                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 7 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BRIAN THOMAS EFTENOFF,                          No.    16-15781

                Petitioner-Appellant,           D.C. No. 2:14-cv-01023-NVW

 v.
                                                MEMORANDUM*
CHARLES L. RYAN and ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,

                Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                     Neil V. Wake, District Judge, Presiding

                      Argued and Submitted August 16, 2017
                            San Francisco, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and WATTERS,**
District Judge.

      Brian Eftenoff appeals the district court’s denial of his habeas corpus

petition challenging his conviction for second degree murder.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Susan P. Watters, United States District Judge for the
District of Montana, sitting by designation.
        Eftenoff argues he received ineffective assistance of trial counsel when his

trial counsel did not request a Frye1 hearing to exclude Dr. Baselt’s toxicology

opinion. Trial counsel’s performance was not deficient because he made a

reasonable strategic decision not to request a Frye hearing after consultation with

his own toxicologist, Dr. Karch. Strickland v. Washington, 466 U.S. 668, 687-689

(1984).

        Eftenoff next argues the procedural default of his claim of ineffective

assistance of trial counsel for failure to consult an independent pathologist should

be excused under Martinez v. Ryan, 566 U.S. 1 (2012). However, we are not

convinced this ineffective assistance of trial counsel claim is “substantial.”

Martinez, 566 U.S. at 14. Trial counsel’s performance was not deficient because

he made a reasonable strategic decision to rely on the state’s medical examiner, Dr.

Mosley. Strickland, 466 U.S. at 687-689. Furthermore, trial counsel’s

performance did not prejudice the defense because the postconviction testimony of

Dr. Dressler, a pathologist, does not create a reasonable probability that the result

of the proceeding would have been different. Strickland, 466 U.S. at 694.

        AFFIRMED.




1
    Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

                                           2                                      16-15781
