Enrique Diaz v. LARRY SMALL, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE DIAZ,
Petitioner-Appellant,
v.
LARRY SMALL, Warden
Respondent-Appellee.
No. 12-55678
D.C. No. CV-09-147-RGK-RNB
MEMORANDUM*
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
FILED
OCT 04 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.
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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
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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).
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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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