Leavitt

Per Curiam Opinion; Concurrence by Judge REINHARDT.

OPINION

Richard Leavitt is a convicted murderer who was sentenced to death by the state of *1140 Idaho. We have dealt with his case on two prior occasions. See Leavitt v. Arave, 383 F.3d 809 (9th Cir.2004) (Leavitt I); Leavitt v. Arave, 646 F.3d 605 (9th Cir.2011) (Leavitt II). Subsequent to our last decision the Supreme Court denied certiorari, ending his habeas suit.

Leavitt now seeks relief under Federal Rule of Civil Procedure 60(b), claiming that Martinez v. Ryan, — U.S.-, 132 S.Ct. 1309 , 182 L.Ed.2d 272 (2012), renders him eligible to pursue ineffective assistance of counsel claims on which he had ostensibly defaulted. In a separate case, Leavitt petitions the district court to order the Blackfoot Police Department to send evidence related to his crime to a lab for forensic testing.

The district court denied relief in both cases. Leavitt appeals.

1. 12-35450 0Martinez Claim). In order to bring a successful Martinez claim, “a prisoner must ... demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one.... ” Martinez, 132 S.Ct. at 1319 . Under Strickland v. Washington, 466 U.S.…

concurring.

I am not free to do other than join fully in the court’s per curiam opinion affirming the denial of Leavitt’s motion for relief from the judgment under Rule 60(b) of the Federal Rules of Civil Procedure. I write separately only to explain my disagreement with the current state of the law which permits the execution of individuals, including Leavitt, on the basis of trials and sentencing proceedings that do not afford them the protections and process that the Constitution requires. In my opinion, it is not good enough that capital defendants are convicted on the basis of instructions that misstate the meaning of reasonable doubt or tell the jury, in violation of the Due Process Clause, that constitutional protections are intended for the benefit of the innocent only. Capital defendants do not, in my view, receive an adequate sentencing hearing when a lawyer fails to follow through on a medical expert’s advice that the defendant receive a brain scan in order to determine whether he suffers from an injury or ailment that may fundamentally affect his judgment or his conduct. It is not good enough that we forfeit a capital defendant’s legitimate constitutional claims…

FILED

FOR PUBLICATION JUN 08 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

RICHARD A. LEAVITT, No. 12-35427

Petitioner - Appellant, D.C. No. 1:93-cv-00024-BLW

v.

OPINION

A. J. ARAVE,

Respondent - Appellee.

RICHARD A. LEAVITT, No. 12-35450

Petitioner - Appellant, D.C. No. 1:93-cv-00024-BLW

v.

A. J. ARAVE,

Respondent - Appellee.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted June 7, 2012 Pasadena, California

Filed June 8, 2012 page

Before: KOZINSKI, Chief Judge, REINHARDT and BERZON, Circuit Judges.

PER CURIAM:

Richard Leavitt is a convicted murderer who was sentenced to death by the

state of Idaho. We have dealt with his case on two prior occasions. See Leavitt v.

Arave, 383 F.3d 809 (9th Cir. 2004) (Leavitt I); Leavitt v. Arave, 646 F.3d 605

(9th Cir. 2011) (Leavitt II). Subsequent to our last decision the Supreme Court

denied certiorari, ending his habeas suit.

Leavitt now…