                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3918
                                   ___________

Kenneth Ray Martin,                   *
                                      *
            Defendant-Appellant,      * Appeal from the United States
                                      * District Court for the Southern
      v.                              * District of Iowa.
                                      *
United States of America,             *    [UNPUBLISHED]
                                      *
            Plaintiff-Appellee.       *
                                 ___________

                             Submitted: September 25, 2007
                                Filed: October 24, 2007
                                 ___________

Before MURPHY, MELLOY, and SMITH, Circuit Judges.
                           ___________

PER CURIAM.

       Kenneth Ray Martin appeals the district court’s1 order denying him relief under
28 U.S.C. § 2255. Having received a certificate of appealability from the district
court, Martin alleges the district court erred in determining that Martin’s right to
effective assistance of counsel was not violated when his trial attorney failed to
investigate matters that came to light immediately before his trial.




      1
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
       Martin has been before this court twice previously. First, he directly appealed
his conviction for drug offenses, contesting jury instructions issued by the trial court
and alleging his trial counsel was ineffective. We affirmed his conviction, declining
to address his ineffective-assistance claims on direct review. United States v. Martin,
274 F.3d 1208 (8th Cir. 2001). Next, Martin appealed the district court’s denial of his
§ 2255 motion as untimely, and we reversed, finding that Martin was entitled to
equitable tolling. United States v. Martin, 408 F.3d 1089 (8th Cir. 2005). Now,
Martin’s ineffective-assistance claim is properly before our court, and we affirm the
judgment of the district court.

      We review de novo claims regarding ineffective assistance of counsel as they
encompass mixed questions of law and fact. United States v. Davis, 406 F.3d 505,
508 (8th Cir. 2005).

        To succeed in his appeal, Martin must demonstrate that his trial counsel’s
failure to investigate late-unfolding evidence constituted professional performance
that “fell below an objective standard of reasonableness,” Strickland v. Washington,
466 U.S. 668, 688 (1984), and that the failure to investigate prejudiced his defense,
id. at 687. Both prongs of the familiar Strickland test must be satisfied to prevail on
a claim of ineffective assistance of counsel. “If the defendant cannot prove prejudice,
we need not address whether counsel’s performance was deficient.” Williams v.
United States, 452 F.3d 1009, 1014 (8th Cir. 2006) (internal quotation omitted).

       Martin has failed to establish he suffered prejudice as a result of his trial
counsel’s failure to investigate. The alleged alibi witnesses Martin contends would
have undermined key government testimony had Martin’s trial attorney conducted a
more thorough investigation did not, in fact, provide Martin with an alibi. Moreover,
Martin has not shown that there is a reasonable probability the outcome of the trial
would have been different had the proffered witnesses testified. Cf. id. at 1013-14
(finding no prejudice when an alleged alibi witness did not testify and the court could

                                          -2-
not conclude the missing witness’s testimony would have altered the outcome of the
trial).

      We affirm the judgment of the district court. See 8th Cir. R. 47B.
                      ______________________________




                                        -3-
