latest in ineffective assistance of counsel cases

Flournoy v. Small, 11-55015

Appeal from: S.D. Cal. (Gonzalez, C.J.)

Subject Matter: Habeas Corpus

Holding: The panel affirmed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction of forcible rape and assault with intent to commit rape.

The panel held that there was no clearly established federal law holding that testimony by a forensic analyst on the results of scientific tests performed and reports prepared by other analysts violated the Confrontation Clause, when the testifying witness participated in and reviewed the crime lab's work, even though she did not personally conduct all the testing herself. The panel explained that the witness qualified and testified as an expert, forming her opinions primarily based on reports she had peer reviewed and which were admissible as business records under state law.

The panel also held that trial counsel's failure to object to the above testimony based on the Confrontation Clause did not support a claim of ineffective assistance. The panel explained that the failure to make an objection that would have been overruled was not deficient performance, and there was no reasonable probability that the trial result would have been different.

The panel declined to issue a certificate of appealability as to petitioner's claim that counsel was ineffective for failing to offer expert evidence to respond to the crime lab reports and testimony, because this was a trial tactic that did not amount to deficient performance.