F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P A R R A K K A M A N N I L K O S H Y B I L J I V A R G H E S E , Petitioner-Appellant
,

v

.

D O M I N G O U R I B E , J R ., W arden; E D M U N D G. B R

O W N , J R

. , Respondents-Appellees

. N o. 11-55686

D.C. No. 3:09-cv-02801- W QH-W V G

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the Southern District of California W illiam Q. Hay es, District J udg e, Presiding

Arg ued and Submitted J anuary 8, 2013—Pasadena, California

F iled J une 26, 2013 Amended September 23, 2013

B efore: Alex Koz inski, Chief J udg e, M. Marg aret McKeown, and Milan D. Smith, J r., Circuit J udg es.

Order; O pinion by

J udg e Milan D. Smith, J r.V A R G H E S E V

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I B E 2

SUMMARY *

Habeas Corpus

The p anel affirmed the district c ourt’s denial of a 28 U.S.C. § 2254 habeas c o r pus p etition challeng ing a murder conviction.

Petitioner soug ht to test the remainder of a blood sample after the prosecution h ad conducted an initial DNA test, with

no oblig ation to reveal the test results to the prosecution. The panel held that the stat e t r i a l court’s compromise – to have either a neutral laboratory or the defense ex pert test the blood, but only if the results were m ade available to both parties

–
was neither contrary to nor an u nreasonable appli cation o f clearly established federal law.

COUNSEL

Todd W

. B urns (arg

u ed )
, B urns & Cohan, San Dieg o, California, for Petitioner-Appellant.

L y nne G. McGinnis (arg

ued), Deputy Attorney General; Kamala D. Harris, Attorney General o f Californi a ; J u lie L

. Garland, Senior Assist ant Attorney General; Kevin Vienna and Gil Gonz a lez
, Supervising Deputy Attorney s G en eral, Office of the A ttorney General, San Dieg o, C a l i f ornia, for Respondents-Appellees.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.V A R G H E S E V

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I B E 3

ORDER

The o p inion filed on J une 2 6, 2013, and a pp e a r ing at 720 F .3d 1100 (9th Cir. 2013), is amended as follows:

1. Slip op. at 10, 7 20 F .3d at 1 1 0 6
, replace <W here, as here, a state c o urt has no specific leg al r u l e to apply
, the state court’s decision “is not an unreasonable application of c learly established F ederal law.”> with <“[ I ]t is not an u n r e asonable application of clearly established F ederal l a w for a state court to decline to a p p l y a specific leg al ru l e that has not been

s quarely established” by the Supreme Court.>.

2. Slip op. at 11, 720 F .3d at 1107, following <“Government violates the rig ht to effective a ssistance when it i n terferes in certain way s w ith the a

bility o f counsel to make independent decisions about h ow to conduct the defense.” Id

. at 686.> a dd <“[ E] ven a g eneral standard may be applied in an unr e asonable manner,” Panetti v. Quarterman
, 551 U .S. 930, 953 (2007), b ut the California Court of Appeal did not unreasonably a

p ply Strickland a

nd its prog eny in a ffirming the trial court’s refusal to allow confidential defense testing of the blood sample.>.

3. Slip op. at 11, 7 2 0 F.3d at 1107, delete <articula t e more specific principles thanV A R G H E S E V

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I B E 4

those invoked by Varg hese—which, when

viewed in their factual circumstances,>.

4. Slip op. a t 11 n.2, 720 F .3d at 1 1 07 n.2, replace <it is not g ermane to our AEDPA analy sis.> with <it is not controlling h ere. M c C o r m i c k is “ re l e v a n t p e r s u a s i v e authority ,” H

imes
, 336 F

. 3 d at 853, but it adds little to Varg hese’s a rg u ment that the
stat e court’s decision was objectively unreasonable.>.

5. S l ip op. at 19, 720 F .3d at 1111, del e t e <The r ule es t a b lished in Simmons is inapposite because>.

An a mended opinion will be filed concurrently with this order.

W ith the amended opinion, the panel h a s u nanimously voted to deny the p etitions for panel rehearing and rehearing

en banc. The full court has been ad v ised of the petition for reheari n g en banc, and no judg e has r equested a vote on whether to rehear the matter en banc. F ed. R. App. P. 35.

The petitions for pane l rehearing and rehearing e n banc

are DENIED

.

No f urther petitions shall be entertained.V A R G H E S E V

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OP INION

M. SMI TH, Circuit J udg e :

Par a k kamannil Koshy B ilji V arg hese, a California state prisoner, appeals the district court’s denial of his p etition for

a writ of habeas c orpus under 28 U.S. C

. § 2254. A jury convicted Varg hese o f 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 b lood stain showed that i t m a tched Varg hese’s DNA. Varg hese requested the remaining blood sample to conduct a D N A test using his own ex pert, but without having t o d i s close the test results to the prosecution, even thoug h a second test would likely consume the remaining blood. The trial court denied Varg hese’s r eque s t and instead offered V arg hese the c hoice of having either an independ e n t laboratory or his own ex pert test the b lood, but only if the test results were made available to both parties. Varg hese’s counsel r efused the trial court’s proposal. Varg hese appealed,
arg uing
, among other thing s, that the t rial court’s ruling violated his rig ht to c ounsel. I n a r easoned d ecision, the California Court of Appeal affirmed the trial court.

On federal habeas review, Varg h ese claims that the trial court’s r uling reg arding the blood sample v i o l ated his constitutional rig hts to counsel and due process. B ecause, at the time the California Court of Appeal rendered its decision, there was no Supreme Court decision that squarely addressed Varg hese’s claim s , o r announced a principle that clearly

ex tended to the circumstances of this case, we h o l d that the
state c ourt’s decision was not “ c o n trary to” or an “unreasonable application” o f “ clearly established F ederal law” under 28 U.S.C. § 2254(d)(1). According ly
, we affirm.V A R G H E S E V

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F ACTS AND P R IOR P ROCEEDING

A. F actual Background 1

I n April 2003, Varg hese and his wi f e , V i lia Varg hese, separated. Varg hese was unhappy with the separation and did
not want a d ivorc e

. D uring this period, Vilia beg an a relationship with Haval Ravin, a phy sician who r an a fertility clinic.

On November 12, 2004, Ravin was found dead at his home, with multiple stab wounds to his b ody
, including to his

n eck, a bdomen, back, bicep, and testicles. Police officers found several inculpatory pieces o f ev idence at the crime
scene, including a sho e t h a t belong ed to Varg hese and a

ma t ching bloody shoeprint. A c ritical piece o f evidence for the prosecution was a blood spot (I tem 19) found near a lig ht switch at Ravin’s home. The prosecution’s initial DNA test and analy sis o f the blood spot, conduct ed by criminalist David Cornacchia of th e San Dieg o Police D epartment, F orensic Science Section, indicated that V arg hese was almost certainly the source of the DNA p r o f i le. The probability o f selecti n g a n individual, at r andom, who matched the DNA profile from this blood sample was in the quintillions.

B y p r e t rial motion, V arg hese requested a n order permitting his ex pert, Dr. Edwa r d B lake, to test the blood

1 T h e f actu al b ack g ro u

n d is prin cip ally d raw

n f ro m th e Calif

o rn ia Co u rt

o f A p p eal’ s decisio n in Peo

ple v. Va rg h ese , 7 6 Cal. Rp tr. 3 d 4 4 9 (Ct. A p p

. 2 0 0 8 ). In a h ab eas p ro ceed i n g , th e f in d in g s o f f

act m ad e b y th e state co u rt

are “ p resu m ed t o b e co rrect,” an d th e petitio n er carries th e b u rd en of reb u ttin g th at p resu m

p tio n b y “ clear an d co n v in cin g ev id en ce.” 2 8 U.S.C. § 2 2 5 4(e)(1 ).V A R G H E S E V

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I B E 7

sample, but with no o blig ation to reveal the test results to the prosecution. Varg hese c o nceded that a secon d test mig ht

consume the remaining blood. The p rosecution opposed the

mo t i on, stating that it wished to conduct further testing to corroborate its initial results, and would be u n able to d o so if Varg hese’s motion were g ranted. The prosecution sug g ested that either a n e u t r al laboratory ag reeable to b oth p arties o r Varg hese’s ex pert test the remaining blood, but only if both parties could access and introduce at trial the data and r esults of that test. The trial court f ound that there w a s a h i g h risk that additional testing would consume the remai n i n g blood,

an d c o ncluded that the p rosecution was entitled to corroborate its f i n d i n g s with reg ard to such an important piece o f evidence. Under the circumstances, the trial court determined that the prosecution’s proposed compromise was reasonable, and d enied Varg hese’s motion for the release of I te m 1 9 for confidential testing

. Varg hese f iled a motion for reconsideration, which the trial court d e n i e d. D u ring the second motion hearing
, the trial court reiterated that it would be willing to permit a neutral laboratory or the defense ex pert to test the blood, but only if the results we r e m a de available to both parties. The defense declined the court’s offer.

I n April 2 006, Varg hese was convicted by a jury of firstdeg ree murder, and u se o f a deadl y w e a pon, a knife, in the commission of the murder, in vio l a t i o n of California Penal Code §§ 187(a) and 12022(b)(1). He was sentenced to a prison term of 26 y ears to life. Varg hese appealed the conviction, arg uing
, inter alia
, th a t the trial court erred in conditioning the use of his o wn ex pert on his d isclosure of the
test results to the prosecution
, i n v i o lation of his rig h t to counsel u nder Prince v. Superior Court
, 10 Cal. Rptr. 2 d 855 (Ct. App. 1992). I n a re a s o n ed d ecision, issued on May 8, 2008, the California Court o f Appeal affirmed the trial court.V A R G H E S E V

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See Varghese
, 76 Cal

. R p t r. 3d at 454–58. The California Supreme Cour t s u m marily denied the petition for review. The U.S. Supreme Court subsequently denied Varg hese’s petition for a writ of certiorari. See Varghese v

. California
, 555 U.S. 1143 (2009).

B. Habeas P rocedural History

On December 10, 2 0 0 9
, Varg h ese filed a p e tition for a writ of habeas corpus in federal district court. V arg hese asserted that his Six th Amendment rig ht to co u n s e l a nd F ourtee n t h Amendment rig ht to due process were v iolated when the trial court conditioned the d efense’s testing of I tem 19 on its disclos u re of the results of that test to the prosecution. A mag istrate judg e recommended that Varg hese’s p etition be d enied under t h e Antiterrorism a nd Effective Death Pen a l t y Act of 1996 (AEDPA). The
mag istrate judg e concluded that, at the time Varg hese’s claim

was decided by the state appellate court, there was no U.S. Supreme Court authority that decided the precise issue o f “whether due process and the rig ht to c o u n sel are v iolated when a court orders that a criminal defendant be gr a n ted

access to test a sample of prosecution evi d e n ce that will destroy the evidence and then r equire[ s] the result of the test to be dis c l o s e d to the prosecution.” As such, the state court “cannot be said to h a v e unreasonably applied the law as to the issue presented in the Petition.” The mag istrate judg e f urther rejected Varg hese’s arg ument t h at the principles announced in Ake v. Oklahoma
, 470 U.S. 68 (1985)
, S t rickland v

. W ashington
, 466 U.S. 668 (1984), and Powel l v

. Alabama
, 287 U.S. 45 (1932), clearly ex tended to the iss u e s r a ised in the petition.V A R G H E S E V

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T h e d i s t r i ct c o u r t s u b s t a n t i a l l y a d o p t ed t h e

recomme n d a t i on o f the mag istrate judg e a nd denied the petition. Nevertheless, the d istrict court concluded that Varg hese raised “ nonfrivolous constitutional arg u ments” a nd
g ra n t ed a certificate of a ppealability

. See 28 U .S.C. § 2253(c); F ed. R. App. P. 22(b).

JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction under 28 U.S.C. §§ 1291 a nd 2253(a). A district court’s d enial o f a p e t ition for a writ o f habeas corpus is reviewed de novo, Lopez v. T hompson
, 202 F .3d 1110, 1116 (9th Cir. 20 0 0 ) (e n b anc), and we may affirm on any g ro u n d supported by the record, Holley v

. Y a rborough , 568 F

. 3 d

1091, 1098 (9th Cir. 2009).

F ederal courts are authoriz ed to g rant habeas corpus relief
to persons in state c u stody under 28 U.S

. C

. § 2254, a s amended by AEDPA, Pub. L

. No. 104-132, 110 Stat

. 1 2 1 4

. AEDPA controls this case because Varg hese filed his h abeas petition in 2009, after that statute b e came e ffective. See Lindh v. Murphy
, 521 U.S. 320, 326–27 (1997)

. U n d e r AEDPA, Varg hese can prevail on his habeas petition only if he shows the state court’s decision (1) “resulted in a decision that w as c ontrary to, o r involved an u nreasonable a pplication of, clearly established F ederal law, as deter m ined by the Supreme Court of the United States” or (2) “re s u l t e d in a decision that was based on an unreasonable determination o f the facts in lig ht of the evidence presented in the State court proceeding

. ” 28 U.S.C. § 2254(d).

Varg hese relies on the “unreasonable application” clause of section 2254(d)(1). A decision involves an “unreasonable application” o f federal law if it ( i ) “correctly identifies theV A R G H E S E V

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go v erning r

ule but unreasonably applies it to a new set o f facts” or (ii) “fails to ex tend a c l early established leg al
p r inciple to a new contex t in a way that is unreasonabl e

. ” Himes v. Thompson
, 336 F .3d 848, 8 52 (9th Cir. 2003). The application must be more than incorrect or erroneous; it must be “objectively unreasonable.” Lockyer v. Andrade
, 5 3 8 U.S. 63, 75 ( 2003). “Althoug h o nly Supreme Court law is binding

on the s t a t e s , our Circuit precedent r emains relevant persuasive authority in determining w hether a state court decision is o bjectively unreasonable.” Himes
, 3 3 6 F .3d at 853.

AEDPA’s “hig hly d eferential standard,” Lindh
, 521 U.S.
at 333 n.7, “stops short of imposing a complete bar on federal
court relitig ation of claims already rejected in state proceeding s,” Harrington v. Ri c hter
, 131 S. Ct. 770, 786 (2011). W e a

re required to affirm the d enial of V a rg hese’s habeas petition unless the state cour t ’ s decision was “so lacking in justification that there w as an e rror w ell u nderstood and comprehended in ex isting law bey o nd any possibility for fairminded disag reement.” Richter
, 1 31 S

. C t

. at 786–87. Varg hese bears the b urden of proof i n this appeal, and the
state court decision must be accorded the benefit of the doubt. W oodford v. Visciotti
, 537 U .S. 19, 24–25 (200 2 ) ( per

c u r i a m). State court decisions are measured ag ainst the Supreme Court’s precedent “as of the time the s t ate court renders its decision.” Cullen v. Pinholster
, 131 S. Ct. 1388, 1399 (2011) (citation and quotes omitted). W e r e view the last reasoned state court decision, Musladin v. L a ma rque , 555 F .3d 8 3 0
, 8 3 4

– 35 (9th Cir. 2009), w hich in this case is the California Court of Appeal’s May 2008 opinion.V A R G H E S E V

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D ISCUSSION

Under AEDPA, we must defer to the sta t e court’s decision if a Supreme Court d e c i s i o n fails to ( i) “squarely address the issue in the c as e ” or (ii) “establish a leg al principle that c learly e x tends to a new contex t to the ex tent required by the Supreme Co u r t

. ” M oses v. Payne
, 555 F .3d 742, 754 (9th Cir. 2009) (alterations and quotes omitted). I f

a Supreme C o urt’s decision p rovides “a controlling leg al standard” that is applicable to the p etitioner’s claim “without tailoring or modification of t h e s tandard,” then the nex t inquiry is to decide “whether the application of that standard was objectively

unreasonable, even if the facts o f the case at issue are n ot identical to the Supreme Court precedent,” Moses
, 5 55 F .3d at 754 (citation a n d quotes omitted). “[ E] valuating whether a rule applic ation was unreasonable requires considering the rule’s specificity

. The more g eneral the rule, the more leeway courts have in r e a c hing o utcomes in case-by -case determinations.” Y arb o r o u g h v. A lvarado
, 541 U.S. 652, 664 (2004); accord Richter
, 131 S. Ct. a t 786.

Here, Varg h e se arg ues that the trial court’s ruling
reg arding the testing o f the blood sample violated his constitutional rig hts to counsel and due process. I n challeng ing the California Court of Appeal’s decision under AEDPA, Varg hese must identify either a Supreme Court decisio n t hat “squarely addresses” his claim, or a leg al principle, as e s t a b lished by a Supreme Court decision, that

“ c l e a rly ex tends” to the c ircumstances of this case. Mos e s , 555 F .3d at 754. Varg hese fails to do either.V A R G H E S E V

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A. S uprem e Court Decision Squarely Addressin g Claim

The district court properly r ecog n iz ed that there is n o U.S. Supreme Court authority that squarely addresses Varg hese’s claim—namely
, that a c riminal d efendant’s rig hts 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 d i sclosure of the test results to the prosecution. “[ I ] t is not a n u n reasonable application o f clearly established F ederal law for a state court to decline to

a p p ly a specific leg a l rule that has not been square l y established” by the Supreme Court. Knowles v. M irzayance
, 556 U.S. 111, 122 (2009) (citations and quotes omitted); see also Carey v. Musladin , 549 U.S. 70, 77 (2006) (“Given the lack o f holding s from this Court

. . . it c a nnot be said that the

s t ate court u nreasonably applied clearly established F ede ra l law.” (citation and brackets omitted)).

B. Interf

erence w ith Ef

f e ctive Assistance of

Counsel

I n the a bse n ce o f a Supreme Court decision squarely addressing Varg hese’s c laim, we nex t c o nsider whether Varg hese has identified a n established principle that “ clearly

ex tends” to the circumstances of this case. Moses , 555 F .3d at 754.

Varg hese invokes a cluster of broad principles related to the rig hts to counsel and due process

. Under the Six th Amendment, the accused in a criminal proceeding is entitled “to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI

. The S upreme Court has long recog niz ed
t h a t “the Six th Amendment rig ht to counsel ex ists, a n d i s needed, in order to protect the fundamental rig ht to a f airV A R G H E S E V

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trial.” Strickla n d v. W

a shington
, 466 U.S. 6 68, 684 (1984). “Government v iolates the rig ht to e f f e c tive assistance when it inte r f e r e s in certain way s with the a bility of counsel to make independent decisions about how to conduct the defense.” Id. at 686. “[ E ] ven a g eneral standard may be applied in an unreasonable manner,” Panetti v. Quarterman
, 551 U .S. 930, 9 53 (2007), but the California Court of Appeal did no t unreasonably a

p ply S trickland and its p rog eny in affirming the trial court’s r e f usal to allow confidential defense testing

of the blood sample.

Varg hese arg ues that a c ore a spect of the rig ht to effective assistance of counsel is that counsel be permitted to undertake reasonable investig ations, w hich includes the rig ht to employ

ex p erts for that p u r

p o s e, f ree f rom state or judicial interference. According to Varg hes e, the attorney -client privileg e and the work-product doctr ine are essential components of the attorney ’s ability t o provide effective representation. See Hickman v. Taylor
, 329 U.S. 495, 510–11 ( 1 9 4 7 ) (“In p erforming his v arious duties

. . . it is e ssential that a lawy er w ork with a certain deg ree of privacy
, free from
unnecessary intrusion by o pposing parties a nd their counsel.”). Varg hese contends that h is rig hts to counsel a nd 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 [ i ng ] that defense counsel
g ive up a most b asic protection of the attorney -client relationship.” As support for the s e principles, Varg hese relies primarily on two Supreme Court decisions, Ake v. Oklahoma
, 470 U .S. 68 (1985), and United S tates v. Nobles
, 4 2 2 U .S.V A R G H E S E V

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225 ( 1975). 2 However, Ake a nd Nobles do not clearly ex tend
to the present contex t, Moses
, 555 F .3d at 754, such that the
state appellate court’s failure to e x tend those principles to this

case was not objectively unreasonable, Himes
, 336 F .3d at 852; Lockyer , 538 U.S. at 75.

1. Ake v. Oklahom a

I n A ke
, defense counsel informed the trial court that he planned to raise a

n insanity d efense and asked that the court either ar r a ng e or pay for a psy chiatric ex amination for his client, a n indig ent. 470 U.S. a t 7 2

. The court refused, effectively precluding defense counsel from presenting any evidence reg arding defen d a n t’s sanity at the time of the offense. Id. The Supreme Court concluded that this rendered the trial fundamentally u nf a i r , and held that “when a defendant d emonstrates to the trial judg e that h is sanity at the time of the offense is to be a sig nificant factor a t trial, the State must, at a minimum, assure the de f e n d a n t access to a

c o m petent psy chiatrist who will conduct an appropriate

ex a mination and assist in evaluation, preparation, a nd presentation of the defense.” Id. at 83.

A ke d oes not clearly e x tend to Varg h ese’s constitution al claim. Ake held that the state m u s t i n some circumstances

2 Du rin g o ral arg u m en t , Varg h ese’ s co u n s el id en tif

ied Ake an d No bles

as th e tw o s tro n g est Su

p rem e Co u rt cases su

p p o rtin g Varg h ese’ s p ositio n

. Varg h ese f

u rth er relies o n S

mith v. McCo rmick , 9 1 4 F.2 d 1 1 5 3 (9 th Cir. 1 9 9 0 ). Bu t b ecau se McCo rmick
, a circu it case, is n o t clearly estab lish ed Su p rem e Co u rt p reced en t, it is n ot co n tro l lin g h ere. McCo rmick is

“ relev an t p ersu asiv e au th ority ,” Himes
, 3 3 6 F.3 d at 8 5 3
, b u t it ad d s little
to V arg h ese’ s arg u m en t th at th e state co u rt’ s d ecisio n w as o b j e ctiv ely

u n reaso n ab le. O n ap p eal, V ar g h e s e do es n o t ren ew h is arg u m en t th at Po well v. Ala ba ma clearly ex t en d s to th is case.V A R G H E S E V

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provide indig ent d e f

e n dants with access to a particular kind of ex pert, a psy chiatrist, to ensure fundamental fairness at t r i al. Varg hese neither asserts that he was indig ent, n o r claims that he asked the state to p rovide a psy chiatrist o r any other kind of e x pert to assist in the preparation of his defense. H e h ad, in fact, retained his o wn DNA ex pert, Dr. B lake. Even if this ex p ert was unable to conduct a confidential DNA test, he c ould help defense counsel evaluate the methodolog y used by the state’s lab, decide w hether to attack it at trial, a nd
prepare for cross-ex amination of t h e state’s lab technician. See Uni ted States v

. Chischilly
, 30 F .3d 1144, 1152–53 (9th Cir. 1994); cf. Ake
, 470 U.S. at 81. T his is simply not a c ase,

as was Ake
, where the defendant lacked “the raw materials integ ral to the building o f an effective defense.” Ake
, 470 U.S. at 77.

Second, Ake did not concern ex per t testing o f phy sical evidence, much less testing that w ould c onsume a vanishing quantity of such evidence. Ake thus provided the state court with no g u idance on how to balance the defendant’s interest in conducting his own DNA test w ith t h e state’s leg itimate interest in corroborating its initial results. Even if we accept Varg hese’s arg ument that A ke acknowledg es the importance of ex pert assistance g enera l l y —as o p posed to the assistance of psy chiatric e x p e r

ts in particular—that case simply did not involve the tradeoffs at stake here.

Varg hese contends that the state’s interest in a d d itional testing is weak because (1) it alre a dy had a reliable test a nd (2) Varg hese ag r e e d not to challeng e the state’s blood evidence if his own testing confirmed the state’s results. B ut the state, which has to pr ove its case bey ond a reasonable d o u bt, has an interest in bulletproofing its evidence that th e blood recovered from the crime scene belong ed to Varg hese.V A R G H E S E V

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See J ohn D evlin, G e n etics and Justice: An Indigent Defendant’s R ight to DNA Expert Assistance
, 1 9 9 8 U. Chi. L eg al F

. 395, 407 (1998) (noting the prosecutor ordered multiple tests of the D NA evidence in the O.J

. Simpson trial). N othing in Ake sug g ests that, where phy sical evidence i s concerned, a defendant’s interest in confidential testing trumps the state’s interest in confirming its results.

2. United States v. Nobles

I n Nobles
, the defense soug h t to im p e a ch the
p r osecution’s key witnesses using statements a defen s e i n v e s t i g ator obtained f

rom the witnesses. 422 U.S. at 227. The issue b efore the Supreme Cour t was whether, under the circumstances, a federal trial court could compel the defense
to r eveal the relevant portions of the investig ator’s report for the p r o secution’s use in cross-ex amining the investig ator. Id. The defense arg ued, inter alia
, that the work-product doctrine

ex e mpted the investig ator’s report from disclosure at trial. Id.
at 2 3 6. The Nobles Court concluded that because the defense had voluntarily elected to present the invest i g a tor as a witness, the defense had waived the privileg e w ith r espect to matters covered in the investig ator’s testimony

. I d

. at 239–40.

I nvoking the principle s in Nobles
, Varg h ese arg ues that by conditioning th e defense’s access to the blood sample on disclosure of the test results, the trial court c o m pelled surrender of his attorney ’ s privileg e s a n d therefore v iolated his rig ht to effective assistance of counsel. W e n o te that the Supreme Court developed the work p roduct doctrine to shield counsel’s private memoranda fr o m the liberal discovery permitted b y the F ederal Rules of Civil Procedure. The Court
gr o unded the doctrine not in the Constitution, but on t h eV A R G H E S E V

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assumption that the drafters o f the F ederal Rules did not seek
to alter “th e h istorical and the necessary way in which lawy ers act within the fra m ew ork of our sy stem o f jurisprudenc e to promote justice and to protect their c lients’ interests.” Hickman
, 329 U. S

. at 511; see also J eff A

. Anderson et al., The W

ork P r o d u ct Doctrine
, 68 Cornell L

. Rev

. 760, 765–79 (1983). T he doctrine g overns discovery and discl osure in federal cases, both civil and criminal, a nd it cannot support a state prisoner’s habeas claim a n y m ore than a violation of the F e deral Rules of Evidence could.

B u t the Nobles Court also considered, i n a footnote, whether the forced disclosure o f the investiga t o r ’s report violated the Six th Amendment rig ht to counsel. As Varg hese does here, the def

e n d a n t in Nobles arg ued that such a d i s c l o s u r e wa s u n c o n s t i t u t i o n a l b e c a u s e i t w o u l d “compromise counsel’s ability to investig ate and prepare the defense case thoroug hly .” Nobles
, 422 U.S. at 240 n.15. The Court rejected this claim, invoking notions of waiver. Once the defendant made a “voluntary e lection” to present the investig ator’s r eport at trial, he could no l o n ger hide behind the attorney -client relationship to shield this i n f o r m ation from the prosecution. Id.

This constitutional holding does not clearly ex tend to the circumstances of Varg

h ese’s case. Nobles decided only that the Six th Amendment does n ot prohibit the disc losure of a defense investig ator’s report, containing his distillation o f witness interviews, when the defendant calls the investig ator t o testify at trial. The case does not address w h et h e r a defendant may withhold e x pert materials of a wholly different kind—scientific test results—if the defendant decides not to

u s e t h o se results at trial. A reasonable jurist mig ht well conclude that d isclosure of an ex p ert’s test results is less of anV A R G H E S E V

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intrusion o n the attorney -client relationship than disclosure o f the ex pert’s subjective impressions or mental processes would be.

This is especially true in V arg hese’s case, where the state trial court

did not order the reports or observations of the

ex p ert b e turned over to the p rosecution. I t ordered on l y t he result of the test to be revealed. I n d o ing so, the c ourt g ranted the defendant the rig ht to test the results and keep all of its work product a nd r eports

c o nfidential. At the same time it foreclo s e d the p os s i b i lity that a test result matching that of t he prosecution’s ex pert would be destroy ed and the People left withou t t he ability to c o rroborate its f i n ding s if the defense were to c h a lleng e a t trial the prosecution ex pert.

Varghese
, 76 Cal. Rptr. 3d a t 458. A l aboratory ’s “bottom line result of the test,” i d

. a t 4 57, which would presumably include DNA quantification data, is n ot substa n tially equivalent to the ex pert’s “mental p rocesses,” Nobles
, 422 U.S. at 238, a s it may be reflected in the e x pert’s reports, observa t i ons, impressions, or communications made in the assistance of the defense.

I n response, Varg hese a

rg ues that the California Court o f Appeal’s notion that the trial court ordered that only the test results be disclosed is “factually w rong .” Under AEDPA, the
state court’s f

ac t u a l determinations, including the appellate court’s interpretation of what the trial court actually ordered,V A R G H E S E V

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are “presumed to b e correct,” unless re b u tted by “ clear a nd convincing ev i d e n ce.” 28 U.S.C. § 2254(e)(1); see also Hernandez v. S

mall
, 282 F .3d 1132, 1135 n.1 (9th Cir. 2002). Varg hese does n ot satis f y t h is burden because he fails to provide clear and c onvincing evide n c e f rom the record available to the appellate court that the trial court ordered
any thing bey o nd t h e t e s t results. Varg h ese’s citation to the prosecution’s request that both parties be allowed “to access and introduce in full at trial all o f the data an d t e s t i n g conducte d on those items” does n ot sug g est that the prosecution requested full a ccess to the ex pert ’ s r eports, observations, or to an y c onfidential materials involving the

ex p ert. As t h e S u preme Court noted with respect to the d e f ense in Nobles
, Varg hese “fails to recog niz e the limit e d and conditional nature of the court’s o rder.” Nobles
, 422 U.S.
at 240 n.15. The trial cour t in this case did not authoriz e a

“ general fishing ex pedition into the defense files or ind e e d

even into the defense [ ex pert’s] report.” Id. at 240 (citation and q uotes o mitted). I ndeed, the trial c o u r t r ejected the defense’s arg ument that if it adopted the prose c u t i o n’s proposed compromise, it “somehow opens the door to allow the People to g o a fter any thing a bove and b e y o n d the test results w ith Dr. B lake, to i n v ade that a ttorney -client ex pert situation.” The trial court inter p reted the prosecution’s proposed c ompromi s e a s being confined to its ability to “retest” and “verify a

nd validate” its first test. The defense averred that it wanted the remainder o f the bl o o d s am ple, without “ag ree[ ing ] that the People would have access to the results of Mr. B lake’s analy sis.” (emphasis added). Ultimately
, the trial court required V arg hese to disclose the
test r e s ults if he opted to use his own ex pert, and nothing

more. See T r. Mot. Pr o ceeding s (J uly 1, 2005), at 62–63 (“W e’re talking about v erification of the results of the initial

ex a mination.”); id. at 65–66 (“I ’ m w illing to issue an orderV A R G H E S E V

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allowing Dr. B lak e t o t e s t [ the blood sample] as long as the results are available to every body .”). 3

I n sum, the trial court sanctioned a compromise that was confined to the purpose o f co r r o borating the results of the first DNA test, and w as a respon s e t o the limited blood

sam p l e a v a i lable to both sides. This was an ex ercise o f discretion that was n ot o bjectively unreasonable u n d er the circumstances
, and is consistent with the purpose animating the rig ht to effective assistance o f c ounsel, wh i c h is “to

ensure a fair trial.” Strickland
, 466 U.S. at 68 6

. A l t h o ug h reasonable jurists may d isag ree as to whether this was an abuse of the trial court’s discretion, the standard under AEDPA req u ires u s to defer to the appellate court’s determination that it was n o t i n the absence of contrary Supreme Court authority

.

3 Varg h ese f

u rth er su g g ests th at th e ap p ellat e co u rt’ s d ecisio n w as

u n reaso n ab le b ecau se th e d ef en se o f f ered a stip u latio n d u rin g h i s m o tio n h earin g th at ob v iated an y n eed f or th e p ro secu tio n to co n d u ct a seco n d test

o f th e b lo o d s am

p le. Sp ecif

ically
, Varg h ese arg u es th at th e d ef en se stated th at if h e w ere allo w ed to p erf o rm co n f id en tial testin g u sin g h is o w n

ex p ert, D r. B lak e, th en d ep en d in g o n th e test r e s u l t s, h e w o u ld eith er (i) call Dr. B lak e to testif

y an d h i s test resu lts w o u ld b e p u t in to ev id en ce, or (ii) “ th e d ef

en se w o u ld n ot call an ex p ert an d th en th e P eo p le’ s ev id en ce

w o u ld g o essen tially u n ch allen g ed .” H o w ev er, Varg h ese’ s arg u m en t is n o t teth ered to an y relev an t Su prem e Co u

rt case an d th u s is n o t relev an t to ou r A EDP A an aly sis. Mo reo v er, an o f f er n o t to call a DNA ex

p ert b y th e d ef en se d o es n o t g u aran tee th at th e p ro secu t io n ’ s DNA t est resu lts w ou ld
g o f u lly u n ch allen g ed b ecau se, f o r ex am p le, Mr. Co rn acch ia’ s cred ib ility

m i g h t b e attack ed
, in w h ich case h is testim o n y v alid atin g t h e p ro secu tio n ’ s f

irst test co u ld b e u n d erm in ed

. A co rro b o ratin g test o n th e

rem ain i n g b l o o d s am

p le w o u l d th en b e cru cial in b o lsterin g th e resu lts of th e p ro secu tio n ’ s in itial DNA test. Si n c e t h e b lo o d sam p le w as th e p ro secu tio n ’ s ev id en ce, th e p ro secu tio n w as en titled to ren d er a k ey p i ece

o f ev id en ce h ig h ly c r e d i b l e by o b tain in g co rro b o ratin g resu lts f ro m a

seco n d test.V A R G H E S E V

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C. Choosing betw een Tw o Constitutional Rights

Varg hese further relies on Simmons v. United States
, 390 U.S. 377 (1968), f or the principle that it is unconstitutional to force a defendant to choose between two rig hts. I n Simmons
, the criminal defendant challeng ed the constitutionality of the trial court’s admission of h is motionto-suppre s s testimony on the issue of his g uilt. 390 U.S. at 389. The C o urt h eld that “when a defendant testifies in

su p p ort of a motion to suppress evidence o n F ourth Amendment g rounds, his testimony may not ther e a f t e r be admitted ag ainst him at trial on the issue o f guilt unless he

m a k e s n o objection.” Id. at 394. The Court reasoned that, gi v e n the defendant’s situation, the defendant “was oblige d either to g ive up what he believed, w ith the advice of counsel,
to b e a v alid F ourth Amendment claim or, in leg al effect, to waive his F ifth A me n d m ent p rivileg e ag ainst selfincrimination.” Id. T he Court noted th a t “[ i] n these circumstances, we find it intolerable that one constit utional rig ht should have to be surrendered in order to assert another.” Id.

Varg hese’s constituti o nal claim does not implicate his F ourth Amendment privileg e ag ainst u nreasonable search e s and seiz ures o r h i s Fi f

th Amendment rig ht a g ainst selfincrimination. Varg hese’s claim concerns his rig ht to access and test limited evidence u sing his own ex pert, without disclosing the tests results to the prosecution. Nevertheless,

a b s t racting the g eneral principle that a defendant cannot b e forced to choose b e t w e e n two constitutional r ig hts, id.
, Varg hese arg ues that the state impermissibly soug ht to force him to choose between t h e “rig ht to have defense counsel conduct a reasonable investig ation” and the “rig ht to maintain the d eg ree of privacy in defense counsel’s representation thatV A R G H E S E V

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is essential to effective representat i o n .” Even were we to accept Varg

hese’s contention that Simmons establishes such

a broad rule, there is no merit to h is arg ument because he was not foreclosed from using his own ex pert in testing the blood sample or in developinghis defense.

CONCLUSION

The Supreme Court has not squarely addressed Varg hese’s claim or articulated a rule that clearly ex tends to the present case. Moses
, 555 F .3d at 754. The C alifornia Cour t o f A ppeal’s decision therefore cannot be said to have unreasonably applied clearly established fede r al law under AEDPA. Himes , 336 F .3d at 852. According ly
, we defer to the state court, and affirm the district court.

AF F IRMED.