                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 24 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DEREK MARTINEZ,                                  No.   15-16082

              Petitioner-Appellant,              D.C. No. 2:12-cv-02273-JKS

 v.
                                                 MEMORANDUM*
SHAWN HATTON, Warden,

              Respondent-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   James K. Singleton, District Judge, Presiding

                             Submitted May 14, 2018**
                              San Francisco, California

Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concluded that this case was suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Deborah A. Batts, United States District Judge for the
Southern District of New York, sitting by designation.
      Derek Martinez appeals from the district court’s denial of his 28 U.S.C. §

2254 habeas corpus petition. Based on new evidence, Martinez claims he is

actually innocent. In addition, he claims the prosecutor violated his due process

rights by introducing at trial the allegedly false testimony of Helena Martinez. We

have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

      “[W]e review de novo the district court’s decision to grant or deny a petition

for a writ of habeas corpus.” Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.

2004). “Because [Martinez] filed his federal habeas petition after April 24, 1996,

his petition is governed by the Antiterrorism and Effective Death Penalty Act of

1996 (‘AEDPA’), 28 U.S.C. § 2254.” Cheney v. Washington, 614 F.3d 987, 993

(9th Cir. 2010). Under AEDPA, we “must deny habeas relief with respect to any

claim adjudicated on the merits in a state court proceeding unless the proceeding

‘resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,’” id. at 993–94 (quoting 28 U.S.C. § 2254(d)(1)), or if

the state court decision “was based on an unreasonable determination of the facts,”

28 U.S.C. § 2254(d)(2).

1.    Whether there is a “federal constitutional right to be released upon proof of

‘actual innocence’” is “an open question.” Dist. Attorney's Office for Third Judicial


                                          2
Dist. v. Osborne, 557 U.S. 52, 71 (2009). “[O]ur cases suggest that relief would be

available, if at all, only in very narrow circumstances. [The petitioner] must ‘go

beyond demonstrating doubt about his guilt, and must affirmatively prove that he is

probably innocent.’” Gimenez v. Ochoa, 821 F.3d 1136, 1145 (9th Cir.), cert.

denied, 137 S. Ct. 503 (2016), (quoting Carriger v. Stewart, 132 F.3d 463, 476

(9th Cir. 1997) (en banc)).

      Even assuming a valid claim of actual innocence would entitle Martinez to

habeas relief, Martinez did not meet his burden of showing he was probably

innocent. (1) It was reasonable for the state court to conclude that Helena did not

actually recant her trial testimony. Rather than recanting, Helena claims that the

prosecutor and victim advocate manipulated her testimony by preying upon her

fragile mental state. (2) It was reasonable for the state court to conclude that

Helena’s mother’s statement (regarding Helena’s mental state) does not evidence

Martinez’s probable innocence, because the statement merely duplicates Helena’s

declaration. (3) It was reasonable to conclude that Eric Voet’s and Taskeen Tyler’s

statements were unreliable. Voet does not explain why he waited until 2010 to

come forward to provide an alibi for Martinez. Similarly, it is doubtful that Tyler

would be able to recall conversations he had with Martinez’s co-defendant,




                                           3
Michael Johnson, seven years after they occurred and yet be unable to recognize

Johnson at the time of trial.

2.    It was reasonable for the state court to deny Martinez’s prosecutorial

misconduct claim. To prevail on his claim, Martinez was required to show that “(1)

the testimony (or evidence) was actually false, (2) the prosecution knew or should

have known that the testimony was actually false, and (3) that the false testimony

was material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).

First, Martinez has not shown that Helena’s testimony was actually false; Helena

has not actually recanted her supposedly false testimony. Second, Martinez has

produced no evidence that the prosecution knew or should have known that

Helena’s testimony was false.

      AFFIRMED.




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