Daniel Stanley SAITTA, Petitioner-Appellant, v. Ernest ROE, Warden, Respondent-Appellee, 121 F. App'x 223

MEMORANDUM Petitioner Daniel Saitta appeals the district court’s denial of his habeas corpus petition brought under 28 U.S.C. § 2254. We affirm. Petitioner’s habeas claim is governed by the Anti-Terrorism and Effective Death Penalty Act. Rios v. Rocha, 299 F.3d 796, 799 n. 4 (9th Cir.2002).

Under AEDPA, a habeas petition cannot be granted unless the state court decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

In order to demonstrate ineffective assistance of counsel, Petitioner must show that his attorney’s performance fell below an objective standard of reasonableness and that this deficient performance prejudiced Petitioner’s defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner has failed to satisfy the second prong, so we need not consider the first. Unlike other cases where this court has found ineffective assistance of counsel due to an attorney’s failure to interview and subpoena alibi witnesses, see, e.g., Luna v.

Cambra, 306 F.3d 954 (9th Cir. 2002), the case against Petitioner was strongly supported by the record. Consequently, in weighing the strong evidence impheating Petitioner against the proposed alibi testimony that only discussed Petitioner’s whereabouts at the times the crimes occurred in general and conclusory terms, Petitioner has failed to show that there is a “reasonable probability that, but for counsel’s [alleged] unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

In order to determine whether preindictment delay has violated an individual’s due process rights, the Supreme Court has explained that “proof of prejudice is generally a necessary but not sufficient element ... and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Petitioner has not satisfied this burden. His assertions that he suffered prejudice because a witness who could have provided exculpatory testimony died during the delay are merely speculative.

Furthermore, the record contradicts Petitioner’s arguments that this witness was the only individual who could have provided this alleged testimony or that this testimony would have produced a more favorable verdict for Petitioner. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.