer compound to
call Anna’s aunt to come and get them.

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Tommy Acuna,FN2 who lived in his grandmother’s house at the
compound, was swimming when David and Anna appeared at the fence
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surrounding the compound. David and Anna asked Tommy if they could
use his phone but Tommy refused. Tommy did permit Anna to use the
bathroom. Anna went into the bathroom and came out a couple of minutes
later. After showing David and Anna out, Tommy went back to the
bathroom “to see if they left anything in there because she wasn’t in there
that long.” Tr. Sept. 16, 1997 at 48. He found a towel on the floor with the
.38 caliber handgun wrapped inside. Tommy took the gun, hid it in his
pants, and walked outside. He testified that he hid the gun because it was
his grandmother’s house. By the time Tommy walked outside, the police
had surrounded the compound. An officer monitoring the perimeter called
out to Tommy and told him that he was going to search him. Tommy
walked over to the officer and exclaimed, “I have got the murder weapon.”
Tr. Sept. 15, 1997 at 192. The officer searched Tommy and found the .38
caliber handgun. This gun was later identified as the weapon that fired the
bullets which killed Officer Martin.
FN2: Tommy’s brother Johnny Acuna was a friend of
Martinez.
After David and Anna got out of the Monte Carlo, Martinez turned
around on the dirt road. Another police car appeared on the scene and
headed towards Martinez. Martinez saw this second police car, left the
Monte Carlo, ran toward the trailer compound, and jumped the fence. He
then ran into Johnny Acuna’s trailer.
The SWAT team evacuated the area and tried to communicate with
Martinez. After those attempts failed, the SWAT team negotiator threatened
to use tear gas. Martinez responded, “I am not coming out; you will have to
come in and shoot me.” Tr. Sept. 17, 1999 at 23. After further negotiations,
however, Martinez agreed to come out and was taken into custody.
While in custody, Martinez called his friend, Eric Moreno, and
laughingly told Moreno that “he got busted for blasting a jura.” FN3 Tr. Sept.
15, 1997 at 13. Martinez also told Moreno that a woman on the highway
might have seen what had happened. They talked about the guns and
Martinez told Moreno that one of the guns had been “stashed.” Id. at 21.
After obtaining a warrant, the police searched Johnny Acuna’s trailer and
found Officer Martin’s .9mm Sig Sauer under a mattress.
FN3: “Jura” is slang for police officer. Tr. Sept. 15, 1997 at
13.
State v. Martinez, 196 Ariz. 451, 453–55, 999 P.2d 795, 797–99, cert. denied, 531 U.S.

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934 (2000) (“State v. Martinez”).

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In 2002, Petitioner initiated state post-conviction relief (“PCR”) proceedings

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pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. The trial court denied

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PCR relief, and the Arizona Supreme Court denied a petition for review.

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Petitioner filed a petition for writ of habeas corpus with this Court on May 25,

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2005, and an amended petition on May 23, 2006. Petitioner asserted the following claims

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in the amended petition which are relevant to this motion and supplemental brief:

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Claim 4:

the trial court violated Petitioner’s right of confrontation by
allowing testimonial hearsay of reports of a stolen vehicle and
license plates to prove the charged offense of vehicle theft,
and as evidence supporting a finding that Officer Martin’s
murder was premeditated.

Claim 11:

trial counsel was ineffective for failing to ameliorate
Petitioner’s 1993 prior conviction for aggravated assault.

Claim 12:

(in part) trial counsel was ineffective for failing to rebut the
State expert’s diagnosis of anti-social personality disorder and
substantiate the defense expert’s diagnosis of post-traumatic
stress disorder.

Claim 16:

trial counsel was ineffective for failing to adequately
investigate and confront witnesses Eric Moreno and Patricia
Baker.

Claim 17:

trial counsel was ineffective for failing to secure an
independent pathologist, properly impeach the state’s
pathologist, and move for corrective action after presentation
of undisclosed testimony.

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(Doc. 30 at 34–40, 86–92, 101–05, 133–43.)

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This Court denied the amended petition, finding Claims 4, 11, 12, 16, and 17

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procedurally defaulted because Petitioner failed to present them in state court and no

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remedies remained available to exhaust the claims, denied further evidentiary

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development of these claims, and granted a certificate of appealability (“COA”) on three

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other claims. (Doc. 88 at 27, 44–48, 50, 52, 58–59.) Subsequently, the Court denied

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Petitioner’s motion to alter or amend the judgment and to expand the COA. (Doc. 91.)

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Petitioner filed a notice of appeal, and, while the appeal was pending, filed a

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request for an indication whether the District Court would consider a Rule 60(b) motion.

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(Docs. 92, 95.) The Court summarily denied the motion. (Doc. 101.)

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While the appeal was pending, the Supreme Court decided Martinez v. Ryan,

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holding that where ineffective assistance of counsel (“IAC”) claims must be raised in an

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initial PCR proceeding, failure of counsel in that proceeding to raise a substantial trial

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IAC claim may provide cause to excuse the procedural default of that claim. 132 S. Ct. at

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1320. Petitioner moved the Ninth Circuit to stay his appeal and remand the case in light

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of Martinez. Petitioner also moved to stay the proceedings and remand based on newly-

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discovered evidence supporting a Brady–Napue claim.1 The Ninth Circuit granted

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Petitioner’s motions and remanded for reconsideration of procedurally defaulted Claims

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4, 11, 12, 16, and 17 in light of Martinez, and for leave to file a renewed request for

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indication whether the district court would consider a Rule 60(b) motion for

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reconsideration of Claim 4 and for consideration of a possible Brady–Napue claim in

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light of newly discovered evidence. (Doc. 121.)
II.

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DISCUSSION

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Petitioner moves this Court to indicate that it will consider a motion for relief from

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judgment under Rule 60(b)(6) on the basis that “such action is appropriate to accomplish

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justice.” (Doc. 115 at 2) (citing Liljeberg v. Health Services Acquisition Corp., 486 U.S.

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847, 864 (1988)). Petitioner also seeks reconsideration based on Martinez for three trial-

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level IAC claims. (Doc. 115 at 8-9.) Petitioner seeks evidentiary development and an

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evidentiary hearing with respect to both the renewed Rule 60(b) request and the Martinez

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claims. (Id. at 45–48, 79.)

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The Ninth Circuit construed Petitioner’s motion for remand pursuant to Townsend v.
Sain, 372 U.S. 293 (1963), and Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010), as a
motion for leave to file in the district court a renewed request for indication whether the
District Court would consider a Rule 60(b) motion for reconsideration of Claim 4 and for
consideration of a possible Brady – Napue claim in light of newly discovered evidence.
(Doc. 121.)
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A.

Renewed Request for Indication Whether This Court Would Consider a Rule
60(b) Motion
Petitioner seeks an indication that the Court will consider a motion for relief from

judgment under Rule 60(b)(6) based on the suppression of material exculpatory evidence
at trial by the Maricopa County Attorney, in violation of Brady v. Maryland, 373 U.S. 83
(1963), and the Arizona Attorney General’s subsequent failure, in this federal habeas
proceeding, to inspect the Maricopa County Attorney’s files for Brady material.
Additionally, Petitioner seeks authorization to conduct further evidentiary development in
support of a related claim that the Maricopa County Attorney knowingly elicited false or
misleading testimony from Detective Douglas Beatty, or failed to correct such testimony,
in violation of Napue v. Illinois, 360 U.S. 264 (1959).
According to Petitioner, a Rule 60(b) motion is the appropriate vehicle for
vindicating the rights he alleges were violated under Brady and Napue because the new
evidence demonstrates that the earlier federal habeas proceedings lacked integrity.
Respondents contend that the Court should deny Petitioner’s renewed request
because Petitioner’s Rule 60(b) motion is really a second or successive petition, which is
barred under 28 U.S.C. § 2244(b)(1). Respondents also assert that Petitioner cannot show
extraordinary circumstances warranting reopening of the habeas proceeding because no
Brady or Napue violation occurred.
For the reasons discussed, the Court finds that Petitioner’s motion does not
establish a defect in the integrity of these proceedings, but rather, seeks to raise new
substantive claims. Accordingly, this Court lacks jurisdiction to consider the claims
absent authorization from the Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3).
1.

Applicable Law
a.

Rule 60(b)

Federal Rule of Civil Procedure 60(b) “allows a party to seek relief from a final
judgment, and request reopening of his case, under a limited set of circumstances.” Jones
v. Ryan, 733 F.3d 825, 833 (9th Cir. 2013) (quoting Gonzalez v. Crosby, 545 U.S. 524,

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528 (2005)). Generally, the filing of a notice of appeal divests the district court of

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jurisdiction to consider a motion for relief from judgment. See Gould v. Mut. Life Ins. Co.

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of New York, 790 F.2d 769, 772 (9th Cir. 1986). In such a case, it is appropriate for a

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petitioner to ask the district court whether it wishes to entertain a Rule 60(b) motion, and,

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if the request is granted, to then move in the appellate court for remand of the case. See

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Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004).

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A claim for relief under Rule 60(b)(6), the “catch-all” provision of the rule on

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which Petitioner relies, must be brought “within a reasonable time,” Fed.R.Civ.P.

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60(c)(1), and requires a showing of “extraordinary circumstances” that justify reopening

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a judgment. See Gonzalez, 545 U.S. at 535–36 (quoting Ackermann v. United States, 340

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U.S. 193, 199 (1950)). “Such circumstances ‘rarely occur in the habeas context.’” Jones,

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733 F.3d at 833 (quoting Gonzalez, 545 U.S. at 535).

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For habeas petitioners, a Rule 60(b) motion may not be used to “make an end-run

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around the requirements of AEDPA or to otherwise circumvent that statute’s restrictions

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on second or successive habeas corpus petitions” set forth in 28 U.S.C. § 2244(b). Jones,

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733 F.3d at 833 (quoting Calderon v. Thompson, 523 U.S. 538 (1998)) (internal quotation

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marks omitted). This statute has three relevant provisions: First, § 2244(b)(1) requires

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dismissal of any claim that has already been adjudicated in a previous habeas petition.

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Second, § 2244(b)(2) requires dismissal of any claim not previously adjudicated unless

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the claim relies on either a new and retroactive rule of constitutional law or on new facts

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demonstrating actual innocence of the underlying offense. Third, § 2244(b)(3) requires

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prior authorization from the court of appeals before a district court may entertain a

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second or successive petition under § 2244(b)(2). Absent such authorization, a district

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court lacks jurisdiction to consider the merits of a second or successive petition. United

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States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011); Cooper v. Calderon, 274 F.3d

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1270, 1274 (9th Cir. 2001).

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There is no “bright-line rule for distinguishing between a bona fide Rule 60(b)

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motion and a disguised second or successive [§ 2254] motion.” Jones, 733 F.3d at 834

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(quoting Washington, 653 F.3d at 1060). In Gonzalez, the Court held that a Rule 60(b)

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motion constitutes a second or successive habeas petition when it advances a new ground

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for relief or “attacks the federal court’s previous resolution of a claim on the merits.” 545

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U.S. at 532. “On the merits” refers “to a determination that there exist or do not exist

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grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).”

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Id. at 532 n. 4. A legitimate Rule 60(b) motion “attacks, not the substance of the federal

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

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habeas proceedings.” Id. at 532; accord United States v. Buenrostro, 638 F.3d 720, 722

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(9th Cir. 2011) (observing that a defect in the integrity of a habeas proceeding requires a

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showing that something happened during that proceeding “that rendered its outcome

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suspect”). For example, a Rule 60(b) motion does not constitute a second or successive

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petition when the petitioner “merely asserts that a previous ruling which precluded a

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merits determination was in error—for example, a denial for such reasons as failure to

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exhaust, procedural default, or statute-of-limitations bar”—or contends that the habeas

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proceeding was flawed due to fraud on the court. Id. at 532 nn. 4–5; see, e.g., Butz v.

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Mendoza–Powers, 474 F.3d 1193 (9th Cir. 2007) (holding that “where the district court

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dismisses a petition for failure to pay the filing fee or to comply with the court’s orders,

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the district court does not thereby reach the “merits” of the claims presented in the

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petition and a Rule 60(b) motion challenging the dismissal is not treated as a second or

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successive petition”). The Court reasoned that if “neither the motion itself nor the federal

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judgment from which it seeks relief substantively addresses federal grounds for setting

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aside the movant’s state conviction,” there is no basis for treating it like a habeas

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application. Gonzalez, 545 U.S. at 533.

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On the other hand, if a Rule 60(b) motion “presents a ‘claim,’ i.e., ‘an asserted

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federal basis for relief from a . . . judgment of conviction,’ then it is, in substance, a new

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request for relief on the merits and should be treated as a disguised” habeas application.

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Washington, 653 F.3d at 1063 (quoting Gonzalez, 545 U.S. at 530). Interpreting

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Gonzalez, the court in Washington identified numerous examples of such “claims,”

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including:

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a motion asserting that owing to excusable neglect, the movant’s habeas
petition had omitted a claim of constitutional error; a motion to present
newly discovered evidence in support of a claim previously denied; a
contention that a subsequent change in substantive law is a reason
justifying relief from the previous denial of a claim; a motion that seeks to
add a new ground for relief; a motion that attacks the federal court’s
previous resolution of a claim on the merits; a motion that otherwise
challenges the federal court’s determination that there exist or do not exist
grounds entitling a petitioner to habeas corpus relief; and finally, an attack
based on the movant’s own conduct, or his habeas counsel’s omissions.

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Id. (internal quotations and citations omitted). If a Rule 60(b) motion includes such

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claims, it is not a challenge “to the integrity of the proceedings, but in effect asks for a

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second chance to have the merits determined favorably.” Gonzalez, 545 U.S. at 532 n. 5.

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b.

Brady and Napue

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Due process requires a prosecutor to disclose material exculpatory evidence to the

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defendant before trial. Brady, 373 U.S. at 87. This duty extends to evidence “that could

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be used to impeach one of the prosecution’s witnesses or undermine the prosecution’s

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case,” Milke v. Ryan, 711 F.3d 998, 1003 (9th Cir. 2013), and arises regardless of

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whether the defendant makes a request for the evidence. United States v. Bagley, 473

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U.S. 667, 682 (1985) (plurality opinion); see also Kyles v. Whitley, 514 U.S. 419, 433

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(1995) (“[R]egardless of request, favorable evidence is material.”). Moreover, a

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prosecutor has an affirmative duty to learn of and disclose exculpatory or impeachment

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evidence known to other government agents, including any agents involved in the

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investigation. See Kyles, 514 U.S. at 437.

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Evidence is “material” if there is a reasonable probability that disclosure of the

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evidence would have changed the outcome of the proceeding. Bagley, 473 U.S. at 682. A

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“reasonable probability” is “a probability sufficient to undermine confidence in the

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outcome.” Id. at 678. When assessing materiality, the court must take into account the

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cumulative effect of the suppressed evidence in light of other evidence, not merely the

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probative value of the suppressed evidence standing alone. See Kyles, 514 U.S. at 436

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(explaining that materiality under Bagley is evaluated in distinct, cumulative analysis in

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which “suppressed evidence [is] considered collectively”).

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Thus, to establish a Brady violation, a defendant must prove: 1) the evidence at

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issue is favorable to the accused, either because it is exculpatory or because it is

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impeaching, 2) the evidence was suppressed either willfully or inadvertently, and 3)

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prejudice resulted, meaning there is a reasonable probability that disclosing the evidence

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to the defense would have changed the result. Andrews v. Davis, 798 F.3d 759, 793 (9th

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Cir. 2015) (quoting Strickler v. Greene, 527 U.S. 263, 281–82 (1999); Bagley, 473 U.S.

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at 682).

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A Napue violation occurs when prosecutors “knowingly use false evidence,

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including false testimony” or “allow[ ] it to go uncorrected when it appears.” Napue, 360

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U.S. at 269. To prevail on a Napue claim, a petitioner must show that (1) the testimony or

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evidence was actually false, (2) the prosecution knew or should have known that the

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testimony was actually false, and (3) the false testimony was material. United States v.

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Zuno–Arce, 339 F.3d 886, 889 (9th Cir. 2003) (citing Napue, 360 U.S. at 269–71).

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2.

Relevant facts

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Petitioner asserts that the Maricopa County Attorney has suppressed material

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exculpatory evidence, in violation of Brady. The Court considers the new evidence

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Petitioner proffers in support of his Rule 60(b) motion and Brady and Napue claims for

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purposes of making this determination. See e.g., Poyson v. Ryan, 743 F.3d 1185, 1203

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(9th Cir. 2013), overruled on other grounds by McKinney v. Ryan, ––– F.3d ––––, 2015

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WL 9466506, (9th Cir. 2015) (en banc); Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir.

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2014) (en banc). The new evidence consists of, primarily, a photograph of an intact

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ignition in the 1975 Chevrolet Monte Carlo (“Monte Carlo”) driven by Petitioner before

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his arrest, and disclosed to Petitioner in 2012 as part of court-ordered discovery in his

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prosecution in California for the murder of a convenience store clerk in Blythe,

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California. (Doc. 115, Ex. 1.) Petitioner submits this photograph cannot be reconciled

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with Detective Beatty’s testimony during his trial, and, had it been disclosed at trial,

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would have undermined proof of premeditation, an element of first-degree murder (the

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“Beatty Brady claim”).

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Petitioner also asserts that Respondents suppressed a report by California

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Department of Justice Senior Criminalist Ricci Cooksey, identifying other matters of

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evidentiary significance with respect to the Monte Carlo, but failing to note a missing

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ignition, which, Petitioner contends, implies that the ignition was intact. (Doc. 115, Ex.

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2.) The report also indicates that Cooksey attempted telephonic contact with Detective

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Beatty and the prosecutor prior to trial, which Petitioner contends demonstrates a possible

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Napue violation because it implies that Cooksey informed Detective Beatty and the

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prosecutor that the ignition was intact when he inspected the vehicle.

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To place Petitioner’s argument and new evidence into context, the Court will

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summarize the evidence offered during the guilt phase of Petitioner’s trial relevant to the

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determination that the Monte Carlo driven by Petitioner was stolen and that Officer

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Martin’s murder was premeditated, and the new evidence proffered in this habeas

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proceeding.

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a.

Guilt Phase Evidence
i.

Officers Rochelle Carlton and Owen Krings

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Rochelle Carlton, a community service officer for the Indio Police Department,

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testified that she took a call on July 29, 1995, from Herman Hines, who reported his

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California license plate, number 1 CUK 259, stolen. (Doc 121, App. C at 87–91.) Officer

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Owen Krings, with the Cathedral City Police Department, testified that he took a stolen

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car report on July 29, 1995, from Sonia Tison. (Doc. 121, App. D at 149–50.) Tison

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described the car as a 1975, white over blue Chevy Monte Carlo, and provided the

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vehicle identification number for the vehicle. (Id. at 151.) It was later determined that the

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VIN number matched the number of the Monte Carlo being driven by Petitioner. (Doc.

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115, App. 12 at 100–101.)

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In Claim 4 of his amended habeas petition, Petitioner argued that the trial court

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denied his federal constitutional right of confrontation by allowing the prosecution to

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introduce testimonial hearsay through the officers’ testimony to prove the vehicle driven

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by Petitioner at the time of the crime, and the license plate on the vehicle, were stolen.

3

(Doc. 30 at 34–40.) Because the claim was procedurally defaulted, the Court considered

4

Petitioner’s argument that a fundamental miscarriage of justice would occur if the claim

5

was not heard on the merits because “the exclusion of the purported theft of the Monte

6

Carlo greatly weakens the prosecution’s case for motive and premeditation.” (Doc 50 at

7

31.) Based on habeas counsels’ discovery that the ignition switch was in two pieces under

8

the passenger seat, and the parts were not listed in the vehicle inventory, Petitioner’s

9

counsel sought additional discovery to establish that the ignition was intact at the time the

10

vehicle was impounded. The Court considered the evidence and concluded that Petitioner

11

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

12

premeditated first-degree murder, declined to review the claim on the merits, and denied

13

further evidentiary development.

14

ii.

Oscar Fryer

15

Oscar Fryer testified he saw Petitioner in Globe, Arizona, in the days before

16

Officer Martin’s murder. (Doc. 115, App. 8 at 75.) Fryer testified Petitioner was driving a

17

blue Monte Carlo with a white top, and that Petitioner showed him a .38-caliber handgun

18

with black tape around the handle, which he had for protection and if “shit happens.” (Id.

19

at 78-86.) Fryer further testified that Petitioner told him he was on probation and

20

indicated that he had a warrant for his arrest, that he was on the run, and that he was not

21

going back to jail if stopped by the police. (Id.)

22

Defense counsel impeached Fryer at trial with two prior felony convictions. (Id. at

23

88.) Defense counsel also elicited from Fryer that prior to trial he had violated his

24

probation, that he was on the run, and that he would not agree to cooperate or turn

25

himself into authorities until he had negotiated and had in his possession a written plea

26

agreement dealing with charges of assault on a police officer, domestic violence, resisting

27

arrest, and escape. (Id. at 88-93.) Defense counsel introduced Fryer’s plea agreement into

28

evidence, which provided that if Fryer cooperated and testified for the prosecution, his

- 13 -

1

three felony charges would be reduced to one misdemeanor assault charge and he would

2

be sentenced to probation. (Id.)

3

In Claim 9 of his amended federal habeas petition, Petitioner argued that the

4

prosecution violated Brady by failing to disclose that Fryer would receive other benefits

5

in exchange for his testimony, that he was using drugs at the time of trial but the

6

prosecution did not move to revoke his probation, and that the prosecution did not charge

7

Fryer with making a false report to law enforcement when he lied to a police officer

8

about a suspect’s location (the “Fryer Brady claim”). Because the claim had been

9

procedurally defaulted, the Court considered whether the prosecution’s withholding of

10

material exculpatory evidence established cause for the default. The Court considered the

11

evidence proffered by Petitioner in his motion for evidentiary development in support of

12

the alleged Brady violation and denied the Fryer Brady claim, concluding the withheld

13

impeachment information was not material, and that “Fryer’s testimony was not the

14

linchpin evidence of premeditation portrayed by Petitioner.” (Doc. 88 at 37–38.)

15

iii.

Elizabeth Martin

16

Elizabeth Martin testified that she knew Petitioner and had seen him in Globe,

17

Arizona, driving a white and blue Monte Carlo with California license plates, two or

18

three days before Officer Martin was shot on the Beeline Highway. (Doc. 115, App. 8, at

19

44–47.) After Elizabeth Martin informed Petitioner that his parents were living in Payson,

20

Arizona, Petitioner indicated he would go to Payson to visit them. (Id. at 50.) On the day

21

Officer Martin was shot, Elizabeth spoke by phone with Petitioner’s mother, who

22

indicated that her son was returning to Indio, California. (Id. at 54.) After hearing about

23

the shooting, Elizabeth provided the police department with information about Petitioner,

24

the car he was driving, and where she thought he would be going. (Id. at 52–54.)

25

iv.

Detective Beatty

26

Detective Beatty, with the Maricopa County Sheriff’s Office, was the case agent

27

assigned to Officer Martin’s homicide. (Doc. 115, App. 1 at 4, 8–9.) In the course of his

28

investigation, Detective Beatty received information that a California license plate, 1

- 14 -

1

CUK 259, on a blue and white Monte Carlo had been reported lost or stolen. (Doc. 115,

2

App. 1 at 23.) Detective Beatty testified that when he was a uniform patrol officer

3

investigating car thefts, thieves would commonly change the plate on a stolen car to make

4

it more difficult to determine that it was stolen. (Id. at 5–6.) Detective Beatty also

5

received information that Petitioner had been in Globe driving a blue and white Monte

6

Carlo with California license plates. (Id.) Detective Beatty determined that an arrest

7

warrant for Petitioner for a felony violation had been issued on April 13, 1995, from the

8

Superior Court in Globe, Arizona. (Id. at 24, 33.)

9

Detective Beatty was present at the execution of the search warrant on the Monte

10

Carlo on August 17, 1995. (Doc. 115, App. 1 at 23, 65.) Detective Beatty identified

11

Exhibit 198 as a photo of the Monte Carlo taken where it was abandoned just before

12

Martinez’ arrest. (Id. at 48–49; Doc. 115 Ex. 14.) The photograph shows an intact trunk

13

lock.

14

After the state rested, the trial court granted the state’s motion to reopen to allow

15

the prosecution to question Detective Beatty regarding the condition of the ignition on the

16

Monte Carlo. Detective Beatty gave the following testimony which Petitioner now argues

17

cannot be reconciled with the recently discovered evidence that the ignition was intact:

18
19
20
21
22
23

Q. Now, with regard to the Monte Carlo with the license plates 1 CUK 259,
at some point in this investigation did you try to determine if there were any
keys found in that Monte Carlo?
A. Yes, sir. After we left the search warrant, the trailer -- after I went to the
Riverside County District Attorney’s Office I went to the location where
the search warrant was still being served on the Monte Carlo, and there
were some keys found in the Monte Carlo during the search warrant.
Q. Where were keys found, if you know?

24

A. The keys were found in the glove compartment, I believe.

25

Q. At a later time did you try to determine if those keys accessed the
ignition on that car?

26
27
28

A. Yes, sir, I did.
Q. And what did you determine?
A. Well, I took the keys out of evidence out of our property room and I
- 15 -

1

3

went to the Monte Carlo, and actually there was really no need because the
ignition switch to the Monte Carlo was missing. It is a hollow cavity in
there, and then you can stick some sort of instrument in there, and then turn
what would have been the ignition without a key.

4

Q. Okay. Would a screwdriver be able to turn that?

5

A. Yes, sir.

2

6

(Pet. App. 1 at 64–65.)

7

v.

Anna Martinez

8

Anna Martinez testified that she was riding in Petitioner’s car, the blue Monte

9

Carlo, on August 16, 1995, with her husband, her son, and Petitioner. (Doc. 121, App. C

10

at 140–41.) Anna saw a police car driving behind them, and her husband asked if the car

11

was stolen. (Id. at 142–45.) Petitioner smiled and said, “I think so” and told Anna to

12

“[g]et out of the car.” (Id. at 148.)

13

vi.

Officer Robert Whitney

14

City of Blythe Police Officer Robert Whitney interviewed Petitioner after his

15

arrest. (Doc. 115, App. 12 at 104, Doc. 121, App. B at 119–20.) When asked if the car

16

was stolen, Petitioner indicated to Officer Whitney that “he found it parked in the barrio

17

in Indio and took it there to Arizona and back.” (Doc. 121, App. B at 120.)

18

b.

New Evidence

19

Petitioner’s counsel in these habeas proceedings, the Federal Public Defender

20

(“FPD”), received permission to inspect the Monte Carlo at the Maricopa County

21

Sheriff’s impound lot in Phoenix in June 2007. (See Doc. 74, Ex. 29.) FPD investigator

22

John Castro inspected the Monte Carlo and discovered a chrome bezel and ignition

23

cylinder on the vehicle’s passenger front floor, but was not allowed to test keys that had

24

been seized from Petitioner when he was arrested and from the Monte Carlo when it was

25

impounded. (Id.) Petitioner argued in his supplemental motion for evidentiary

26

development that the two ignition parts were not listed on three separate inventories of

27

the Monte Carlo’s contents, supporting an inference that the ignition was still intact at the

28

time of Petitioner’s arrest, but was later punched out by law enforcement. (See Doc. 74,

- 16 -

1

at 7.) Petitioner sought discovery of documents concerning the Monte Carlo’s chain of

2

custody, the depositions of Detectives Beatty and Colbert, and production of three sets of

3

keys seized as well as permission to test the keys in the ignition cylinder. (Id. at 9–10.)

4

Petitioner also sought to expand the record to include the three inventories, photographs

5

of the ignition bezel and cylinder, and the declarations of two witnesses who drove or

6

rode in the Monte Carlo in Globe, Arizona, before the shooting of Officer Martin. (Id. at

7

10.) The witnesses recalled that the keys were in the ignition, the ignition was intact, and

8

no screwdriver or ice pick was needed to start the car. (Id. at 10–11.)

9

The Court considered the new evidence proffered by Petitioner in his motion for

10

evidentiary development in the context of a claim of actual innocence sufficient to

11

overcome the procedural default of Claim 4 of the amended petition—a claim that the

12

trial court denied Petitioner’s federal constitutional right to confrontation by allowing the

13

prosecution to introduce testimonial hearsay to prove that the vehicle and the license

14

plate were stolen. (Doc. 88 at 25–26.) The Court determined that Petitioner had not made

15

the requisite showing of actual innocence, finding that “whether the ignition was intact at

16

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

17

stolen.” (Id. at 26–27.) The Court denied evidentiary development and habeas relief on

18

this claim. (Id. at 27, 59.)

19

In Petitioner’s first motion requesting an indication that the Court would consider

20

a Rule 60(b) motion, Petitioner asserted that he had uncovered new evidence supporting

21

his motion for evidentiary development, the denial of which affected the integrity of the

22

federal habeas corpus proceeding by depriving the Court of all evidence necessary to

23

determine the merits of Claim 4 and a potential related Brady claim. (Doc. 95.)

24

According to Petitioner, the new evidence, and that for which evidentiary development

25

was sought with respect to Claims 4, 9, and 17, undercuts “motive” and calls into

26

question the finding of “premeditation,” an element of first-degree murder the

27

prosecution was required to prove beyond a reasonable doubt. (Id.) The Court denied the

28

motion. (Doc. 101.)

- 17 -

1

In July 27, 2010, Petitioner was ordered extradited to Riverside County,

2

California, to stand trial on charges arising from the shooting death of a convenience

3

store clerk in Blythe. Petitioner asserts that, as a result of discovery ordered by the

4

Superior Court of Riverside County, two critical pieces of Brady evidence have now been

5

unearthed: the investigative notes of criminalist Cooksey (Doc. 115, Ex. 2) and the

6

photograph of the intact ignition (Doc. 115, Ex. 1).

7

Petitioner asserts that this recent disclosure of Cooksey’s notes included 13 pages

8

(see Ex. 2, Bates numbers 1854, 1857–68) that were not disclosed to Petitioner until so

9

ordered by the Riverside County Superior Court. Petitioner asserts that these notes are

10

quite detailed with respect to the contents and condition of the Monte Carlo, but fail to

11

note anything unusual with respect to the ignition switch. Petitioner also submits the

12

declaration of Randall Hecht, Petitioner’s court appointed California investigator. (Doc.

13

115, Ex. 29.) Hecht declares Cooksey told him that although he did not recall the

14

investigation, he would normally record information about the condition of the vehicle’s

15

ignition switch, but needed to review his notes before he could answer any questions

16

about his investigation. (Id. at ¶¶ 5, 6.) Hecht asserts that, after reviewing his notes,

17

Cooksey stated that he would have noted it in his report if the vehicle ignition switch had

18

been removed from the steering column and had been lying on the floor of the vehicle,

19

and also stated conclusively that the vehicle’s ignition switch had not been removed and

20

was not missing from the steering column at the time he processed the vehicle. (Id. at ¶¶

21

10, 11.) Cooksey later signed a declaration disavowing that he made those statements to

22

Hecht. (Doc. 115, Ex. 20.)

23

Petitioner asserts that other critical facts are evident from Cooksey’s disclosure.

24

First, Cooksey’s notes include the names and phone numbers of “Doug Beatty” of the

25

“Maricopa County Sheriff” and “Bob Shutz (sic) D.A.”—the prosecutor at Petitioner’s

26

trial—and that Cooksey attempted to call Shutts and left a message more than six months

27

prior to the start of the jury selection in Petitioner’s Maricopa County trial. (Doc. 115,

28

Ex. 2 at 1867) Cooksey’s notes also contain a hand-drawn diagram of the driver front

- 18 -

1

door of the Monte Carlo, showing “exceptional detail” and including matters thought to

2

be of evidentiary value, including the mirror, keyhole, handle, trim, and paint scrapings

3

with notations that there may be paint transfer on the door. (Id. at 1863.)

4

Petitioner also cites the newly disclosed report of Riverside County District

5

Attorney Investigator Thomas Gleeson, who transferred the Monte Carlo to officers of

6

the Maricopa County Sheriff’s Office. The report, dated October 24, 1995, indicates that

7

the trunk lock was “missing” and had been “punched out.” (Doc. 115, Ex. 13 at 1776,

8

1778.) A photo of the trunk lid taken at the time of Petitioner’s arrest shows the trunk

9

lock intact. (Doc. 115, Ex. 14.)

10

Petitioner’s trial counsel have executed sworn declarations that, to the best of their

11

recollections, the photograph of the intact ignition was not produced at trial. (Doc. 115,

12

Ex. 17 ¶ 10; Ex. 18, ¶ 10.) Petitioner’s PCR counsel has also executed a declaration

13

stating that he has no memory of seeing the photo in prior counsel’s files. (Doc. 115, Ex.

14

10, ¶ 8.) An FPD records custodian has also executed a declaration that the trial files of

15

prior counsel do not contain the photograph. (Doc. 115, Ex. 19, ¶ 4.)

16

In September, 2012, Deputy District Attorney Haringsma traveled to Phoenix and

17

took photocopies of all of the pictures and documents that were used at trial. (Doc. 115,

18

Ex. 30 at 386.) Petitioner moved for disclosure of the photographs taken of the Monte

19

Carlo by technician Tom Fisher, “at the time it was taken into custody,” which included

20

photos of the “steering column.” (Id. at 399–400.) Petitioner received more than 900

21

photographs as part of the disclosure, including the photograph of the intact ignition.

22

(Doc. 115, Ex. 1, Ex. 31 at 404.) On October 17, 2012, Petitioner’s investigator emailed a

23

copy of the photo to habeas counsel. (Doc. 115, Ex. 1.)

24

3.

Analysis

25

Petitioner argues that both the Brady and Napue violations require that the writ

26

issue in this habeas proceeding, and that he is entitled to seek evidentiary development in

27

support of the claims. (See Doc. 115 at 37-45.) Applying the analysis in Gonzalez, the

28

Court concludes that Petitioner’s Beatty Brady and possible Napue claims are properly

- 19 -

1

characterized as second or successive claims because Petitioner is asserting new bases for

2

relief from the underlying convictions. See Gonzalez, 545 U.S. at 532 (motion seeking to

3

add a new ground for relief qualifies in substance as a successive habeas petition); In re

4

Pickard, 681 F.3d 1201, 1205 (10th Cir. 2012) (claims that prosecution violated its

5

Brady/Giglio duties at trial are certainly second-or-successive claims because they assert

6

a basis for relief from the underlying convictions). Absent a certification by the Ninth

7

Circuit Court of Appeals, this Court cannot consider these claims for relief from the

8

underlying conviction. See 28 U.S.C. § 2244(a). Petitioner recognizes this limitation to

9

consideration of his claims, but asserts that he is not foreclosed from seeking relief

10

pursuant to Rule 60(b) because he is attacking the integrity of the earlier proceedings.

11

Petitioner raises three challenges to the integrity of the earlier proceedings: (1) the

12

suppression of the Beatty Brady material by the Maricopa County Attorney and the

13

Arizona Attorney General thwarted Petitioner’s ability to file a petition including all

14

known claims; (2) without the suppressed material, the Court could not properly assess

15

the Fryer Brady claim in the aggregate; and (3) had Petitioner been aware of a possible

16

Napue violation, he would have moved to amend his federal petition. (Doc. 115 at 25–

17

26.) In assessing whether Petitioner has established that the integrity of these proceedings

18

has been undermined by the alleged Brady and Napue violations, the Court has

19

considered the evidence proffered by Petitioner in his Rule 60(b) motion, (Doc. 115, Exs.

20

1–38). The Court concludes that Petitioner has failed to establish a defect in the integrity

21

of these proceedings “that rendered its outcome suspect.” See Buenrostro, 638 F.3d at

22

722.

23

Assuming for purposes of this analysis that the evidence proffered by Petitioner

24

establishes conclusively that the Maricopa County Attorney suppressed evidence which

25

would have established that the ignition switch was intact at the time of Petitioner’s

26

arrest, Petitioner cannot establish that this undermined the Court’s ability to properly

27

assess the Fryer Brady claim. When this Court considered the allegation that the

28

prosecution withheld evidence that would have impeached Fryer’s testimony, it found:

- 20 -

1
2
3
4
5
6

Fryer was thoroughly impeached at trial. His plea agreement was
introduced, he was cross-examined about all of the favorable treatment he
obtained as a result of the agreement, and was impeached with the factual
basis of his prior felony convictions. The fact that he tested positive for
drugs two weeks prior to his testimony would not likely have affected the
jury’s verdict. Similarly, the fact that Fryer continued to engage in criminal
activity even after working out a plea to testify against Petitioner does not
put his credibility in a whole new light given all of the other impeaching
evidence brought out at trial.

7
8
9
10
11
12
13

Second, the additional impeachment evidence would have had little effect
on Fryer’s already impeached credibility because his testimony was
corroborated by other evidence. Consistent with Fryer’s testimony,
Petitioner was driving a blue Monte Carlo with a white top, had a warrant
out for his arrest, had violated his probation and was on the run from
authorities, and had possession of a .38-caliber revolver with black tape
around the handle of the gun. Moreover, his fingerprint was found on the
tape, and it was this revolver that was later identified as the murder weapon
(RT 9/22/97 at 114). See [State v.] Martinez, 196 Ariz. at 453–55, 999 P.2d
at 797-99.

14
15
16
17
18
19
20
21
22

Finally, Fryer’s testimony was not the linchpin evidence of premeditation
portrayed by Petitioner. Fryer relayed a conversation with Petitioner that
took place prior to the shooting. Although damaging, it was less relevant
than the fact that Petitioner was driving a stolen car when pulled over, that
he had absconded from law enforcement and there was an outstanding
warrant for his arrest, and that he shot Officer Martin not once, but four
times.
In addition, after his arrest Petitioner bragged about “blasting” a police
officer. (RT 9/15/97 at 13.) This was more than enough evidence from
which the jury could find that Petitioner acted with premeditation.
(Doc. 88 at 37-38) (emphasis added).

23

Thus, even assuming Petitioner could conclusively establish that the ignition

24

switch was punched out after Petitioner’s arrest or that the keys in Petitioner’s possession

25

would have started the car, this additional evidence, considered together with the Fryer

26

Brady material2, does not call into question the integrity of the habeas proceedings

27
2

28

Including Petitioner’s claim raised for the first time in the supplemental brief,
that Fryer recanted his statement and admitted he was using methamphetamine both when
questioned by police and when he testified at trial. (See Doc. 115, Ex. 22, ¶ 20)
- 21 -

1

because it does not change the pivotal fact relied on by the Court that Petitioner was

2

driving a stolen car when pulled over. The new evidence also does not call into question

3

any of the critical facts the Court relied on in reaching a conclusion that Fryer’s

4

testimony was not the “linchpin evidence of premeditation”—Petitioner was driving a

5

stolen car, had absconded from law enforcement, had an outstanding warrant for his

6

arrest, shot Officer Martin four times, and bragged about the murder. (Id. at 38.)

7

Petitioner’s assertion that suppression of the Beatty Brady and Napue evidence

8

prevented him from complying with the Court’s order that he file a petition containing all

9

of his claims, or from amending his petition to include those claims, is not a proper basis

10

for attacking the integrity of the proceedings. “Rule 60(b) is properly applied when there

11

is some problem going to the integrity of the court process on the claims that were

12

previously asserted.” Jones, 733 F.3d at 836. In Jones, the Ninth Circuit rejected the

13

petitioner’s attempts to circumvent the limitations on second or successive petitions by

14

alleging that he did not have a “fair shot” at raising three IAC claims in his first habeas

15

corpus proceedings because his habeas corpus counsel, who was also his state PCR

16

counsel, operated under a per se conflict of interest. 733 F.3d at 835–36. The Court

17

explained that “the rule announced in Gonzalez, that a valid Rule 60(b) motion ‘attacks . .

18

. some defect in the integrity of the federal habeas proceedings,’ . . . must be understood

19

in the context generally to mean the integrity of the prior proceeding with regard to the

20

claims that were actually asserted in this proceeding.” Jones, 733 F.3d at 836 (internal

21

citation omitted). Rule 60(b) does not permit a petitioner to assert entirely new claims for

22

relief by contending those claims “were required to ensure those proceedings’ integrity.”

23

Id. Thus, because Petitioner is not challenging the integrity of the process on a claim

24

previously asserted, he cannot utilize Rule 60(b) to bring these new claims before the

25

Court. See id.

26

To the extent Petitioner asserts that a defect in the integrity of these proceedings is

27

established by Respondents’ failure to discover and disclose the alleged exculpatory

28

material during these federal habeas proceedings, Respondents were under no duty to

- 22 -

1

disclose the alleged exculpatory material. See Jones, 733 F.3d at 837 (“[T]he Brady right

2

of pretrial disclosure available to defendants at trial does not extend to habeas corpus

3

petitioners seeking post-conviction relief.”) (citing Dist. Atttorney’s Office for Third

4

Judicial Dist. v. Osborne, 557 U.S. 52, 68-69 (2009)). Because there was no duty of

5

disclosure in these proceedings, any failure by Respondents to comply with Brady did not

6

undermine the integrity of the proceedings.

7

Petitioner points to the holdings in Pickard, 681 F.3d at 1206-06, and Douglas v.

8

Workman, 560 F.3d 1156, 1192 (10th Cir. 2009), to support his claim that Respondents

9

are not entitled to rely on the restrictions in filing a second or successive habeas petition

10

because they have continued to suppress Brady material in these habeas proceedings.

11

(See Doc. 126 at 7.) Petitioner’s reliance on Pickard and Douglas is misplaced.

12

In Pickard, the Tenth Circuit held that claims of prosecutorial misconduct during

13

trial, based on the prosecution’s denial that agencies other than the DEA were involved in

14

the investigation, were properly considered a second or successive claim, but petitioner’s

15

claim that the prosecution committed fraud in habeas proceedings by falsely denying

16

other agencies were involved, was a proper Rule 60(b) claim. In re Pickard, 681 F.3d at

17

1204. Similarly, in Douglas, the Tenth Circuit permitted Douglas to supplement his

18

habeas petition with an untimely Brady claim after it found the prosecutor took

19

affirmative actions to conceal his tacit agreement with the state’s key witness until it was

20

too late to bring a Brady claim in his first habeas petition. 560 F.3d at 1190-91. The Ninth

21

Circuit has explained that “[f]raud on the court must involve an unconscionable plan or

22

scheme which is designed to improperly influence the court in its decision.” Buenrostro,

23

638 F.3d at 722 (quoting Abatti v. Comm’r, 859 F.2d 115, 118 (9th Cir. 1988)).

24

In this case Petitioner points to two arguments made by Respondents in opposing

25

discovery related to Claim 4 that he asserts demonstrate a defect in the integrity of these

26

habeas proceedings. Respondents objected to discovery of evidence “which may not even

27

exist to refute ‘[t]he implication . . . that the car [Martinez was driving] was stolen and

28

that [he] would have feared being arrested for the theft when stopped on the Beeline

- 23 -

1

Highway’” (Doc. 66 at 31), and asserted that “[t]here is no evidence that the State knew

2

about the broken ignition switch lodged under the passenger seat” (Doc. 77 at 6).

3

First, Petitioner has not demonstrated that Respondents’ assertions in opposing

4

discovery are false, nor are the assertions evidence of “an unconscionable plan or scheme

5

. . . designed to improperly influence the court in its decision.” See Buenrostro, 638 at

6

722. Even if Petitioner could demonstrate the assertions were false and part of such a

7

scheme, he cannot demonstrate a defect in the integrity of the proceedings because the

8

assertions had no effect on the outcome of the proceedings. The Court found Claim 4

9

procedurally barred and denied further evidentiary development of Petitioner’s theory

10

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

11

the evidence proffered in support of Claims 9, 16, and 17, and assumed that Petitioner’s

12

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

13

arrested,” but nonetheless concluded that Petitioner failed to establish that no reasonable

14

juror would have found him guilty of premeditated first degree murder because “whether

15

the ignition was intact at the time Petitioner was arrested does not negate the fact that

16

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

17

The Court agrees with Respondents’ contention that this finding demonstrates that

18

the Court has in essence already concluded that Petitioner failed to show that any

19

evidence regarding the alleged intact ignition undermines the integrity of these

20

proceedings relevant to the claims raised in the petition. The Court has already

21

determined that evidence of an intact ignition would not change its procedural or

22

evidentiary rulings on Claim 4, and would not call into question the jury’s finding of

23

premeditation. The Court’s decision was not based on the strength of Petitioner’s

24

evidence—in reaching its decision the Court assumed Petitioner’s evidence was

25

conclusive. Consequently, additional or stronger evidence in support of Petitioner’s

26

allegation that the ignition was intact does not change this Court’s previous analysis.

27

Because the Court’s procedural and evidentiary rulings are not rendered “suspect” as a

28

result of Respondents’ allegations, regardless of the veracity of the assertions, Petitioner

- 24 -

1

cannot demonstrate a defect in the integrity of the habeas proceedings. See Buenrostro,

2

638 F.3d at 722.

3

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

4

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

5

and Napue were violated. It is therefore a second or successive petition, and this Court

6

lacks jurisdiction to consider the Brady and Napue claims absent authorization from the

7

court of appeals pursuant to 28 U.S.C. § 2244(b)(3).

8

4.

Motion for Evidentiary Development

9

In his request for evidentiary development, Petitioner seeks discovery and an

10

evidentiary hearing in support of his Rule 60(b) motion and his request for relief based on

11

Brady and Napue violations. As determined above, however, Petitioner’s motions for

12

Rule 60(b) relief and for consideration of a possible Brady or Napue claim are denied as a

13

second or successive petition filed without authorization. Therefore, the Court finds no

14

basis for evidentiary development or an evidentiary hearing and denies Petitioner’s

15

request.

16

B.

Supplemental Martinez Brief

17

The Ninth Circuit remanded this case for the reconsideration of five claims that

18

this Court previously found procedurally defaulted because Petitioner failed to present

19

them in state court and no remedies remained available to exhaust the claims. Petitioner

20

now seeks reconsideration based on Martinez for three claims alleging counsel

21

ineffectiveness in the guilt phase for failing to retain an independent pathologist when the

22

State’s expert pathologist changed his opinion as to the sequence of shots that struck

23

Officer Martin (Claim 17); and in the sentencing phase proceedings for failing to mitigate

24

a 1993 conviction admitted as a statutory aggravating factor at sentencing (Claim 11) and

25

for failing to rebut testimony that Petitioner suffered from antisocial personality disorder

26

(“APD”) (Claim 12). (Doc. 115 at 8–9.)

27

1.

Evidentiary Development & Martinez v. Ryan

28

Petitioner seeks to expand the record, under Rule 7 of the Rules Governing

- 25 -

1

Section 2254 Cases, to include all of the Exhibits (Exs. 1–38) cited in his supplemental

2

Martinez brief in support of Claims 11, 12, and 17. (Doc. 115 at 79.) Petitioner also

3

requests that the Court grant an evidentiary hearing to resolve any factual disputes

4

regarding the evidence submitted in support of his Martinez claims. Respondents object

5

to expansion of the record to determine if Petitioner is entitled to habeas relief, but do not

6

object to the Court considering the evidence, with one exception,3 for the limited purpose

7

of evaluating cause and prejudice. (Doc. 121 at 68–69.) Respondents object to

8

Petitioner’s request for an evidentiary hearing. (Id. at 68.)

9

The evidentiary limitations described in Cullen v. Pinholster, 563 U.S. 170

10

(2011),4 do not apply to Petitioner’s procedurally defaulted ineffective assistance claims

11

because they were not previously adjudicated on the merits by the state courts. See

12

Dickens, 740 F.3d at 1320–21. Furthermore, the Court is not restricted, under 28 U.S.C. §

13

2254(e)(2)5, from

14

prejudice under Martinez because Petitioner is not asserting a constitutional “claim” for

15

relief. See Dickens, 740 F.3d at 1320–21. Accordingly, the Court considers the new

16

evidence Petitioner proffers in support of his Martinez claims for the limited purpose of

17

evaluating Petitioner’s cause and prejudice arguments.

holding an evidentiary hearing for Petitioner to show cause and

18

Because the doctrine of procedural default is based on comity, not jurisdiction,

19

federal courts retain the power to consider the merits of procedurally defaulted claims.

20

Reed v. Ross, 468 U.S. 1, 9 (1984). As a general matter, habeas review of a defaulted

21
22
23
24
25

3

Respondents object to expansion of the record to include Attorney Gregory J.
Kuykendall’s opinion (Doc. 115, Ex. 38) on the standard of care, even for the limited
purpose of evaluating cause and prejudice. Respondents assert the opinion is irrelevant to
the ineffectiveness inquiry. Because the Court resolves the ineffectiveness claims strictly
on the basis of Petitioner’s failure to demonstrate prejudice, without addressing the
quality of counsel’s performance, Respondents objection is moot.
4

26
27

Limiting a federal court’s consideration of evidence in support of a claim to the
evidence that was before the state court that adjudicated the claim on the merits. 563 U.S.
at 180–81.
5

28

Limiting the court’s discretion to hold an evidentiary hearing on a claim for relief
where the petitioner “failed to develop the factual basis of a claim in State court
proceedings.”
- 26 -

1

claim is barred unless a petitioner “can demonstrate cause for the default and actual

2

prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501

3

U.S. 722, 750 (1991). Ordinarily, “cause” to excuse a default exists if a petitioner can

4

demonstrate that “some objective factor external to the defense impeded counsel’s efforts

5

to comply with the State’s procedural rule.” Id. at 753. In Coleman, the Court held that

6

ineffective assistance of counsel in post-conviction proceedings does not establish cause

7

for the procedural default of a claim. Id.

8
9

In Martinez, however, the Court established a “narrow exception” to the rule
announced in Coleman. The Court explained:

13

Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.

14

132 S. Ct. at 1320; see also Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (noting that

15

Martinez may apply to a procedurally defaulted trial-phase ineffective assistance of

16

counsel claim if “the claim . . . was a ‘substantial’ claim [and] the ‘cause’ consisted of

17

there being ‘no counsel’ or only ‘ineffective’ counsel during the state collateral review

18

proceeding” (quoting Martinez, 132 S. Ct. at 1320).

10
11
12

19

Accordingly, under Martinez, a petitioner may establish cause for the procedural

20

default of an ineffective assistance claim, “where the state (like Arizona) required the

21

petitioner to raise that claim in collateral proceedings, by demonstrating two things: (1)

22

‘counsel in the initial-review collateral proceeding, where the claim should have been

23

raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 . . .

24

(1984),’ and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a

25

substantial one, which is to say that the prisoner must demonstrate that the claim has

26

some merit.’ ” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 132 S.

27

Ct. at 1318); see Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014) overruled on

28

other grounds by McKinney, — F.3d —, 2015 WL 9466506; Dickens, 740 F.3d at 1319–

- 27 -

1

20; Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (en banc).

2

In a series of recent cases, the Ninth Circuit has provided guidance for applying

3

Martinez. The most recent case, Clabourne, summarizes the court’s Martinez analysis.

4

To demonstrate cause and prejudice sufficient to excuse the procedural default, a

5

petitioner must make two showings. “First, to establish ‘cause,’ he must establish that his

6

counsel in the state post-conviction proceeding was ineffective under the standards of

7

Strickland. Strickland, in turn, requires him to establish that both (a) post-conviction

8

counsel’s performance was deficient, and (b) there was a reasonable probability that,

9

absent the deficient performance, the result of the post-conviction proceedings would

10

have been different.” Clabourne, 745 F.3d at 377 (citations omitted). Determining

11

whether there was a reasonable probability of a different outcome “is necessarily

12

connected to the strength of the argument that trial counsel’s assistance was ineffective.”

13

Id. at 377–78. Second, “to establish ‘prejudice,’ the petitioner must establish that his

14

“underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to

15

say that the prisoner must demonstrate that the claim has some merit.” Id.

16

Under Martinez, a claim is substantial if it meets the standard for issuing a

17

certificate of appealability. Martinez, 132 S. Ct. at 1318–19 (citing Miller-El v. Cockrell,

18

537 U.S. 322 (2003)). According to that standard, “a petitioner must show that reasonable

19

jurists could debate whether (or, for that matter, agree that) the petition should have been

20

resolved in a different manner or that the issues presented were adequate to deserve

21

encouragement to proceed further.” Detrich, 740 F.3d at 1245 (quoting Miller-El, 537

22

U.S. at 336).

23

Claims of ineffective assistance of counsel are governed by the principles set forth

24

in Strickland, 466 U.S. at 674. To prevail under Strickland, a petitioner must show that

25

counsel’s representation fell below an objective standard of reasonableness and that the

26

deficiency prejudiced the defense. Id. at 687–88.

27

The inquiry under Strickland is highly deferential, and “every effort [must] be

28

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

- 28 -

1

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at

2

the time.” Id. at 689; see Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); Bobby v.

3

Van Hook, 558 U.S. 4 (2009) (per curiam); Cox v. Ayers, 613 F.3d 883, 893 (9th Cir.

4

2010). To satisfy Strickland’s first prong, a defendant must overcome “the presumption

5

that, under the circumstances, the challenged action might be considered sound trial

6

strategy.” Id. “The test has nothing to do with what the best lawyers would have done.

7

Nor is the test even what most good lawyers would have done. We ask only whether

8

some reasonable lawyer at the trial could have acted, in the circumstances, as defense

9

counsel acted at trial.” Id. at 687–88.

10

With respect to Strickland’s second prong, a petitioner must affirmatively prove

11

prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s

12

unprofessional errors, the result of the proceeding would have been different. A

13

reasonable probability is a probability sufficient to undermine confidence in the

14

outcome.” Id. at 694.

15

As discussed below, the Court has determined that Petitioner was not prejudiced

16

by trial counsel’s performance. Accordingly, Petitioner’s attempt to excuse the default of

17

these claims under Martinez fails because the underlying ineffectiveness claims are not

18

substantial, and thus PCR counsel was not ineffective for failing to raise them. Because

19

the claims are both defaulted and meritless, expansion of the record will be denied.

20

For the same reason, Petitioner is not entitled to an evidentiary hearing. Having

21

reviewed the entire record, including the evidence presented by Petitioner in his

22

supplemental Martinez brief, the Court concludes that an evidentiary hearing is not

23

warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes

24

the applicant’s factual allegations or otherwise precludes habeas relief, a district court is

25

not required to hold an evidentiary hearing.”); Rule 8(a) of the Rules Governing Section

26

2254 Cases. Whether Petitioner’s allegations of ineffective assistance of trial counsel are

27

“substantial” under Martinez is resolvable on the record. Cf. Dickens, 740 F.3d at 1321

28

(explaining that “a district court may take evidence to the extent necessary to determine

- 29 -

1

whether the petitioner’s claim of ineffective assistance of trial counsel is substantial

2

under Martinez”) (emphasis added).

3

2.

4

The Ninth Circuit ordered this court, on remand, to address whether Claim 4 falls

5

within the Martinez exception for procedurally defaulted claims because Petitioner

6

referred in his first amended petition to ineffective assistance of trial counsel as to Claim

7

4. (Doc. 104 at 2.) Respondents contend that Martinez does not apply to Claim 4 and,

8

moreover, that Petitioner abandoned the claim by failing address it in the supplemental

9

brief, thus waiving any argument that Martinez excuses the procedural default. (Doc. 121

10

Claim 4

at 50.) The Court agrees.

11

In Claim 4 of his amended habeas petition, Petitioner argued that the trial court

12

violated his constitutional right of confrontation by allowing testimonial hearsay to prove

13

the Monte Carlo and the license plate were stolen. (Doc. 30 at 34.) While the Ninth

14

Circuit Court of Appeals has expanded Martinez’s scope to include procedurally

15

defaulted claims of ineffective appellate counsel, Ha Van Nguyen v. Curry, 736 F.3d

16

1287, 1294–96 (9th Cir. 2013), it has also recognized that only the Supreme Court could

17

expand the application of Martinez outside the context of ineffective assistance claims,

18

and has declined to extend Martinez to claims of trial error. See Pizzuto v. Ramirez, 783

19

F.3d 1171, 1177 (9th Cir. 2015) (declining to extend Martinez to cover claims of trial

20

error); Hunton v. Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (acknowledging that

21

only the Supreme Court may extend the scope of Martinez). Because Petitioner’s claim

22

that the trial court erred in allowing the introduction of testimonial hearsay is not an

23

ineffective assistance of counsel claim, it does not fall within the Martinez exception, and

24

PCR counsel’s deficient performance may not serve as cause to excuse the procedural

25

default. See Pizzuto, 783 F.3d at 1176–77.

26

Respondents assert that, to the extent Claim 18 of the amended petition raised an

27

ineffective assistance of trial counsel claim related to Claim 4, Petitioner withdrew this

28

claim in the traverse. In Claim 18 of his amended habeas petition, Petitioner argued that

- 30 -

1

PCR counsel’s performance was deficient, in violation of Petitioner’s constitutional right

2

to due process and effective representation, because Petitioner failed, among other things,

3

to raise an argument that trial and appellate counsel failed to adequately litigate his

4

confrontation claim or assert error regarding the admission of hearsay to prove that the

5

Monte Carlo was stolen. (Doc. 30 at 143–152, 157.) Subsequently, however, Petitioner

6

withdrew Claim 18 from his amended petition. (See Doc. 57 at 1, 92.) Thus, Petitioner

7

has abandoned any claim of ineffective assistance of counsel as to Claim 4.

8

Finally, by failing to address Claim 4 in his supplemental Martinez brief,

9

Petitioner has further abandoned the claim. See Cook v. Schriro, 538 F.3d 1000, 1014, n.

10

5 (9th Cir. 2008) (citing Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991) (noting

11

failure to raise or brief an issue in a timely fashion may constitute waiver on appeal)).

12

In conclusion, the Court finds that Martinez does not apply to Claim 4.

13

Furthermore, to the extent Petitioner argued ineffective assistance of trial counsel related

14

to Claim 4, he abandoned this argument by withdrawing the claim, and waived any

15

argument that Martinez excuses his procedural default of Claim 4 by failing to raise it in

16

his supplemental Martinez brief.

17

3.

18

In Claim 11 of Petitioner’s amended habeas petition, Petitioner argues that trial

19

counsel was ineffective for failing to mitigate Petitioner’s 1993 Gila County aggravated

20

assault conviction which was admitted during the penalty phase of Petitioner’s trial as a

21

statutory aggravating factor. To excuse the default of Claim 11, Petitioner argues PCR

22

counsel rendered ineffective assistance for failing to investigate and present this trial IAC

23

claim in state proceedings. Because this trial-level IAC claim lacks merit, Petitioner has

24

failed to establish a reasonable probability of a different result had PCR counsel raised it

25

in the state PCR petition. Therefore, he has failed to establish cause under Martinez to

26

excuse the procedural default of Claim 11.

27
28

Claim 11

a.

Facts

In the penalty phase of trial, the prosecution moved to admit a minute entry of

- 31 -

1

Petitioner’s conviction in Gila County for aggravated assault in 1993, and a minute entry

2

from Maricopa County sentencing Petitioner on two counts of dangerous or deadly

3

assault by a prisoner in 1996. (Doc. 115, App. 18 at 53–54.) Without objection, the trial

4

court admitted both minute entries. (Id.) The trial court found that Petitioner conceded

5

that the 1993 conviction qualified as a previous conviction for a “serious offense,” a

6

statutory aggravating factor under A.R.S. § 13-703(F)(2) (“(F)(2)”). See State v.

7

Martinez, 196 Ariz. at 461, 999 P.2d at 805. Petitioner argued that the 1996 convictions

8

did not qualify as “serious offenses” under (F)(2), but the trial court rejected this

9

argument, finding they constituted a previous conviction of a serious offense under (F)(2)

10

and had been proved beyond a reasonable doubt. See id. The Arizona Supreme Court

11

agreed with the trial court. (Id. at 461–62, 999 P.2d 805–06.) The trial court also found

12

that Officer Martin was an on duty police officer killed in the course of performing his

13

duties, thus satisfying the A.R.S. 13-702 (F)(10) (“(F)(10)”) statutory aggravating factor.

14

(Doc. 121, Ex. G at 9.) This finding was not challenged on appeal. See Martinez, 196 at

15

462, 999 P.2d at 806.

16
17
18
19
20
21
22
23
24

During sentencing, the court made the following observation regarding the (F)(2)
aggravating circumstance:
The (F)(2) aggravating circumstance here is strong not only because
of the number of serious offenses, but because the later serious offenses
cast doubt on whether defendant could be imprisoned for many years
without endangering the safety of others in the prison system. The (F)(10)
aggravating circumstance also carries significant weight. The unprovoked
murder of a peace officer, so the defendant can avoid his obligation under
the law, is really no less than a personal declaration of war against a
civilized society. In sum, the aggravating circumstances are strong. The
mitigating circumstances are not.
(Doc. 115, App. 19 at 30.)

25

Because Petitioner had raised a challenge to the 1996 convictions, for purposes of

26

appellate review, the sentencing court went on to address whether the aggravating

27

circumstances would still outweigh the mitigating circumstances if the (F)(2) aggravating

28

factor were based solely on the 1993 conviction, and found “that the mitigating

- 32 -

1

circumstances in this case, individually and cumulatively, are just not sufficiently

2

substantial to outweigh the (F)(2) and (F)(10) circumstances.” (Id.)

3

b.

Analysis

4

In Claim 11 of his amended habeas petition, Petitioner alleges IAC at sentencing

5

for counsel’s failure to investigate and present evidence to rebut the “serious offense”

6

aggravating factor. (Doc. 30 at 86-91.) Petitioner asserts that trial counsel ignored police

7

reports regarding the 1993 conviction that indicated that Petitioner may have been guilty

8

of no crime at all, and suggested that it appeared trial counsel did not know they could

9

challenge this factor. (Id. at 87-88.)

10

The charging instrument in the 1993 assault alleged that there were two victims,

11

Saul Salas and Guillermo Garcia, that Petitioner intentionally placed each in reasonable

12

apprehension of imminent physical injury, and that he committed the offense while using

13

a deadly weapon—a “hand gun.” (Doc. 115, Ex. 3.) The police reports underlying

14

Petitioner’s 1993 aggravated assault consist of statements from two witnesses, one of

15

whom noted he saw Petitioner had a gun during the assault. (Doc. 115, Exs. 4, 5.)

16

Petitioner pleaded guilty to the offense. (Doc. 115, Ex. 6.)

17

Petitioner argues he cannot be put to death since his prior conduct, as described by

18

the witnesses, is insufficient to establish the aggravating factor. (Doc. 30. at 89.)

19

Petitioner also argues that even if the facts support the aggravated assault conviction, the

20

presentation of the mitigating evidence alone could reasonably have been expected to

21

result in a sentence of life. (Id. at 90–91)

22

This Court previously found the claim was procedurally defaulted, and would not

23

be considered on the merits absent a showing of cause and prejudice or a fundamental

24

miscarriage of justice. Petitioner argued as cause that Respondents failed to disclose the

25

police reports underlying his 1993 Gila County conviction. (Doc. 57 at 74–77.) These

26

reports, he argued, would have mitigated the weight of the aggravating factor by showing

27

that although a witness said Petitioner had a gun in his hand, there was no allegation that

28

he discharged or pointed it at anyone. (Id. at 77.) The Court found this insufficient to

- 33 -

1

establish cause for Petitioner’s failure to pursue Claim 11 in his state PCR proceedings

2

because Petitioner’s assertion that he did not point the gun at the victims or discharge it

3

“hardly mitigates the fact that he was convicted of aggravated assault and says nothing of

4

the two 1996 prior offenses for dangerous or deadly assault by a prisoner that were also

5

found by the Court to satisfy the (F)(2) aggravating factor.” (Doc. 88 at 43–44.) The

6

Court found that the police reports, consisting of the witness statements from both

7

victims, were not necessarily mitigating and were not material because they “fall far short

8

of being favorable to the defense.” (Id.)

9

Petitioner now asserts that PCR counsel rendered ineffective assistance for failing

10

to investigate and present the trial IAC claim and he was prejudiced by the failure

11

because the sentencing court placed tremendous significance on the admission of the Gila

12

County aggravated assault conviction. (Doc. 115 at 53, 61.) However, there is no

13

reasonable probability that the mitigating evidence would have negated a finding of the

14

(F)(2) aggravating circumstance. There is also no reasonable probability that the evidence

15

related to the 1993 convictions would have affected the sentencing outcome had it been

16

presented at trial because the evidence was not necessarily mitigating, and the sentencing

17

court unquestionably found the 1996 convictions carried more weight than the 1993

18

conviction. Accordingly, the Court finds no reasonable probability that Petitioner would

19

have obtained post-conviction relief had PCR counsel raised Claim 11 in the PCR

20

petition. Petitioner has failed to establish cause under Martinez, and Claim 11 remains

21

procedurally barred.

22

Clearly established federal law establishes that, in preparing for the sentencing

23

phase of a capital trial, a defendant’s attorney is “bound to make reasonable efforts to

24

obtain and review material that counsel knows the prosecution will probably rely on as

25

evidence of aggravation at the sentencing phase of trial.” Rompilla v. Beard, 545 U.S.

26

374, 377 (2005).

27

In this case, Petitioner asserts that trial counsel admitted they were not aware that

28

statutory aggravators admitted at capital sentencing could be mitigated, and that PCR

- 34 -

1

counsel had no reason for failing to raise the IAC claim. (Doc. 115 at 58; Ex. 8 ¶ 6; Ex. 9,

2

¶ 6.) The Court need not address counsel’s performance, however, because even if

3

counsel performed deficiently, Petitioner has failed to establish prejudice. See Strickland,

4

466 U.S. at 697 (“[A] court need not determine whether counsel’s performance was

5

deficient before examining the prejudice suffered by the defendant as a result of the

6

alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground

7

of lack of sufficient prejudice, which we expect will often be so, that course should be

8

followed.”).

9

In Rompilla, the Supreme Court found counsel deficient in failing to examine the

10

court file on Rompilla’s prior conviction. 545 U.S. at 383. In addressing the prejudice

11

prong of Strickland, the Court found that if counsel had examined the file, they would

12

have found a range of mitigation leads that no other source had opened up including

13

evidence pointing to organic brain damage, fetal alcohol syndrome, a traumatic

14

childhood, and intellectual disability. Id. at 391–93. The mitigating evidence “‘might well

15

have influenced the jury’s appraisal’ of [Rompilla’s] culpability . . . and the likelihood of

16

a different result . . . [is] ‘sufficient to undermine confidence in the outcome’ actually

17

reached at sentencing.” Id. at 393 (quoting Wiggins v. Smith, 539 U.S. 510, 538 (2003);

18

Strickland 466 U.S. at 694).

19

Unlike the mitigating evidence discovered in Rompilla, the mitigating evidence

20

Petitioner asserts counsel should have uncovered here—that Petitioner was “not guilty of

21

any crime” with regard to one witness, and “it is highly questionable that [Petitioner] was

22

guilty of the aggravated assault” of the other—is not sufficient to undermine confidence

23

in the outcome reached at sentencing.

24

First, as Respondents note, the 1993 conviction was only one of three convictions

25

used to establish the (F)(2) aggravating factor. Each of the two 1996 convictions were

26

also found to establish the (F)(2) factor, and though challenged, were not found invalid.

27

See State v. Martinez, 196 Ariz. at 462, 999 P.2d at 806. Thus, there is no reasonable

28

probability that even if the 1993 conviction had been challenged in state court and found

- 35 -

1

to be legally insufficient to establish the (F)(2) circumstance,6 the trial court would not

2

have found the (F)(2) factor established based on the 1996 convictions.

3

Additionally, Petitioner’s attempt to portray the 1993 conviction as crucial to the

4

trial court’s decision to impose the death penalty is simply not supported by the record.

5

The trial court found that it was proven beyond a reasonable doubt that Officer Martin

6

was an on duty police officer killed in the course of performing his duties, thus

7

establishing the (F)(10) factor. While the trial court placed great weight on the 1993

8

conviction, the trial court placed even greater weight on the (F)(10) factor and the later

9

serious offenses committed while Petitioner was in custody because they cast doubt on

10

whether Petitioner could be imprisoned without endangering the safety of others and

11

indicated that Petitioner had “declare[d] war against a civilized society.” (Doc. 115, App.

12

9 at 30.) Thus, even if the evidence established that the 1993 conviction was insufficient

13

by itself to establish the (F)(2) factor, given the substantial weight of the remaining

14

aggravating factors there is no reasonable probability that the trial court would have

15

imposed a life sentence.

16

Finally, this Court previously found, and reiterates here, that the facts underlying

17

Petitioner’s claim fall far short of being favorable to the defense. Even if Petitioner did

18

not point the gun at the victims, or discharge the weapon, the facts still clearly establish

19

that Petitioner assaulted the victims with a weapon in his hand. There is no reasonable

20

probability that the evidence related to the 1993 convictions would have affected the

21

sentencing outcome had it been presented at trial. Because the trial-level IAC claim has

22

no merit it is not a substantial claim under Martinez and PCR counsel was not ineffective

23
24
25
26
27
28

6

The 1993 conviction is conclusively valid and Petitioner has not demonstrated
circumstances that would demonstrate he could have overcome the conviction’s validity
if he had raised the issue during trial. See Lackawanna County Dist. Attorney v. Coss, 532
U.S. 394 (2001) (holding that “once a state conviction is no longer open to direct or
collateral attack in its own right because the defendant failed to pursue those remedies
while they were available (or because the defendant did so unsuccessfully), the
conviction may be regarded as conclusively valid”). The exceptions to that rule, for prior
convictions “obtained where there was a failure to appoint counsel in violation of the
Sixth Amendment,” id. at 404, or where equitable tolling or actual innocence would
avoid the bar to the consideration of the earlier conviction, id. at 405, do not apply here.
- 36 -

1

for failing to raise it. See Clabourne, 745 F.3d at 377. Thus, Petitioner has failed to

2

establish cause under Martinez, and Claim 11 remains procedurally barred.

3

4.

4

In Claim 12 of Petitioner’s amended habeas petition, Petition argues that trial

5

counsel was ineffective for failing to recall the defense psychologist, Dr. Susan Parrish,

6

to rebut the sentencing hearing testimony of the prosecution’s psychologist, Dr. Michael

7

Bayless. To excuse the default of Claim 12, Petitioner argues PCR counsel rendered

8

ineffective assistance for failing to investigate and present this trial IAC claim in state

9

proceedings. Because this trial-level IAC claim lacks merit, Petitioner has failed to

10

establish a reasonable probability of a different result had PCR counsel raised it in the

11

state PCR petition. Therefore, he has failed to establish cause under Martinez to excuse

12

the procedural default of Claim 12.

13

Claim 12

a.

Facts

14

In the penalty phase of trial, Petitioner sought to establish that his “capacity to

15

appreciate the wrongfulness of his conduct or to conform his conduct to the requirements

16

of law was significantly impaired, but not so impaired as to constitute a defense to

17

prosecution.” A.R.S. § 13-703(G)(1) (“(G)(1)”). Both Petitioner and Respondents

18

presented testimony from mental health experts who opined about his mental condition.

19

(Doc. 115, Apps. 5, 6.)

20

Psychologist Susan Parrish, Ph.D., specializing in Posttraumatic Stress Disorder

21

(“PTSD”) and neuropsychology, testified on behalf of Petitioner during his mitigation

22

hearing. (Doc. 115, App. 6 at 5–8.) Due to Petitioner’s traumatic upbringing, which

23

included chronic violence inside the home by his father battering his mother, Dr. Parrish

24

opined that Petitioner suffers from PTSD. (Doc. 115, App. 6. at 16, 30.) Dr. Parrish

25

described PTSD as an anxiety disorder, a response to trauma; specifically in Petitioner’s

26

case, a response to “a prolonged situation that’s ongoing, such as . . . exposure to an

27

environment in which there was physical abuse, an unsafe environment.” (Id. at 17.) She

28

testified that Petitioner met the diagnostic criteria of PTSD as set out in the Diagnostic

- 37 -

1

and Statistical Manual of Mental Disorders, 4th Edition (“DSM-IV”). (Doc. 115, App. 6

2

at 18-24.) Dr. Parrish also diagnosed a personality disorder not otherwise specified (Doc.

3

115, App. 7 at 12),7 and explained that Petitioner exhibited characteristics of antisocial

4

personality disorder, borderline personality disorder, and narcissistic personality disorder.

5

(Doc. 115, App. 6 at 30–34.) She also noted that characteristics of those personality

6

disorders occur with frequency in people who suffered trauma as children. (Id. at 31–34.)

7

Dr. Parrish explained that, according to the DSM-IV, APD is a pervasive pattern

8

of disregard for, and violation of, the rights of others after the age of 15, and opined that

9

Petitioner displayed characteristics of APD, including impulsivity or failure to plan,

10

irritability and aggressiveness, and reckless disregard for safety of self and others. (Doc.

11

115, App. 6 at 30–31.) She stated that these characteristics are also not unusual in

12

someone suffering from PTSD “who comes from an environment where there was a

13

prolonged exposure to violence.” (Id.) Dr. Parrish described Petitioner as “a product of

14

his environment and his nature. . . . [G]iven the environment that he had . . . the decision

15

that . . . is the most salient is that he’s going to survive.” (Id. at 51.) Dr. Parrish explained

16

that survival is the first thing that anyone with PTSD considers. A stressful event

17

becomes a “life-and-death situation.” (Id.) She testified that when Officer Martin stopped

18

Petitioner on the Beeline Highway, Petitioner “saw that as a survival situation in which it

19

was Officer Martin or himself. There was going to be one person who survived that.” (Id.

20

at 73.) Dr. Parrish believed Petitioner’s response was reactive: “I’m not going back to

21

prison. This man intends to put me in prison. It’s me or him.” (Id. at 75). Dr. Parrish

22

concluded in her report that “if [Petitioner] shot Officer Martin, he was in a dissociative

23

state.” (Doc. 115, App. 7 at 14.)

24

The state’s mental health expert, psychologist Michael Bayless, Ph.D., opined that

25

Petitioner does not suffer from a mental disease or defect but does suffer from an

26

antisocial personality disorder. (Doc. 115, App. 5 at 5–6, 16.) Dr. Bayless, who

27
7

28

Dr. Parrish’s report submitted with Petitioner’s supplemental Martinez brief is
missing page 12. The complete report can be found attached to Petitioner’s amended
habeas corpus petition (Doc. 30) at Ex. E-4.
- 38 -

1

conducted his own clinical evaluation of Petitioner and reviewed the results of the

2

Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”) administered by Dr. Parrish,

3

opined that the results very clearly indicated a classic anti-social personality profile. (Id.

4

at 9–11, 18.) Dr. Bayless described Petitioner as a young man with a “basic absence of

5

anxiety and guilt” and a lack of remorse and empathy. (Id. at 16-17.) Dr. Bayless

6

disagreed with Dr. Parrish’s diagnosis of PTSD for several reasons, explaining that there

7

was an absence of expected PTSD symptoms in the historical and clinical data from Dr.

8

MacDonald and others, there was an absence of anxiety regarding Petitioner’s recall of

9

the traumatic events from his childhood, and Dr. MacDonald predicted Petitioner was

10

moving towards a full-blown anti-social personality disorder. (Id. at 19-21.) Dr. Bayless

11

also opined that Petitioner’s actions in calling Eric Moreno, and explaining to him what

12

had happened, was the type of behavior you would see in somebody who understood the

13

nature and quality of his acts. (Id. at 33.)

14

The sentencing court considered all of the mental health evidence presented and

15

concluded that Petitioner did not establish that his capacity to appreciate the

16

wrongfulness of his conduct or to conform his conduct to the requirements of law was

17

significantly impaired at the time of the crime by his personality disorder, the traumatic

18

effect of his exposure to domestic violence, and any PTSD-like symptoms he might have.

19

(Doc 121, App. G at 13–14.) The sentencing court rejected a diagnosis of post-traumatic

20

stress disorder, finding instead that Petitioner suffers from a personality disorder with

21

predominantly anti-social features and also with borderline and narcissistic features. (Id.

22

at 12.) The court found ample support for this finding within the evidence that showed:

23

Petitioner killed Officer Martin because he did not want to return to prison; three days

24

before the murder he told Fryer he had a warrant for his arrest and he was on the run; he

25

told Fryer he had a gun in case something happened; he took Officer Martin’s service

26

weapon after the murder; and other choices he made after the murder, including the

27

robbery and shooting in Blythe, as well as decisions he made at the time he was

28

apprehended. (Id. at 12–13.) These choices, the sentencing court found, “belie the notion

- 39 -

1

that the homicide of Officer Martin was the result of being in a dissociative state or a

2

mere impulsive reaction” (id. at 13), and demonstrate Petitioner’s “ability to reflect, to

3

calculate and to make choices.” (Id. at 13, n.1.) The trial court acknowledged that

4

Petitioner’s personality disorder and other conditions “undoubtedly affect his conduct and

5

behavior,” but, significant to this analysis, that he “has not proved by a preponderance of

6

the evidence that his capacity to inform his conduct to the requirements of law was

7

significantly impaired.” (Id. at 14) (emphasis in original).

8

In addressing a related claim, the Arizona Supreme Court, disregarding Fryer’s

9

testimony, disagreed with Petitioner’s argument that taking Officer Martin’s gun, robbing

10

the Mini-Mart and shooting the clerk are consistent with the “it’s me or him” line of

11

thought:

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

[W]e think Martinez’ actions speak louder than Fryer’s words. Even if we
were to disregard Fryer’s testimony, Martinez still emptied his .38 caliber
handgun into Officer Martin. Using his “superior” intellect and after
recognizing that he had just murdered an Arizona police officer, Martinez
stole Officer Martin’s .9mm Sig Sauer and drove to Blythe, California
where he robbed a Mini–Mart and shot the clerk. Although Martinez
alleges that the clerk “threatened” him with a chair or weapon, this does not
support Dr. Parrish’s PTSD diagnosis. Martinez could not have reasonably
felt that it was “me or him.” In fact, any threat Martinez may have feared
was self-induced. He drove to Blythe and ran out of gas. He then called his
aunt for money. After she failed to send the needed funds, he called her
again. Losing his patience, he eventually robbed the Mini–Mart with
Officer Martin’s service weapon. The record does not suggest that the clerk
randomly came up to Martinez in the parking lot, noticed the stolen car and
threatened to call the police. Rather, Martinez’ robbery and subsequent
murder created any threat he may have felt.9
FN9: Martinez also created the threat of being caught by Officer
Martin when he excessively sped down the Beeline Highway.
Martinez’ actions in Indio also demonstrate his systematic thought
processes and “superior” intelligence. At the first sight of the Indio police,
Martinez didn’t simply open fire even though he had two guns in his
possession. Rather, he tried to flee after leaving the .38 caliber handgun
with David and Anna. Once Martinez reached Johnny Acuna’s trailer and
the police surrounded the compound, Martinez did not “come out
shooting.” He still had Officer Martin’s .9mm Sig Sauer. This conflicts

- 40 -

1

with Dr. Parrish’s diagnosis. This was the ultimate “me or him” situation.

2

The trial court’s finding that Martinez did not suffer from PTSD is
supported by the evidence. His actions are not consistent with Dr. Parrish’s
diagnosis. He knew right from wrong. His IQ was well-above average. He
consciously decided that “he wasn’t going back to jail” and carried the .38
caliber handgun “[f]or protection and if shit happens.” Tr. Sept. 9, 1997 at
83, 85. Without more, we believe that Martinez’ personality disorder does
not qualify as a statutory mitigating circumstance.

3
4
5
6
7
8

Martinez, 196 Ariz. at 464, 999 P.2d at 808.
b.

Analysis

9

In Claim 12 of the amended habeas petition (Doc. 30 at 101–104), restated with

10

more specificity in Petitioner’s supplemental Martinez brief (Doc. 115 at 66), Petitioner

11

asserts that sentencing counsel was ineffective for failing to rebut the erroneous

12

testimony of the state’s mental health expert through presentation of his own mental

13

health evidence. Petitioner asserts that there is a reasonable probability that, had Dr.

14

Parrish observed or been informed of Dr. Bayless’ testimony, and been called to rebut it

15

at sentencing, the court would have found the (G)(1) mitigating factor proven, or that

16

there was, otherwise, sufficient mitigating evidence to call for leniency. (Doc. 115 at 69.)

17

Petitioner relies on an affidavit from Dr. Parrish (Doc. 30, Ex. E-6), which has

18

been resubmitted in support of his supplemental Martinez brief. (Doc. 115, Ex. 11.) Dr.

19

Parrish criticizes Dr. Bayless’ work, including his failure to generate a report, failure to

20

take into account the warning in the DSM-IV that an APD diagnosis may be misapplied

21

when antisocial behavior is part of a protective survival strategy, failure to consider

22

Petitioner’s upbringing, extended family or culture in making a diagnosis, failure to

23

conduct objective testing to assess the appropriateness of an APD diagnosis, reliance on

24

Dr. MacDonald’s report, and reliance on subjectively graded testing instruments when

25

objective ones were available. (Id. at ¶ 17-23.) Dr. Parrish also notes that Dr. Bayless was

26

inaccurate in reporting an absence of evidence of anxiety when Dr. MacDonald noted that

27

Petitioner had substantial and considerable anxiety. (Id. at ¶ 24; see Doc. 115, App. 21 at

28

4.) Dr. Parrish states that had she been consulted regarding the merits of Dr. Bayless

- 41 -

1

testimony and opinion, she “could have provided a clear means of challenging/rebutting

2

the reliability of his work,” observing that “a much fuller and deeper review of his

3

evaluation (e.g. access to all inquiries and responses) may bring to light equal and or

4

greater reasons to disregard his opinions.” (Doc. 115, Ex. 11 at ¶ 34.)

5

The Court did not address Dr. Parrish’s affidavit in its earlier order because the

6

IAC claim was found to be procedurally defaulted. (Doc. 88 at 45.) Petitioner argued as

7

cause for the default that direct appellate counsel should have raised the issue. (Doc. 57 at

8

79.) Because Petitioner did not exhaust the claim that appellate counsel was ineffective

9

for failing to raise the issue, the Court found that Petitioner failed to establish cause and

10

found the claim procedurally barred. (Doc. 88 at 45–46.)

11

Petitioner now asserts that PCR counsel rendered ineffective assistance for failing

12

to investigate and present the trial IAC claim and that he was prejudiced by the failure

13

because had trial counsel called Dr. Parrish to rebut Dr. Bayless’ testimony, the

14

sentencing court would have found the (G)(1) statutory mitigating factor proven or found

15

sufficient mitigating evidence to call for leniency. (Doc. 115 at 53, 61.) See Wiggins, 539

16

U.S. at 524 (“The ABA Guidelines provide that investigations into mitigating evidence

17

‘should comprise efforts to discover all reasonably available mitigating evidence and

18

evidence to rebut any aggravating evidence that may be introduced by the prosecutor’ ”

19

(quoting 1989 ABA Guideline 11.4.1.C; emphasis in original)). As discussed above in

20

Claim 11, the Court need not address counsels’ performance because, even if counsel

21

performed deficiently, Petitioner has failed to establish prejudice. See Strickland, 466

22

U.S. at 697.

23

To establish prejudice for counsel’s failure to present mitigating evidence,

24

Petitioner must show a “reasonable probability that the [sentencer] would have rejected a

25

capital sentence after it weighed the entire body of mitigating evidence . . . against the

26

entire body of aggravating evidence.” Wong, 558 U.S. at 20. Petitioner cannot meet this

27

burden. There is no reasonable probability that if Petitioner had submitted the evidence

28

he now contends should have been offered in rebuttal at sentencing, it would have

- 42 -

1

changed the conclusion that the aggravating circumstances outweighed the mitigating

2

circumstances. Accordingly, the Court finds no reasonable probability that Petitioner

3

would have obtained post-conviction relief had PCR counsel raised Claim 11 in the PCR

4

petition. Petitioner has failed to establish cause under Martinez, and Claim 11 remains

5

procedurally barred.

6

In these proceedings, Petitioner has submitted a declaration expanding on Dr.

7

Parrish’s 1998 report and 2006 affidavit, and addressing how her substantial criticisms of

8

Dr. Bayless’ methodology and diagnoses would be affected by the promulgation of the

9

DSM-V in 2013. (Doc. 115, Ex. 12.) Dr. Parrish states that, had she been asked to rebut

10

Dr. Bayless’s testimony, she “would have pointed out that he did not explain how he

11

dismissed the notion that, in general, Mr. Martinez’s behavior constituted an adaptation

12

to a violent environment.” (Id. ¶ 47.)

13

There is no reasonable probability that such testimony would have had any effect

14

on the outcome of sentencing. In the penalty phase, Dr. Parrish explained how Petitioner

15

met the DSM-IV diagnostic criteria for establishing a PTSD diagnosis, and how he also

16

exhibited characteristics of antisocial personality disorder, borderline personality

17

disorder, and narcissistic personality disorder—characteristics which are not uncommon

18

in people who suffer trauma as a child. Although the trial court rejected a PTSD

19

diagnosis, the court accepted that Petitioner exhibited PTSD-like symptoms, and

20

concluded that Petitioner’s personality disorder was related to the chaotic and violent

21

family life during his formative years, and that his “personality disorder and other

22

conditions undoubtedly affect his conduct and behavior.” (Doc. 115 App. 19 at 20; Doc.

23

121, App. G at 12.) Nonetheless the court rejected both Dr. Parrish’s conclusion that

24

Petitioner was in a dissociative state or acted impulsively at the time he killed Officer

25

Martin, and Petitioner’s assertion that his capacity to conform his conduct to the

26

requirements of law was significantly impaired. In rejecting the assertion that Petitioner

27

had PTSD or that his capacity to conform his conduct to the requirements of law was

28

significantly impaired by his personality disorder, the court relied heavily on the evidence

- 43 -

1

of actions Petitioner took shortly before and after the murder. (Doc. 115, App. 19 at 18-

2

20.) The trial court further noted that while Dr. Parrish’s opinions were based on her

3

clinical interview with Petitioner, she had not discussed either the murder or events

4

occurring shortly thereafter with Petitioner. (Id. at 16). The court found that Petitioner’s

5

actions surrounding the murder demonstrated “abundant evidence of [Petitioner’s] ability

6

to plan, to think rationally and to make choices even when ‘threatened’ as he would have

7

been when he was confronted and subsequently apprehended by law enforcement officers

8

after the murder.” (Id. at 18.)

9

In affirming the trial court’s decision rejecting the impaired capacity statutory

10

mitigating factor and finding Petitioner’s personality disorder insufficient to warrant

11

substantial weight as a non-statutory mitigating factor, the Arizona Supreme Court also

12

relied heavily on the evidence of Petitioner’s conduct in shooting Officer Martin to

13

“further his goal” of not going back to jail. Martinez, 196 Ariz. at 463–65, 999 P.2d at

14

807-09. Petitioner’s actions were simply “not consistent with Dr. Parrish’s diagnosis.” Id.

15

at 464, 999 P.2d at 808. Thus, even if Petitioner had been able to effectively rebut Dr.

16

Bayless’s testimony, and establish that Dr. Parrish’s PTSD diagnosis was correct, this is

17

not a critical determination. In light of the aggravating evidence and the evidence

18

demonstrating that at the time Petitioner shot Officer Martin he was not acting

19

impulsively or reflexively, but rather had the ability to reflect, calculate and make choices

20

to further his goals, there is no reasonable likelihood that the sentencing court would have

21

imposed a life sentence. Because the trial-level IAC claim has no merit it is not a

22

substantial claim under Martinez and PCR counsel was not ineffective for failing to raise

23

it. See Clabourne, 745 F.3d at 377. Thus, Petitioner has failed to establish cause under

24

Martinez, and Claim 12 remains procedurally barred.

25

5.

Claim 16

26

In Claim 16 of his amended habeas petition, Petitioner argues that counsel was

27

ineffective at trial and sentencing for failing to properly investigate and prepare for the

28

testimony of Eric Moreno and Patricia Baker. (Doc. 30 at 133–38.) Petitioner did not

- 44 -

1

allege, in his amended petition or traverse, that PCR counsel’s failure to raise this claim

2

should excuse the procedural default. Petitioner also failed to address Claim 16 in these

3

supplemental proceedings. Therefore, he has waived any claim that he can establish cause

4

and prejudice, under Martinez, to excuse the procedural default of this claim. See Cook,

5

538 F.3d at 1014, n. 5 (citing Martinez v. Ylst, 951 F.2d at 1157).

6

6.

7

In Claim 17 of Petitioner’s amended habeas petition, he argues that trial counsel

8

was ineffective for failing to take corrective action and to retain an independent

9

pathologist to refute the testimony of Dr. Phillip Keen regarding the sequence of shots

10

that struck and killed Officer Martin. To excuse the default of Claim 17, Petitioner argues

11

PCR counsel rendered ineffective assistance for failing to investigate and present the

12

trial-level IAC claim. Because this IAC claim lacks merit, Petitioner has failed to

13

establish a reasonable probability of a different result had PCR counsel raised it in the

14

state PCR petition. Therefore, he has failed to establish cause under Martinez to excuse

15

the procedural default of Claim 17.

16

Claim 17

a.

Facts

17

Dr. Phillip Keen, the Maricopa County Chief Medical Examiner, testified at trial

18

that the autopsy of Officer Martin revealed four gunshot wounds to his right hand, neck,

19

back, and head. (Doc. 115, App. 4 at 44, 47–49.) Two of the wounds, to the back and

20

head, were fatal injuries. (Id. at 53–54.) Dr. Keen opined, based on his review of another

21

medical examiner’s evaluation of the body, the wounds, the scene, and the photographs,

22

that the head shot was the last among the four shots, and may have been inflicted while

23

Officer Martin was lying on the pavement. (Id. at 56, 59.) Dr. Keen based this opinion on

24

evidence of a “pivot mark” found on Officer Martin’s left boot. (Id. at 56–57.) Because

25

Dr. Keen determined that the mark on the boot was a result of a deliberate spinning

26

move, and since the shot to the head would have caused immediate unconsciousness, he

27

opined that the head wound would necessarily have occurred last. (Id.) Dr. Keen also

28

testified there was evidence Officer Martin was lying on his left side when he was shot in

- 45 -

1

the head based on the blood stain pattern from the cheek, streaming in both directions.

2

(Id. at 59.)

3

Dr. Keen agreed on cross-examination that the opinion he gave in his testimony

4

conflicted with the one he gave in a pretrial interview in which he said he could not

5

determine the sequence in which Officer Martin was struck with four bullets but the shot

6

to the back was the last shot fired. (Id. at 63–65; see also Doc. 115, Ex. 34 at 28.) Dr.

7

Keen attributed his change of opinion to his further reflection on the immediate

8

consequences of the head injury, i.e., immediate paralysis. (Doc. 115, App. 4 at 64.)

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

During closing argument, the prosecution argued that the number and sequence of
shots supported a finding of premeditation:
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.
...
[W]e know that when he fell on his left side there was no possible way for
any of those other shots to impacted [sic] his body other than the one in the
head.
(Doc. 115, App. 2 at 18–19.)
The prosecution addressed the issue of premeditation again in the rebuttal closing:
So in this particular case, regardless of the sequence of the shots,
what ended up happening is that Mr. Martinez took this handgun and took a
total of 60 pounds for him to empty the gun into Officer Martin. That’s
exactly what happened in this case. And what’s important about it, too, is if
you look at it, we don’t have to tell you which one of these holes. And,
again, they were talking about conjecture and about how you don’t have to
guess at anything. We don’t have to prove this case for you to perfection.
We don’t have to tell you which one of these little holes the bullet was in
that killed him. . . .
...
- 46 -

1

14

And what’s important about this to show that this was premeditation
is that he didn’t stop at the first shot. And we don’t know the sequence as to
any of the shots other than the one that killed him was the one to the
forehead, and that’s the last shot. It had to be the last shot based on
everything we know about this case. So we do know about that. But in
terms of premeditation, again, he’s got the gun. Could have let him go after
the first shot, but he didn’t let him do that, did he? He could have let him go
after the second shot. And, again, that’s where the premeditation, the
thought process comes in. We are not saying he hit him in the hand first,
not saying he hit him in the back first or in the throat first. We really don’t
know. But what we are saying is we do know that the shot to the face, to
the near the right eye which is what Bob Martin saw, the last thing he saw
was the muzzle of this gun, the last shot. This last shot was to the face, and
that means that this defendant thought about it. Thought about it as this
officer was on the ground. Why? He could have already left. Why did he
have to go over there and shoot him? And that goes to premeditation. He
had already wounded him in the arm. He had already wounded him in the
throat. He had already shot him in the back. Why did he have to shoot the
coup de grace? Why did he have to go up to him when he was down? Or
even if he was standing. He didn’t. So the premeditation in this case is right
here in the gun.

15

...

16

The other aspect that we have is the actual distance. It wasn’t -- it
wasn’t like he shot him right there and that was the end of it. Because of the
scuff marks on the boots, it is clear that the officer moved away. It is clear
at that point that he was not a danger. It is not that he ever was, but at that
point it was clear that the encounter was over that he was going to let him
go by the defendant and, again, we can’t go into his mind, perform a
lobotomy and look inside, but we know from the surrounding
circumstances that he then thought, hey, he is going away. He is not dead
yet. I better stop him. How do I do that? Well, I shoot him and I shoot him,
and then I have some more bullets. That’s the coup de grace right to the
face, and that takes care of it. Everybody knows it’s coming down now if
you shoot somebody in the head they are going to die, especially if they are
out in the middle of nowhere, and that’s exactly what he did in this case.

2
3
4
5
6
7
8
9
10
11
12
13

17
18
19
20
21
22
23
24
25
26

(Doc. 115, App. 3 at 72–74, 77.)
b.

Analysis

27

Petitioner asserts that trial counsel was ineffective for failing to obtain an

28

independent pathologist, effectively impeach the testimony of the prosecution’s

- 47 -

1

pathologist, and move for relief after the prosecution presented undisclosed expert

2

testimony at trial. (Doc. 30 at 138; Doc. 115 at 73–79.) Petitioner asserts that Dr. Keen’s

3

testimony allowed the prosecution to argue premeditation from the sequence of shots,

4

thus portraying Petitioner’s actions in a more incriminating light. (Doc. 30 at 139-140,

5

Doc. 115 at 73.) Petitioner supports this claim with the Affidavit of Dr. Eric Peters, M.D.,

6

a Pima County medical examiner. (Doc. 115, Ex. 35.) Dr. Peters concluded that Dr. Keen

7

had been correct in his pretrial interview that the last shot fired was to Officer Martin’s

8

back. (Doc. 115, Ex. 35, ¶ 6(A)–(D).)

9

The Court found Claim 17 procedurally defaulted, and rejected Petitioner’s

10

assertion that the default should be excused because the prosecution violated Brady by

11

failing to inform defense counsel before trial that Dr. Keen’s opinion regarding the shot

12

sequence had changed. (Doc. 88 at 50–51.) The Court found the factual basis for the

13

claim should have been evident to PCR counsel, but PCR counsel did not present the

14

claim. (Id. at 51.) The Court also considered whether a fundamental miscarriage of justice

15

would occur if Claim 17 was not heard on the merits, and concluded that Petitioner’s

16

proffer of Dr. Peter’s affidavit fell short of establishing reliable new evidence to support

17

his claim of actual innocence: “The best that Dr. Peter’s affidavit does is to make it a

18

closer factual question whether the head or the back shot was last.” (Id. at 51–52.)

19

Petitioner now asserts that PCR counsel rendered ineffective assistance by failing

20

to investigate and present the trial IAC claim and that he was prejudiced by the failure

21

because had trial counsel retained an independent pathologist to rebut the guilt phase

22

testimony of Dr. Keen, there is a reasonable probability the jury would not have found

23

premeditation. (Doc. 115 at 74, 78.) As discussed above in Claims 11 and 12, the Court

24

need not address counsel’s performance because Petitioner has failed to demonstrate he

25

was prejudiced thereby. See Strickland, 466 U.S. at 697.

26

Respondents assert that there is no reasonable probability that failing to present

27

testimony consistent with Dr. Peter’s affidavit would have changed Petitioner’s

28

conviction for premediated murder because the prosecutor did not argue that the sequence

- 48 -

1

of shots evidenced premeditation. Although the Court disagrees with Respondents’

2

portrayal of the prosecutor’s argument—the prosecutor did in fact suggest the sequence

3

of shots evidenced premeditation—the Court agrees that there is no reasonable

4

probability such testimony would have changed the verdict in the face of the

5

overwhelming evidence of premeditation. See Williams v. Calderon, 52 F.3d 1465, 1470

6

(9th Cir. 1995) (no prejudice established by failure to introduce evidence of diminished

7

capacity, where other evidence of defendant’s intent to kill and reflect on his actions was

8

overwhelming); Wood v. Ryan, 693 F.3d 1104, 1119 (9th Cir. 2012) (no prejudice

9

demonstrated by counsel’s failure to assert a stronger impulsivity defense “in the face of

10

the overwhelming evidence of premeditation”).

11

Assuming, arguendo, that Dr. Peter’s affidavit conclusively establishes that the

12

back shot was last, and Dr. Keen’s opinion on this fact was wrong, Petitioner cannot

13

establish prejudice for failing to present testimony consistent with Dr. Peter’s affidavit

14

because considerable evidence of Petitioner’s premeditation was introduced at trial. First,

15

as the prosecutor emphasized during closing argument, the number of shots alone

16

supported a finding of premeditation each time Petitioner pulled the trigger—a total of

17

six shots all together. Other substantial evidence of premeditation includes his statements

18

to Fryer which “explained why [Petitioner] acted as he did, and showed [Petitioner’s]

19

motive for murdering Officer Martin. He had a warrant out for his arrest and knew that if

20

he were caught, he would be sent back to prison,” Martinez, 196 Ariz. at 459, 999 P.2d at

21

803, and the fact that Petitioner waited for the Balls to pass by him on the road before

22

shooting Officer Martin, id. at 453–54, 999 P.2d at 797-98. Even if Fryer’s testimony

23

were excluded, the Court previously found other evidence of premeditation was more

24

relevant: “Petitioner was driving a stolen car, had absconded from law enforcement, had

25

an outstanding warrant for his arrest, shot Officer Martin four times, and bragged about

26

the murder.” (Doc. 88 at 38.) Given this evidence, a reasonable juror could have found

27

him guilty of premeditated murder. Because the trial-level IAC claim has no merit it is

28

not a substantial claim under Martinez and PCR counsel was not ineffective for failing to

- 49 -

1

raise it. See Clabourne, 745 F.3d at 377. Thus, Petitioner has failed to establish cause

2

under Martinez, and Claim 17 remains procedurally barred.
CONCLUSION

3
4

Pursuant to the Ninth Circuit’s directive on remand, the Court has reconsidered

5

five claims in light of Martinez and Petitioner’s Renewed Request for Indication Whether

6

District Court Would Consider a Rule 60(b) Motion. Because Petitioner failed to raise

7

any argument in this brief regarding Claims 4 and 16, the Court finds these claims remain

8

procedurally defaulted. Because Petitioner failed to demonstrate a reasonable probability

9

of a different result had Claims 11, 12, and 17 been raised in state PCR proceedings, the

10

Court finds that he has not demonstrated cause and prejudice under Martinez and those

11

claims remain procedurally barred. Because Petitioner’s Rule 60(b) motion does not

12

demonstrate any defect in the integrity of these habeas proceedings but instead seeks to

13

raise new substantive claims, it is a second or successive petition, and this Court lacks

14

jurisdiction to consider it absent authorization from the court of appeals pursuant to §

15

2244(b)(3).

16

CERTIFICATE OF APPEALABILITY

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Pursuant to 28 U.S.C. § 2253(c)(2), a certificate of appealability (“COA”) may

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issue only when a petitioner “has made a substantial showing of the denial of a

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constitutional right.” This showing can be established by demonstrating that “reasonable

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jurists could debate whether (or, for that matter, agree that) the petition should have been

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resolved in a different manner” or that the issues were “adequate to deserve

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encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For

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procedural rulings, a COA will issue only if reasonable jurists could debate whether the

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petition states a valid claim of the denial of a constitutional right and whether the court’s

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procedural ruling was correct. Id.

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

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debate its application of Rule 60(b) to Petitioner’s renewed request for reconsideration, or

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to the Court’s finding that Claims 4, 11, 12, 16 and 17 are procedurally barred.

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Accordingly,

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IT IS ORDERED Petitioner’s Renewed Request for Indication Whether the

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District Court Would Consider a Rule 60(b) Motion (Doc. 115) is DENIED.
IT IS FURTHER ORDERED Claims 4, 11, 12, 16, and 17 are DENIED as
procedurally barred.

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IT IS FURTHER ORDERED Petitioner’s request to expand the record, for

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evidentiary development, and for an evidentiary hearing is DENIED except as to the

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Court’s consideration of the expanded record for the purpose of evaluating cause and

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prejudice.

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IT IS FURTHER ORDERED a Certificate of Appealability is DENIED.

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Dated this 30th day of March, 2016.

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Honorable Roslyn O. Silver
Senior United States District Judge

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