Allen

MEMORANDUM *

Petitioner Jerry Wayne Alen, a California state prisoner convicted of second degree murder, filed a 28 U.S.C. § 2254 petition for habeas corpus in the district court alleging ineffective assistance of counsel. The district court granted the petition, and the warden appeals. We review de novo the district court’s decision to grant a § 2254 petition, Dubria v. Smith, 224 F.3d 995, 1000 (9th Cir.2000), and we affirm.

Ineffective assistance of counsel consists of deficient performance that results in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). The California Court of Appeal found that Alen’s trial counsel was deficient in failing to locate and interview Gregory McLaughlin, a potentially exculpatory witness whose account of the shooting differed materially from that of the state’s witnesses. Ater an evidentiary hearing to determine the precise content of Alen’s testimony, however, the state trial court judge determined that McLaughlin was not credible, and thus that the failure to present his testimony did not prejudice McLaughlin.

When a petitioner alleges that a state court incorrectly failed to…