Luis Martinez v. Joe McGrath , 535 F. App'x 614 ( 2013 )


Menu:
  •                                                                            FILED
    NOT FOR PUBLICATION                            AUG 01 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LUIS ALBERTO MARTINEZ,                           No. 12-15854
    Petitioner - Appellant,            D.C. No. 2:02-cv-00159-KJM-
    GGH
    v.
    JOE MCGRATH; ATTORNEY                            MEMORANDUM*
    GENERAL FOR THE STATE OF
    CALIFORNIA,
    Respondents - Appellees.
    Appeal from the United States District Court
    for the Eastern District of California
    Kimberly J. Mueller, District Judge, Presiding
    Argued and Submitted June 14, 2013
    San Francisco, California
    Before: SCHROEDER, RIPPLE**, and CALLAHAN, Circuit Judges.
    Petitioner-Appellant Luis Alberto Martinez, a California state prisoner,
    appeals the district court’s denial of his 
    28 U.S.C. § 2254
     habeas corpus petition
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
    for the Seventh Circuit, sitting by designation.
    challenging his jury convictions of murder, attempted murder, and street terrorism.
    We affirm the district court’s denial of relief.
    He claims juror misconduct and ineffective assistance of counsel in failing to
    investigate such misconduct. The district court ruled that his claims were
    procedurally defaulted. Under the intervening decision in Martinez v. Ryan, 
    132 S. Ct. 1309
     (2012), the procedural default of Petitioner’s ineffective assistance claim
    may be excused if he can establish that his post-conviction counsel rendered
    constitutionally ineffective assistance, and that his underlying claim of ineffective
    assistance at trial is substantial. Martinez, 
    132 S. Ct. at 1320
    . We assume without
    deciding that Martinez v. Ryan applies to state post-conviction proceedings in
    California. See Trevino v. Thaler, 
    133 S. Ct. 1911
     (2013).
    Evidence of what jurors said to each other is not admissible. Fed. R. Evid.
    606(b). Our previous disposition in this case, Martinez v. McGrath, 391 Fed.
    App’x 596 (9th Cir. 2010), recognized that, but remanded because there may have
    been some extrinsic evidence to support Petitioner’s claims of juror misconduct
    and ineffective assistance for failing to investigate the alleged misconduct. A
    review of the full record now reveals that there was no extrinsic evidence, and
    Petitioner’s claim of juror misconduct concerns only what was discussed during
    2
    deliberations. Petitioner’s underlying claim of ineffective assistance of trial
    counsel, therefore, has no substance.
    AFFIRMED.
    3
    FILED
    Martinez v. McGrath, 12-15854                                                 AUG 01 2013
    MOLLY C. DWYER, CLERK
    RIPPLE, Circuit Judge, concurring in the judgment:                   U.S. COURT OF APPEALS
    The law of the case doctrine justifies the majority’s reliance on Federal Rule
    of Evidence 606(b). However, were we deciding this matter without the
    constraints imposed upon us by the earlier panel decision in this case, we would
    have to address whether that rule is really as dispositive as the earlier panel thought
    it was. Rule 606 applies only to the conduct of litigation in United States courts.
    Here, in the context of an ineffective assistance of counsel claim raised on habeas
    review, it is important that the underlying proceeding took place in the courts of
    California. California does not follow the federal rule with respect to the
    admission of juror statements during deliberations. In California, when a party
    challenges the validity of a jury verdict, the California Rules\ of Evidence allow
    consideration of statements, conduct and events occurring during deliberations, but
    not evidence as to how those statements or events influenced a juror. 
    Cal. Evid. Code § 1150
    (a). By contrast, the Federal Rules of Evidence do not allow
    testimony as to statements made during deliberations.
    Here, where state law gives the defendant more latitude in impeaching a jury
    verdict than available under federal law, the adequacy of counsel must be measured
    by whether counsel adequately protected his client’s more protective state rights.
    At least in the context here--an ineffective assistance of counsel claim based on
    proceedings in a California state court--the California Rules of Evidence controls
    the inquiry into the adequacy of counsel’s conduct.
    Despite my respectful disagreement about reliance on Rule 606(b), I believe
    that the evidence of record does not establish that the defendant was prejudiced by
    any shortcoming of counsel. Accordingly, I join in the affirmance of the district
    court’s judgment.
    2
    

Document Info

Docket Number: 12-15854

Citation Numbers: 535 F. App'x 614

Filed Date: 8/1/2013

Precedential Status: Non-Precedential

Modified Date: 1/13/2023