Villagrana

MEMORANDUM *

Ambrosio Villagrana appeals the district court’s denial of his habeas petition filed pursuant to 28 U.S.C. § 2254 . Villagrana challenges his state court conviction of first degree murder with personal use of a firearm on the ground that he was denied his Sixth Amendment right to effective assistance of counsel. Following an evidentiary hearing, the assigned magistrate judge issued a report and recommendation that the district court deny the petition. Subsequently, the district court adopted the magistrate’s recommendation and denied Villagrana’s petition. This court granted a certificate of appealability on the issue of whether trial counsel rendered ineffective assistance under the Sixth Amendment for failing to investigate and present three potential defense witnesses. We have jurisdiction under 28 U.S.C. § 1291 and § 2253 and we affirm.

*52 We review de novo the denial of a habeas petition filed pursuant to 28 U.S.C. § 2254 . Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir.2004). 2 “In particular, claims alleging ineffective assistance of counsel are mixed questions of law and fact and are reviewed de novo. To the extent it is necessary to review findings of fact…

dissenting.

I respectfully dissent. As the majority admits, the government’s case was entirely circumstantial. The three witnesses Villagrana’s lawyer failed to interview and call would have cast serious doubt on the prosecution’s already flimsy case against Villagrana.

The prosecution presented a simple story of an angry Villagrana chasing the victim in his blue truck and gunning him down. But the statements of the witnesses Villagrana’s lawyer failed to interview — three individuals at or near the scene at the time of the shooting — indicate the presence at the scene of another person and another vehicle, both unaccounted for in the prosecution’s theory. Specifically, Suarez and Tapia told the police they saw the victim run into the alley and that a red vehicle emerged from the alley after the shooting; they did not say that the victim was pursued by a blue truck. Chacon told police that, although he was in the shower at the time, from his bathroom overlooking the scene he heard someone say in Spanish, “Don’t let him do that to you, Emilio” right before the gunshots. With Chacon, Suarez, and Tapia testifying, the government’s best evidence — the hearsay witness who reported…