NOT FOR PUBLICATION                                  FILED
                       UNITED STATES COURT OF APPEALS                                SEP 25 2020
                                                                                MOLLY C. DWYER, CLERK
                                                                                  U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT

JEFFREY S. DAVIS,                                      No.     19-15900

                  Petitioner-Appellant,                D.C. No. 4:04-cv-00583-RCC

  v.
                                                       MEMORANDUM*
DORA B. SCHRIRO, Warden; TERRY L.
GODDARD,

                  Respondents-Appellees.

                      Appeal from the United States District Court
                               for the District of Arizona
                       Raner C. Collins, District Judge, Presiding

                              Submitted September 14, 2020**
                                 San Francisco, California

Before: SCHROEDER, W. FLETCHER, and VANDYKE, Circuit Judges.

       Jeffrey S. Davis files an appeal from the district court’s denial of the Rule

60(b) Motion for Relief from Judgment in which Davis raised claims pursuant to

Martinez v. Ryan, 

(2012). We affirm.




       *
              This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
       **
             The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
          Davis was convicted of first-degree murder in February 1998.1 After an

unsuccessful direct appeal and multiple habeas petitions in state court, he filed a 28

U.S.C. § 2254 habeas petition in federal district court. In September 2007, the

district court denied the writ of habeas corpus, and in doing so, rejected Davis’s

argument that his post-conviction relief (“PCR”) counsel was ineffective because he

was not allowed to challenge as ineffective his PCR counsel under Coleman v.

Thompson, 

(1991) and Johnson v. Avery, 

(1969). Both

the district court and this court declined to issue a certificate of appealability.

          In 2012, however, the Supreme Court handed down Martinez, which under

certain circumstances permits a petitioner to bring an ineffective assistance of

counsel claim against his PCR attorney in an attempt to “establish cause for a

[petitioner’s] procedural default of a claim of ineffective assistance at 

. In April 2014, Davis filed a Rule 60(b) motion in federal district court

seeking relief from a final judgment pursuant to Martinez. Analyzing the motion

under the six-factor framework set forth in Phelps v. Alameida, 

(9th

Cir. 2009), the district court initially concluded that Davis “demonstrate[d]

extraordinary circumstances necessary to grant relief under Rule 60(b)(6),” and

ordered the State to file an answer to Davis’s Martinez claim. Importantly, the court

noted that only certain claims would be reviewable under Davis’s Rule 60(b) motion


1
    Because the parties are familiar with the facts, we will not recite them here except as necessary.

                                                   2
because he “only seek[s] to reopen his case as it applies to the [ineffective assistance

of counsel] claims of trial and PCR counsel.”

      Four years later, after the parties briefed the issues, the district court reversed

its previous ruling granting Rule 60(b) relief. According to the court, Davis had

misled the court by “suggesting he was diligently pursuing relief as soon as he found

out about Martinez,” when, in fact, Davis “did not pursue any means of relief until

his Rule 60(b) Motion, which was filed more than six years after [the district court’s]

judgment and over two years after Martinez.” The district court accordingly ruled

that Davis’s 60(b) motion “was not filed within a reasonable time” and he did “not

present[] extraordinary circumstances warranting relief.”

      But that was not all.       The court went on to rule in the alternative,

comprehensively addressing Davis’s claims on the merits in its 24-page decision,

concluding that, even if Davis’s Rule 60(b) were timely, his Martinez claims all

failed. The court determined that Davis could not show that trial counsel was

ineffective or that Davis was prejudiced by his trial counsel’s strategy. The court

also addressed the remaining miscellaneous claims and concluded that they were not

substantial, plaintiff did not demonstrate prejudice, and the state courts’

determinations were “not contrary to federal law or an unreasonable application of

facts.”

      After the district court ruled against him on these two alternative grounds,


                                           3
Davis sought and was granted a certificate of appealability (“COA”) from the district

court certifying issues for appeal: that (1) “Petitioner’s 60(b) Motion was untimely

and did not present extraordinary circumstances warranting review;” and (2)

“regardless of timeliness, Petitioner’s claims did not excuse his procedural default.”

      Notwithstanding the breadth of the district court’s certified issues—which

were broad enough that the COA essentially covered the entirety of the district

court’s decision—Davis on appeal to this court filed an opening brief that did not

squarely address either the certified issues or the district court’s lengthy decision.

Instead, the opening brief contains a long overview of applicable law, a detailed

procedural history, and an argument section filled with conclusory and general

statements that fail to address any specific conclusions from the district court.

Davis’s brief states, for example, that he “was not accorded appellate review,” “[t]he

state courts’ disposition of Davis’[s] claims on collateral review was contrary to or

an unreasonable application of federal law,” “state procedures were not adequate to

vindicate constitutional rights,” and “[t]he appellate court’s accounting of the

evidence it deemed sufficient to sustain the conviction is patently insufficient to

establish the elements of premeditated murder ….” But nowhere does Davis’s

opening brief directly and specifically address any of the district court’s grounds for

its long and detailed decision. For example, the opening brief never mentions the

district court’s conclusion that Davis misled the district court about pursuing relief


                                          4
post-Martinez. This was the central reason that the district court reversed its decision

that the Rule 60(b) motion was timely. Nor does Davis address the reasons the

district court gave for rejecting his ineffective assistance of counsel claim,

precluding his new claims, or rejecting the claims Davis previously raised in the state

court.

          In response to Davis’s opening brief, the State gave notice pursuant to Ninth

Circuit Rule 22–1(f) that no answering brief would be filed because Davis failed to

brief any of the certified issues.2 The State is correct. Davis did not address the

certified issues, and therefore waived them. See Koerner v. Grigas, 

,

1048 (9th Cir. 2003) (“We ‘will not ordinarily consider matters on appeal that are

not specifically and distinctly argued in appellant’s opening brief.’” (emphasis

added; alteration and citation omitted)).3

          AFFIRMED.




2
    The State explained it would file a brief responding to the opening brief if ordered by the court.
3
 Davis’s Motion for Submission of Rule 60(b) Appeal for Decision, ECF No. 24, is denied as
moot. The State’s Motion for Clarification, ECF No. 28, is also denied as moot.

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