
    Brian Thomas EFTENOFF, Petitioner-Appellant, v. Charles L. RYAN and Attorney General of the State of Arizona, Respondents-Appellees.
    No. 16-15781
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 16, 2017 San Francisco, California
    Filed September 7, 2017
    Colleen Maring, Director, Aspey, Watkins & Diesel, PLLC, Flagstaff, AZ, for Petitioner-Appellant
    Julie Ann Done, Assistant Attorney General, Arizona Attorney General’s Office, Phoenix, AZ, for Respondents-Appel-lees
    Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and WATTERS, District Judge.
    
      
       The Honorable Susan P. Watters, United States District Judge for the District of Montana, sitting by designation.
    
   MEMORANDUM

Brian Eftenoff appeals the district court’s denial of his habeas corpus petition challenging his conviction for second degree murder.

Eftenoff argues he received ineffective assistance of trial counsel when his trial counsel did not request a Frye 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). However, we are not convinced this ineffective assistance of trial counsel claim is “substantial.” Martinez, 566 U.S. at 14, 132 S.Ct. 1309. 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, 104 S.Ct. 2052. Furthermore, trial counsel’s performance did not prejudice the defense because the postconviction testimony of Dr. Dressier, a pathologist, does not create a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     
      
      . Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
     