Vargas

MEMORANDUM *

Petitioner Raul Vargas appeals the district court’s dismissal with prejudice of his habeas petition, alleging that his constitutional rights were violated because (1) the trial court denied his requests for substitute counsel and (2) his counsel was burdened by a conflict of interest because of her security fears at trial. We affirm the district court and deny the petition.

Vargas argues that his attorney did not investigate his defense. However, he fails to prove this claim by a preponderance of the evidence. Alcala v. Woodford, 334 F.3d 862, 869 (9th Cir.2003). 1 From the record, we may conclude that Vargas’ lawyer contacted an alibi witness, as she reported to the court, but that the witness did not testify at trial for reasons unknown. Vargas’ attorney was not required to investigate his incredible allegations of police misconduct because these allegations had no basis in the evidence before her. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir.l995)(stating that it is discretionary to investigate issues “tenuously related to the defense”). Even if we were to agree that Vargas’ lawyer should have attempted to interview his co-defendant, Vargas is unable to…