                                                                           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                            NOT FOR PUBLICATION                            AUG 01 2013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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