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Richard A. Leavitt v. A. J. Arave

June 8, 2012

RICHARD A. LEAVITT, PETITIONER - APPELLANT,
v.
A. J. ARAVE, RESPONDENT - APPELLEE. RICHARD A. LEAVITT, PETITIONER - APPELLANT,
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 D.C. No. 1:93-cv-00024-BLW

Per curiam.

FOR PUBLICATION

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

OPINION

D.C. No. 1:93-cv-00024-BLW

Argued and Submitted June 7, 2012 Pasadena, California

Filed June 8, 2012

Before: KOZINSKI, Chief Judge, REINHARDT and BERZON, Circuit Judges.

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 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." SeeLeavitt I, 383 F.3d at 829. Therefore, even if Leavitt's trial counsel was ...


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