Wheaton

MEMORANDUM *

. DeSpite bemg ^ an evidentiary heai" mg m federal court on his claim of ineffective assistance of counsel, habeas petition-a. Gene Paul Wheaton rWheaton») has not established prejudice from the failure . ... . of trial defense counsel to investigate and „ , . call his potential alibi witnesses. The evi- , clence presented m district court and m California state court to establish the alibi testimony was plainly insufficient. Counsel presented no live testimony or explanation for the unavailability of the two potential ^nesses thought still to be alive at ^me ^ie ^’e<^era^ hearing. Nor were any affidavits or declarations offered to demonstrate what their testimony might ^ave been if called in Wheaton’s trial. Similarly, although potential witness Myers was deceased at the time of the federal hearing, Wheaton had presented only unsworn statements from her to the California state courts, and offered no explanation for the failure to obtain a sworn declaration or affidavit at a time when *317 doing so was still possible. Even assuming that Wheaton's claim as to his attorney's failure to present witness Watson was exhausted, Watson testified only that he last saw Wheaton…