
    Mark Anthony GOLDSBY, Petitioner-Appellant, v. S.W. CZERNIAK, Respondent-Appellee.
    No. 04-35397.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 15, 2005.
    Decided Aug. 4, 2005.
    
      Ruben L. Iniguez, Esq., Federal Public Defender’s Office, Portland, OR, for Petitioner-Appellant.
    Carolyn Alexander, Esq., Office of Attorney General, Salem, OR, for Respondent-Appellee.
    Before: RYMER and KLEINFELD, Circuit Judges, and WEINER, Senior District Judge.
    
      
       The Honorable Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
    
   MEMORANDUM

Mark Anthony Goldsby appeals from the district court’s decisions denying his 28 U.S.C. § 2254 habeas petition and his motion for leave to conduct discovery under Rule 6(a) of the Rules Governing Section 2254 Cases. We affirm.

We need not decide whether counsel was deficient in failing to pursue leads to Gray and Allen, because regardless, the state court’s determination that Goldsby was not prejudiced is neither contrary to, nor an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1); Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Goldsby has not shown that either would have testified nor what they would have said, except for what Gray told Powell. In any event, no matter what Gray might have said about where Goldsby was seated at the time of the first shooting, she was not percipient to the second round of shooting which is what killed Robinson. Moreover, Goldsby was identified as the shooter by two eyewitnesses. Thus, our confidence in the outcome of the trial is not undermined by speculation about the impact Gray or Allen might have had.

The magistrate judge did not abuse his discretion in denying Goldsby’s Rule 6(a) motion for leave to subpoena and depose Gray and Allen because Goldsby could have developed a factual record in state court but failed to do so. See 28 U.S.C. § 2254(e)(2); Holland v. Jackson, 542 U.S. 649, 124 S.Ct. 2736, 2738, 159 L.Ed.2d 683 (2004) (per curiam); Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.2005).

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     