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NOT FOR PUBLICATION AUG 01 2013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
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deliberations. Petitioner’s underlying claim of ineffective assistance of trial
counsel, therefore, has no substance.
AFFIRMED.
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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.
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