Leavitt v. Arave

Under Federal Rule of Civil Procedure 60(b), a defendant is not entitled to (1) relief for ineffective assistance of counsel, where counsel made a strategic choice to not call an expert witness, or (2) an order to compel a law enforcement agency to conduct forensic testing on evidence, where the defendant has not explained how the testing would support his claim of ineffective assistance of counsel.

Leavitt was convicted of murder and sentenced to death. Leavitt sought relief under Federal Rule of Criminal Procedure 60(b), claiming ineffective assistance of counsel and requesting an order that evidence be sent to a lab for forensic testing. Leavitt appealed the district court's denial of his claims. The Ninth Circuit noted that it had already addressed many of Leavitt’s claims in earlier habeas corpus proceedings. The Court held that where the expert would have corroborated much of the prosecution’s expert testimony, an attorney’s strategic decision not to call an expert witness was not sufficient to show a “reasonable probability . . . [that] the result of the proceeding would have been different if not for the attorney’s errors." The Ninth Circuit also held that Leavitt failed to show good cause for his request that evidence be sent to a lab, because he had “not explained how the testing that he [sought] would substantiate his underlying claim that his trial counsel was ineffective in failing to obtain appropriate testimony from his serology expert.” AFFIRMED.