What is the test for ineffective representation in a federal habeas petition?

The district court granted summary judgment for respondent and dismissed the habeas petition. We review that decision de novo. See Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841 (1985).

In Combs' first federal petition for habeas corpus relief, he alleged a due process violation on the ground that the state court denied him his right to a new trial in spite of newly discovered evidence establishing his innocence. In order to prevail on his claim, Combs was required to prove that (1) the proffered testimony was newly discovered and (2) the newly discovered evidence would probably produce an acquittal. See Quigg v. Crist, 616 F.2d 1107, 1112 (9th Cir.), cert. denied, 449 U.S. 922 (1980). In affirming the district court's dismissal of the petition, we did not address the first component of the test because we found the second component dispositive. We held that Combs had "failed to overcome the state trial court's finding that the evidence would not have resulted in a verdict of not guilty."

In this federal petition for habeas corpus relief, Combs claims ineffective assistance of counsel. Specifically, Combs contends that his counsel failed to subpoena Combs' son to testify, the substance of the son's testimony constituting the same evidence that Combs claimed in his first habeas petition was newly discovered. In order to prevail on his claim of ineffective assistance of counsel, Combs must show (1) that his counsel's failure to produce the evidence fell below a standard of professional reasonableness, and (2) that this failure to produce the evidence probably affected the outcome of the trial. See Smith v. Ylst, 826 F.2d 872, 875 (9th Cir.1987), cert. denied, 488 U.S. 829 (1988). We need not address the first requirement, because Combs fails to meet the second.