                                                                              FILED
                               NOT FOR PUBLICATION
                                                                              OCT 04 2013

                        UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                               FOR THE NINTH CIRCUIT

 ENRIQUE DIAZ,                                      No. 12-55678

            Petitioner-Appellant,                   D.C. No. CV-09-147-RGK-RNB

   v.

   LARRY SMALL, Warden                              MEMORANDUM*

            Respondent-Appellee.


                       Appeal from the United States District Court
                          for the Central District of California
                       Robert G. Klausner, District Judge, Presiding

                          Argued and Submitted August 26, 2013
                                  Pasadena, California

Before:          GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.**


        Appellant Enrique Diaz appeals the district court’s denial of his 28 U.S.C. §

2254 habeas petition, which challenges his conviction for first degree murder based



        This disposition is not appropriate for publication and is not precedent
        *

except as provided by Ninth Circuit Rule 36-3.

        The Honorable Ivan L. R. Lemelle, District Judge for the U.S. District
        **

Court for the Eastern District of Louisiana, sitting by designation.
                                            1
on ineffective assistance of counsel, and its denial of his request for a stay. We affirm.

       Under the Antiterrorism and Effective Death Penalty Act of 1996, a petition for

habeas corpus relief that was adjudicated on the merits in state court cannot be granted

unless the state’s decision was “contrary to or involved an unreasonable application

of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). In order to prevail on an

ineffective assistance of counsel claim, a defendant must show (1) that his counsel’s

conduct was deficient and (2) that the deficiency prejudiced the defense. Strickland

v. Washington, 466 U.S. 668, 687 (1984). If the petitioner fails to establish either

prong of the Strickland test, relief cannot be granted. Id. at 700. In order to establish

prejudice, the petitioner must show that but for his attorney’s error, it is substantially

likely that the outcome of the proceeding would have been different. Harrington v.

Richter, 131 S. Ct. 770, 792 (2011). Here, Diaz argued that he received ineffective

assistance of counsel at trial due to his attorney's alleged failure to investigate and

present alibi witness evidence. However, Appellant did not present evidence that his

counsel should have presented the alleged alibi witnesses, or that their potential

testimony would have been substantially likely to change the verdict. Thus, we affirm

the district court ruling.

       A district court abuses its discretion in denying a request for a stay if the

petitioner had good cause for his failure to present the new evidence in state court, has


                                            2
not participated in any dilatory litigation tactics, and has a potentially meritorious

claim. Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011). Here, Diaz contended

that he had good cause for his failure to submit the witnesses’ testimony to the state

court because he was unable to locate and contact them while he was incarcerated.

However, testimony given by another witness and by Diaz himself refuted this claim.1

      Additionally, while Diaz asserted that his counsel’s conduct was deficient

because she failed to properly investigate and present alibi witness evidence, the

testimony of counsel’s investigator refuted that claim. The investigator testified that

he did inquire into an alibi defense per the instructions of Diaz’s counsel, and that he

interviewed potential alibi witnesses.2 Counsel testified that she was aware of the

potential alibi defense, and made a strategic decision3 to “go in another direction” due



      1
         The district court found that it was likely that Diaz did have connections to
Esperanza Alvarez while he was incarcerated because Diaz fathered a child with
Alvarez's sister, and both Diaz and Alvarez had regular contact with Alvarez's
sister. Further, Diaz testified during the evidentiary hearing that he knew he could
"get ahold" of Louie Padilla.
      2
        These interview subjects included Louie Padilla (whom Diaz told police
that he was with the night of the murder), and Najia Meyers (who lived at the
house where Diaz claimed to be the night of the murders).
      3
        Under Strickland, counsel is given great deference in making strategic
choices after conducting an investigation into the law and relevant facts. 466 U.S.
at 690; see also Gulbrandson v. Ryan, 711 F.3d 1026, 1038 (9th Cir. 2013)
(holding that defense counsel could have reasonably decided to exclude witness
testimony as harmful given the circumstances).
                                           3
to the unfavorable time line and location established by Diaz's statements and those

of the witnesses interviewed. Thus, the new evidence would not have rendered his

claim “potentially meritorious.”

      Accordingly, the district court properly found that claims of ineffective

assistance of counsel and for a stay failed to satisfy the relevant standards under

Strickland and Gonzales.

      AFFIRMED.




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