Martinez v. Shinn
| Decision Date | 16 May 2022 |
| Docket Number | 21-99006 |
| Citation | 33 F.4th 1254 |
| Parties | Ernesto Salgado MARTINEZ, Petitioner-Appellant, v. David SHINN, Director; James Kimble, Warden, Arizona State Prison - Eyman Complex, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jon M. Sands, Federal Public Defender; Timothy M. Gabrielsen, Assistant Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Petitioner-Appellant.
Mark Brnovich, Attorney General; Lacy Stover Gard, Deputy Solicitor General/Chief of Capital Litigation; Laura P. Chiasson, Assistant Attorney General; Office of the Attorney General, Tucson, Arizona; for Respondents-Appellees.
Before: M. Margaret McKeown, William A. Fletcher, and Milan D. Smith, Jr., Circuit Judges.
Ernesto Salgado Martinez moves for a certificate of appealability ("COA") that would allow him to challenge the district court's denial of his Rule 60(b)(6) motion for relief from final judgment. Martinez was convicted of first-degree murder of an Arizona police officer after a jury trial in 1997 and was sentenced to death by the state court. We affirmed the district court's denial of his federal habeas corpus petition under 28 U.S.C. § 2254. See Martinez v. Ryan , 926 F.3d 1215 (9th Cir. 2019).
After we affirmed the district court's denial, Martinez moved in the district court under Rule 60(b)(6) for additional discovery to develop (1) a potential claim under Napue v. Illinois , 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), that the prosecution knowingly elicited false testimony from witness Detective Douglas Beatty about the condition of the ignition of the stolen car Martinez was driving at the time of the crime; and (2) a potential claim of actual innocence after the apparent recantation of key guilt-phase testimony by his acquaintance Oscar Fryer. Martinez argued in the district court that our decision in Mitchell v. United States , 958 F.3d 775 (9th Cir. 2020), is a change of law that constitutes an "extraordinary circumstance," permitting him to reopen his final judgment and obtain the requested discovery.
The district court denied Martinez's Rule 60(b)(6) motion and declined to issue a COA. The court also denied Martinez's motion for reconsideration. Because no reasonable jurist could find that Mitchell constitutes an extraordinary circumstance justifying the reopening of his final judgment under Rule 60(b)(6), we deny Martinez's request for a COA.
In August 1995, Martinez drove from California to Globe, Arizona, to visit friends and family in a stolen blue Monte Carlo with stolen license plates registered to another car. Martinez had an outstanding felony warrant for his arrest in Arizona. He met a friend, Oscar Fryer, in Globe. Fryer testified at trial that he spoke with Martinez for half an hour at a carwash while sitting inside his Monte Carlo, and that Martinez showed him a .38 caliber handgun with tape wrapped around the handle. Precisely what Martinez said to Fryer during this conversation is now disputed and is a subject of his instant motion.
A few days later, on August 15, Martinez left Globe and drove to Payson, Arizona, on the Beeline Highway. At approximately 11:30 am, Martinez bought gas at a Circle K in Payson and drove south toward Phoenix, Arizona. Driving at a high rate of speed, he passed several cars, including one driven by Steve and Susan Ball, who noticed his blue Monte Carlo.
Officer Robert Martin pulled Martinez over at Milepost 195. The Balls drove past them and saw Officer Martin's patrol car stopped behind Martinez's Monte Carlo. The Balls both testified that they saw Martinez's driver's side door open, with Officer Martin standing inside the door, and both Officer Martin and Martinez "looking backwards" into the backseat of the car. Susan Ball recalled them remarking, "Oh, good, he got the speeding ticket." After the Balls passed, Martinez shot Officer Martin four times with a .38 caliber handgun. He shot him in the hand, neck, back, and face, killing him.
Shortly after Martinez killed Officer Martin, the Balls again saw him speeding in the blue Monte Carlo. Martinez passed them about a minute after they had passed him and Officer Martin on the side of the road. The Balls later saw Martinez run a red light and drive erratically. They also saw two police officers coming from the opposite direction with lights flashing. The Balls caught up with Martinez at a stop light and saw him "playing with something in the glove box." They wrote down his license plate numbers.
Martinez drove through Phoenix and reached Blythe, California, at around 4:00 pm, when he called his aunt, asking her to wire him money. At 6:00 pm, he called his aunt again asking her to wire him money. At approximately 8:00 pm, he entered a Mini-Mart in Blythe. He stole money from the cash register and shot and killed the clerk. Ballistics reports showed that a shell casing was consistent with the .9 mm ammunition used in Officer Martin's service weapon.
Martinez then drove to his cousin's home in Coachella, California. When police officers apprehended Martinez, they recovered a .38 caliber handgun from his friend Tommy Acuna, who identified it to police as "the murder weapon." Martinez had abandoned the Monte Carlo while fleeing on foot.
While in jail awaiting trial, Martinez called a friend, Eric Moreno. He told Moreno that "he got busted for blasting a jura "—slang for police officer. He also told him that one of his guns had been "stashed." Police officers obtained a warrant to search Martinez's friend Johnny Acuna's trailer and found Officer Martin's .9 mm handgun under a mattress.
An Arizona jury convicted Martinez of first-degree murder for killing Officer Martin, two counts of theft, and two counts of misconduct involving weapons. The judge sentenced Martinez to death for the murder conviction, and terms of imprisonment for the other crimes.
Martinez was separately indicted for the murder of the clerk of the Mini-Mart in Blythe, California. After he was tried and sentenced in Arizona, he was extradited to stand trial in Riverside County, California.
Martinez now seeks discovery to dispute two pieces of evidence—Detective Beatty's testimony that the Monte Carlo had a "punched ignition," and Oscar Fryer's testimony that Martinez had told him that he was "not going back to jail." This evidence was used at trial to help prove that Martinez killed Officer Martin with premeditation. Martinez's defense counsel argued lack of premeditation as an alternative defense in closing argument. Martinez's primary defenses throughout trial, however, were mistaken identity and failure of the prosecution to carry its burden of proof. In his instant motion, Martinez argued to the district court, and now argues to us, that the evidence he seeks under Rule 60(b)(6) would show that he did not kill Officer Martin with premeditation and that he is therefore actually innocent of first-degree murder. See Sawyer v. Whitley , 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).
At trial, the prosecution called as a witness Detective Douglas Beatty, a Maricopa County homicide detective who was assigned to investigate Officer Martin's death. The court permitted the State to recall Detective Beatty to the stand to question him about the condition of the ignition of the Monte Carlo when it was recovered in California, in order to help prove that Martinez knew that it was stolen. Detective Beatty testified that when he attempted to turn on the recovered Monte Carlo with keys found in its glove compartment, he discovered that "the ignition switch to the Monte Carlo was missing." He described the ignition switch as "a hollow cavity" that could be turned on with "some sort of instrument," such as a screwdriver.
The prosecution indirectly referred to Detective Beatty's "punched" ignition testimony once during its rebuttal closing argument. The prosecution used the testimony to rehabilitate a witness who had identified Martinez as purchasing gas at the Circle K shortly before the shooting. The State referred to the Monte Carlo as stolen multiple times, in its opening statement and closing arguments, as part of its argument that Martinez had premeditated Officer Martin's killing.
After Martinez's trial in Arizona, he was tried in California for killing the clerk in the Mini-Mart. Prosecutors in the California case gave to Martinez files that they had obtained from the Arizona prosecutors. Those files included notes and a report from Ricci Cooksey, a California forensic examiner. Martinez argues that Cooksey's report "failed to note a punched ignition when the Monte Carlo was impounded at the time of Martinez's arrest." Cooksey's notes included the names and phone numbers of "Doug Beatty," of the "Maricopa Co. Sheriff," and of the lead prosecutor, "Bob Shutz [sic]," in Martinez's Arizona case. Martinez argues that these notes are evidence that Cooksey spoke to Arizona prosecutors prior to the Arizona trial. The California prosecutors also gave Martinez a photograph of the Monte Carlo showing an intact ignition. Martinez argues that this photograph shows that the ignition was not "punched" at the time of the crime, and that the photograph was "previously suppressed" by the Arizona prosecutors.
Also at trial, the prosecution called Oscar Fryer as a witness to testify about his conversation with Martinez at the Globe carwash prior to Officer Martin's murder. Fryer testified that Martinez had told him there was a warrant out for his arrest, that he was on probation, that he had a gun, and that if he was stopped by police, "he wasn't going back to jail."
In its closing argument, the prosecution repeatedly referred to Fryer's testimony, emphasizing Martinez's statement that "he wasn't going back to jail," as central evidence of both his motive...
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