FILED
NOT FOR PUBLICATION JAN 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ADOLFO ROMO MARTINEZ, No. 06-15025
Petitioner - Appellant, D.C. No. 1:03-cv-05180-OWW-
WMW
v.
DAVID L. RUNNELS, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted January 11, 2010 **
San Francisco, California
Before: KOZINSKI, Chief Judge, WALLACE and SILVERMAN, Circuit Judges.
The California Court of Appeal thoroughly reviewed the evidence and held
it sufficient to uphold Matinez’s conviction for felony false imprisonment. See
Jackson v. Virginia, 443 U.S. 307, 324 (1979). The court stated that witnesses
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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testified that Martinez was upset about the child support order that Anguiano had
obtained against him; he had aggressively sought to track her down to confront her
about his paternity of the children and her requests for orders of financial
assistance; and he had threatened and been violent with her on previous occasions
when discussing these issues. Approximately 10 p.m. on the night of her
disappearance, before temporarily leaving her apartment and her two young
children to walk her friend outside, Anguiano told her cousin that she would be
right back. Before returning, Anguiano encountered Martinez. Witnesses saw
Anguiano speaking with Martinez for at least forty-five minutes, standing with her
back to the wall, her eyes downcast, and arms folded, while he stood directly in
front her with both of his hands against the wall, badgering her to answer his
questions. No witness saw Anguiano after 10:45 p.m. The California Court of
Appeal concluded that given Martinez’s prior acts of domestic violence, “[i]t could
be inferred from the circumstantial evidence that [Martinez] used either violence or
menace, i.e., verbal threats of again inflicting harm to [Anguiano], to prevent her
from returning to her apartment until she answered the questions he was posing.”
People v. Martinez, No. F036712, 2002 WL 749398, *46 (Cal. Ct. App. Apr. 29,
2002); see People v. Checketts, 84 Cal. Rptr. 2d 491, 493 (Cal. Ct. App. 1999).
This decision is not based on an unreasonable determinable of the facts, nor is it
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contrary to, or an unreasonable application of, clearly established federal law. 28
U.S.C. § 2254(d); see Jackson, 443 U.S. at 319.
Martinez also presents uncertified issues in his opening brief. He alleges
that his second degree murder conviction was based upon insufficient evidence and
that the trial court erred in giving jury instruction CALJIC 2.50.02 and admitting
evidence of his prior threats against Anguiano. To expand the certificate of
appealability to include these issues, Martinez must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). He has not done so. Because reasonable
jurists would not find any of the uncertified issues debatable, we decline to expand
the certificate of appealability.
AFFIRMED.