Martico A. Muldrow v. Attorney General for the State of Arizona; Ryan Thornell

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTICO A. MULDROW,
Petitioner-Appellant,
v.
ATTORNEY GENERAL FOR THE STATE
OF ARIZONA; RYAN THORNELL,
Respondents-Appellees.
No. 22-15222
D.C. No. 2:16-cv-04606-DLR
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted February 6, 2024**
Phoenix, Arizona
Before: MURGUIA, Chief Judge, and HAWKINS and JOHNSTONE, Circuit
Judges.
Petitioner Martico Muldrow (“Muldrow”) appeals the dismissal of his habeas
petition as a barred second or successive habeas petition. See 28 U.S.C. § 2244 (b).
* 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).
FILED
FEB 8 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
We review Muldrow’s appeal de novo, United States v. Villa-Gonzalez, 208 F.3d
1160, 1165 (9th Cir. 2000), and we affirm.
Muldrow was convicted of first-degree felony murder in connection with the
1988 robbery of an IGA grocery store and the sexual assault and murder of the
grocery store manager. His first habeas petition was denied in 2009. To bring a
second habeas petition, Muldrow must demonstrate that “the factual predicate for
the claim could not have been discovered previously through the exercise of due
diligence” and that “the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(i) &
(ii). Muldrow’s second habeas petition is based on newly discovered Brady material
that could have been used to impeach Detective Saldate, a detective who oversaw
the initial investigation of the crime, which did not at the time result in an arrest.1
However, the impeachment of Saldate would not help Muldrow meet his
burden of establishing that no reasonable juror would have found him guilty of the
crime in light of the other evidence of Muldrow’s guilt. In this case, Saldate played
a relatively minor role in the trial, laying the foundational groundwork of what was
1 As outlined in Milke v Ryan, 711 F.3d 998, 1020 (9th Cir. 2013), Saldate had a
history of misconduct in some other cases, including lying under oath, failing to give
Miranda warnings, and other interrogation issues.

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uncovered in the initial investigation, much of which was also repeated by other
officers and forensic examiners who worked on the case in the late 1980s. The trial
instead focused primarily on the cold case investigation that occurred over ten years
later and eventually led to Muldrow’s arrest, including new interviews of Muldrow
and co-workers by new detectives, new DNA testing, and the implausibility of
Muldrow’s explanation for the presence of his DNA in the victim. As the district
court aptly summarized:
The evidence of Petitioner’s guilt is not built on Saldate’s testimony
and there is no exonerating evidence, other than impeachment,
presented in the petition. Although Petitioner could have been able to
impeach Saldate more thoroughly at trial with this new evidence, his
role in the investigation was minor and his testimony was not critical to
the State’s case. The evidence offered by Petitioner is insignificant in
the context of the evidence of guilt presented at trial. Petitioner has not
shown by clear and convincing evidence that but for the alleged Brady
violation no reasonable factfinder would have found him guilty of the
underlying offense or of intending to promote or facilitate either the
robbery of the grocery store or the kidnapping and sexual assault of Ms.
Myers.
Muldrow’s second habeas petition was properly dismissed as barred by 28
U.S.C. § 2244(b).
AFFIRMED.

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