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FILED NOT FOR PUBLICATION JUN 13 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT NICK BRADLEY MENNICK, No. 09-35506 Petitioner - Appellant, D.C. No. 1:07-cv-00023-LMB v. MEMORANDUM * JEFF ZMUDA, Respondent - Appellee. Appeal from the United States District Court for the District of Idaho Larry M. Boyle, Magistrate Judge, Presiding Argued and Submitted June 7, 2011 Seattle, Washington Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges. Idaho state inmate Nick Mennick appeals the district court’s denial of his 28 U.S.C.§ 2254 habeas corpus petition challenging his jury conviction for aggravated battery. The trial court denied his pro se motion for an independent medical expert * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. to help him evaluate the medical tests on which the victim’s attending physicians relied to testify that the injuries sustained were serious and consistent with battery. The Idaho Court of Appeals assumed for purposes of its decision that an indigent criminal defendant’s right to expert assistance as set forth in Ake v. Oklahoma,
470 U.S. 68(1985), applies to medical experts, but found the Ake claim meritless. The state court explained that the State presented uncontroverted testimony that Mennick exerted great force on the victim’s body; indeed Mennick conceded that he punched and kicked the man. The State introduced photographs showing the victim’s bloodied and lacerated head. Then an objective doctor – the treating physician, not an expert retained by the State – described three different kinds of bleeding in the victim’s brain. The jury learned that treating emergency room physicians had believed the victim’s injuries were severe enough to warrant transfer to a facility better equipped to cope with serious brain trauma, and doctors opined that the injuries could have been life threatening, both individually and in the aggregate. It is extremely unlikely that an independent medical expert could have helped Mennick rebut the objective evidence that the victim suffered brain trauma or the straightforward medical diagnoses of the victim’s treating physician. We agree that the probable value of expert assistance in this case was minimal and that the risk of error in the trial outcome by declining to appoint an expert was negligible. Because the state court’s decision was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court, we affirm the conviction.
28 U.S.C. § 2254(d)(1). AFFIRMED.
Document Info
Docket Number: 09-35506
Citation Numbers: 438 F. App'x 564
Judges: Fletcher, Rawlinson, Reinhardt
Filed Date: 6/13/2011
Precedential Status: Non-Precedential
Modified Date: 8/3/2023