
    Frank GUTIERREZ, Petitioner-Appellant, v. J.W. FAIRMAN, Jr., Warden; Attorney General of the State of California, Respondents-Appellees.
    No. 01-55525.
    D.C. No. CV-00-11247-CBM.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 12, 2002.
    Decided March 27, 2002.
    
      Before KOZINSKI and GOULD, Circuit Judges, and BREYER, District Judge.
    
    
      
       Honorable Charles R. Breyer, United States District Judge for the Northern District of California, sitting by designation.
    
   MEMORANDUM

The rule announced in People v. Martinez, 20 Cal.4th 225, 83 Cal.Rptr.2d 533, 973 P.2d 512 (1999) was not applied retroactively.

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
     