Argued and Submitted January 8, 2013—Pasadena, California.
Amended September 23, 2013.
Appeal from the United States District Court for the Southern District of California No. 3:09-cv-02801-WQH-WVG William Q. Hayes, District Judge, Presiding.
Todd W. Burns (argued), Burns & Cohan, San Diego, California, for Petitioner-Appellant.
Lynne G. McGinnis (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Julie L. Garland, Senior Assistant Attorney General; Kevin Vienna and Gil Gonzalez, Supervising Deputy Attorneys General, Office of the Attorney General, San Diego, California, for Respondents-Appellees.
Before: Alex Kozinski, Chief Judge, M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.
The panel affirmed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a murder conviction.
Petitioner sought to test the remainder of a blood sample after the prosecution had conducted an initial DNA test, with no obligation to reveal the test results to the prosecution. The panel held that the state trial court's compromise – to have either a neutral laboratory or the defense expert test the blood, but only if the results were made available to both parties – was neither contrary to nor an unreasonable application of clearly established federal law.
The opinion filed on June 26, 2013, and appearing at 720 F.3d 1100 (9th Cir. 2013), is amended as follows:
1. Slip op. at 10, 720 F.3d at 1106, replace <Where, as here, a state court has no specific legal rule to apply, the state court's decision "is not an unreasonable application of clearly established Federal law."> with <"[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established" by the Supreme Court.>.
2. Slip op. at 11, 720 F.3d at 1107, following <"Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense." Id. at 686.> add <"[E]ven a general standard may be applied in an unreasonable manner, " Panetti v. Quarterman, 551 U.S. 930, 953 (2007), but the California Court of Appeal did not unreasonably apply Strickland and its progeny in affirming the trial court's refusal to allow confidential defense testing of the blood sample.>.
3. Slip op. at 11, 720 F.3d at 1107, delete <articulate more specific principles than those invoked by Varghese—which, when viewed in their factual circumstances, >.
4. Slip op. at 11 n.2, 720 F.3d at 1107 n.2, replace <it is not germane to our AEDPA analysis.> with <it is not controlling here. McCormick is "relevant persuasive authority, " Himes, 336 F.3d at 853, but it adds little to Varghese's argument that the state court's decision was objectively unreasonable.>.
5. Slip op. at 19, 720 F.3d at 1111, delete <The rule established in Simmons is inapposite because>.
An amended opinion will be filed concurrently with this order.
With the amended opinion, the panel has unanimously voted to deny the petitions for panel rehearing and rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote ...