Luis Martinez v. Joe McGrath

MEMORANDUM **

Petitioner-Appellant Luis Alberto Martinez, a California state prisoner, appeals *615 the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition 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, — U.S.-, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (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, — U.S.-, 133 S.Ct. 1911 , 185 L.Ed.2d 1044 (2013).

Evidence of what jurors said to each other is not admissible. Fed.R.Evid. 606(b). Our previous disposition in this case,…

concurring in the judgment:

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…

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NOT FOR PUBLICATION AUG 01 2013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…