Luis Martinez v. Joe McGrath , 391 F. App'x 596 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUIS ALBERTO MARTINEZ, No. 08-17320
Petitioner - Appellant, D.C. No. 2:02
-cv-00159-JAM-GGH
v.
JOE MCGRATH; ATTORNEY MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted August 12, 2009
San Francisco, California
Before: KOZINSKI, Chief Judge, HUG and REINHARDT, Circuit Judges.
California state prisoner Luis Alberto Martinez (“defendant”) appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his jury
conviction for first degree murder, attempted murder, and participation in a street
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
gang. Defendant’s first trial resulted in a hung jury and a mistrial. In this second
trial, defendant was convicted and sentenced to two consecutive terms of twenty-
five years to life for murder and life with the possibility of parole for the attempted
murder. He also received a three-year term for participation in a street gang.
Defendant argues the district court improperly denied his claims for ineffective
assistance of counsel, juror misconduct, and prosecutorial misconduct. We have
jurisdiction under 28 U.S.C. § 2253.
The district court erred in finding that the ineffective assistance of counsel
claim based on the failure to investigate juror misconduct was untimely under the
Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) statute of limitations.
The claim relates back to a “common core of operative facts” described in
defendant’s timely 2002 petition. See Mayle v. Felix, 545 U.S. 644, 664 (2005).
Claims in both petitions rely on Glenda Griffin’s post-conviction disclosure of the
alleged juror misconduct.
Appellee adequately preserved its argument that the juror misconduct claim
based on speculation about defendant’s sentence, and the related ineffective
assistance claim, are procedurally barred from federal habeas review. See Hughes
v. Idaho State Bd. of Corrections, 800 F.2d 905, 906 n.1 (9th Cir. 1986). The
district court must address the issue on remand. In so doing, it shall consider
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whether appellee, having failed to meet its burden of proving that its timeliness
rule has been consistently applied in noncapital cases by not submitting proof of
the rule’s consistent application after defendant challenged its adequacy in his
traverse, may introduce such evidence on remand. See King v. LaMarque, 464
F.3d 963, 967-68 (9th Cir. 2006); Bennett v. Mueller, 322 F.3d 573, 583-86 (9th
Cir. 2003). If the claims are not barred, at least some of the evidence about what
some members of the jury heard about sentencing from other members of the jury
is extrinsic and therefore admissible. See Sassounian v. Roe, 230 F.3d 1097,
1108–09 (9th Cir. 2000); Jeffries v. Blodgett, 5 F.3d 1180, 1190 n.2 (9th Cir.
1993). Of course, the district court may not pry into how jurors reacted to or
discussed the information, after it was provided. Fed. R. Evid. 606(b); Sassounian,
230 F.3d at 1108–09. In any event, if the claims are not procedurally barred, they
must be considered anew on remand in light of our ruling regarding admissibility.
The district court properly denied the claim based on the jury’s discussion of
defendant’s incarceration. It was based on things jurors said about what they
observed in the courtroom—not on their consideration of any evidence extrinsic to
the trial. See Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006). The denial by the
California Court of Appeal was not contrary to, or involve an unreasonable
application of, clearly established Supreme Court law. The remaining juror
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misconduct claims are similar, but the district court must determine whether they
are procedurally defaulted before ruling on their merits.
The allegation of prosecutorial misconduct was also properly denied, along
with the related ineffective assistance claim. The state court’s denial was not
contrary to, or involve an unreasonable application of, clearly established Supreme
Court law. The prosecutor argued that defendant and other gang members thought
that they could escape consequences for their actions because no one cared about
gang members killing each other. The statements did not so infect “the trial with
unfairness as to make the resulting conviction a denial of due process.” See
Darden v. Wainwright, 477 U.S. 168, 181 (1986).
Each party is to bear their own costs.
REVERSED in part, AFFIRMED in part, and REMANDED.
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