                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

RICHARD A. LEAVITT,                  
             Petitioner-Appellant,          No. 12-35427
               v.                             D.C. No.
A. J. ARAVE,                             1:93-cv-00024-BLW
             Respondent-Appellee.
                                     

RICHARD A. LEAVITT,                        No. 12-35450
             Petitioner-Appellant,
               v.                             D.C. No.
                                         1:93-cv-00024-BLW
A. J. ARAVE,
                                             OPINION
             Respondent-Appellee.
                                     
       Appeal from the United States District Court
                 for the District of Idaho
       Lynn Winmill, Chief District Judge, Presiding

                  Argued and Submitted
            June 7, 2012—Pasadena, California

                    Filed June 8, 2012

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
            Marsha S. Berzon, Circuit Judges.

                  Per Curiam Opinion;
             Concurrence by Judge Reinhardt




                           6867
                       LEAVITT v. ARAVE                    6869




                         COUNSEL

David Z. Nevin, Nevin, Benjamin, McKay & Bartlett LLP,
Boise, Idaho, and Andrew Parnes, Ketchum, Idaho, for appel-
lant Richard A. Leavitt.

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


                          OPINION

PER CURIAM:

   Richard Leavitt is a convicted murderer who was sentenced
to death by the state of Idaho. 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.

  Leavitt now seeks relief under Federal Rule of Civil Proce-
dure 60(b), claiming that Martinez v. Ryan, 132 S. Ct. 1309
6870                   LEAVITT v. ARAVE
(2012), renders him eligible to pursue ineffective assistance of
counsel claims on which he had ostensibly defaulted. In a sep-
arate 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.

  The district court denied relief in both cases. Leavitt
appeals.

   [1] 1. 12-35450 (Martinez Claim). In order to bring a
successful Martinez claim, “a prisoner must . . . demonstrate
that the underlying ineffective-assistance-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 evalu-
ate 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).

   [2] Leavitt argues that his trial counsel was deficient in
failing to object to prosecutorial misconduct at trial. We have
previously addressed this claim on the merits and held that,
even if one of the prosecutors’ actions “deviat[ed] from pro-
priety,” 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 prosecu-
tor’s actions, no prejudice resulted from such ineffectiveness.

  [3] 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. He admits, however, that we previously found this evi-
dence standing alone to be “harmless.” See Leavitt I, 383 F.3d
                       LEAVITT v. ARAVE                     6871
at 829. Therefore, even if Leavitt’s trial counsel was deficient
under Strickland when he failed to object, this did not preju-
dice Leavitt’s case.

   [4] Leavitt further contends that his trial counsel was defi-
cient when he acquiesced in six reasonable doubt and pre-
sumption of innocence instructions that misstated the law.
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.

   [5] Finally, Leavitt claims his trial attorneys erred by fail-
ing 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. “The
choice of what type of expert to use is one of trial strategy and
deserves a ‘heavy measure of deference.’ ” Turner v. Calde-
ron, 281 F.3d 851, 876 (9th Cir. 2002). Leavitt’s trial attor-
neys 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 tes-
timony of Leavitt’s expert witness doesn’t rise to the level of
Strickland prejudice, which requires a showing of a “reason-
able probability . . . [that] the result of the proceeding would
have been different” if not for the attorney’s errors. Strick-
land, 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
6872                   LEAVITT v. ARAVE
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.

   [6] 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.” He argues
the district court has jurisdiction to provide discovery in sup-
port of his pending Rule 60(b) motion in his habeas case. He
has not shown good cause for such a discovery request, how-
ever, 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.

    [7] 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’ investiga-
tions. See Baze v. Parker, 632 F.3d 338, 342-43 (6th Cir.
2011).

  AFFIRMED.



REINHARDT, Circuit Judge, concurring:

   I am not free to do other than join fully in the court’s per
curiam opinion affirming the denial of Leavitt’s motion for
relief from the judgment under Rule 60(b) of the Federal
Rules of Civil Procedure. I write separately only to explain
my disagreement with the current state of the law which per-
                       LEAVITT v. ARAVE                     6873
mits the execution of individuals, including Leavitt, on the
basis of trials and sentencing proceedings that do not afford
them the protections and process that the Constitution
requires. In my opinion, it is not good enough that capital
defendants are convicted on the basis of instructions that mis-
state the meaning of reasonable doubt or tell the jury, in viola-
tion of the Due Process Clause, that constitutional protections
are intended for the benefit of the innocent only. Capital
defendants do not, in my view, receive an adequate sentenc-
ing hearing when a lawyer fails to follow through on a medi-
cal expert’s advice that the defendant receive a brain scan in
order to determine whether he suffers from an injury or ail-
ment that may fundamentally affect his judgment or his con-
duct. It is not good enough that we forfeit a capital
defendant’s legitimate constitutional claims because his law-
yers failed to comply with the impenetrable procedural rules
designed to make habeas relief unavailable to all but the most
fortunate and even to deny such relief regardless of the merits
of a defendant’s claims if the state judges’ erroneous interpre-
tation of the Constitution could have been made by reasonable
judges. We are far too willing in capital cases to accept the
results of trials that are marked by errors on the assumption
that those errors did not influence the jury. As long as we are
willing to treat capital punishment as an acceptable form of
administering justice in our society, the proper approach,
under my view of the Constitution, would be to insist that, as
the Supreme Court once said, “Death is different,” and not
permit the execution of individuals by the state as a result of
proceedings that fail to comply in all respects with the dictates
of the Constitution. Error is simply not harmless, nor is it
acceptable, when it is part of a process that leads to a state’s
putting its citizens to death.

   The long procedural history of this case reads like a text-
book account of the obstacles to justice erected by modern
habeas doctrine. In 1996, the district court held that Leavitt’s
claims regarding the ineffectiveness of his trial and resentenc-
ing counsel were procedurally defaulted. In doing so, the dis-
6874                   LEAVITT v. ARAVE
trict court relied on a rule—recently changed by the Supreme
Court—that any ineffectiveness on the part of a petitioner’s
state post-conviction counsel could not excuse the procedural
default of his claims. Four years later, the district court
granted a writ of habeas corpus on the basis of an unlawful
jury instruction. We reversed the grant of habeas relief on the
ground that the jury instruction claim was barred by the non-
retroactivity doctrine of Teague v. Lane. In a footnote, we
noted that the district court had been wrong to dismiss as pro-
cedurally defaulted all of Leavitt’s claims as to the ineffec-
tiveness of his trial counsel, but—with almost no analysis—
we held that the two non-defaulted claims failed on the mer-
its. We also reversed the district court’s ruling that Leavitt’s
claim concerning the ineffectiveness of his resentencing coun-
sel was procedurally barred, and we remanded for that claim
to be heard. On remand, the district court again granted a writ
of habeas corpus on the basis that Leavitt’s counsel had been
constitutionally ineffective. Yet again, we reversed the grant
of relief. Now we confront a motion for relief from the judg-
ment that the rules prevent us from granting.

   Nearly absent from this litany is any discussion of what
ought to be the focus of federal habeas review—whether
Leavitt received a fair trial and sentencing proceeding that
respected his rights under the Federal Constitution. Instead,
the case remained in the federal courts for nearly two decades
as the result of a series of disagreements about whether vari-
ous procedural requirements were or were not satisfied at
each of various stages in the state and federal proceedings.
Comity has value. The habeas jurisdiction of the federal
courts is not unlimited. At some point, however, these uncon-
troversial premises have been transformed into a set of stric-
tures that prevents all but the most unusual of petitioners—
those whose counsel have managed to comply at every turn
with the ceaselessly changing and ever expanding series of
rules—from presenting the merits of their constitutional
claims to any federal court. This harsh and mechanical pro-
cess undermines the protection of the Great Writ.
                       LEAVITT v. ARAVE                     6875
   Leavitt’s trial and sentencing failed, at numerous points, to
comply with the Constitution. As we recognized in our first
opinion in this case, one of the instructions given to the jury
—an instruction “that the presumption of innocence is not
intended to aid the guilty-in-fact”—has for at least half a cen-
tury been recognized by our court as erroneous. See Reynolds
v. United States, 238 F.2d 460, 463 (9th Cir. 1956). In Cage
v. Louisiana, 498 U.S. 39 (1990) (per curiam), the Supreme
Court held that an unlawful definition of reasonable doubt by
a state court violates the Federal Constitution. Because
Leavitt had the misfortune to be convicted before Cage was
decided, however, his claim was barred by Teague—
notwithstanding that by the time his case reached our court,
Cage had been the law for a decade and a half. In other
words, we told Leavitt, we know that your jury instruction
violated the longstanding law of our Circuit, but you lose
because the Supreme Court had not yet made clear by the
time of your conviction that such a violation by a state court
offends the Federal Constitution.

   Then there were the multiple instances in which the trial
violated Leavitt’s rights in ways that we held were not quite
bad enough to have changed the outcome. First, although a
jury instruction “imposed the burden of proving an alibi on
Leavitt, which is clearly wrong,” we found no reasonable
likelihood “that this instruction . . . caused Leavitt’s jury to
base his conviction on a degree of proof below that required
by the Due Process Clause,” 383 F.3d at 822, or that any rea-
sonable juror “would have bought his alibi,” id. at 833. Sec-
ond, although it “was arguably improper” for the prosecutor
“to comment upon [Leavitt’s] exercise of his right to remain
silent” at an “arguably . . . judicial . . . proceeding,” we held
that “any error was harmless.” Id. at 828. Third, although any
rationale for admitting evidence that Leavitt had displayed a
knife during a previous sexual encounter “was pretty thin,”
and the rationale for admitting other knives was “[t]hinner
still,” we were unwilling to say that “the knife evidence . . .
had substantial and injurious effect or influence in determin-
6876                   LEAVITT v. ARAVE
ing the jury’s verdict.” Id. at 829 (internal quotation marks
omitted). Fourth, although the prosecutor committed serious
misconduct by arguing to the jury that it was “a link in a chain
of law enforcement which includes the police, the prosecutor,
and the judge,” we did not conclude “that the trial was so
infected with unfairness as to be a denial of due process” or
that “this deviation from propriety was . . . enough to make
any difference in the result.” Id. at 834-35. The harmless error
doctrine led us to look past numerous violations of the Consti-
tution on the basis of our own judgment, not the jury’s, that
the evidence against Leavitt was strong.

   Next, our second reversal of habeas relief constituted a
legal error and worked a serious injustice. As I wrote in dis-
sent from that decision, had Leavitt’s counsel on resentencing
“made a motion for the MRI examination of his brain that the
court-appointed neurologist had recommended,” that “exami-
nation would have revealed Leavitt’s organic neurological
disorder—powerful mitigating evidence that could well have
altered the sentencing decision of the trial court.” Leavitt v.
Arave, 646 F.3d 605, 617 (9th Cir. 2011) (Reinhardt, J., dis-
senting). That failure “necessarily undermines any reasonable
jurist’s confidence in the outcome of the sentencing proceed-
ing,” and the majority decision to the contrary “disregard[ed]
the controlling law and the compelling facts of this case.” Id.
at 626.

   There is one further problem that Leavitt’s case illustrates:
under current law, defendants, even capital defendants, have
no constitutional right to require the state to provide evidence
in its possession for DNA testing. Leavitt belatedly sought
such evidence, and the State advised us that the decision
whether to release it was up to the Chief of Police of Black-
foot. Surely, where evidence of this importance may in some
cases—especially in some capital cases—definitively answer
the question of guilt or innocence, the Constitution must pro-
vide a better method of determining whether that evidence
may be tested before the State executes a defendant.
                       LEAVITT v. ARAVE                    6877
   As noted at the outset, I recognize that the law requires us
to do what we have just done—ended Leavitt’s last chance
that the Constitution would be complied with before he is exe-
cuted by the State. This result, however, reflects the deplor-
able state of the law rather than a determination (on my part,
at least) that Leavitt has in fact been treated fairly. Whether
or not the very existence of capital punishment comports with
the Constitution—a question which, for now, the Supreme
Court has resolved—we must demand a higher standard of
constitutional values in capital trials, and we must afford con-
demned prisoners a full opportunity to be heard on their con-
stitutional claims before we send them to their deaths. We are
failing to meet these obligations today.
