Steven Diaz v. Ken Clark

MEMORANDUM **

Steven Diaz (“petitioner”), a California state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions for rape (CaLPenal Code § 261), kidnapping with intent to commit rape (Cal.Penal Code § 208), kidnapping (Cal.Penal Code § 207), and false imprisonment (CahPenal Code § 236). We have jurisdiction under 28 U.S.C. § 2253 . We review de novo the denial of a habeas petition. Tanner v. McDaniel, 493 F.3d 1135, 1139 (9th Cir.2007). Because the petition was filed after April 24, 1996, we review it under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, we may grant the petition if the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d); Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir.2009). We reverse and remand to the district court.

Petitioner argues that his trial counsel was ineffective for failing to test DNA *125 evidence…

Dissenting:

I respectfully dissent. The majority holds that trial counsel’s performance was deficient because his failure to obtain a test of DNA evidence prejudiced petitioner’s case since there is a reasonable probability that conducting a DNA test would have produced a different result at trial. That conclusion is not supported by the evidence for several reasons.

First, the absence of petitioner’s DNA in the vaginal swabs taken from the alleged victim would have had no effect on the verdict. Petitioner denied that he ever penetrated the alleged victim’s vagina during the incident. The alleged victim testified that she did not remember whether petitioner ejaculated during the incident. Therefore, the absence of petitioner’s DNA in the testing sample would have added nothing to the evidence upon which the jury had to make its credibility determination.

Second, a test which showed the presence of petitioner’s DNA in the vaginal sample would have had a significant detrimental impact upon petitioner’s position at trial. Petitioner relied upon a consent defense, contending that the alleged victim was a prostitute and that he abandoned his sexual activity when he discovered that…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT NOV 29 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

STEVEN DIAZ, No. 08-15808

Petitioner - Appellant, D.C. No. 2:05-CV-00376-MCE-

CMK

v.

KEN CLARK, MEMORANDUM*

Respondent - Appellee,

Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding

Argued and Submitted July 16, 2010 San Francisco, California

Before: HUG and M. SMITH, Circuit Judges, and TODD, Senior District Judge.**

Steven Diaz (“petitioner”), a California state prisoner, appeals the district

court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions

for rape (Cal. Penal Code § 261), kidnapping with intent to commit rape (Cal.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Circuit Rule 36-3. ** The Honorable James Dale Todd, Senior United States District Judge for the Western District of Tennessee, sitting by designation. Penal…