UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
January 9, 2012
JEFFREY MARSHALL ALSBORG, PETITIONER,
JAMES A. YATES, WARDEN, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Dale S. Fischer United States District Judge
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the first amended petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge.
In Ground Two, Petitioner alleged that the trial court's denial of a request for appointment of experts to assist newly appointed defense counsel McDonald in a motion for a new trial violated Petitioner's due process rights pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). (Petition at 5 & attached page.) According to Petitioner, DeBlanc, Petitioner's trial counsel, had provided ineffective assistance by failing to consult with experts and to present expert testimony at trial. (Id., attached page.) In the motion for a new trial, McDonald argued he needed appointed experts to present the ineffective assistance claim. (Id.)
The Report, which deferred to the California Court of Appeal's decision pursuant to 28 U.S.C. § 2254(d)(1), found there was no clearly established Supreme Court law establishing a constitutional right to appointment of forensic experts. (Report at 23 (citing Ake and Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006))); see also Sanchez v. Hedgpeth, 706 F. Supp. 2d 963, 988 (C.D. Cal. 2010) ("Petitioner's claim fails because the Supreme Court has not clearly established a constitutional right to the appointment of forensic experts."). The Report also found that Petitioner had not shown that appointment of experts would have materially assisted him. (Id. ("When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.")(quoting Ake, 470 U.S. at 82-83).)
Petitioner objects that the California court decision was both an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and an unreasonable determination of the facts pursuant to 28 U.S.C. 2254(d)(2).*fn1 (Objections at 10.)
Petitioner argues that the California court's determination of the facts was unreasonable pursuant to § 2254(d)(2). (Objections at 11.) Specifically, Petitioner contends that the court's finding that "DeBlanc's strategic decision not to use Karpman or Sarkaria at trial was supported by 'good reasons'" was an "unreasonable finding." (Objections at 11 (quoting state court opinion).)
Petitioner argues that DeBlanc's decision was "a failure to investigate, specifically in failing to follow through with the further consultation that was available to him through court funding and Karpman himself, and further, he was urged by Sarkaria to pursue." (Id.)
A state court conclusion that counsel was effective "is a mixed question of law and fact." Strickland, 466 U.S. at 698. However, "state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254(d)." Id. In other words, the state court's factual findings here are entitled to a presumption of correctness. See Lambert v. Blodgett, 393 F.3d 943, 977 (9th Cir. 2004).
The state court found that Sarkaria's opinion was flawed as he had miscalculated the amount of alcohol in the victim's blood at the time of death. (Lodged Document M1 at 19.) Karpman, in turn, had relied on Sarkaria's miscalculation. (Id.) Parts of Karpman's report were speculative and contradicted by the autopsy findings. (Id. at 19-20.) Karpman's theory did not take into account the internal and external injuries found during the autopsy. (Id. at 20.) Therefore, the court found that DeBlanc's decision not to use Karpman or Sarkaria at trial was supported by "good reasons." (Id. at 21.) Through the coroner, De Blanc raised the defense theory that the victim could have died accidentally while having rough sex and that he could have died from trauma-induced cardiac arrhythmia. (Id. at 20-21.) Thus, the court concluded the trial judge could fairly assess defense counsel's performance without appointment of medical experts. (Id. at 21-22 & n.18.) Petitioner has not shown deficiency or prejudice. Petitioner's objection is overruled.
Petitioner's remaining objections are without merit.
IT IS ORDERED that judgment be entered denying the petition and dismissing this action with prejudice.