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.