Opinion
20-35873
10-13-2022
JOAQUIN TAPIA-MARTINEZ, Petitioner-Appellant, v. JERI TAYLOR, Respondent-Appellee.
NOT FOR PUBLICATION
Submitted October 3, 2022 Portland, Oregon
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court for the District of Oregon D.C. No. 3:17-cv-01307-HZ Marco A. Hernandez, Chief District Judge, Presiding
Before: OWENS and MILLER, Circuit Judges, and EZRA, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Following a jury trial in Oregon state court, Joaquin Tapia-Martinez was convicted on three counts of first-degree sodomy based on his sexual abuse of a then-5-year-old girl who had lived in his home. He was sentenced to 300 months of imprisonment. Tapia-Martinez petitioned for state postconviction relief, arguing that his trial counsel rendered ineffective assistance by failing to call additional defense witnesses. But Tapia-Martinez took no action to advance his claim, so the Oregon state court denied his petition. Tapia-Martinez then petitioned for a writ of habeas corpus, arguing that the federal district court should excuse his procedural default in state court and grant him relief on his ineffective-assistance claim. The district court held that Tapia-Martinez did not satisfy the requirements for excusing a procedural default under Martinez v. Ryan, 566 U.S. 1 (2012), so it denied his petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Tapia-Martinez does not dispute that his ineffective-assistance claim was procedurally defaulted. Therefore, the question before us is whether he successfully excused this default under Martinez. The Supreme Court's recent decision in Shinn v. Ramirez, 142 S.Ct. 1718 (2022), controls our answer. The Court in Shinn held that a federal court reviewing a habeas petition under 28 U.S.C. § 2254 may not look beyond the factual record that was before the state postconviction-relief court unless one of the limited exceptions in section 2254(e) applies. Id. at 1734. Tapia-Martinez's Martinez excuse claim relies entirely on evidence outside of the state-court record, and the exceptions in section 2254(e) do not apply to his new evidence. Therefore, "[b]ecause we cannot consider the evidence presented for the first time to the district court, [his] Martinez claim necessarily fails." Creech v. Richardson, 40 F.4th 1013, 1029 (9th Cir. 2022).
AFFIRMED.
The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.