Ernesto Salgado Martinez v. DAVID SHINN, Director; JAMES KIMBLE, Warden, Arizona State Prison - Eyman Complex

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO SALGADO MARTINEZ,
Petitioner-Appellant,
v.
DAVID SHINN, Director; JAMES
KIMBLE,* Warden, Arizona State
Prison - Eyman Complex,
Respondents-Appellees.
No. 21-99006
D.C. No.
2:05-cv-01561-
ROS
OPINION
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding*
Submitted May 27, 2021**
San Francisco, California
Filed May 16, 2022
* James Kimble has been substituted for his predecessor, Charles
Goldsmith, as Warden of the Arizona State Prison - Eyman Complex
under Fed. R. App. P. 43(c)(2).
** 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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MARTINEZ V. SHINN 2
Before: M. Margaret McKeown, William A. Fletcher, and
Milan D. Smith, Jr., Circuit Judges.
Per Curiam Opinion
SUMMARY***
Habeas Corpus / Fed. R. Civ. P. 60(b)
The panel denied Ernesto Salado Martinez’s request for
a certificate of appealability (COA) that would allow
Martinez to challenge the district court’s denial of his Fed. R.
Civ. P. 60(b)(6) motion for relief from final judgment, in a
case in which this court previously denied Martinez’s federal
habeas corpus petition under 28 U.S.C. § 2254.
Martinez was convicted of first-degree murder of an
Arizona police officer after a jury trial in 1997 and was
sentenced to death by the state court.
Martinez moved in the district court under Rule 60(b)(6)
for additional discovery to develop (1) a potential claim under
Napue v. Illinois, 360 U.S. 264 (1959), that the prosecution
knowingly elicited false testimony; and (2) a potential claim
of actual innocence after a witness’s apparent recantation of
key guilt-phase testimony.
*** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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MARTINEZ V. SHINN 3
Martinez relied on Mitchell v. United States, 958 F.3d 775
(9th Cir. 2020), for two propositions: (1) that Mitchell
provided the district court with jurisdiction to consider his
motion for discovery to develop the potential Napue and
actual innocence claims under Rule 60(b)(6) because the
motion is not a disguised second or successive petition; and
(2) that Mitchell constitutes an extraordinary change in the
law governing post-judgment requests for discovery and
therefore authorizes the district court to grant his motion
under Rule 60(b)(6).
The panel agreed with Martinez that, under Mitchell, the
district court had jurisdiction to consider his Rule 60(b)(6)
motion for discovery to develop potential claims, and
correctly declined to dismiss the motion as a disguised second
or successive petition.
Applying the factors set forth in Phelps v. Alameida, 569
F.3d 1120 (9th Cir. 2009), the panel found that the holding in
Mitchell, which did not disturb the underlying rules
governing the discovery that Martinez seeks, did not
constitute an extraordinary circumstance justifying relief from
final judgment under Rule 60(b)(6). Because no reasonable
jurist would disagree with the district court’s decision to deny
the Rule 60(b)(6) motion, the panel declined to grant
Martinez’s requested COA.
COUNSEL
Jon M. Sands, Federal Public Defender; Timothy M.
Gabrielsen, Assistant Federal Public Defender; Office of the
Federal Public Defender, Tucson, Arizona; for Petitioner-
Appellant.

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Mark Brnovich, Attorney General; Lacy Stover Gard, Deputy
Solicitor General/Chief of Capital Litigation; Laura P.
Chiasson, Assistant Attorney General; Office of the Attorney
General, Tucson, Arizona; for Respondents-Appellees.
OPINION
PER CURIAM:
Ernesto Salgado Martinez moves for a certificate of
appealability (“COA”) that would allow him to challenge the
district court’s denial of his Rule 60(b)(6) motion for relief
from final judgment. Martinez was convicted of first-degree
murder of an Arizona police officer after a jury trial in 1997
and was sentenced to death by the state court. We affirmed
the district court’s denial of his federal habeas corpus petition
under 28 U.S.C. § 2254. See Martinez v. Ryan, 926 F.3d
1215 (9th Cir. 2019).
After we affirmed the district court’s denial, Martinez
moved in the district court under Rule 60(b)(6) for additional
discovery to develop (1) a potential claim under Napue v.
Illinois, 360 U.S. 264 (1959), that the prosecution knowingly
elicited false testimony from witness Detective Douglas
Beatty about the condition of the ignition of the stolen car
Martinez was driving at the time of the crime; and (2) a
potential claim of actual innocence after the apparent
recantation of key guilt-phase testimony by his acquaintance
Oscar Fryer. Martinez argued in the district court that our
decision in Mitchell v. United States, 958 F.3d 775 (9th Cir.
2020), is a change of law that constitutes an “extraordinary
circumstance,” permitting him to reopen his final judgment
and obtain the requested discovery.

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MARTINEZ V. SHINN 5
The district court denied Martinez’s Rule 60(b)(6) motion
and declined to issue a COA. The court also denied
Martinez’s motion for reconsideration. Because no
reasonable jurist could find that Mitchell constitutes an
extraordinary circumstance justifying the reopening of his
final judgment under Rule 60(b)(6), we deny Martinez’s
request for a COA.
I. Background
A. Factual Background
In August 1995, Martinez drove from California to Globe,
Arizona, to visit friends and family in a stolen blue Monte
Carlo with stolen license plates registered to another car.
Martinez had an outstanding felony warrant for his arrest in
Arizona. He met a friend, Oscar Fryer, in Globe. Fryer
testified at trial that he spoke with Martinez for half an hour
at a carwash while sitting inside his Monte Carlo, and that
Martinez showed him a .38 caliber handgun with tape
wrapped around the handle. Precisely what Martinez said to
Fryer during this conversation is now disputed and is a
subject of his instant motion.
A few days later, on August 15, Martinez left Globe and
drove to Payson, Arizona, on the Beeline Highway. At
approximately 11:30 am, Martinez bought gas at a Circle K
in Payson and drove south toward Phoenix, Arizona. Driving
at a high rate of speed, he passed several cars, including one
driven by Steve and Susan Ball, who noticed his blue Monte
Carlo.
Officer Robert Martin pulled Martinez over at Milepost
195. The Balls drove past them and saw Officer Martin’s

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patrol car stopped behind Martinez’s Monte Carlo. The Balls
both testified that they saw Martinez’s driver’s side door
open, with Officer Martin standing inside the door, and both
Officer Martin and Martinez “looking backwards” into the
backseat of the car. Susan Ball recalled them remarking,
“Oh, good, he got the speeding ticket.” After the Balls
passed, Martinez shot Officer Martin four times with a
.38 caliber handgun. He shot him in the hand, neck, back,
and face, killing him.
Shortly after Martinez killed Officer Martin, the Balls
again saw him speeding in the blue Monte Carlo. Martinez
passed them about a minute after they had passed him and
Officer Martin on the side of the road. The Balls later saw
Martinez run a red light and drive erratically. They also saw
two police officers coming from the opposite direction with
lights flashing. The Balls caught up with Martinez at a stop
light and saw him “playing with something in the glove box.”
They wrote down his license plate numbers.
Martinez drove through Phoenix and reached Blythe,
California, at around 4:00 pm, when he called his aunt, asking
her to wire him money. At 6:00 pm, he called his aunt again
asking her to wire him money. At approximately 8:00 pm, he
entered a Mini-Mart in Blythe. He stole money from the cash
register and shot and killed the clerk. Ballistics reports
showed that a shell casing was consistent with the .9 mm
ammunition used in Officer Martin’s service weapon.
Martinez then drove to his cousin’s home in Coachella,
California. When police officers apprehended Martinez, they
recovered a .38 caliber handgun from his friend Tommy
Acuna, who identified it to police as “the murder weapon.”

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Martinez had abandoned the Monte Carlo while fleeing on
foot.
While in jail awaiting trial, Martinez called a friend, Eric
Moreno. He told Moreno that “he got busted for blasting a
jura”—slang for police officer. He also told him that one of
his guns had been “stashed.” Police officers obtained a
warrant to search Martinez’s friend Johnny Acuna’s trailer
and found Officer Martin’s .9 mm handgun under a mattress.
An Arizona jury convicted Martinez of first-degree
murder for killing Officer Martin, two counts of theft, and
two counts of misconduct involving weapons. The judge
sentenced Martinez to death for the murder conviction, and
terms of imprisonment for the other crimes.
Martinez was separately indicted for the murder of the
clerk of the Mini-Mart in Blythe, California. After he was
tried and sentenced in Arizona, he was extradited to stand
trial in Riverside County, California.
B. Disputed Testimony
Martinez now seeks discovery to dispute two pieces of
evidence—Detective Beatty’s testimony that the Monte Carlo
had a “punched ignition,” and Oscar Fryer’s testimony that
Martinez had told him that he was “not going back to jail.”
This evidence was used at trial to help prove that Martinez
killed Officer Martin with premeditation. Martinez’s defense
counsel argued lack of premeditation as an alternative defense
in closing argument. Martinez’s primary defenses throughout
trial, however, were mistaken identity and failure of the
prosecution to carry its burden of proof. In his instant
motion, Martinez argued to the district court, and now argues

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MARTINEZ V. SHINN 8
to us, that the evidence he seeks under Rule 60(b)(6) would
show that he did not kill Officer Martin with premeditation
and that he is therefore actually innocent of first-degree
murder. See Sawyer v. Whitley, 505 U.S. 333, 336 (1992).
1. Testimony of Detective Beatty
At trial, the prosecution called as a witness Detective
Douglas Beatty, a Maricopa County homicide detective who
was assigned to investigate Officer Martin’s death. The court
permitted the State to recall Detective Beatty to the stand to
question him about the condition of the ignition of the Monte
Carlo when it was recovered in California, in order to help
prove that Martinez knew that it was stolen. Detective Beatty
testified that when he attempted to turn on the recovered
Monte Carlo with keys found in its glove compartment, he
discovered that “the ignition switch to the Monte Carlo was
missing.” He described the ignition switch as “a hollow
cavity” that could be turned on with “some sort of
instrument,” such as a screwdriver.
The prosecution indirectly referred to Detective
Beatty’s “punched” ignition testimony once during its
rebuttal closing argument. The prosecution used the
testimony to rehabilitate a witness who had identified
Martinez as purchasing gas at the Circle K shortly before the
shooting. The State referred to the Monte Carlo as stolen
multiple times, in its opening statement and closing
arguments, as part of its argument that Martinez had
premeditated Officer Martin’s killing.
After Martinez’s trial in Arizona, he was tried in
California for killing the clerk in the Mini-Mart. Prosecutors
in the California case gave to Martinez files that they had

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MARTINEZ V. SHINN 9
obtained from the Arizona prosecutors. Those files included
notes and a report from Ricci Cooksey, a California forensic
examiner. Martinez argues that Cooksey’s report “failed to
note a punched ignition when the Monte Carlo was
impounded at the time of Martinez’s arrest.” Cooksey’s notes
included the names and phone numbers of “Doug Beatty,” of
the “Maricopa Co. Sheriff,” and of the lead prosecutor, “Bob
Shutz [sic],” in Martinez’s Arizona case. Martinez argues
that these notes are evidence that Cooksey spoke to Arizona
prosecutors prior to the Arizona trial. The California
prosecutors also gave Martinez a photograph of the Monte
Carlo showing an intact ignition. Martinez argues that this
photograph shows that the ignition was not “punched” at the
time of the crime, and that the photograph was “previously
suppressed” by the Arizona prosecutors.
2. Testimony of Oscar Fryer
Also at trial, the prosecution called Oscar Fryer as a
witness to testify about his conversation with Martinez at the
Globe carwash prior to Officer Martin’s murder. Fryer
testified that Martinez had told him there was a warrant out
for his arrest, that he was on probation, that he had a gun, and
that if he was stopped by police, “he wasn’t going back to
jail.”
In its closing argument, the prosecution repeatedly
referred to Fryer’s testimony, emphasizing Martinez’s
statement that “he wasn’t going back to jail,” as central
evidence of both his motive and premeditation. The
prosecution also emphasized two additional pieces of
evidence showing premeditation: (1) the time between the
traffic stop and the shooting, and (2) the four times that

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MARTINEZ V. SHINN 10
Officer Martin was shot. That additional evidence was (and
is) undisputed.
Seventeen years after Martinez’s Arizona trial, Fryer
spoke about his testimony to defense investigator Gerald
Monahan, who had been appointed to work on Martinez’s
subsequent California case. Monahan declares that Fryer told
him that he “was high on methamphetamine at the time he
testified against Mr. Martinez at trial”; that “it was his
opinion that Mr. Martinez would shoot it out with police if he
were pulled over by police, rather than be arrested”; and that
“Mr. Martinez did not tell Mr. Fryer that he would shoot it
out with police if he were pulled over.” Martinez argues that
Fryer’s statements, as reported by Monahan, support his
claim that he did not premeditate the murder of Officer
Martin, and that he is therefore actually innocent of the death
penalty.
C. Procedural History
The Supreme Court of Arizona affirmed Martinez’s
conviction and death sentence in May 2000. State v.
Martinez, 999 P.2d 795 (Ariz. 2000). Martinez sought post-
conviction relief in state court, which the Superior Court
denied. The Arizona Supreme Court denied his petition for
review in May 2005.
Martinez filed a federal habeas petition on May 25, 2005.
On April 30, 2007, Martinez filed a motion for evidentiary
development in the district court. He sought to inspect the
Monte Carlo’s ignition switch to assess the veracity of
Detective Beatty’s testimony. He also sought to develop
evidence that prosecutors withheld evidence undermining
Oscar Fryer’s credibility, in violation of Brady v. Maryland,

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373 U.S. 83 (1963), including evidence of Fryer’s drug use
and of a favorable plea deal. On September 7, 2007,
Martinez filed a supplemental motion for evidentiary
development, requesting the court’s permission, inter alia, to
test the keys found in the glove box of the Monte Carlo.
The district court denied Martinez’s motions for
evidentiary development. The court concluded that further
discovery as to both Detective Beatty and Oscar Fryer would
not establish Martinez’s actual innocence of premeditated,
first-degree murder. The court denied Martinez’s habeas
petition on March 20, 2008.
Martinez appealed from the district court’s decision.
While the appeal was pending, he filed a motion in the district
court, styled as a “Request for Indication Whether Court
Would Consider Motion for Relief from Judgment Pursuant
to Rule 60(b) of the Federal Rules of Civil Procedure.” The
motion sought to reopen the court’s final judgment to revisit
the court’s denial of his earlier motions for evidentiary
development. The district court denied the motion.
Martinez then moved to stay appellate proceedings and
for a limited remand to the district court. On July 7, 2014, we
granted Martinez’s motion for a limited remand to the district
court for possible consideration of several procedurally
defaulted claims in light of the Supreme Court’s intervening
decision in Martinez v. Ryan, 566 U.S. 1 (2012). We also
remanded to allow Martinez to move for leave to file in the
district court a motion styled as “a renewed Request for
Indication Whether District Court Would Consider a Rule
60(b) Motion . . . for consideration of a possible Brady-Napue
claim in light of newly discovered evidence.”

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Martinez filed a “Renewed Request for Indication
Whether the District Court Would Consider a Rule 60(b)
Motion and Supplemental Martinez Brief” in the district
court. Martinez argued that under Gonzalez v. Crosby,
545 U.S. 524 (2005), his motion met the requirements for
Rule 60(b)(6) relief on the grounds that he was attacking the
integrity of the earlier habeas proceeding, that relief “is
appropriate to accomplish justice,” and that the basis for the
relief was truly “extraordinary.” He argued that the newly
discovered photograph of the intact ignition of the Monte
Carlo, and handwritten investigative notes suggesting that the
ignition was intact when Martinez was driving the car, should
have been produced to his defense counsel in Arizona.
Martinez also sought evidence to develop the related Napue
claim that prosecutors knowingly elicited false ignition
testimony from Detective Beatty.
The district court declined Martinez’s request to entertain
a Rule 60(b)(6) motion. The district court characterized
Martinez’s request as raising new substantive claims, and
therefore, as a second-or-successive petition. The district
court denied Martinez’s request to issue a COA. Martinez
moved in this court for leave to file a motion for a COA,
which we granted on October 7, 2016, expanding the COA to
include all of his remanded claims.
In our opinion issued June 18, 2019, we affirmed the
district court’s denial of habeas corpus relief. Martinez,
926 F.3d at 1221. We declined to reach the discovery
requests relevant to the potential Brady and Napue claims
because the district court’s ruling on Martinez’s “Request for
Indication” constituted a non-reviewable order that was
procedural and “interlocutory in nature.” Id. at 1229 (quoting
Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984)). The

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Supreme Court of the United States denied certiorari. No. 19-
7627 (U.S. May 18, 2020).
On July 29, 2020, Martinez renewed his request in the
district court under Rule 60(b)(6) for relief from judgment to
obtain additional discovery to develop a potential Napue
claim based on Detective Beatty’s ignition testimony and an
actual innocence claim based on the 2014 purported
recantation of Oscar Fryer’s guilt-phase trial testimony.
The district court denied Martinez’s Rule 60(b)(6) motion
and his request for a COA on March 23, 2021. Martinez
moved for reconsideration, which the court also denied. The
court explained in its order denying reconsideration that
Martinez lacked “good cause” for discovery because the
evidence, even if obtained, would not unsettle his conviction
for first-degree premeditated murder. The court wrote, “Even
if the fact that the car was stolen was removed from the
equation, along with Martinez’s statement that he intended
not to go back to jail if stopped by police, the fact remains
that Martinez had a warrant for his arrest and was illegally in
possession of a handgun.” Further, the court noted that to
prove premeditation, “the state also relied heavily in closing
arguments on the amount of time it would have taken Officer
Martin to walk the distance from his vehicle to the stolen
Monte Carlo, where he was shot at the driver’s side door.”
The court determined that “the evidence supporting
premeditation was overwhelming and uncontroverted.” The
court concluded that “Martinez has failed to demonstrate that
Mitchell is an intervening change in law that constitutes
extraordinary circumstances sufficient to permit him to
reopen the judgment in these circumstances.”

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MARTINEZ V. SHINN 14
Martinez timely filed a notice of appeal and moved for a
COA in this court.
II. Standard of Review
A COA is required in order to appeal the denial of a Rule
60(b) motion for relief from a district court’s judgment
denying federal habeas relief. See United States v. Winkles,
795 F.3d 1134, 1141–43 (9th Cir. 2015); see also 28 U.S.C.
§ 2253(c)(1) (establishing the general COA requirement for
habeas petitioners); Payton v. Davis, 906 F.3d 812, 817–18
(9th Cir. 2018) (extending the COA requirement to a Rule
60(d) motion in a § 2254 habeas petition). A COA may only
issue if the movant shows that (1) jurists of reason would find
it debatable whether the district court abused its discretion in
denying the Rule 60(b) motion, and (2) jurists of reason
would find it debatable whether the underlying section 2255
motion or section 2254 petition states a valid claim of the
denial of a constitutional right. See Winkles, 795 F.3d at 1143
(explaining that this test accords with the standard governing
COAs for procedural rulings set forth in Slack v. McDaniel,
529 U.S. 473, 484–85 (2000), while also incorporating the
standard of review applicable to Rule 60(b) motions—abuse
of discretion).
The COA inquiry is a threshold inquiry that “is not
coextensive with a merits analysis.” Buck v. Davis, 137 S. Ct.
759, 773 (2017). At the COA stage, we ask “only if the
District Court’s decision was debatable.” Id. at 774 (quoting
Miller-El v. Cockrell, 537 U.S 322, 327, 348 (2003)). To
meet this standard, the petitioner “must demonstrate that the
issues are debatable among jurists of reason; that a court
could resolve the issues in a different manner; or that the
questions are adequate to deserve encouragement to proceed

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further.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.
2000) (internal quotation marks and brackets omitted)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
III. Discussion
A. Rule 60(b)
Rule 60(b) provides for relief from a district court’s final
judgment on six grounds:
(1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered
evidence that, with reasonable diligence,
could not have been discovered in time to
move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or misconduct
by an opposing party; (4) the judgment is
void; (5) the judgment has been satisfied,
released, or discharged; it is based on an
earlier judgment that has been reversed or
vacated; or applying it prospectively is no
longer equitable; or (6) any other reason that
justifies relief.
Fed. R. Civ. P. 60(b). A court’s power to vacate judgments
under Rule 60(b) in order “to accomplish justice” is balanced
against “the strong public interest in the timeliness and
finality of judgments.” Phelps v. Alameida, 569 F.3d 1120,
1135 (9th Cir. 2009) (alterations and internal quotation marks
omitted).

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Some Rule 60(b) motions are available to federal habeas
petitioners despite the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). In relevant
part, AEDPA establishes three requirements for second or
successive habeas petitions:
First, any claim that has already been
adjudicated in a previous petition must be
dismissed. [28 U.S.C.] § 2244(b)(1).
Second, any claim that has not already been
adjudicated must be dismissed unless it relies
on either a new or retroactive rule of
constitutional law or new facts showing a high
probability of actual innocence. § 2244(b)(2).
Third, before the district court may accept a
successive petition for filing, the court of
appeals must determine that it presents a
claim not previously raised that is sufficient to
meet § 2244(b)(2)’s new-rule or actual-
innocence provisions. § 2244(b)(3).
Gonzalez, 545 U.S. at 529–30. However, “[w]hen no ‘claim’
is presented, there is no basis for contending that the Rule
60(b) motion should be treated like a habeas corpus
application,” and therefore the motion may be considered by
a district court. Id. at 533. Rule 60(b) motions alleging a
“previous ruling which precluded a merits determination was
in error—for example, a denial for such reasons as failure to
exhaust, procedural default, or statute-of-limitations bar,” or
alleging “some defect in the integrity of the federal habeas
proceedings,” such as “[f]raud on the federal habeas court,”
do not advance a “claim” and are permitted despite AEDPA.
Id. at 532, 532 nn.4–5. On the other hand, motions asking

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“for a second chance to have the merits determined
favorably” are not. Id. at 532 n.5.
Rule 60(b)(6), upon which Martinez relies, is a catchall
provision that depends on the “exercise of a court’s ample
equitable power . . . to reconsider its judgment.” Phelps,
569 F.3d at 1135. A movant seeking relief under Rule
60(b)(6) is required “to show ‘extraordinary circumstances’
justifying the reopening of a final judgment.” Gonzalez,
545 U.S. at 535 (quoting Ackermann v. United States,
340 U.S. 193, 199 (1950)). “Extraordinary circumstances
occur where there are ‘other compelling reasons’ for opening
the judgment” that prevented the movant from raising the
basis of the motion during the pendency of the case. Bynoe
v. Baca, 966 F.3d 972, 979, 983 (9th Cir. 2020) (quoting
Klapprott v. United States, 335 U.S. 601, 613 (1949)).
Although “[s]uch circumstances will rarely occur in the
habeas context,” Gonzalez, 545 U.S. at 535, “Rule 60(b)(6)
can and should be ‘used sparingly as an equitable remedy to
prevent manifest injustice,’” Hall v. Haws, 861 F.3d 977, 987
(9th Cir. 2017) (quoting United States v. Alpine Land &
Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993)).
We held in Phelps that an intervening change in law can
constitute an “extraordinary circumstance” justifying relief
under Rule 60(b)(6) for habeas petitioners, but that courts
must analyze motions under Rule 60(b)(6) using a “case-by-
case inquiry” that balances numerous factors. 569 F.3d
at 1133. “A relevant alteration to constitutional rights, for
example, may be sufficient, but a narrow change in peripheral
law is ‘rarely’ enough.” Bynoe, 966 F.3d at 983 (citations
omitted). In Phelps, we outlined six non-exhaustive factors
that are to be flexibly considered to determine whether a post-

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judgment change in the law meets the “extraordinary-
circumstances” requirement:
(1) [T]he nature of the legal change, including
whether the change in law resolved an
unsettled legal question; (2) whether the
movant exercised diligence in pursuing
reconsideration of his or her claim; (3) the
parties’ reliance interests in the finality of the
judgment; (4) the delay between the finality of
the judgment and the Rule 60(b)(6) motion;
(5) the relationship between the change in law
and the challenged judgment; and (6) whether
there are concerns of comity that would be
disturbed by reopening a case.
Id. at 983 (summarizing Phelps, 569 F.3d at 1134–40).
Relevant here, “only [legal rulings] that may have affected
the outcome of the judgment the petitioner seeks to review
should weigh toward a finding of extraordinary
circumstances.” Id. at 986. “[W]e consider . . . whether the
change in law affects an issue dispositive to the outcome of
the case.” Id. In the case before us, as we explain below,
Mitchell does not substantially affect either Martinez’s
underlying case or his request for discovery. The only effect
of Mitchell is to make clear that the district court had
jurisdiction to consider his Rule 60(b)(6) request.
B. Mitchell
In Mitchell, Lezmond Mitchell, a Navajo citizen
sentenced to death for a carjacking resulting in death, moved
under Rule 60(b)(6) for relief from final judgment following
his unsuccessful § 2255 habeas proceedings. 958 F.3d at 780,

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783. Mitchell challenged the court’s earlier procedural
rulings denying him authorization to interview the jurors at
his criminal trial to investigate juror misconduct. Id. at 779.
In 2009, the district court found that Mitchell did not show
good cause for the requested interviews because he identified
no evidence of juror misconduct. Id. In 2018, Mitchell
moved for relief from the district court’s 2009 ruling, arguing
that the Supreme Court’s intervening decision in Peña-
Rodriguez v. Colorado, 137 S. Ct. 855 (2017), significantly
changed the law governing requests to interview jurors for
racial bias and therefore constituted an “extraordinary
circumstance” justifying reopening his habeas proceeding
under Rule 60(b)(6). Mitchell, 958 F.3d at 779. The Court in
Peña-Rodriguez had held that juror statements demonstrating
racial animus could be admissible as evidence
notwithstanding the longstanding no-impeachment rule
barring juror testimony about deliberations and Rule 606(b)
of the Federal Rules of Evidence. Peña-Rodriguez, 137 S. Ct.
at 869–70.
In Mitchell, we considered the district court’s jurisdiction
to entertain Mitchell’s Rule 60(b)(6) motion. We held, as a
matter of first impression, that a “prisoner’s request to
develop evidence for a potential new claim” does not qualify
as a “claim” under Gonzalez if it does not assert a federal
basis for relief from the prisoner’s conviction or sentence, but
rather simply gives a prisoner “the opportunity to attempt to
develop a claim” that might entitle him or her to relief.
Mitchell, 958 F.3d at 786 (emphasis added). Therefore, such
a request for discovery brought under Rule 60(b) was not
barred as a “disguised second or successive” habeas
application, and “the district court had jurisdiction to decide
[Mitchell’s] Rule 60(b)(6) motion.” Id.

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MARTINEZ V. SHINN 20
We then turned to the question of whether Mitchell had
established “extraordinary circumstances” that would justify
the reopening of his case under Rule 60(b)(6). Id. (“[W]e
consider whether the alleged extraordinary circumstance,
such as a change in the law, was material to the prisoner’s
claim.”). We explained, “a mere development in
jurisprudence, as opposed to an unexpected change, does not
constitute an extraordinary circumstance for purposes of Rule
60(b)(6).” Id. at 787. We considered the legal change
wrought by the Supreme Court’s decision in Peña-Rodriguez
and rejected Mitchell’s contention that it represented such a
“fundamental change in the law relevant to his request to
interview jurors . . . [that] the district court was obliged to
grant his Rule 60(b)(6) motion.” Id. at 790. Rather, we held,
“[a]lthough Peña-Rodriguez established a new exception to
Rule 606(b), this change in law left untouched the law
governing investigating and interviewing jurors.” Id. We
concluded that because Mitchell failed to present an
extraordinary circumstance that would justify reopening in
his case, “the district court did not abuse its discretion by
denying Mitchell’s Rule 60(b) motion.” Id. at 792.
C. Martinez’s Rule 60(b)(6) Motion
In his Rule 60(b)(6) motion, Martinez relied on Mitchell
for two propositions: (1) that Mitchell provided the district
court with jurisdiction to consider his motion requesting
discovery to develop potential Napue and actual innocence
claims under Rule 60(b)(6) because it is not a disguised
second or successive petition; and (2) that Mitchell
constitutes an extraordinary change in the law governing
post-judgment requests for discovery and therefore authorizes
the district court to grant his motion under Rule 60(b)(6).
Martinez’s first proposition is correct, but his second is not.

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MARTINEZ V. SHINN 21
We agree with Martinez’s assertion that, under our
holding in Mitchell, the district court had jurisdiction to
consider his Rule 60(b)(6) motion for discovery to develop
potential claims. The district court correctly declined to
dismiss Martinez’s Rule 60(b)(6) motion as a disguised
second or successive petition.
The district court initially assumed that Mitchell
constituted an “extraordinary change in the law” such that it
could entertain Martinez’s motion. Based on that assumption,
the district court denied his motion on the merits. We do not
assume, as the district court initially did,1 that Mitchell
constitutes an “extraordinary circumstance” under Rule
60(b)(6). Applying the factors set forth in Phelps, 569 F.3d
at 1134–40, we find that the holding in Mitchell falls short of
satisfying the extraordinary circumstances requirement here.
There is no question that Mitchell established new law in
this circuit as to the district court’s jurisdiction to hear Rule
60(b) motions for post-judgment discovery in habeas cases.
Our new holding in Mitchell was that a district court has
jurisdiction to consider discovery requests brought pursuant
to Rule 60(b). Mitchell, 958 F.3d at 785–86. But there was
no new law with respect to the discovery request itself. See
id. at 790. Rather, we held that Peña-Rodriguez was not an
extraordinary change in the law governing access to jurors
such that a Rule 60(b)(6) motion was authorized. Id. at 791.
1 Although the district court initially assumed arguendo that Mitchell
was an extraordinary change in the law, in its order denying
reconsideration, the court concluded that “Martinez has failed to
demonstrate that Mitchell is an intervening change in law that constitutes
extraordinary circumstances sufficient to permit him to reopen the
judgment in these circumstances.”

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MARTINEZ V. SHINN 22
Because Mitchell did not change the substantive law
governing Martinez’s discovery requests, it does not
constitute an extraordinary circumstance justifying relief from
final judgment under Rule 60(b)(6). Just as we held in
Mitchell that Peña-Rodriguez did not disturb the longstanding
rules giving trial courts discretion over granting requests to
interview jurors, we hold here that Mitchell did not disturb
the underlying rules governing the discovery that Martinez
seeks. See id. at 789. The district court therefore did not err
in applying our well-settled rules governing discovery in
habeas proceedings in denying Martinez’s Rule 60(b)(6)
motion for additional discovery. See Rule 6(a), Rules
Governing § 2254 Cases (allowing discovery for “good
cause”); see also Bracy v. Gramley, 520 U.S. 899, 908–909
(1997) (defining “good cause” for discovery). No reasonable
jurist would disagree with the district court’s decision.
IV. Conclusion
It is beyond debate among reasonable jurists that the
district court did not abuse its discretion in denying
Martinez’s motion under Rule 60(b)(6). We therefore decline
to grant Martinez’s requested COA.
Certificate of Appealability DENIED.

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