James Jones v. Steve Franke , 587 F. App'x 425 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JAMES LOUIS JONES, No. 13-35806
Petitioner - Appellant, D.C. No. 2:11-cv-01527-KI
v.
MEMORANDUM*
STEVE FRANKE,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued and Submitted November 18, 2014
Portland, Oregon
Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.
Oregon state prisoner James Louis Jones appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction of
murder. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Jones cites Martinez v. Ryan, 132 S. Ct. 1309 (2012), to support his claim
for relief, but his argument stretches Martinez beyond its bounds in multiple ways.
Perhaps most importantly, he failed to demonstrate that his underlying claim was a
substantial one, as required under Martinez to overcome a procedural default. Id.
at 1318.
In particular, the contention that evidence that “Jones still lived in the home
with his wife” would have had an impact on the jury’s verdict is too implausible.
The specific details of what happened – that Jones had stayed with relatives for a
few days after he and his wife had a fight – were not in dispute. That he may not
have perceived his departure as permanent was neither seriously contested or
important to the verdict.
Instead, the evidence strongly supported the conclusion that Jones was not
surprised by the discovery of another man when he returned to the house. The
original fight was over his belief that his wife had something going with another
man. When he initially returned to the house he saw the victim’s car parked in the
driveway and the victim’s clothes and fishing pole in the house. He told a friend
about those discoveries and his suspicions. When he returned before the fatal
shooting, he parked some distance away and carried a pistol with him to the house.
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After hearing that evidence, the jury rejected the defense of extreme
emotional disturbance. It was highly unlikely that the jury would have reached a
different conclusion if presented with evidence, or more evidence, that Jones still
viewed the house as his home. The Oregon Circuit Court denied Jones’s post-
conviction relief petition on the merits, concluding that there was “[n]o evidence of
inadequacy or prejudice,” applying the two-prong standard for ineffective
assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Jones has not presented a substantial argument to the contrary.
AFFIRMED.
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