Saitta

dissenting.

I dissent. Counsel’s failure to interview and subpoena alibi witnesses constituted deficient performance that prejudiced Saitta’s defense, or at the least, entitled him to an evidentiary hearing. We have repeatedly recognized the critical role alibi testimony plays in causing a fact-finder to “entertain[] a reasonable doubt concerning guilt.” Luna v. Cambra, 306 F.3d 954, 962 (9th Cir.2002); Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir.1998). Although it is true that the affidavits presented by Saitta’s alibi witnesses do not identify beyond any doubt Saitta’s location at the precise times the burglaries occurred, this court has “previously found prejudice when counsel failed to investigate and present the testimony of alibi witnesses, even though their testimony was ‘vague with regard to time.’ ” See Luna v. Cambra, 306 F.3d 954, 961 (9th Cir.2002) (quoting Brown v. Myers, 137 F.3d 1154, 1158 (9th Cir.1998)).

The more serious question is whether we are free to ignore counsel’s deficient performance simply because the state presented strong circumstantial evidence of Saitta’s guilt. According to the affidavits *225 submitted, three alibi witnesses would have…

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 , *224 799 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…