FILED
NOT FOR PUBLICATION JAN 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CLINTON LEE SPENCER, No. 07-99004
Petitioner - Appellant, D.C. No. CV-98-00068-PHX-SRB
v.
MEMORANDUM *
CHARLES L. RYAN, Arizona
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted January 18, 2013
San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
Clinton Spencer appeals from the district court’s judgment denying his
habeas petition. Spencer argues that his trial counsel provided ineffective
assistance by failing to investigate two alleged alibi witnesses. We affirm the
district court’s judgment.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review a district court’s denial of a habeas petition de novo. Cheney v.
Washington, 614 F.3d 987, 993 (9th Cir. 2010). Generally, we grant substantial
deference to a state court’s ruling that we review through a habeas petition. 28
U.S.C. § 2254(d); Miller-El v. Cockrell, 537 U.S. 322, 336-37, 339-40 (2003).
However, because the state court relied on a procedural bar, and did not address the
merits of Spencer’s claim, our review of the legal question presented is de novo.
See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). We have jurisdiction
pursuant to 28 U.S.C. §§ 1291, 2253.
We have reviewed the record and conclude that Spencer’s counsel’s
performance was not deficient. See Strickland v. Washington, 466 U.S. 668, 687
(1984). The inquiry is whether a reasonable lawyer would have made more of an
effort to locate the alleged alibi witnesses. See Bryant v. Scott, 28 F.3d 1411, 1418
(9th Cir. 1994). It is unreasonable not to further investigate alibi witnesses when
defense counsel knows where they are located or relies on the prosecution’s
subjective determination that the witness will not be helpful for the defense. See
Brown v. Myers, 137 F.3d 1154, 1156-57 (9th Cir. 1998); Bryant, 28 F.3d at 1417-
19; see also Anderson v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003). It is not
unreasonable when defense counsel relies on the prosecution’s objective and
thorough investigation that concludes a witness cannot be reasonably located. See
2
Howard v. Clark, 608 F.3d 563, 569-70 (9th Cir. 2010); Bryant, 28 F.3d at 1415-
18. Therefore, Spencer’s counsel did not render deficient performance. See id.
Nor can Spencer establish prejudice. See Strickland, 466 U.S. at 687. While
circumstantial, the evidence against Spencer was overwhelming. In such a
situation, the absence of the testimony of two alleged alibi witnesses, whose
testimony would still have left Spencer unaccounted for between the hours of one
and two, does not undermine confidence in the reliability of the trial. See id.
AFFIRMED
3