Jeffrey Alsborg v. Gary Swarthout, 654 F. App'x 883

In 1998 Alexander Campbell died; coroner concluded death was "asphyxia associated with neck trauma" (strangulation). Petitioner Jeffrey Alsborg claimed Campbell died naturally or accidentally during sexual activity (erotic asphyxiation).
Alsborg was tried in 2001, acquitted of first-degree murder but convicted of second-degree murder and sentenced to 15 years to life.
Evidence supporting conviction: coroner testimony that death resulted from strangulation (not consistent with Alsborg’s described sexual encounter), Alsborg’s financial motive (beneficiary of Campbell’s IRA, brokerage account, estate; used victim’s credit cards after death), and timing/inconsistencies in Alsborg’s account (he delayed mentioning sex).
State courts denied direct appeals and postconviction relief; federal district court denied §2254 petition and certificate of appealability. Ninth Circuit granted COA on three issues and affirmed.
The three issues on appeal: (1) sufficiency of the evidence; (2) denial of appointment of defense experts on motion for new trial (Ake-related claim); (3) ineffective assistance of counsel for alleged inadequate investigation/preparation (Strickland-related claim).

Issue	Alsborg’s Argument	State/Respondent’s Argument	Held
Sufficiency of the evidence for second-degree murder	Evidence insufficient; death could have been accidental/natural during sex	Coroner’s opinion, motive, post-death conduct, and incredibility of late sexual-allegation support conviction	Affirmed — evidence was sufficient under Jackson v. Virginia
Denial of appointment of defense experts on new-trial motion (Ake claim)	Due process required appointment of experts to support new-trial motion	No showing experts were necessary to resolve disputed issues; trial counsel’s cross-examination was adequate	Affirmed — state court reasonably applied Ake and did not err in fact-finding
Ineffective assistance for failing to investigate/call experts (Strickland)	Counsel failed to develop expert proof and investigate leads (e.g., neighbor) causing prejudice	Counsel’s strategic choices (use of expert reports in cross-exam) were reasonable; no reasonable probability of a different outcome	Affirmed — counsel performance not unreasonable under Strickland; no prejudice shown
Prejudice claim re: distinguishing "rough sex" from "erotic asphyxiation"	Failure to distinguish led to unreliable verdict	Alsborg’s own testimony and coroner’s testimony undermined that theory; additional evidence would not likely change result	Affirmed — no reasonable probability of different outcome

Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency of evidence review)
Ake v. Oklahoma, 470 U.S. 68 (defendant’s due process right to experts when necessary)
Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
Harrington v. Richter, 562 U.S. 86 (deference to counsel strategic choices; cross-examination can suffice)
Daire v. Lattimore, 818 F.3d 454 (discusses double deference in federal habeas ineffective-assistance review)
Gallegos v. Ryan, 820 F.3d 1013 (counsel performance not ineffective merely because strategy failed)
People v. Hernandez, 763 P.2d 1289 (strangulation indicates deliberate intent to kill)
People v. Gonzalez, 278 P.3d 1242 (second-degree murder requires unlawful and intentional killing; intent need not be premeditated)