                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 13 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NICK BRADLEY MENNICK,                            No. 09-35506

              Petitioner - Appellant,            D.C. No. 1:07-cv-00023-LMB

  v.
                                                 MEMORANDUM *
JEFF ZMUDA,

              Respondent - Appellee.



                    Appeal from the United States District Court
                              for the District of Idaho
                    Larry M. Boyle, Magistrate Judge, Presiding

                        Argued and Submitted June 7, 2011
                               Seattle, Washington

Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.




       Idaho state inmate Nick Mennick appeals the district court’s denial of his 28

U.S.C.§ 2254 habeas corpus petition challenging his jury conviction for aggravated

battery. The trial court denied his pro se motion for an independent medical expert



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to help him evaluate the medical tests on which the victim’s attending physicians

relied to testify that the injuries sustained were serious and consistent with battery.

      The Idaho Court of Appeals assumed for purposes of its decision that an

indigent criminal defendant’s right to expert assistance as set forth in Ake v.

Oklahoma, 470 U.S. 68 (1985), applies to medical experts, but found the Ake claim

meritless. The state court explained that

      the State presented uncontroverted testimony that Mennick exerted
      great force on the victim’s body; indeed Mennick conceded that he
      punched and kicked the man. The State introduced photographs
      showing the victim’s bloodied and lacerated head. Then an objective
      doctor – the treating physician, not an expert retained by the State –
      described three different kinds of bleeding in the victim’s brain. The
      jury learned that treating emergency room physicians had believed the
      victim’s injuries were severe enough to warrant transfer to a facility
      better equipped to cope with serious brain trauma, and doctors opined
      that the injuries could have been life threatening, both individually
      and in the aggregate. It is extremely unlikely that an independent
      medical expert could have helped Mennick rebut the objective
      evidence that the victim suffered brain trauma or the straightforward
      medical diagnoses of the victim’s treating physician.

We agree that the probable value of expert assistance in this case was minimal and

that the risk of error in the trial outcome by declining to appoint an expert was

negligible. Because the state court’s decision was neither contrary to nor an

unreasonable application of clearly established federal law as determined by the

Supreme Court, we affirm the conviction. 28 U.S.C. § 2254(d)(1).

                                                             AFFIRMED.
