Joaquin Martinez v. Scott Kernan

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 19, 2019
• Docket: 16-56353
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOAQUIN MURRIETTA MARTINEZ, No. 16-56353

Petitioner-Appellant, D.C. No. 3:13-cv-01457-BTM-WVG v.

SCOTT KERNAN, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding

Submitted November 4, 2019** Pasadena, California

Before: MURGUIA and HURWITZ, Circuit Judges, and GUIROLA,*** District Judge.

Joaquin Murrieta Martinez, a California state prisoner convicted of first-

degree murder, appeals the district court’s denial of his habeas corpus petition

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Louis Guirola, Jr., United States District Judge for the Southern District of Mississippi, sitting by designation. under 28 U.S.C. § 2254. The district court granted a certificate of appealability on

two of Martinez’s claims. We review the district court’s decision de novo, see

Merolillo v. Yates, 663 F.3d 444, 453 (9th Cir. 2011), and the last reasoned state

court opinion, that of the California Court of Appeal, see People v. Martinez, No.

D059094, 2012 WL 3854871 (Cal. Ct. App. Sept. 6, 2012), subject to the

deferential constraints of the Antiterrorism and Effective Death Penalty Act of

1996, see Crace v. Herzog, 798 F.3d 840, 846 (9th Cir. 2015).

1. At trial, Lisa Brown, a witness called by Martinez, invoked her Fifth

Amendment privilege against self-incrimination and refused to testify. On appeal,

Martinez claims that his trial counsel was ineffective for failing to seek to admit

Brown’s prior hearsay statements pursuant to constitutional principles of due

process. However, Martinez did not raise this claim before the district court. See

Robinson v. Kramer, 588 F.3d 1212, 1217 (9th Cir. 2009) (“Habeas claims that are

not raised before the district court in the petition are no cognizable on appeal.”

(quoting Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994))). Martinez

also failed to exhaust this claim, because he did not present it in his unsuccessful

petition for review to the California Supreme Court. See 28 U.S.C. § 2254(b)(1);

Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). This claim is therefore,

procedurally defaulted, see In re Robbins, 959 P.2d 311, 317, 322, (Cal. 1998); see

also Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), and Martinez does not

2 argue that cause and prejudice excuse his procedural default, see Djerf v. Ryan,

931 F.3d 870, 880 (9th Cir. 2019).

2. The district court did not err in rejecting Martinez’s claim that the trial

court denied him his federal due process right to a fair trial by failing to grant

Brown immunity. This claim was adjudicated on the merits by the California

Court of Appeal, because the state cases relied upon by that court considered the

federal constitutional implications of authorizing a trial court to grant witnesses

immunity. See, e.g., People v. Hunter, 49 Cal. 3d 957, 972-74 (Cal. 1989). And,

Martinez does not identify clearly established federal law, as determined by the

Supreme Court, that was contrary to or unreasonably applied in the state court’s

decision. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

3. We decline to address the uncertified claims. See Clark v. Chappell, 936

F.3d 944, 983 (9th Cir. 2019).

AFFIRMED.