FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PARRAKKAMANNIL KOSHY BILJI

VARGHESE,

Petitioner-Appellant,

v.

DOMINGO URIBE, JR., Warden;

EDMUND G. BROWN, JR.,

Respondents-Appellees.

No. 11-55686

D.C. No.

3:09-cv-02801-

WQH-WVG

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted

January 8, 2013—Pasadena, California

Filed June 26, 2013

Amended September 23, 2013

Before: Alex Kozinski, Chief Judge, M. Margaret

McKeown, and Milan D. Smith, Jr., Circuit Judges.

Order;

Opinion by Judge Milan D. Smith, Jr.
2 VARGHESE V. URIBE

SUMMARY*

Habeas Corpus

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.

COUNSEL

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.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
VARGHESE V. URIBE 3

ORDER

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
4 VARGHESE V. URIBE

those invoked byVarghese—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 on

whether to rehear the matter en banc. Fed. R. App. P. 35. 

The petitions for panel rehearing and rehearing en banc

are DENIED.

No further petitions shall be entertained.
VARGHESE V. URIBE 5

OPINION

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

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.
6 VARGHESE V. URIBE

FACTS AND PRIOR PROCEEDING

A. Factual Background1

In April 2003, Varghese and his wife, Vilia Varghese,

separated. Varghese was unhappywith 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

1 The factual background is principally drawn from the California Court

of Appeal’s decision in People v. Varghese, 76Cal. Rptr. 3d 449 (Ct. App.

2008). In a habeas proceeding, the findings of fact made by the state court

are “presumed to be correct,” and the petitioner carries the burden of

rebutting that presumption by “clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1).
VARGHESE V. URIBE 7

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 firstdegree 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, 10 Cal. Rptr. 2d 855

(Ct. App. 1992). In a reasoned decision, issued on May 8,

2008, the California Court of Appeal affirmed the trial court. 
8 VARGHESE V. URIBE

See Varghese, 76 Cal. Rptr. 3d at 454–58. The California

Supreme Court summarily denied the petition for review. 

The U.S. Supreme Court subsequently denied Varghese’s

petition for a writ of certiorari. See Varghese v. California,

555 U.S. 1143 (2009).

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, 466 U.S. 668 (1984), and Powell v. Alabama,

287 U.S. 45 (1932), clearly extended to the issues raised in

the petition.
VARGHESE V. URIBE 9

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

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,

202 F.3d 1110, 1116 (9th Cir. 2000) (en banc), and we may

affirm on any ground supported by the record, Holley v.

Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009).

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
10 VARGHESE V. URIBE

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, 336 F.3d 848, 852 (9th Cir. 2003). The

application must be more than incorrect or erroneous; it must

be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S.

63, 75 (2003). “Although only Supreme Court law is binding

on the states, our Circuit precedent remains relevant

persuasive authority in determining whether a state court

decision is objectively unreasonable.” Himes, 336 F.3d at

853.

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. 

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, 131 S. Ct. 1388,

1399 (2011) (citation and quotes omitted). We review the

last reasoned state court decision, Musladin v. Lamarque,

555 F.3d 830, 834–35 (9th Cir. 2009), which in this case is

the California Court of Appeal’s May 2008 opinion.
VARGHESE V. URIBE 11

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,

541 U.S. 652, 664 (2004); accord Richter, 131 S. Ct. at 786.

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,

555 F.3d at 754. Varghese fails to do either.
12 VARGHESE V. URIBE

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. “[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. Knowles v. Mirzayance,

556 U.S. 111, 122 (2009) (citations and quotes omitted); see

also Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the

lack of holdings from this Court . . . it cannot be said that the

state court unreasonably applied clearly established Federal

law.” (citation and brackets omitted)).

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
VARGHESE V. URIBE 13

trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984). 

“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. “[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.

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, 329 U.S. 495, 510–11

(1947) (“In performing his various duties . . . it is essential

that a lawyer work with a certain degree of privacy, free from

unnecessary intrusion by opposing parties and their

counsel.”). Varghese contends that his rights to counsel and

due process were violated when the trial court conditioned his

access to the blood sample on his disclosing the test results to

the prosecution, thereby “requir[ing] that defense counsel

give up a most basic protection of the attorney-client

relationship.” As support for these principles, Varghese relies

primarily on two Supreme Court decisions, Ake v. Oklahoma,

470 U.S. 68 (1985), and United States v. Nobles, 422 U.S.
14 VARGHESE V. URIBE

225 (1975).2 However, Ake and Nobles do not clearly extend

to the present context, Moses, 555 F.3d at 754, such that the

state appellate court’s failure to extend those principles to this

case was not objectively unreasonable, Himes, 336 F.3d at

852; Lockyer, 538 U.S. at 75.

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,

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

2 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, 914 F.2d 1153 (9th Cir.

1990). But because McCormick, a circuit case, is not clearly established

Supreme Court precedent, 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. On appeal, Varghese does not renew his argument that

Powell v. Alabama clearly extends to this case.
VARGHESE V. URIBE 15

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, 30 F.3d 1144, 1152–53 (9th

Cir. 1994); cf. Ake, 470 U.S. at 81. This is simply not a case,

as was Ake, where the defendant lacked “the raw materials

integral to the building of an effective defense.” Ake,

470 U.S. at 77.

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. 
16 VARGHESE V. URIBE

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. 422 U.S. at 227. 

The issue before the Supreme Court was whether, under the

circumstances, a federal trial court could compel the defense

to reveal the relevant portions of the investigator’s report for

the prosecution’s use in cross-examining the investigator. Id.

The defense argued, inter alia, that the work-product doctrine

exempted the investigator’s report from disclosure at trial. Id.

at 236. The Nobles Court concluded that because the defense

had voluntarily elected to present the investigator as a

witness, the defense had waived the privilege with respect to

matters covered in the investigator’s testimony. Id. at

239–40.

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
VARGHESE V. URIBE 17

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

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, 422 U.S. at 240 n.15. The

Court rejected this claim, invoking notions of waiver. Once

the defendant made a “voluntary election” to present the

investigator’s report at trial, he could no longer hide behind

the attorney-client relationship to shield this information from

the prosecution. Id.

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 maywithhold expert materials of a whollydifferent

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
18 VARGHESE V. URIBE

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

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, 76 Cal. Rptr. 3d at 458. A laboratory’s “bottom

line result of the test,” id. at 457, which would presumably

include DNA quantification data, is not substantially

equivalent to the expert’s “mental processes,” Nobles,

422 U.S. at 238, as it may be reflected in the expert’s reports,

observations, impressions, or communications made in the

assistance of the defense.

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 “factuallywrong.” Under AEDPA, the

state court’s factual determinations, including the appellate

court’s interpretation of what the trial court actually ordered,
VARGHESE V. URIBE 19

are “presumed to be correct,” unless rebutted by “clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1); see also

Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir. 2002). 

Varghese does not satisfy this burden because he fails to

provide clear and convincing evidence from the record

available to the appellate court that the trial court ordered

anything beyond the test results. Varghese’s citation to the

prosecution’s request that both parties be allowed “to access

and introduce in full at trial all of the data and testing

conducted on those items” does not suggest that the

prosecution requested full access to the expert’s reports,

observations, or to any confidential materials involving the

expert. As the Supreme Court noted with respect to the

defense in Nobles, Varghese “fails to recognize the limited

and conditional nature of the court’s order.” Nobles, 422 U.S.

at 240 n.15. The trial court in this case did not authorize a

“general fishing expedition into the defense files or indeed

even into the defense [expert’s] report.” Id. at 240 (citation

and quotes omitted). Indeed, the trial court rejected the

defense’s argument that if it adopted the prosecution’s

proposed compromise, it “somehow opens the door to allow

the People to go after anything above and beyond the test

results with Dr. Blake, to invade that attorney-client expert

situation.” The trial court interpreted the prosecution’s

proposed compromise as being confined to its ability to

“retest” and “verify and validate” its first test. The defense

averred that it wanted the remainder of the blood sample,

without “agree[ing] that the People would have access to the

results of Mr. Blake’s analysis.” (emphasis added). 

Ultimately, the trial court required Varghese to disclose the

test results if he opted to use his own expert, and nothing

more. See Tr. Mot. Proceedings (July 1, 2005), at 62–63

(“We’re talking about verification of the results of the initial

examination.”); id. at 65–66 (“I’m willing to issue an order
20 VARGHESE V. URIBE

allowing Dr. Blake to test [the blood sample] as long as the

results are available to everybody.”).3

In sum, the trial court sanctioned a compromise that was

confined to the purpose of corroborating the results of the

first DNA test, and was a response to the limited blood

sample available to both sides. This was an exercise of

discretion that was not objectively unreasonable under the

circumstances, and is consistent with the purpose animating

the right to effective assistance of counsel, which is “to

ensure a fair trial.” Strickland, 466 U.S. at 686. Although

reasonable jurists may disagree as to whether this was an

abuse of the trial court’s discretion, the standard under

AEDPA requires us to defer to the appellate court’s

determination that it was not in the absence of contrary

Supreme Court authority.

3 Varghese further suggests that the appellate court’s decision was

unreasonable because the defense offered a stipulation during his motion

hearing that obviated any need for the prosecution to conduct a second test

of the blood sample. Specifically, Varghese argues that the defense stated

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 essentiallyunchallenged.” 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

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.
VARGHESE V. URIBE 21

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

rights. In Simmons, the criminal defendant challenged the

constitutionality of the trial court’s admission of his motionto-suppress testimony on the issue of his guilt. 390 U.S. at

389. The Court held that “when a defendant testifies in

support of a motion to suppress evidence on Fourth

Amendment grounds, his testimony may not thereafter be

admitted against him at trial on the issue of guilt unless he

makes no objection.” Id. at 394. The Court reasoned that,

given the defendant’s situation, the defendant “was obliged

either to give up what he believed, with the advice of counsel,

to be a valid Fourth Amendment claim or, in legal effect, to

waive his Fifth Amendment privilege against selfincrimination.” Id. The Court noted that “[i]n these

circumstances, we find it intolerable that one constitutional

right should have to be surrendered in order to assert

another.” Id.

Varghese’s constitutional claim does not implicate his

Fourth Amendment privilege against unreasonable searches

and seizures or his Fifth Amendment right against selfincrimination. 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
22 VARGHESE V. URIBE

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, 555 F.3d at 754. The California

Court of Appeal’s decision therefore cannot be said to have

unreasonably applied clearly established federal law under

AEDPA. Himes, 336 F.3d at 852. Accordingly, we defer to

the state court, and affirm the district court.

AFFIRMED.