Rodriguez

ORDER

The memorandum disposition filed on January 30, 2009, is withdrawn and replaced with the memorandum disposition filed this date.

The panel has voted unanimously to deny the petition for rehearing.

The petition for rehearing is DENIED. No further petitions for rehearing and petition for rehearing en banc will be entertained.

MEMORANDUM *

Alberto Rodriguez’s petition for writ of habeas corpus is denied. The district court did not abuse its discretion when it determined that Rodriguez was not entitled to an evidentiary hearing regarding his claim that his trial counsel at his third trial rendered ineffective assistance of counsel by failing to obtain and use materials discovered through earlier Pitchess hearings. “[I]f the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 , 127 S.Ct. 1933, 1940 , 167 L.Ed.2d 836 (2007). Here, the state court held that the Pitchess material it received from the state trial court was the same as the Pitchess material originally provided to that court. Further, the state court found that the only…