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Martinez v. Ryan

United States District Court, D. Arizona

March 30, 2016

Ernesto Salgado Martinez, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

ROSLYN O. SILVER, Senior District Judge.

This matter is before the Court on limited remand from the Court of Appeals for the Ninth Circuit for reconsideration of five procedurally defaulted claims-Claims 4, 11, 12, 16, and 17 of Petitioner's amended habeas petition-in light of Martinez v. Ryan, 132 S.Ct. 1309 (2012) (" Martinez "). (Doc. 104.) The Ninth Circuit also granted Petitioner's motion for leave to file a renewed request for indication whether the District Court would consider a Rule 60(b) motion for reconsideration of Claim 4 and for consideration of a possible claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959), in light of newly discovered evidence. ( Id. ) Petitioner has now filed one brief comprising both his renewed request and his supplemental Martinez brief, and seeking evidentiary development and an evidentiary hearing with respect to both issues. (Doc. 115.) Respondents filed a response, and Petitioner filed a reply. (Docs. 121, 126.) For reasons set forth below, the Court declines Petitioner's invitation to entertain a motion under Rule 60(b), and finds that Petitioner has failed to overcome the procedural default of Claims 4, 11, 12, 16, and 17, and is not entitled to evidentiary development or hearing.

I. BACKGROUND

In 1997, a jury convicted Petitioner of theft, weapons-related charges, and first-degree murder for the killing of Robert Martin, a Department of Public Safety Officer who had stopped Petitioner on the Beeline Highway between Mesa and Payson, Arizona. The trial court sentenced Petitioner to death for the murder conviction and to terms of imprisonment on the other counts. The following facts concerning the crime are derived from the Arizona Supreme Court's opinion affirming Petitioner's convictions and sentences.

Martinez drove from California to Globe, Arizona in a stolen blue Monte Carlo to visit friends and family. After learning that his parents had moved to Payson, Arizona, Martinez met his friend Oscar Fryer. Fryer asked Martinez where he had been. Martinez told Fryer that he had been in California. Fryer then asked Martinez if he was still on probation. Martinez responded that he was on probation for eight years and had a warrant out for his arrest. Martinez then pulled a.38 caliber handgun with black tape on the handle from under his shirt and showed it to Fryer. Fryer asked Martinez why he had the gun, to which Martinez responded, "[f]or protection and if shit happens." Tr. Sept. 9, 1997 at 83. Fryer then asked Martinez what he would do if he was stopped by the police. Martinez told Fryer, "he wasn't going back to jail." Id. at 85.
Sometime after his conversation with Fryer, Martinez left Globe and drove to Payson. On August 15, 1995, at approximately 11:30 a.m., Martinez was seen at a Circle K in Payson. He bought ten dollars worth of gas and proceeded south down the Beeline Highway toward Phoenix. Martinez was driving extremely fast and passed several motorists, including a car driven by Steve and Susan Ball. Officer Martin was patrolling the Beeline Highway that morning and pulled Martinez over at Milepost 195. Steve and Susan Ball saw Officer Martin's patrol car stopped behind Martinez' Monte Carlo and commented, "Oh, good, he got the speeding ticket." Tr. Sept. 10, 1997 at 32. As they passed by, Susan Ball noticed Officer Martin standing at the driver's side door of the Monte Carlo while Martinez looked in the backseat.
Shortly after Steve and Susan Ball passed, Martinez shot Officer Martin four times with the.38 caliber handgun. One shot entered the back of Officer Martin's right hand and left through his palm. Another shot passed through Officer Martin's neck near his collar bone. A third shot entered Officer Martin's back, proceeded through his kidney, through the right lobe of his liver, through his diaphragm, and lodged in his back. A fourth shot entered his right cheek, passed through his skull, and was recovered inside Officer Martin's head. The hand and neck wounds were not fatal. The back and head wounds were.
After murdering Officer Martin, Martinez took Officer Martin's.9mm Sig Sauer service weapon and continued down the Beeline Highway at speeds over 100 mph. Martinez again passed Steve and Susan Ball, which they found strange. They began discussing how not enough time had passed for Martinez to have received a speeding ticket because it had only been a couple of minutes since they had seen him pulled over. They stayed behind Martinez for some time and watched him go through a red light at the Fort McDowell turnoff. Steve Ball commented, "Yeah, he just ran that red light. Something is up here. Something is going on." Tr. Sept. 10, 1997 at 69. Steve and Susan Ball continued down the Beeline Highway and lost sight of Martinez until they reached Gilbert Road. At the red light on Gilbert Road, they caught up to him and took down his license plate.
Martinez passed through Phoenix and arrived in Blythe, California at around 4:00 p.m. where he called his aunt for money. At 6:00 p.m., Martinez called his aunt again because she failed to wire the money he requested. Growing impatient, at approximately 8:00 p.m., Martinez entered a Mini-Mart in Blythe and, at gunpoint, stole all of the $10 and $20 bills from the register. Martinez killed the clerk with a single shot during the robbery.FN1 A.9mm shell casing was recovered at the Mini-Mart the following day. Ballistics reports determined that this shell casing was consistent with the ammunition used in Officer Martin's.9mm Sig Sauer.
FN1 The trial court excluded evidence of the murder under Rule 403, Ariz. R. Evid.
Later that night, Martinez drove to his cousin's house in Coachella, California, near Indio. Around 12:00 p.m. the next day, August 16, 1995, Martinez took David Martinez, his cousin, and Anna Martinez, David's wife, to a restaurant in Indio. After leaving the restaurant, Martinez noticed that a police car was following him. David asked Martinez if the car was stolen to which Martinez responded, "I think so." Tr. Sept. 15, 1997 at 146-47. Martinez turned onto a dirt road and instructed David and Anna to get out of the car. They left the car and went to a nearby trailer compound to call Anna's aunt to come and get them.
Tommy Acuna, FN2 who lived in his grandmother's house at the compound, was swimming when David and Anna appeared at the fence surrounding the compound. David and Anna asked Tommy if they could use his phone but Tommy refused. Tommy did permit Anna to use the bathroom. Anna went into the bathroom and came out a couple of minutes later. After showing David and Anna out, Tommy went back to the bathroom "to see if they left anything in there because she wasn't in there that long." Tr. Sept. 16, 1997 at 48. He found a towel on the floor with the.38 caliber handgun wrapped inside. Tommy took the gun, hid it in his pants, and walked outside. He testified that he hid the gun because it was his grandmother's house. By the time Tommy walked outside, the police had surrounded the compound. An officer monitoring the perimeter called out to Tommy and told him that he was going to search him. Tommy walked over to the officer and exclaimed, "I have got the murder weapon." Tr. Sept. 15, 1997 at 192. The officer searched Tommy and found the.38 caliber handgun. This gun was later identified as the weapon that fired the bullets which killed Officer Martin.
FN2: Tommy's brother Johnny Acuna was a friend of Martinez.
After David and Anna got out of the Monte Carlo, Martinez turned around on the dirt road. Another police car appeared on the scene and headed towards Martinez. Martinez saw this second police car, left the Monte Carlo, ran toward the trailer compound, and jumped the fence. He then ran into Johnny Acuna's trailer.
The SWAT team evacuated the area and tried to communicate with Martinez. After those attempts failed, the SWAT team negotiator threatened to use tear gas. Martinez responded, "I am not coming out; you will have to come in and shoot me." Tr. Sept. 17, 1999 at 23. After further negotiations, however, Martinez agreed to come out and was taken into custody.
While in custody, Martinez called his friend, Eric Moreno, and laughingly told Moreno that "he got busted for blasting a jura."FN3 Tr. Sept. 15, 1997 at 13. Martinez also told Moreno that a woman on the highway might have seen what had happened. They talked about the guns and Martinez told Moreno that one of the guns had been "stashed." Id. at 21. After obtaining a warrant, the police searched Johnny Acuna's trailer and found Officer Martin's.9mm Sig Sauer under a mattress.
FN3: "Jura" is slang for police officer. Tr. Sept. 15, 1997 at 13.

State v. Martinez, 196 Ariz. 451, 453-55, 999 P.2d 795, 797-99, cert. denied, 531 U.S. 934 (2000) (" State v. Martinez ").

In 2002, Petitioner initiated state post-conviction relief ("PCR") proceedings pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. The trial court denied PCR relief, and the Arizona Supreme Court denied a petition for review.

Petitioner filed a petition for writ of habeas corpus with this Court on May 25, 2005, and an amended petition on May 23, 2006. Petitioner asserted the following claims in the amended petition which are relevant to this motion and supplemental brief:

Claim 4: the trial court violated Petitioner's right of confrontation by allowing testimonial hearsay of reports of a stolen vehicle and license plates to prove the charged offense of vehicle theft, and as evidence supporting a finding that Officer Martin's murder was premeditated.
Claim 11: trial counsel was ineffective for failing to ameliorate Petitioner's 1993 prior conviction for aggravated assault.
Claim 12: (in part) trial counsel was ineffective for failing to rebut the State expert's diagnosis of anti-social personality disorder and substantiate the defense expert's diagnosis of post-traumatic stress disorder.
Claim 16: trial counsel was ineffective for failing to adequately investigate and confront witnesses Eric Moreno and Patricia Baker.
Claim 17: trial counsel was ineffective for failing to secure an independent pathologist, properly impeach the state's pathologist, and move for corrective action after presentation of undisclosed testimony.

(Doc. 30 at 34-40, 86-92, 101-05, 133-43.)

This Court denied the amended petition, finding Claims 4, 11, 12, 16, and 17 procedurally defaulted because Petitioner failed to present them in state court and no remedies remained available to exhaust the claims, denied further evidentiary development of these claims, and granted a certificate of appealability ("COA") on three other claims. (Doc. 88 at 27, 44-48, 50, 52, 58-59.) Subsequently, the Court denied Petitioner's motion to alter or amend the judgment and to expand the COA. (Doc. 91.)

Petitioner filed a notice of appeal, and, while the appeal was pending, filed a request for an indication whether the District Court would consider a Rule 60(b) motion. (Docs. 92, 95.) The Court summarily denied the motion. (Doc. 101.)

While the appeal was pending, the Supreme Court decided Martinez v. Ryan, holding that where ineffective assistance of counsel ("IAC") claims must be raised in an initial PCR proceeding, failure of counsel in that proceeding to raise a substantial trial IAC claim may provide cause to excuse the procedural default of that claim. 132 S.Ct. at 1320. Petitioner moved the Ninth Circuit to stay his appeal and remand the case in light of Martinez. Petitioner also moved to stay the proceedings and remand based on newly-discovered evidence supporting a Brady-Napue claim.[1] The Ninth Circuit granted Petitioner's motions and remanded for reconsideration of procedurally defaulted Claims 4, 11, 12, 16, and 17 in light of Martinez, and for leave to file a renewed request for indication whether the district court would consider a Rule 60(b) motion for reconsideration of Claim 4 and for consideration of a possible Brady - Napue claim in light of newly discovered evidence. (Doc. 121.)

II. DISCUSSION

Petitioner moves this Court to indicate that it will consider a motion for relief from judgment under Rule 60(b)(6) on the basis that "such action is appropriate to accomplish justice." (Doc. 115 at 2) (citing Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988)). Petitioner also seeks reconsideration based on Martinez for three trial-level IAC claims. (Doc. 115 at 8-9.) Petitioner seeks evidentiary development and an evidentiary hearing with respect to both the renewed Rule 60(b) request and the Martinez claims. ( Id. at 45-48, 79.)

A. Renewed Request for Indication Whether This Court Would Consider a Rule 60(b) Motion

Petitioner seeks an indication that the Court will consider a motion for relief from judgment under Rule 60(b)(6) based on the suppression of material exculpatory evidence at trial by the Maricopa County Attorney, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and the Arizona Attorney General's subsequent failure, in this federal habeas proceeding, to inspect the Maricopa County Attorney's files for Brady material. Additionally, Petitioner seeks authorization to conduct further evidentiary development in support of a related claim that the Maricopa County Attorney knowingly elicited false or misleading testimony from Detective Douglas Beatty, or failed to correct such testimony, in violation of Napue v. Illinois, 360 U.S. 264 (1959).

According to Petitioner, a Rule 60(b) motion is the appropriate vehicle for vindicating the rights he alleges were violated under Brady and Napue because the new evidence demonstrates that the earlier federal habeas proceedings lacked integrity.

Respondents contend that the Court should deny Petitioner's renewed request because Petitioner's Rule 60(b) motion is really a second or successive petition, which is barred under 28 U.S.C. § 2244(b)(1). Respondents also assert that Petitioner cannot show extraordinary circumstances warranting reopening of the habeas proceeding because no Brady or Napue violation occurred.

For the reasons discussed, the Court finds that Petitioner's motion does not establish a defect in the integrity of these proceedings, but rather, seeks to raise new substantive claims. Accordingly, this Court lacks jurisdiction to consider the claims absent authorization from the Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3).

1. Applicable Law

a. Rule 60(b)

Federal Rule of Civil Procedure 60(b) "allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances." Jones v. Ryan, 733 F.3d 825, 833 (9th Cir. 2013) (quoting Gonzalez v. Crosby, 545 U.S. 524, 528 (2005)). Generally, the filing of a notice of appeal divests the district court of jurisdiction to consider a motion for relief from judgment. See Gould v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 772 (9th Cir. 1986). In such a case, it is appropriate for a petitioner to ask the district court whether it wishes to entertain a Rule 60(b) motion, and, if the request is granted, to then move in the appellate court for remand of the case. See Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004).

A claim for relief under Rule 60(b)(6), the "catch-all" provision of the rule on which Petitioner relies, must be brought "within a reasonable time, " Fed.R.Civ.P. 60(c)(1), and requires a showing of "extraordinary circumstances" that justify reopening a judgment. See Gonzalez, 545 U.S. at 535-36 (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). "Such circumstances rarely occur in the habeas context.'" Jones, 733 F.3d at 833 (quoting Gonzalez, 545 U.S. at 535).

For habeas petitioners, a Rule 60(b) motion may not be used to "make an end-run around the requirements of AEDPA or to otherwise circumvent that statute's restrictions on second or successive habeas corpus petitions" set forth in 28 U.S.C. § 2244(b). Jones, 733 F.3d at 833 (quoting Calderon v. Thompson, 523 U.S. 538 (1998)) (internal quotation marks omitted). This statute has three relevant provisions: First, § 2244(b)(1) requires dismissal of any claim that has already been adjudicated in a previous habeas petition. Second, § 2244(b)(2) requires dismissal of any claim not previously adjudicated unless the claim relies on either a new and retroactive rule of constitutional law or on new facts demonstrating actual innocence of the underlying offense. Third, § 2244(b)(3) requires prior authorization from the court of appeals before a district court may entertain a second or successive petition under § 2244(b)(2). Absent such authorization, a district court lacks jurisdiction to consider the merits of a second or successive petition. United States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).

There is no "bright-line rule for distinguishing between a bona fide Rule 60(b) motion and a disguised second or successive [§ 2254] motion." Jones, 733 F.3d at 834 (quoting Washington, 653 F.3d at 1060). In Gonzalez, the Court held that a Rule 60(b) motion constitutes a second or successive habeas petition when it advances a new ground for relief or "attacks the federal court's previous resolution of a claim on the merits. " 545 U.S. at 532. "On the merits" refers "to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d)." Id. at 532 n. 4. A legitimate Rule 60(b) motion "attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings." Id. at 532; accord United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011) (observing that a defect in the integrity of a habeas proceeding requires a showing that something happened during that proceeding "that rendered its outcome suspect"). For example, a Rule 60(b) motion does not constitute a second or successive petition when the petitioner "merely asserts that a previous ruling which precluded a merits determination was in error-for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar"-or contends that the habeas proceeding was flawed due to fraud on the court. Id. at 532 nn. 4-5; see, e.g., Butz v. Mendoza-Powers, 474 F.3d 1193 (9th Cir. 2007) (holding that "where the district court dismisses a petition for failure to pay the filing fee or to comply with the court's orders, the district court does not thereby reach the "merits" of the claims presented in the petition and a Rule 60(b) motion challenging the dismissal is not treated as a second or successive petition"). The Court reasoned that if "neither the motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant's state conviction, " there is no basis for treating it like a habeas application. Gonzalez, 545 U.S. at 533.

On the other hand, if a Rule 60(b) motion "presents a claim, ' i.e., an asserted federal basis for relief from a... judgment of conviction, ' then it is, in substance, a new request for relief on the merits and should be treated as a disguised" habeas application. Washington, 653 F.3d at 1063 (quoting Gonzalez, 545 U.S. at 530). Interpreting Gonzalez, the court in Washington identified numerous examples of such "claims, " including:

a motion asserting that owing to excusable neglect, the movant's habeas petition had omitted a claim of constitutional error; a motion to present newly discovered evidence in support of a claim previously denied; a contention that a subsequent change in substantive law is a reason justifying relief from the previous denial of a claim; a motion that seeks to add a new ground for relief; a motion that attacks the federal court's previous resolution of a claim on the merits; a motion that otherwise challenges the federal court's determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief; and finally, an attack based on the movant's own conduct, or his habeas counsel's omissions.

Id. (internal quotations and citations omitted). If a Rule 60(b) motion includes such claims, it is not a challenge "to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably." Gonzalez, 545 U.S. at 532 n. 5.

b. Brady and Napue

Due process requires a prosecutor to disclose material exculpatory evidence to the defendant before trial. Brady, 373 U.S. at 87. This duty extends to evidence "that could be used to impeach one of the prosecution's witnesses or undermine the prosecution's case, " Milke v. Ryan, 711 F.3d 998, 1003 (9th Cir. 2013), and arises regardless of whether the defendant makes a request for the evidence. United States v. Bagley, 473 U.S. 667, 682 (1985) (plurality opinion); see also Kyles v. Whitley, 514 U.S. 419, 433 (1995) ("[R]egardless of request, favorable evidence is material."). Moreover, a prosecutor has an affirmative duty to learn of and disclose exculpatory or impeachment evidence known to other government agents, including any agents involved in the investigation. See Kyles, 514 U.S. at 437.

Evidence is "material" if there is a reasonable probability that disclosure of the evidence would have changed the outcome of the proceeding. Bagley, 473 U.S. at 682. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. at 678. When assessing materiality, the court must take into account the cumulative effect of the suppressed evidence in light of other evidence, not merely the probative value of the suppressed evidence standing alone. See Kyles, 514 U.S. at 436 (explaining that materiality under Bagley is evaluated in distinct, cumulative analysis in which "suppressed evidence [is] considered collectively").

Thus, to establish a Brady violation, a defendant must prove: 1) the evidence at issue is favorable to the accused, either because it is exculpatory or because it is impeaching, 2) the evidence was suppressed either willfully or inadvertently, and 3) prejudice resulted, meaning there is a reasonable probability that disclosing the evidence to the defense would have changed the result. Andrews v. Davis, 798 F.3d 759, 793 (9th Cir. 2015) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Bagley, 473 U.S. at 682).

A Napue violation occurs when prosecutors "knowingly use false evidence, including false testimony" or "allow[ ] it to go uncorrected when it appears." Napue, 360 U.S. at 269. To prevail on a Napue claim, a petitioner must show that (1) the testimony or evidence was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material. United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003) (citing Napue, 360 U.S. at 269-71).

2. Relevant facts

Petitioner asserts that the Maricopa County Attorney has suppressed material exculpatory evidence, in violation of Brady. The Court considers the new evidence Petitioner proffers in support of his Rule 60(b) motion and Brady and Napue claims for purposes of making this determination. See e.g., Poyson v. Ryan, 743 F.3d 1185, 1203 (9th Cir. 2013), overruled on other grounds by McKinney v. Ryan, ___ F.3d ___, 2015 WL 9466506, (9th Cir. 2015) (en banc); Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (en banc). The new evidence consists of, primarily, a photograph of an intact ignition in the 1975 Chevrolet Monte Carlo ("Monte Carlo") driven by Petitioner before his arrest, and disclosed to Petitioner in 2012 as part of court-ordered discovery in his prosecution in California for the murder of a convenience store clerk in Blythe, California. (Doc. 115, Ex. 1.) Petitioner submits this photograph cannot be reconciled with Detective Beatty's testimony during his trial, and, had it been disclosed at trial, would have undermined proof of premeditation, an element of first-degree murder (the "Beatty Brady claim").

Petitioner also asserts that Respondents suppressed a report by California Department of Justice Senior Criminalist Ricci Cooksey, identifying other matters of evidentiary significance with respect to the Monte Carlo, but failing to note a missing ignition, which, Petitioner contends, implies that the ignition was intact. (Doc. 115, Ex. 2.) The report also indicates that Cooksey attempted telephonic contact with Detective Beatty and the prosecutor prior to trial, which Petitioner contends demonstrates a possible Napue violation because it implies that Cooksey informed Detective Beatty and the prosecutor that the ignition was intact when he inspected the vehicle.

To place Petitioner's argument and new evidence into context, the Court will summarize the evidence offered during the guilt phase of Petitioner's trial relevant to the determination that the Monte Carlo driven by Petitioner was stolen and that Officer Martin's murder was premeditated, and the new evidence proffered in this habeas proceeding.

a. Guilt Phase Evidence

i. Officers Rochelle Carlton and Owen Krings

Rochelle Carlton, a community service officer for the Indio Police Department, testified that she took a call on July 29, 1995, from Herman Hines, who reported his California license plate, number 1 CUK 259, stolen. (Doc 121, App. C at 87-91.) Officer Owen Krings, with the Cathedral City Police Department, testified that he took a stolen car report on July 29, 1995, from Sonia Tison. (Doc. 121, App. D at 149-50.) Tison described the car as a 1975, white over blue Chevy Monte Carlo, and provided the vehicle identification number for the vehicle. ( Id. at 151.) It was later determined that the VIN number matched the number of the Monte Carlo being driven by Petitioner. (Doc. 115, App. 12 at 100-101.)

In Claim 4 of his amended habeas petition, Petitioner argued that the trial court denied his federal constitutional right of confrontation by allowing the prosecution to introduce testimonial hearsay through the officers' testimony to prove the vehicle driven by Petitioner at the time of the crime, and the license plate on the vehicle, were stolen. (Doc. 30 at 34-40.) Because the claim was procedurally defaulted, the Court considered Petitioner's argument that a fundamental miscarriage of justice would occur if the claim was not heard on the merits because "the exclusion of the purported theft of the Monte Carlo greatly weakens the prosecution's case for motive and premeditation." (Doc 50 at 31.) Based on habeas counsels' discovery that the ignition switch was in two pieces under the passenger seat, and the parts were not listed in the vehicle inventory, Petitioner's counsel sought additional discovery to establish that the ignition was intact at the time the vehicle was impounded. The Court considered the evidence and concluded that Petitioner had failed to establish that no reasonable juror would have found him guilty of premeditated first-degree murder, declined to review the claim on the merits, and denied further evidentiary development.

ii. Oscar Fryer

Oscar Fryer testified he saw Petitioner in Globe, Arizona, in the days before Officer Martin's murder. (Doc. 115, App. 8 at 75.) Fryer testified Petitioner was driving a blue Monte Carlo with a white top, and that Petitioner showed him a.38-caliber handgun with black tape around the handle, which he had for protection and if "shit happens." ( Id. at 78-86.) Fryer further testified that Petitioner told him he was on probation and indicated that he had a warrant for his arrest, that he was on the run, and that he was not going back to jail if stopped by the police. ( Id. )

Defense counsel impeached Fryer at trial with two prior felony convictions. ( Id. at 88.) Defense counsel also elicited from Fryer that prior to trial he had violated his probation, that he was on the run, and that he would not agree to cooperate or turn himself into authorities until he had negotiated and had in his possession a written plea agreement dealing with charges of assault on a police officer, domestic violence, resisting arrest, and escape. ( Id. at 88-93.) Defense counsel introduced Fryer's plea agreement into evidence, which provided that if Fryer cooperated and testified for the prosecution, his three felony charges would be reduced to one misdemeanor assault charge and he would be sentenced to probation. ( Id. )

In Claim 9 of his amended federal habeas petition, Petitioner argued that the prosecution violated Brady by failing to disclose that Fryer would receive other benefits in exchange for his testimony, that he was using drugs at the time of trial but the prosecution did not move to revoke his probation, and that the prosecution did not charge Fryer with making a false report to law enforcement when he lied to a police officer about a suspect's location (the "Fryer Brady claim"). Because the claim had been procedurally defaulted, the Court considered whether the prosecution's withholding of material exculpatory evidence established cause for the default. The Court considered the evidence proffered by Petitioner in his motion for evidentiary development in support of the alleged Brady violation and denied the Fryer Brady claim, concluding the withheld impeachment information was not material, and that "Fryer's testimony was not the linchpin evidence of premeditation portrayed by Petitioner." (Doc. 88 at 37-38.)

iii. Elizabeth Martin

Elizabeth Martin testified that she knew Petitioner and had seen him in Globe, Arizona, driving a white and blue Monte Carlo with California license plates, two or three days before Officer Martin was shot on the Beeline Highway. (Doc. 115, App. 8, at 44-47.) After Elizabeth Martin informed Petitioner that his parents were living in Payson, Arizona, Petitioner indicated he would go to Payson to visit them. ( Id. at 50.) On the day Officer Martin was shot, Elizabeth spoke by phone with Petitioner's mother, who indicated that her son was returning to Indio, California. ( Id. at 54.) After hearing about the ...


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