Jeffrey Alsborg v. Gary Swarthout

FILED
NOT FOR PUBLICATION
JUL 05 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY MARSHALL ALSBORG, No. 12-55248

Petitioner - Appellant, D.C. No. 2:07-cv-5144-DSF (AGR)

v. MEMORANDUM*

GARY SWARTHOUT, Warden, et al.,

Respondent - Appellees.

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Court Judge, Presiding

Argued and Submitted on June 8, 2016.
Pasadena, California

Before: REINHARDT and WARDLAW, Circuit Judges, and BENNETT, Senior

District Judge.**

Petitioner Jeffrey Alsborg was tried in 2001 for the murder of his much

older lover, Alexander Campbell, in 1998. The coroner determined that Campbell

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark W. Bennett, Senior District Judge for the U.S.
District Court for the Northern District of Iowa, sitting by designation.
died from “asphyxia associated with neck trauma.” Alsborg contended that

Campbell’s death was natural or accidental during sex. The jurors found Alsborg

not guilty of first-degree murder, but guilty of second-degree murder. Alsborg was

sentenced to fifteen years to life in prison. The state courts denied Alsborg’s direct

appeals1 and his petition for habeas corpus relief. The United States District Court

for the Central District of California denied both Alsborg’s habeas petition

pursuant to 28 U.S.C. § 2254 and a certificate of appealability. We granted a

certificate of appealability on the three issues that we consider, below. We affirm.

1. Alsborg contends that there was insufficient evidence to support his

conviction. We conclude that the California Court of Appeal did not unreasonably

apply Jackson v. Virginia, 443 U.S. 307 (1979), in rejecting that claim. A “rational

trier of fact could have found the essential elements of the crime [of second-degree

murder] beyond a reasonable doubt.” Jackson, 443 U.S. at 319. The evidence

supporting the conviction included the coroner’s testimony that Campbell died of

asphyxiation by strangulation, not accidently from erotic asphyxiation during sex;

that the kind of sexual encounter that Alsborg described would not have caused

1
See People v. Alsborg, No. B151403, 2004 WL 2439529 (Cal. Ct.
App. Nov. 2, 2004) (Alsborg I) (rejecting Alsborg’s sufficiency of the evidence
appeal); People v. Alsborg, No. B176753, 2006 WL 147544 (Cal. Ct. App. Jan. 20,
2006) (Alsborg II) (affirming denial of Alsborg’s requests for experts and a new
trial).
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Campbell’s death; and that Alsborg had a financial motive to kill Campbell,2

including evidence that Alsborg was a beneficiary of Campbell’s IRA, brokerage

account, and estate, and used his credit cards to make purchases and take trips after

his death. The California Court of Appeal also reasonably determined that

Alsborg’s testimony about having sex with Campbell the night that he died was not

credible because Alsborg did not mention a sexual encounter until months into the

investigation of Campbell’s death. Finally, contrary to Alsborg’s argument,

second-degree murder requires killing “unlawfully and intentionally,” but the

“intent to kill” need not be “formed after premeditation and deliberation.” People

v. Gonzalez, 278 P.3d 1242, 1251 (Cal. 2012). Here, death by strangulation, for

which there was sufficient evidence, “is indicative of at least a deliberate intent to

kill.” People v. Hernandez, 763 P.2d 1289 (Cal. 1988).

2. Alsborg contends that the state trial court’s refusal to appoint defense

experts on his motion for a new trial violated his constitutional right to due

2
The jury’s rejection of first-degree murder was not a rejection of
“financial gain” as a motive for second-degree murder, as Alsborg contends. The
jury never reached the “financial gain” special circumstance, because they did not
find first-degree murder. See CAL. PENAL CODE § 190.4(a). There was sufficient
evidence of “financial gain” as a motive for murder, however. See, e.g., People v.
Samuels, 113 P.3d 1125, 1136 (Cal. 2005).
3
process. We conclude that the California Court of Appeal did not unreasonably

apply Supreme Court law or unreasonably determine facts in rejecting that claim.

First, assuming, arguendo, that Ake v. Oklahoma, 470 U.S. 68 (1985),

applies to non-psychiatric experts, the proper test under Ake is whether the

defendant has shown that appointment of the expert is necessary to address a

disputed issue. 470 U.S. at 74. The state courts did not unreasonably apply Ake by

reasoning that Alsborg’s showing of “need,” in this case, depended upon whether

his underlying ineffective assistance of counsel claim could be resolved on the first

prong of the analysis under Strickland v. Washington, 466 U.S. 668 (1984),

without experts.

Second, the state courts did not unreasonably apply Strickland. They

correctly determined Alsborg had not made a sufficient showing of need for the

appointment of experts. Trial counsel had identified problems with the testimony

of the experts that he had consulted, including inconsistencies with other evidence,

such as Alsborg’s testimony; the speculative nature of their opinions based on

statistics; their opinions that they could not “exclude” natural or accidental death,

rather than opinions that Campbell’s death was natural or accidental; and

credibility problems. Here, even if the gambit of generating reasonable doubt

through the coroner’s concessions on cross-examination ultimately failed, it was

4
reasonable for trial counsel to decide not to call his own experts. Trial counsel

succeeded in getting the coroner to concede that it was possible that Campbell’s

death was natural or accidental during “rough sex,” possibly aggravated by heart

problems or heavy drinking, which encompassed Alsborg’s theory of the case. See

Harrington v. Richter, 562 U.S. 86, 111 (2011) (“In many instances cross-

examination will be sufficient to expose defects in an expert’s presentation.”).

3. Finally, Alsborg contends that his trial counsel rendered ineffective

assistance by failing to adequately investigate and prepare for trial. Federal review

of this claim must be “doubly deferential.” Daire v. Lattimore, 818 F.3d 454, 463

(9th Cir. 2016). Here, we conclude that there are reasonable arguments that

Alsborg’s trial counsel’s failure to further investigate or call experts did not qualify

as ineffective assistance under Strickland’s deferential standard, as set out in the

analysis of Alsborg’s second claim of failure to appoint experts. Alsborg argues

that using his expert cardiologist’s report only in cross-examination of the coroner

and other choices by his trial counsel “backfired.” It is improper, however, “to

‘conclude that a particular act or omission of counsel was unreasonable’ simply

because the defense was ultimately unsuccessful.” Gallegos v. Ryan, 820 F.3d

1013, 1025 (9th Cir. 2016) (quoting Strickland, 466 U.S. at 689); see also Richter,

562 U.S. at 111 (cross-examination may suffice to challenge an expert). Nor did

5
the state courts unreasonably reject Alsborg’s claim of Strickland “prejudice.”

Alsborg cannot show a reasonable probability that counsel’s performance deprived

him of “a trial whose result is reliable,” Strickland, 466 U.S. at 687, in light of the

jury’s rejection of similar arguments of natural or accidental death and other

evidence of Alsborg’s guilt.

Alsborg cannot show that the state courts unreasonably rejected his claim

that he was prejudiced by trial counsel’s failure to distinguish “rough sex” from

“erotic asphyxiation,” where Alsborg testified to the conduct at issue in his alleged

sexual encounter with Campbell, and the coroner testified that the sexual encounter

that Alsborg described would not have caused Campbell’s death. Finally, the

neighbor’s testimony about Alsborg and Campbell’s relationship, which trial

counsel did not offer, is a far cry from alibi or other evidence so detrimental to the

state’s version of events or so supportive of Alsborg’s that there is any reasonable

probability that the outcome of the case would have been different if the jury had

heard it.

AFFIRMED.