Enrique Diaz v. Larry Small

MEMORANDUM

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 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 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). If the petitioner fails to establish either prong of the Strickland test, relief cannot be granted. Id. at 700 , 104 S.Ct. 2052 . 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, — U.S. -,…