NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDALL RAY MARTINO, No. 20-35502

Petitioner-Appellant, D.C. No. 6:17-cv-00925-MK

v.

MEMORANDUM*

CHRISTINE POPOFF, Superintendent, Oregon State Correctional Institution,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted July 7, 2021 Portland, Oregon

Before: O’SCANNLAIN, PAEZ, and BENNETT, Circuit Judges.

Petitioner Randall Ray Martino appeals the district court’s dismissal of his

28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253. We review de novo the district court’s dismissal of a

§ 2254 petition as untimely. Stewart v. Cate, 757 F.3d 929, 934 (9th Cir. 2014).

In doing so, we review the district court’s factual findings for clear error and its

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. decision “to decline to order an evidentiary hearing . . . for abuse of discretion.”

Id. We affirm.

1. Martino argues that the magistrate judge’s findings, which were

adopted by the district court, were clearly erroneous. Not so. “If the district

court’s account of the evidence is plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it even though convinced that had it

been sitting as the trier of fact, it would have weighed the evidence differently.”

Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985). Thus, “[w]here

there are two permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” Id. at 574.

The magistrate judge’s findings were plausible in light of the record. First,

the magistrate judge found that Martino learned of the state’s verbal 100-month

plea offer during his initial trial proceedings. Martino testified before the state

postconviction court that his second trial attorney had conveyed the offer to him

before trial. The magistrate judge’s decision to credit that testimony, rather than

Martino’s more recent declaration stating that his prior testimony was mistaken,

was not clear error.

Second, the magistrate judge found that Martino obtained his trial attorneys’

case file during his direct appeal. Because the case file contained a written record

of the verbal plea offer, the magistrate judge determined that Martino could have

2 discovered the offer at that time. That finding was supported by Martino’s

testimony in the state postconviction hearing that his appellate attorney had

provided him with a copy of the case file. Further, Martino’s second trial attorney

submitted a declaration and documentary evidence suggesting that he sent Martino

the case file well before Martino filed his state postconviction petition. Although

other evidence suggests that Martino’s appellate attorney did not provide him with

the case file, the magistrate judge’s finding that someone provided Martino with

the case file during his direct appeal was not clear error.1 Anderson, 470 U.S. at

574 (stating that the fact-finder’s choice between two permissible views of the

evidence “cannot be clearly erroneous”).

2. Martino also argues that the magistrate judge and district court abused

their discretion by failing to grant Martino’s request for an evidentiary hearing.

We disagree. Unlike other circumstances where a district court resolved factual

disputes by reviewing only competing affidavits, see Roy v. Lampert, 465 F.3d

964, 975 (9th Cir. 2006), here the magistrate judge’s findings relied on Martino’s

prior testimony, which clearly stated that he learned of the plea offer during the

trial proceedings. The primary factual dispute was between Martino’s

postconviction testimony and the declaration he submitted to the district court

1 In addition to precluding Martino’s argument for statutory timeliness, the magistrate judge’s findings also support the denial of Martino’s claim for equitable tolling.

3 following the state’s Answer. Although some evidence supported Martino’s more

recent version of events, the magistrate judge’s decision to credit Martino’s earlier

testimony without holding an evidentiary hearing was not an abuse of discretion.

See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010).

AFFIRMED.

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