Case Information
*2
M. SMITH, Circuit Judge:
Parakkamannil Koshy Bilji Varghese, a California state prisoner, appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. A jury convicted Varghese of stabbing and murdering his ex-wife’s lover. A key piece of evidence in the case was a small blood stain found at the crime scene. The prosecution’s initial test of the blood stain showed that it matched Varghese’s DNA. Varghese requested the remaining blood sample to conduct a DNA test using his own expert, but without having to disclose the test results to the prosecution, even though a second test would likely consume the remaining blood. The trial court denied Varghese’s request and instead offered Varghese the choice of having either an independent *3 laboratory or his own expert test the blood, but only if the test results were made available to both parties. Varghese’s counsel refused the trial court’s proposal. Varghese appealed, arguing, among other things, that the trial court’s ruling violated his right to counsel. In a reasoned decision, the California Court of Appeal affirmed the trial court.
On federal habeas review, Varghese claims that the trial court’s ruling regarding the blood sample violated his constitutional rights to counsel and due process. Because, at the time the California Court of Appeal rendered its decision, there was no Supreme Court decision that squarely addressed Varghese’s claims, or announced a principle that clearly extended to the circumstances of this case, we hold that the state court’s decision was not “contrary to” or an “unreasonable application” of “clearly established Federal law” under 28 U.S.C. § 2254(d)(1). Accordingly, we affirm. FACTS AND PRIOR PROCEEDING A. Factual Background In April 2003, Varghese and his wife, Vilia Varghese, separated. Varghese was unhappy with the separation and did not want a divorce. During this period, Vilia began a relationship with Haval Ravin, a physician who ran a fertility clinic.
On November 12, 2004, Ravin was found dead at his home, with multiple stab wounds to his body, including to his neck, abdomen, back, bicep, and testicles. Police officers found several inculpatory pieces of evidence at the crime scene, including a shoe that belonged to Varghese and a matching bloody shoeprint. A critical piece of evidence for the prosecution was a blood spot (Item 19) found near a light switch at Ravin’s home. The prosecution’s initial DNA test and analysis of the blood spot, conducted by criminalist David Cornacchia of the San Diego Police Department, Forensic Science Section, indicated that Varghese was almost certainly the source of the DNA profile. The probability of selecting an individual, at random, who matched the DNA profile from this blood sample was in the quintillions.
By pretrial motion, Varghese requested an order
permitting his expert, Dr. Edward Blake, to test the blood
The factual background is principally drawn from the California Court
of Appeal’s decision in
People v. Varghese
,
sample, but with no obligation to reveal the test results to the prosecution. Varghese conceded that a second test might consume the remaining blood. The prosecution opposed the motion, stating that it wished to conduct further testing to corroborate its initial results, and would be unable to do so if Varghese’s motion were granted. The prosecution suggested that either a neutral laboratory agreeable to both parties or Varghese’s expert test the remaining blood, but only if both parties could access and introduce at trial the data and results of that test. The trial court found that there was a high risk that additional testing would consume the remaining blood, and concluded that the prosecution was entitled to corroborate its findings with regard to such an important piece of evidence. Under the circumstances, the trial court determined that the prosecution’s proposed compromise was reasonable, and denied Varghese’s motion for the release of Item 19 for confidential testing. Varghese filed a motion for reconsideration, which the trial court denied. During the second motion hearing, the trial court reiterated that it would be willing to permit a neutral laboratory or the defense expert to test the blood, but only if the results were made available to both parties. The defense declined the court’s offer.
In April 2006, Varghese was convicted by a jury of first-
degree murder, and use of a deadly weapon, a knife, in the
commission of the murder, in violation of California Penal
Code §§ 187(a) and 12022(b)(1). He was sentenced to a
prison term of 26 years to life. Varghese appealed the
conviction, arguing,
inter alia
, that the trial court erred in
conditioning the use of his own expert on his disclosure of the
test results to the prosecution, in violation of his right to
counsel under
Prince v. Superior Court
,
B. Habeas Procedural History
On December 10, 2009, Varghese filed a petition for a
writ of habeas corpus in federal district court. Varghese
asserted that his Sixth Amendment right to counsel and
Fourteenth Amendment right to due process were violated
when the trial court conditioned the defense’s testing of Item
19 on its disclosure of the results of that test to the
prosecution. A magistrate judge recommended that
Varghese’s petition be denied under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). The
magistrate judge concluded that, at the time Varghese’s claim
was decided by the state appellate court, there was no U.S.
Supreme Court authority that decided the precise issue of
“whether due process and the right to counsel are violated
when a court orders that a criminal defendant be granted
access to test a sample of prosecution evidence that will
destroy the evidence and then require[s] the result of the test
to be disclosed to the prosecution.” As such, the state court
“cannot be said to have unreasonably applied the law as to the
issue presented in the Petition.” The magistrate judge further
rejected Varghese’s argument that the principles announced
in
Ake v. Oklahoma
, 470 U.S. 68 (1985),
Strickland v.
Washington
,
The district court substantially adopted the recommendation of the magistrate judge and denied the petition. Nevertheless, the district court concluded that Varghese raised “nonfrivolous constitutional arguments” and granted a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
JURISDICTION AND STANDARD OF REVIEW
*6
We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(a). A district court’s denial of a petition for a writ of
habeas corpus is reviewed de novo,
Lopez v. Thompson
Federal courts are authorized to grant habeas corpus relief to persons in state custody under 28 U.S.C. § 2254, as amended by AEDPA, Pub. L. No. 104-132, 110 Stat. 1214. AEDPA controls this case because Varghese filed his habeas petition in 2009, after that statute became effective. See Lindh v. Murphy , 521 U.S. 320, 326–27 (1997). Under AEDPA, Varghese can prevail on his habeas petition only if he shows the state court’s decision (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Varghese relies on the “unreasonable application” clause
of section 2254(d)(1). A decision involves an “unreasonable
application” of federal law if it (i) “correctly identifies the
governing rule but unreasonably applies it to a new set of
facts” or (ii) “fails to extend a clearly established legal
principle to a new context in a way that is unreasonable.”
Himes v. Thompson
,
AEDPA’s “highly deferential standard,”
Lindh
, 521 U.S.
at 333 n.7, “stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state
proceedings,”
Harrington v. Richter
, 131 S. Ct. 770, 786
(2011). We are required to affirm the denial of Varghese’s
habeas petition unless the state court’s decision was “so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.”
Richter
, 131 S. Ct. at 786–87.
*7
Varghese bears the burden of proof in this appeal, and the
state court decision must be accorded the benefit of the doubt.
Woodford v. Visciotti
, 537 U.S. 19, 24–25 (2002) (per
curiam). State court decisions are measured against the
Supreme Court’s precedent “as of the time the state court
renders its decision.”
Cullen v. Pinholster
,
DISCUSSION
Under AEDPA, we must defer to the state court’s
decision if a Supreme Court decision fails to (i) “squarely
address the issue in the case” or (ii) “establish a legal
principle that clearly extends to a new context to the extent
required by the Supreme Court.”
Moses v. Payne
, 555 F.3d
742, 754 (9th Cir. 2009) (alterations and quotes omitted). If
a Supreme Court’s decision provides “a controlling legal
standard” that is applicable to the petitioner’s claim “without
tailoring or modification of the standard,” then the next
inquiry is to decide “whether the application of that standard
was objectively unreasonable, even if the facts of the case at
issue are not identical to the Supreme Court precedent,”
Moses
, 555 F.3d at 754 (citation and quotes omitted).
“[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations.”
Yarborough v. Alvarado
,
Here, Varghese argues that the trial court’s ruling
regarding the testing of the blood sample violated his
constitutional rights to counsel and due process. In
challenging the California Court of Appeal’s decision under
AEDPA, Varghese must identify either a Supreme Court
decision that “squarely addresses” his claim, or a legal
principle, as established by a Supreme Court decision, that
“clearly extends” to the circumstances of this case.
Moses
A. Supreme Court Decision Squarely Addressing Claim
The district court properly recognized that there is no U.S.
Supreme Court authority that squarely addresses Varghese’s
claim—namely, that a criminal defendant’s rights to counsel
and due process are violated when the state court conditions
his access to, and testing of, the prosecution’s limited
evidence on the disclosure of the test results to the
prosecution. 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.”
Knowles v. Mirzayance
,
B. Interference with Effective Assistance of Counsel In the absence of a Supreme Court decision squarely addressing Varghese’s claim, we next consider whether Varghese has identified an established principle that “clearly extends” to the circumstances of this case. Moses , 555 F.3d at 754.
Varghese invokes a cluster of broad principles related to
the rights to counsel and due process. Under the Sixth
Amendment, the accused in a criminal proceeding is entitled
“to have the Assistance of Counsel for his defence.” U.S.
Const. amend. VI. The Supreme Court has long recognized
that “the Sixth Amendment right to counsel exists, and is
needed, in order to protect the fundamental right to a fair
*9
trial.”
Strickland v. Washington
,
Varghese argues that a core aspect of the right to effective
assistance of counsel is that counsel be permitted to undertake
reasonable investigations, which includes the right to employ
experts for that purpose, free from state or judicial
interference. According to Varghese, the attorney-client
privilege and the work-product doctrine are essential
components of the attorney’s ability to provide effective
representation.
See Hickman v. Taylor
,
specific principles than those invoked by Varghese—which,
During oral argument, Varghese’s counsel identified
Ake
and
Nobles
as the two strongest Supreme Court cases supporting Varghese’s position.
Varghese further relies on
Smith v. McCormick
,
when viewed in their factual circumstances, do not clearly
extend to the present context,
Moses
,
1. Ake v. Oklahoma In Ake , defense counsel informed the trial court that he planned to raise an insanity defense and asked that the court either arrange or pay for a psychiatric examination for his client, an indigent. 470 U.S. at 72. The court refused, *10 effectively precluding defense counsel from presenting any evidence regarding defendant’s sanity at the time of the offense. Id. The Supreme Court concluded that this rendered the trial fundamentally unfair, and held that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83.
Ake
does not clearly extend to Varghese’s constitutional
claim.
Ake
held that the state must in some circumstances
provide indigent defendants with access to a particular kind
of expert, a psychiatrist, to ensure fundamental fairness at
trial. Varghese neither asserts that he was indigent, nor
claims that he asked the state to provide a psychiatrist or any
other kind of expert to assist in the preparation of his defense.
He had, in fact, retained his own DNA expert, Dr. Blake.
Even if this expert was unable to conduct a confidential DNA
test, he could help defense counsel evaluate the methodology
used by the state’s lab, decide whether to attack it at trial, and
prepare for cross-examination of the state’s lab technician.
See United States v. Chischilly
,
Second, Ake did not concern expert testing of physical evidence, much less testing that would consume a vanishing quantity of such evidence. Ake thus provided the state court with no guidance on how to balance the defendant’s interest in conducting his own DNA test with the state’s legitimate interest in corroborating its initial results. Even if we accept Varghese’s argument that Ake acknowledges the importance of expert assistance generally—as opposed to the assistance of psychiatric experts in particular—that case simply did not involve the tradeoffs at stake here.
Varghese contends that the state’s interest in additional testing is weak because (1) it already had a reliable test and (2) Varghese agreed not to challenge the state’s blood evidence if his own testing confirmed the state’s results. But the state, which has to prove its case beyond a reasonable doubt, has an interest in bulletproofing its evidence that the blood recovered from the crime scene belonged to Varghese. *11 See John Devlin, Genetics and Justice: An Indigent Defendant’s Right to DNA Expert Assistance , 1998 U. Chi. Legal F. 395, 407 (1998) (noting the prosecutor ordered multiple tests of the DNA evidence in the O.J. Simpson trial). Nothing in Ake suggests that, where physical evidence is concerned, a defendant’s interest in confidential testing trumps the state’s interest in confirming its results. 2. United States v. Nobles
In
Nobles
, the defense sought to impeach the
prosecution’s key witnesses using statements a defense
investigator obtained from the witnesses.
Invoking the principles in Nobles , Varghese argues that by conditioning the defense’s access to the blood sample on disclosure of the test results, the trial court compelled surrender of his attorney’s privileges and therefore violated his right to effective assistance of counsel. We note that the Supreme Court developed the work product doctrine to shield counsel’s private memoranda from the liberal discovery permitted by the Federal Rules of Civil Procedure. The Court grounded the doctrine not in the Constitution, but on the assumption that the drafters of the Federal Rules did not seek to alter “the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests.” Hickman , 329 U.S. at 511; see also Jeff A. Anderson et al., The Work Product Doctrine , 68 Cornell L. Rev. 760, 765–79 (1983). The doctrine governs discovery and disclosure in federal cases, both civil and criminal, and
V ARGHESE V . U RIBE it cannot support a state prisoner’s habeas claim any more than a violation of the Federal Rules of Evidence could.
But the
Nobles
Court also considered, in a footnote,
whether the forced disclosure of the investigator’s report
violated the Sixth Amendment right to counsel. As Varghese
does here, the defendant in
Nobles
argued that such a
disclosure was unconstitutional because
it would
“compromise counsel’s ability to investigate and prepare the
defense case thoroughly.”
Nobles
,
This constitutional holding does not clearly extend to the circumstances of Varghese’s case. Nobles decided only that the Sixth Amendment does not prohibit the disclosure of a defense investigator’s report, containing his distillation of witness interviews, when the defendant calls the investigator to testify at trial. The case does not address whether a defendant may withhold expert materials of a wholly different kind—scientific test results—if the defendant decides not to use those results at trial. A reasonable jurist might well conclude that disclosure of an expert’s test results is less of an intrusion on the attorney-client relationship than disclosure of the expert’s subjective impressions or mental processes would be.
This is especially true in Varghese’s case, where the state trial court
did not order the reports or observations of the expert be turned over to the prosecution. It ordered only the result of the test to be revealed. In doing so, the court granted the *13 defendant the right to test the results and keep all of its work product and reports confidential. At the same time it foreclosed the possibility that a test result matching that of the prosecution’s expert would be destroyed and the People left without the ability to corroborate its findings if the defense were to challenge at trial the prosecution expert.
Varghese
,
In response, Varghese argues that the California Court of
Appeal’s notion that the trial court ordered that only the test
results be disclosed is “factually wrong.” Under AEDPA, the
state court’s factual determinations, including the appellate
court’s interpretation of what the trial court actually ordered,
are “presumed to be correct,” unless rebutted by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1);
see also
Hernandez v. Small
,
C. Choosing between Two Constitutional Rights Varghese further relies on Simmons v. United States 390 U.S. 377 (1968), for the principle that it is unconstitutional to force a defendant to choose between two that if he were allowed to perform confidential testing using his own expert, Dr. Blake, then depending on the test results, he would either (i) call Dr. Blake to testify and his test results would be put into evidence, or (ii) “the defense would not call an expert and then the People’s evidence would go essentially unchallenged.” However, Varghese’s argument is not tethered to any relevant Supreme Court case and thus is not relevant to our AEDPA analysis. Moreover, an offer not to call a DNA expert by the defense does not guarantee that the prosecution’s DNA test results would go fully unchallenged because, for example, Mr. Cornacchia’s credibility might be attacked, in which case his testimony validating the *15 prosecution’s first test could be undermined. A corroborating test on the remaining blood sample would then be crucial in bolstering the results of the prosecution’s initial DNA test. Since the blood sample was the prosecution’s evidence, the prosecution was entitled to render a key piece of evidence highly credible by obtaining corroborating results from a second test.
rights. In
Simmons
, the criminal defendant challenged the
constitutionality of the trial court’s admission of his motion-
to-suppress testimony on the issue of his guilt.
The rule established in Simmons is inapposite because Varghese’s constitutional claim does not implicate his Fourth Amendment privilege against unreasonable searches and seizures or his Fifth Amendment right against self- incrimination. Varghese’s claim concerns his right to access and test limited evidence using his own expert, without disclosing the tests results to the prosecution. Nevertheless, abstracting the general principle that a defendant cannot be forced to choose between two constitutional rights, id. Varghese argues that the state impermissibly sought to force him to choose between the “right to have defense counsel conduct a reasonable investigation” and the “right to maintain the degree of privacy in defense counsel’s representation that is essential to effective representation.” Even were we to accept Varghese’s contention that Simmons establishes such a broad rule, there is no merit to his argument because he was not foreclosed from using his own expert in testing the blood sample or in developing his defense.
CONCLUSION
The Supreme Court has not squarely addressed
Varghese’s claim or articulated a rule that clearly extends to
the present case.
Moses
,
AFFIRMED.