Joaquin Murrietta Martinez v. Scott Kernan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOAQUIN MURRIETTA MARTINEZ,
Petitioner-Appellant,
v.
SCOTT KERNAN,
Respondent-Appellee.
No. 16-56353
D.C. No.
3:13-cv-01457-BTM-WVG
MEMORANDUM*
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.
FILED
NOV 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
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 of 3 --

3
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.

-- 3 of 3 --