Martinez v. Ryan

• Citation: 926 F.3d 1215
• Decision Date: 18 June 2019
• Docket Number: No. 08-99009,08-99009
• Parties: Ernesto Salgado MARTINEZ, Petitioner-Appellant, v. Charles L. RYAN, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

926 F.3d 1215

Ernesto Salgado MARTINEZ, Petitioner-Appellant,

v.Charles L. RYAN, Respondent-Appellee.

No. 08-99009

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 27, 2019 San Francisco, California

Filed June 18, 2019

Timothy M. Gabrielsen (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Petitioner-Appellant.

Julie Ann Done (argued), Assistant Attorney General; Lacey Stover Gard, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondent-Appellee.

Before: M. MARGARET McKEOWN, WILLIAM A. FLETCHER, and MILAN D. SMITH, JR., Circuit Judges.

M. SMITH, Circuit Judge:

After being pulled over for speeding in Payson, Arizona, Ernesto Martinez fatally shot Arizona Department of Public Safety Officer Robert Martin. A jury convicted Martinez of, among other crimes, first-degree murder. He was sentenced to death.

Martinez appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm. We also deny Martinez's motion to stay the appeal and decline to remand the case for consideration of another Brady claim.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Murder of Officer Martin

In August 1995, Martinez stole a blue Monte Carlo and used it to drive from California to Arizona. Martinez met with his friend, Oscar Fryer, in Globe, Arizona "shortly before the [murder] of" Officer Martin.¹

Fryer and Martinez spoke in Martinez's car for about thirty minutes. Fryer asked Martinez where he had been; Martinez responded that he had been in California. Fryer asked Martinez if he was still on probation; Martinez responded that he was, and that he had a warrant out for his arrest. Martinez told Fryer that he had come to Arizona to visit friends and family.

While in the car with Fryer, Martinez removed a .38 caliber handgun with black tape wrapped around the handle from underneath his shirt and showed it to Fryer. Fryer asked Martinez why he had the gun; Martinez responded that it was "[f]or protection and if shit happens."

As Martinez was showing the gun to Fryer, they spotted a police officer in the area. Fryer asked Martinez what he would do if he was stopped by the police. Martinez responded that "he wasn't going back to jail."

Following that conversation, Martinez drove from Globe to Payson on a stretch of State Route 87—better known as the Beeline Highway. Several witnesses testified to having seen Martinez and his car around Payson that morning.

Susan and Steve Ball were among those witnesses. Martinez tailgated them on the Beeline Highway "for a long time" before passing their car "very quickly on the left-hand side." Shortly after that, the Balls saw Martinez's car pulled over to the side of the road, with a police car stopped behind him and a police officer standing outside the driver's side door. As they drove by, they said to each other that it was "good" that the driver "got the speeding ticket."

But shortly after the Balls saw Martinez's car pulled over, "the same blue car passe[d] [them] on the left-hand side going very quickly." The couple found it "very strange" because "there was no time [for the driver] to have gotten a speeding ticket." When Martinez's car ran a red light, the Balls knew that "[s]omething [was] going on."

The Balls were suspicious for good reason. After being pulled over for speeding by Officer Martin, and after the Balls had passed Martinez's car, Martinez shot Officer Martin four times with a .38 caliber handgun—the same gun he had shown Fryer days earlier. The bullets struck Officer Martin's right hand, neck, back, and head. The back and head wounds were fatal.

After shooting Officer Martin, Martinez stole Officer Martin's .9mm Sig Sauer service weapon and continued driving down the Beeline Highway. The Balls wrote down Martinez's license plate number when they spotted his car again.²

Martinez was arrested in Indio, California the day after the murder of Officer Martin. Hours after his arrest, Martinez called Mario Hernandez, a friend. After Hernandez passed the phone to his brother, Eric Moreno, Martinez laughingly told Moreno that "he got busted for blasting a jura"—a slang term in Spanish for a police officer.

II. Conviction

Martinez was charged with one count of first-degree murder, two counts of theft, and two counts of misconduct involving weapons. Judge Jeffrey Hotham of the Superior Court in Maricopa County, Arizona presided over the guilt phase of Martinez's trial. The jury returned a verdict of guilty on all accounts.

III. Sentencing and Direct Appeal

Before sentencing, Martinez filed a motion for change of judge for cause. Another judge—Judge Ronald Reinstein, the presiding judge of the Criminal Division—heard the motion. Martinez argued that recusal was warranted because Judge Hotham's bailiff was friends with Officer Martin's widow.

Judge Reinstein granted the motion. He stated that Martinez had demonstrated no prejudice resulting from Judge Hotham presiding over his case. Because "death is different," however, Judge Reinstein concluded that "the better course to follow for all concerned is to assign another judge to the sentencing."

Judge Christopher Skelly, the sentencing judge, imposed a sentence of death. Martinez's convictions and sentence were affirmed by the Arizona Supreme Court on direct appeal.

IV. State Postconviction Review

Martinez filed a post-conviction review (PCR) petition challenging his conviction and sentence. Judge Hotham, who had been assigned the PCR petition, denied it. The Arizona Supreme Court denied discretionary review.

V. Federal Habeas Corpus Proceedings

Martinez filed a federal habeas petition in the district court. The district court denied the petition. The court also denied Martinez's motion to alter or amend judgment and to expand the certificate of appealability (COA). Martinez filed a notice of appeal.

After completion of appellate briefing, Martinez filed several motions, requesting that we: (1) stay the appeal and remand to the district court on three claims based on our decision in Martinez v. Schriro , 623 F.3d 731 (9th Cir. 2010) ; (2) stay the appeal and remand to the district court pursuant to Townsend v. Sain , 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and Quezada v. Scribner , 611 F.3d 1165 (9th Cir. 2010) ; (3) stay the appeal and remand to the district court based on Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) ; and (4) grant leave to supplement his Townsend / Quezada motion.

We granted Martinez's motion to remand pursuant to Martinez v. Ryan . We also granted Martinez's motion to remand pursuant to Townsend / Quezada , construing it 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." Accordingly, we stayed appellate proceedings.

On remand, the district court declined Martinez's invitation to entertain a Rule 60(b) motion. The court also denied his Confrontation Clause and ineffective assistance of counsel (IAC) claims, and denied a COA as to those claims.

Martinez filed a motion requesting that we expand the COA. We granted a COA as to all claims we had remanded and ordered the parties to file replacement briefs.

On appeal, Martinez raises eight certified claims and requests that we issue a COA for another Brady claim. Martinez also moves to stay the appeal and remand his case for the district court to consider another Brady claim.

JURISDICTION AND STANDARD OF REVIEW

Because Martinez filed his petition for habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, we have jurisdiction over the certified claims pursuant to 28 U.S.C. § 2253.

We review de novo a district court's decision to deny a habeas petition under 28 U.S.C. § 2254. Bean v. Calderon , 163 F.3d 1073, 1077 (9th Cir. 1998). Under AEDPA, we may not grant habeas relief unless the state's adjudication of Martinez's claim (1) "was contrary to ... clearly established Federal law, as determined by the Supreme Court," (2) "involved an unreasonable application of" such law, or (3) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

"In making this determination, we look to the last reasoned state court decision to address the claim." White v. Ryan , 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers , ––– U.S. ––––, 138 S. Ct. 1188, 1192, 200 L.Ed.2d 530 (2018) ). The PCR court's decision is the last reasoned state court decision addressing Martinez's judicial bias claim, his IAC claim for his counsel's failure to raise the judicial bias claim in state court, and his claim that the court's jury instructions were erroneous.

ANALYSIS

I. Judicial Bias

Martinez's judicial bias claim stems from the relationship between Ron Mills, Judge Hotham's bailiff, and Sandy Martin, Officer Martin's widow. When the parties learned of that relationship before trial, Martinez asked the court to replace Mills. The court held a hearing to consider that motion.

At the hearing, Mills testified that he had been Judge Hotham's bailiff for five years. He said that he had known Sandy Martin for over thirty years—from high school—and kept "close contact" with her and her late husband since then. Mills testified that he considered the Martins good friends, but that he had not attended Officer Martin's funeral.

Mills said that, at a pretrial hearing, he had gone up to Sandy Martin and "asked her how she was doing and put [his] arm around her, and ... just expressed some pleasantries." Mills also testified, however, that he could "complete [his] duties as a bailiff and not influence the...