Brian Thomas Eftenoff v. CHARLES L. RYAN and ATTORNEY GENERAL OF THE STATE OF ARIZONA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN THOMAS EFTENOFF,
Petitioner-Appellant,
v.
CHARLES L. RYAN and ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,
Respondents-Appellees.
No. 16-15781
D.C. No. 2:14-cv-01023-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted August 16, 2017
San Francisco, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and WATTERS,**
District Judge.
Brian Eftenoff appeals the district court’s denial of his habeas corpus
petition challenging his conviction for second degree murder.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Susan P. Watters, United States District Judge for the
District of Montana, sitting by designation.
FILED
SEP 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-15781
Eftenoff argues he received ineffective assistance of trial counsel when his
trial counsel did not request a Frye1 hearing to exclude Dr. Baselt’s toxicology
opinion. Trial counsel’s performance was not deficient because he made a
reasonable strategic decision not to request a Frye hearing after consultation with
his own toxicologist, Dr. Karch. Strickland v. Washington, 466 U.S. 668, 687-689
(1984).
Eftenoff next argues the procedural default of his claim of ineffective
assistance of trial counsel for failure to consult an independent pathologist should
be excused under Martinez v. Ryan, 566 U.S. 1 (2012). However, we are not
convinced this ineffective assistance of trial counsel claim is “substantial.”
Martinez, 566 U.S. at 14. Trial counsel’s performance was not deficient because
he made a reasonable strategic decision to rely on the state’s medical examiner, Dr.
Mosley. Strickland, 466 U.S. at 687-689. Furthermore, trial counsel’s
performance did not prejudice the defense because the postconviction testimony of
Dr. Dressler, a pathologist, does not create a reasonable probability that the result
of the proceeding would have been different. Strickland, 466 U.S. at 694.
AFFIRMED.
1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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