                                                                     FILED
                           FOR PUBLICATION                            JUN 08 2012

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




                       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. 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 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.

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


      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
                                                                                    page 3

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. 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. He admits, however, that we previously found this evidence

standing alone to be “harmless.” See 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.
                                                                                    page 4

      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. 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. “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
                                                                                 page 5

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.” 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.
                                                                                page 6

      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.
Leavitt v. Arave, Nos. 12-35427, 12-35450

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 permits 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 misstate the meaning of reasonable doubt or tell the jury, in violation

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

sentencing hearing when a lawyer fails to follow through on a medical expert’s advice

that the defendant receive a brain scan in order to determine whether he suffers from

an injury or ailment that may fundamentally affect his judgment or his conduct. It is

not good enough that we forfeit a capital defendant’s legitimate constitutional claims

because his lawyers 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

interpretation 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 textbook 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 resentencing counsel

were procedurally defaulted. In doing so, the district 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


                                           -2-
procedurally defaulted all of Leavitt’s claims as to the ineffectiveness of his trial

counsel, but—with almost no analysis—we held that the two non-defaulted claims

failed on the merits. We also reversed the district court’s ruling that Leavitt’s claim

concerning the ineffectiveness of his resentencing counsel 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 judgment 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 various 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 uncontroversial premises have been transformed into a set of strictures

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




                                          -3-
series of rules—from presenting the merits of their constitutional claims to any federal

court. This harsh and mechanical process undermines the protection of the Great Writ.

      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 century 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,


                                          -4-
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 reasonable juror “would have

bought his alibi,” id. at 833. Second, 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 determining 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 Constitution on the basis of our own judgment, not the jury’s, that the

evidence against Leavitt was strong.




                                           -5-
      Next, our second reversal of habeas relief constituted a legal error and worked

a serious injustice. As I wrote in dissent 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 “examination 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., dissenting). That failure “necessarily

undermines any reasonable jurist’s confidence in the outcome of the sentencing

proceeding,” 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 Blackfoot. 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 provide a better method of determining whether that

evidence may be tested before the State executes a defendant.




                                          -6-
      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 executed by the State. This result, however, reflects the deplorable 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 condemned prisoners a full opportunity to be heard on their

constitutional claims before we send them to their deaths. We are failing to meet these

obligations today.




                                          -7-
