Nick Mennick v. Jeff Zmuda , 438 F. App'x 564 ( 2011 )

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NOT FOR PUBLICATION JUN 13 2011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.