                                                                     FILED
                           FOR PUBLICATION                            JUN 08 2012

                                                                  MOLLY C. DWYER, CLERK
                UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                       FOR THE NINTH CIRCUIT


RICHARD A. LEAVITT,                          No. 12-35427

          Petitioner - Appellant,            D.C. No. 1:93-cv-00024-BLW

 v.
                                             OPINION
A. J. ARAVE,

          Respondent - Appellee.



RICHARD A. LEAVITT,                          No. 12-35450

          Petitioner - Appellant,            D.C. No. 1:93-cv-00024-BLW

 v.

A. J. ARAVE,

          Respondent - Appellee.


                 Appeal from the United States District Court
                           for the District of Idaho
               B. Lynn Winmill, Chief District Judge, Presiding

                     Argued and Submitted June 7, 2012
                           Pasadena, California

                             Filed June 8, 2012
                                                                                   page 2
Before:      KOZINSKI, Chief Judge, REINHARDT and BERZON, Circuit
             Judges.

PER CURIAM:

      Richard Leavitt is a convicted murderer who was sentenced to death by the

state of Idaho. ER 3 (No. 12-35450). We have dealt with his case on two prior

occasions. See Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004) (Leavitt I); Leavitt

v. Arave, 646 F.3d 605 (9th Cir. 2011) (Leavitt II). Subsequent to our last decision

the Supreme Court denied certiorari, ending his habeas suit. ER 11 (No. 12-

35450).

      Leavitt now seeks relief under Federal Rule of Civil Procedure 60(b),

claiming that Martinez v. Ryan, 132 S. Ct. 1309 (2012), renders him eligible to

pursue ineffective assistance of counsel claims on which he had ostensibly

defaulted. In a separate case, Leavitt petitions the district court to order the

Blackfoot Police Department to send evidence related to his crime to a lab for

forensic testing. Blue br. at 3 (No. 12-35427).

      The district court denied relief in both cases. ER 3 (No. 12-35450); ER 3

(No. 12-35427). Leavitt appeals.


      1. 12-35450 (Martinez Claim). In order to bring a successful Martinez

claim, “a prisoner must . . . demonstrate that the underlying ineffective-assistance-
                                                                                    page 3
of-trial-counsel claim is a substantial one . . . .” Martinez, 132 S. Ct. at 1319.

Under Strickland v. Washington, 466 U.S. 668, 687 (1994), an ineffective

assistance claim would require Leavitt to prove his trial attorneys’ performance

was both “deficient” and “prejudicial” to his defense. “There may be cases where

the record is devoid of sufficient information necessary to evaluate whether [post-

conviction relief] counsel was ineffective [in failing to raise such a claim] and, as a

result, remand under Martinez would be necessary. However, . . . that is not the

case here.” Sexton v. Cozner, No. 10-35055, 2012 WL 1760304, at *9 (9th Cir.

May 14, 2012).

      Leavitt argues that his trial counsel was deficient in failing to object to

prosecutorial misconduct at trial. Blue br. 17–19 (No. 12-35450). We have

previously addressed this claim on the merits and held that, even if one of the

prosecutors’ actions “deviat[ed] from propriety,” it was “not enough to make any

difference in the result.” Leavitt I, 383 F.3d at 835. Therefore, even if trial

counsel was ineffective in failing to challenge the prosecutor’s actions, no

prejudice resulted from such ineffectiveness.

      Leavitt also claims his trial counsel should have objected to testimony from

Leavitt’s former girlfriend that he had once displayed a knife immediately before

the two had sex. Blue br. 17–19 (No. 12-35450). He admits, however, that we
                                                                                    page 4
previously found this evidence standing alone to be “harmless.” See blue br. 20

(No. 12-35450); Leavitt I, 383 F.3d at 829. Therefore, even if Leavitt’s trial

counsel was deficient under Strickland when he failed to object, this did not

prejudice Leavitt’s case.

       Leavitt further contends that his trial counsel was deficient when he

acquiesced in six reasonable doubt and presumption of innocence instructions that

misstated the law. Blue br. 11–17 (No. 12-35450). However, we previously

reviewed five of the six instructions on the merits and rejected Leavitt’s

challenges. Leavitt I, 383 F.3d at 821–22. An instruction identical to the only

other instruction was found not to be a constitutional violation when read “in the

context of the instructions [read in that case] overall.” Rhoades v. Henry, 638 F.3d

1027, 1044–45 (9th Cir. 2011); see also Leavitt I, 383 F.3d at 820 (“[R]easonable

jurists in 1989 [, the year the Idaho Supreme Court handed down its decision in

Leavitt’s state case,] would still not have felt compelled by [Ninth Circuit caselaw]

to find that [the jury instruction] was constitutional error . . . .”). Leavitt’s

counsel’s failure to object was not deficient under Strickland.

       Finally, Leavitt claims his trial attorneys erred by failing to have his expert

witness testify that two of the blood samples found together at the scene of the

crime had not mixed and thus were not deposited at the same time. Blue br. 2–11
                                                                                  page 5
(No. 12-35450). “The choice of what type of expert to use is one of trial strategy

and deserves a ‘heavy measure of deference.’” Turner v. Calderon, 281 F.3d 851,

876 (9th Cir. 2002). Leavitt’s trial attorneys apparently decided not to call

Leavitt’s expert to the stand because most of his testimony would have

corroborated the government’s. Regardless, the failure to introduce the testimony

of Leavitt’s expert witness doesn’t rise to the level of Strickland prejudice, which

requires a showing of a “reasonable probability . . . [that] the result of the

proceeding would have been different” if not for the attorney’s errors. Strickland,

466 U.S. at 694. As the district court stated, “Leavitt has pointed to no other

evidence tending to show that a significant amount of time must have elapsed

between the deposit of the two blood types on the clothing.” Memorandum

Decision and Order, Leavitt v. Arave, No. 1:93-cv-0024 (D. Idaho June 1, 2012).

And, the state produced other evidence that Leavitt had left his blood at the crime

scene at the time of the killing. Id.


      2. No. 12-35427 (Testing Claim). Leavitt also asks the district court to

compel the Blackfoot Police Department to submit for forensic testing blood

samples taken from the crime scene. He concedes that the testing motion

“addresses primarily concerns with clemency proceedings.” Blue br. at 9 (No. 12-
                                                                                page 6
35427). He argues the district court has jurisdiction to provide discovery in

support of his pending Rule 60(b) motion in his habeas case. He has not shown

good cause for such a discovery request, however, as he has not explained how the

testing that he seeks would substantiate his underlying claim that his trial counsel

was ineffective in failing to obtain appropriate testimony from his serology expert.

      As to clemency, Leavitt argues that the district court has jurisdiction to grant

the testing motion under 18 U.S.C. § 3599(f), so he can use it in support of his state

clemency petition. But, section 3599(f) provides for “nothing beyond . . . funding

power” and doesn’t “empower the court to order third-party compliance” with

Leavitt’s attorneys’ investigations. See Baze v. Parker, 632 F.3d 338, 342–43 (6th

Cir. 2011).


      AFFIRMED.
                                                                           page 7
                                    Counsel

David Z. Nevin, Nevin, Benjamin, McKay & Bartlett LLP, Boise, ID and Andrew
Parnes, Ketchum, ID for appellant Richard A. Leavitt.

Lawrence G. Wasden, L. LaMont Anderson, Alan G. Lance and Jessica Marie
Lorello, Idaho Attorney General’s Office, Boise, ID, for appellee A.J. Arave.
