Parker

MEMORANDUM *

Eric Anthony Parker appeals the district court’s denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254 and argues that the district court abused its discretion by denying an evidentiary hearing on his claims. We affirm in part, reverse in part, and remand with instructions to hold an evidentiary hearing on the ineffective assistance of counsel claim for failure to investigate and present a potential alibi defense.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Parker’s petition can be granted only if the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254 (d). Here, we are presented with a “post card” denial of Parker’s habeas corpus petition by the California Supreme Court, so we assess “unreasonableness” by conducting an “independent review of the record.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000).

Applying these standards, and considering the totality of the evidence, we hold that it was reasonable for the California courts to conclude the following:

(1) The trial…

I concur in Part I of the memorandum disposition. As to Part II, although I agree that Parker sought diligently to develop the record in state court and did not receive a “full and fair” fact hearing, I cannot concur in the majority’s decision to remand for an evidentiary hearing.

A “district court’s interpretation of AEDPA standards governing the grant or denial of an evidentiary hearing” is reviewed de novo. Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.2005). A district court’s denial of an evidentiary hearing is reviewed for abuse of discretion. Id.

An evidentiary hearing on Parker’s ineffective assistance of counsel claim is warranted only if he has alleged facts that, if proven, would establish both elements of the Strickland test: deficient performance and prejudice. See Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir.2003). It is unnecessary here to consider whether Parker has alleged facts that, if proven, would establish prejudice because he has not al *155 leged facts that, if proven, would establish deficient performance. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 .

Although counsel has a duty to investigate before making strategic decisions in a criminal case,…