                           NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             DEC 11 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JAMES LOUIS JONES,                               No. 13-35806

              Petitioner - Appellant,            D.C. No. 2:11-cv-01527-KI

  v.
                                                 MEMORANDUM*
STEVE FRANKE,

              Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                     Argued and Submitted November 18, 2014
                                Portland, Oregon

Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.

       Oregon state prisoner James Louis Jones appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction of

murder. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Jones cites Martinez v. Ryan, 132 S. Ct. 1309 (2012), to support his claim

for relief, but his argument stretches Martinez beyond its bounds in multiple ways.

Perhaps most importantly, he failed to demonstrate that his underlying claim was a

substantial one, as required under Martinez to overcome a procedural default. Id.

at 1318.

      In particular, the contention that evidence that “Jones still lived in the home

with his wife” would have had an impact on the jury’s verdict is too implausible.

The specific details of what happened – that Jones had stayed with relatives for a

few days after he and his wife had a fight – were not in dispute. That he may not

have perceived his departure as permanent was neither seriously contested or

important to the verdict.

      Instead, the evidence strongly supported the conclusion that Jones was not

surprised by the discovery of another man when he returned to the house. The

original fight was over his belief that his wife had something going with another

man. When he initially returned to the house he saw the victim’s car parked in the

driveway and the victim’s clothes and fishing pole in the house. He told a friend

about those discoveries and his suspicions. When he returned before the fatal

shooting, he parked some distance away and carried a pistol with him to the house.




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      After hearing that evidence, the jury rejected the defense of extreme

emotional disturbance. It was highly unlikely that the jury would have reached a

different conclusion if presented with evidence, or more evidence, that Jones still

viewed the house as his home. The Oregon Circuit Court denied Jones’s post-

conviction relief petition on the merits, concluding that there was “[n]o evidence of

inadequacy or prejudice,” applying the two-prong standard for ineffective

assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984).

Jones has not presented a substantial argument to the contrary.

      AFFIRMED.




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