Bovensiep v. Dean Borders

• Court: District Court, S.D. California
• Decided: July 28, 2020
• Docket: 3:17-cv-00074
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 THOMAS DANIEL BOVENSIEP, Case No.: 17-cv-0074-GPC-AHG

Petitioner, 15 ORDER ADOPTING REPORT AND 16 v. RECOMMENDATION DENYING PETITIONER’S FIRST AMENDED DEAN BORDERS, Warden, 17 PETITION FOR WRIT OF HABEAS 18 Respondent. CORPUS AND DENYING CERTIFICATE OF APPEALABILITY 19 20 [ECF Nos. 1, 24]

21 Presently before this Court is a First Amended Petition (“FAP”) for Writ of Habeas 22 Corpus, pursuant to 28 U.S.C. § 2254, filed by Petitioner Thomas Daniel Bovensiep 23 (“Petitioner”), a state prisoner proceeding pro se. (ECF No. 10.) In his petition, 24 Petitioner seeks to challenge his 2015 conviction in San Diego Superior Court for thirteen 25 counts of grand theft and two counts of security fraud. (ECF No. 10.) On April 18, 26 2018, Respondent, Dean Borders, Warden, filed a Response and supporting Lodgments. 27 28 1 (ECF Nos. 19, 20.)1 Petitioner filed a Traverse on May 22, 2018. (ECF No. 23.) On 2 October 24, 2018, Magistrate Judge Nita L. Stormes issued a Report and 3 Recommendation (“Report”) recommending that this Court deny the Petition. (ECF No. 4 24.) On November 8, 2018, Petitioner filed objections (“Objections”) to the Magistrate 5 Judge’s Report. (ECF No. 25.) After a thorough review of the issues, supporting 6 documents, and applicable law, the Court ADOPTS the Magistrate Judge’s Report and 7 Recommendation in its entirety, OVERRULES Petitioner’s objections, DENIES the 8 petition for writ of habeas corpus, and DENIES a certificate of appealability. 9 PROCEDURAL BACKGROUND 10 On February 14, 2013, the San Diego County District Attorney’s Office filed a 11 Felony Complaint against Petitioner. (Lodgment No. 5, Clerk’s Transcript [“CT”] at 1- 12 8.) On December 9, 2013, the complaint was amended, charging Petitioner with eighteen 13 counts of grand theft in violation of California Penal Code § 487(a), three counts of 14 misrepresentation in the sale of securities in violation of California Corporations Code 15 §§ 25401 and 25440, and six counts of filing a false tax return in violation of California 16 Revenue and Taxation Code § 19705(a)(1). (CT at 9-21.) The Amended Complaint 17 alleged that Petitioner stole in excess of $50,000 as to three of the grand theft counts; in 18 excess of $65,000 as to three of the grand theft counts; and in excess of $150,000 as to 19 two of the grand theft counts. (Id.) Finally, the Amended Complaint alleged that 20 Petitioner had stolen in excess of $500,000 in the course of his criminal conduct, within 21 the meaning of California Penal Code § 186.11. (Id.) 22 On March 17, 2015, following a jury trial, Petitioner was convicted of thirteen 23 counts of grand theft and two counts of false statements in connection with sale of a 24 security, and was found not guilty on the remaining counts. (Id. at 507-34.) The jury 25 further found true two sentence enhancement allegations. (Id. at 528.) On May 29, 2015, 26

27 1 References to Lodgments throughout this order refer to Lodgments submitted in ECF Nos. 15 and 20. ECF No. 15 contains Lodgments of State Court Records by Respondent for Lodgments 1, 2, 3, and 4. 28 1 the trial court sentenced Petitioner to nine years and four months in state prison. (Id. at 2 732-34, 843-46.) 3 On November 5, 2015, Petitioner appealed his conviction to the California Court 4 of Appeal for the Fourth Appellate District. (Lodgment No. 1.) On appeal, Petitioner 5 argued that (1) his convictions on all counts should be reversed because prejudicial 6 delays in both investigating and bringing the matter to trial had violated Petitioner’s 7 federal and state constitutional rights to due process and a speedy trial, and (2) his 8 convictions on ten of the fifteen counts should be revered because they were barred by 9 the statute of limitations. (Id.) On August 22, 2016, the Court of Appeal affirmed all of 10 the Petitioner’s convictions in a written, unpublished decision. (Lodgment No. 2.) To 11 exhaust his state court remedies, on September 21, 2016, Petitioner filed a petition for 12 review in the California Supreme Court, which was summarily denied on October 26, 13 2016. (Lodgment Nos. 3, 4.) 14 On January 5, 2017, Petitioner filed a pro se Petition for Writ of Habeas Corpus 15 pursuant to 28 U.S.C. § 2254 in the Central District of California. (ECF No. 1.) On 16 January 12, 2017, pursuant to 28 U.S.C. § 1404(a), the Central District of California 17 transferred the Petition to this Court, the Southern District of California. (EFC No. 4.) 18 On February 16, 2017, this Court dismissed the case without prejudice and with leave to 19 amend because it was not clear from the Petition that Petitioner had exhausted his state 20 judicial remedies. (ECF No. 9.) 21 On March 10, 2017, Petitioner filed his First Amended Petition for Writ of Habeas 22 Corpus, pursuant to 28 U.S.C. § 2254, proceeding pro se. (ECF No. 10.) Petitioner 23 raised two grounds in his First Amended Petition: (1) “Federal Constitutional right to 24 Speedy Trial including where there has been a substantial and/or prejudicial delay prior 25 to accusatory pleading,” and (2) “Federal Constitutional right to due process under 6th 26 Amendment and Fundamental Fairness.” (Id.) On August 31, 2017, Respondent moved 27 to dismiss this Petition. (ECF No. 14.) On September 27, 2017, Petitioner filed a 28 response in opposition to the motion to dismiss. (ECF No. 16.) On January 10, 2018, 1 Magistrate Judge Nita L. Stormes issued a Report denying the motion to dismiss. (ECF 2 No. 17.) On March 19, 2018, this Court adopted the Report. (ECF No. 18.) On April 3 18, 2018, Respondent filed a Response to the Petition and supporting Lodgments. (ECF 4 Nos. 19, 20.) Petitioner filed a Traverse on May 22, 2018. (ECF No. 23.) On October 5 24, 2018, Magistrate Judge Nita L. Stormes issued a Report, recommending that this 6 Court deny the Petition. (ECF No. 24.) On November 8, 2018, Petitioner filed 7 Objections to the Magistrate Judge’s Report. (ECF No. 25.) 8 FACTUAL BACKGROUND 9 This Court gives deference to state court findings of fact and presumes them to be 10 correct; Petitioner may rebut the presumption of correctness, but only by clear and 11 convincing evidence. See 28 U.S.C. § 2254(e)(1); Parke v. Raley, 506 U.S. 20, 35-36 12 (1992) (state court findings of historical fact, including inferences properly drawn from 13 such facts, are entitled to statutory presumption of correctness in federal habeas review); 14 Sumner v. Mata, 449 U.S. 539, 547 (1981) (deference is owed to findings of state trial 15 and appellate courts); Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir. 1990) (holding factual 16 findings of state trial and appellate courts are entitled to presumption of correctness on 17 federal habeas corpus review). The following facts are taken from the California Court 18 of Appeal opinion, denying Petitioner’s direct appeal of his conviction. 19 Ronald Dixon—Count 1 20 In 2003, Bovensiep persuaded his pastor, Craig Knudsen, and Steven 21 Zoumaras, a business acquaintance, to purchase shares in a limited liability company (LLC) for the purpose of purchasing a condominium located in 22 Hawaii (the 835 property). Unbeknownst to the partners, Bovensiep listed 23 his brother-in-law, John Oakes, as the owner telling Oakes that he wanted to use Oakes’s good credit. Bovensiep told Oakes, who was not in on the 24 scheme, that he would put the loan in the LLC’s name, removing Oakes, as 25 soon as Bovensiep refinanced the property. Bovensiep secretly refinanced the 835 property and took out a line of credit of over $114,000, but left 26 Oakes listed as the owner of the property. Dixon, who had met Bovensiep 27 through Oakes and his church, bought Zoumaras’s interest in the 835 28 1 pDrioxpoenr tlye afronre ad ttohtaatl tohfe $ 813157 ,p5r7o8p einrt yJu wnaes 2 b0e0i5n.g O fonr Techlaonskedsg. i ving Day 2009, 2 3 The Kneeshaws—Count 7 George Kneeshaw and his wife, Terry, have known Bovensiep for 4 over 35 years. George and Bovensiep had worked as deputy sheriffs together 5 and they remained friends. In September 2007, the Kneeshaws, along with other individuals each invested about $60,000 toward the purchase of a 6 condominium in Kihei, Maui (the Kihei property). Bovensiep managed the 7 Kihei property. On December 5, 2009, the Kneeshaws learned that the Kihei property was facing foreclosure. At the end of December 2009, George 8 reported the matter to the sheriff’s department for a potential criminal 9 investigation.

10 The Kneeshaws—Counts 5, 8–11 11 Bovensiep convinced the Kneeshaws to make a series of four separate loan investments, supposedly to people in need. The Kneeshaws were to 12 receive monthly interest and a return of their principal after a specified time. 13 Bovensiep made some interest payments, but never repaid the principal. Bovensiep later admitted to Trudianne Bullard, an investigator for the 14 district attorney’s office (DA), that he used the money himself to keep his 15 scheme afloat.

16 Frederick Semeit—Count 12 17 Semeit, the Kneeshaws’ son-in-law, believed he could trust Bovensiep as Bovensiep seemed like a really nice guy. Semeit purchased two homes 18 using Bovensiep’s services and also obtained a $5000 loan from Bovensiep, 19 which Semeit repaid. After Semeit divorced, he gave Bovensiep a $10,000 down payment in February 2008 for a house. When the purchase allegedly 20 fell through, Semeit gave Bovensiep another $15,000 and let Bovensiep 21 keep his initial $10,000 with the understanding that Bovensiep would pay Semeit interest on the money and the debt would mature in November 2008. 22 Semeit gave Bovensiep another $20,000, with a maturity date in October 23 2008. Semeit believed Bovensiep would be loaning the funds to a third party. Bovensiep never repaid Semeit. 24 25 Chris Miller—Count 13 In April 2008, Miller, a church friend of Bovensiep, gave Bovensiep a 26 $48,000 down payment to purchase a condominium for Bovensiep to 27 manage. Bovensiep eventually told Miller that escrow on the property had been cancelled and he would give Miller his money back. Bovensiep never 28 paid Miller back. Bovensiep admitted to Bullard that when he got money 1 f“rloiemd ”M toil lMeri,l lheer uabseodu ti tw toh epraey M soilmleer’osn me eolnseey w whaos hgaodi nloga. n ed him money and 2 3 Robert Stevens—Count 18 Karen Taylor’s husband had invested money with Bovensiep and 4 spoke very highly of Bovensiep. Taylor believed Bovensiep took the money 5 to extend loans to third parties. Taylor referred two of her sisters, Laura Colling and Marsha Allen, and her best friend Diane Mullins to Bovensiep. 6 Allen in turn referred her friend Patricia Osborne to Bovensiep. Mullins 7 referred Stevens, her father, to Bovensiep. In January 2007, Stevens invested $25,000 with Bovensiep and was to 8 receive monthly interest and return of his principal after a specified time. 9 Bovensiep never paid Stevens back. Bovensiep later admitted to Bullard that he led Stevens and others to believe the loans were for third parties, but that 10 he used the money to keep his other schemes afloat. 11 (Lodgment No. 2 at 2-4.) 12 STANDARD OF REVIEW 13 I. Review of the Magistrate Judge’s Report and Recommendation 14 The district court’s duties in connection with a magistrate judge’s report and 15 recommendation (“Report”) are set forth in Federal Rule of Civil Procedure 72(b) and 28 16 U.S.C. § 636(b)(1). The district judge “shall make a de novo determination of those 17 portions of the report . . . to which objection is made,” and “may accept, reject, or 18 modify, in whole or in part, the findings or recommendations made by the magistrate.” 19 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report 20 to which neither party objects. U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 21 (en banc). When no objections are filed, the Court may assume the correctness of the 22 magistrate judge’s findings of fact and decide the motion on the applicable law. 23 Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974). 24 After Magistrate Judge Stormes issued a Report, Petitioner filed objections on 25 November 8, 2018. (ECF No. 25.) (“Objections”). In the Objections, Petitioner mainly 26 reiterates arguments previously made, and generally challenges the Magistrate Judge’s 27 28 1 Report in its entirety. (See id. at 1.) The Court reviews de novo the Magistrate Judge’s 2 findings and recommendations. 3 A. Review of Habeas Petitions 4 Federal habeas corpus relief is available only to those who are in custody in 5 violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). “A 6 federal court may not issue the writ on the basis of a perceived error of state law.” Pulley 7 v. Harris, 465 U.S. 37, 41 (1984). “[A] mere error of state law is not a denial of due 8 process.” Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982) (internal quotations omitted). 9 “If it plainly appears from the face of the petition . . . that the petitioner is not entitled to 10 relief . . . the judge shall make an order for summary dismissal.” See Hendricks v. 11 Vasquez, 908 F.2d 490 (9th Cir. 1990). The facts alleged in the petition must be 12 sufficiently specific to allow the Court to understand the claim. See id. at 491-92. 13 B. AEDPA 14 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs 15 this Petition. See Lindh v. Murphy, 521 U.S. 320, 336-37 (1997). AEDPA imposes a 16 “highly deferential standard for evaluating state court rulings, which demands that state 17 court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 18 (2002) (internal citations and quotation marks omitted). 28 U.S.C. § 2254, as amended 19 by the AEDPA, provides in relevant part as follows: 20 (d) An application for a writ of habeas corpus on behalf of a person in 21 custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court 22 proceedings unless the adjudication of the claim- 23 (1) resulted in a decision that was contrary to, or involved an unreasonable 24 application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 25 (2) resulted in a decision that was based on an unreasonable determination of 26 the facts in light of the evidence presented in the State court proceeding. 27 28 U.S.C. § 2254(d). 28 1 The “clearly established Federal law” clause in § 2254(d)(1) refers to the 2 “governing legal principle or principles” previously articulated by the Supreme Court. 3 Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Only Supreme Court precedent may 4 constitute “clearly established Federal law,” but circuit law has persuasive value 5 regarding what law is “clearly established” and what constitutes “unreasonable 6 application” of that law. Duchaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); 7 Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004). A state court need not cite 8 Supreme Court precedent when resolving a habeas corpus claim, “[s]o long as neither the 9 reasoning nor the result of the state-court action contradicts [Supreme Court precedent].” 10 Early v. Packer, 537 U.S 3, 8 (2002) (per curiam). 11 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the 12 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 13 question of law or if the state court decides a case differently than [the Supreme] Court 14 has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 15 (2000). A state court decision is “contrary to” clearly established Supreme Court 16 precedent if it “‘applies a rule that contradicts the governing law set forth in [Supreme 17 Court’s] cases’ or if it ‘confronts a set of facts that are materially indistinguishable from a 18 decision of [the Supreme] Court and nevertheless arrives at a result different from our 19 precedent.’” Early, 537 U.S. at 8 (quoting Williams, 529 U.S. at 405-06). 20 Under the “unreasonable application” clause, the Court may grant relief “if the 21 state court identifies the correct rule from [the Supreme Court’s] cases but unreasonably 22 applies it to the facts of the particular state prisoner’s case.” Williams, 529 U.S. at 407- 23 08; Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (holding that the state court’s application 24 of clearly established federal law must be “objectively unreasonable”). “[A] federal 25 habeas court may not issue the writ simply because that court concludes in its 26 independent judgment that the relevant state-court decision applied clearly established 27 federal law erroneously or incorrectly. Rather, that application must also be 28 unreasonable.” Williams, 529 U.S. 411. Under AEDPA, relief is also available where 1 the state court predicated its adjudication of a claim on an unreasonable factual 2 determination. Miller–El v. Dretke, 545 U.S. 231, 240 (2005). This inquiry is explicitly 3 limited to the evidence that was before the state court. 28 U.S.C. § 2254(d)(2). 4 A federal court uses the decision of the highest state court to make its habeas 5 determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). However, if no 6 reasoned decision from the highest state court exists, the Court “looks through” to the last 7 reasoned state court decision and presumes it provides the basis for the higher court’s 8 denial of a claim or claims. Id. at 805-06. See Berghuis v. Thompkins, 560 U.S. 370, 380 9 (2010) (holding that the state court of appeal’s decision on direct appeal was the relevant 10 state-court decision for purposes of the AEDPA standard of review where state supreme 11 court had denied discretionary review of the decision on direct appeal). When the state 12 court’s adjudication is set forth in a reasoned opinion, § 2254(d)(1) review is confined to 13 “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 724, 14 738 (9th Cir. 2008) (en banc). 15 Here, the California Court of Appeal denied Petitioner’s claims in a reasoned 16 decision on direct appeal. (Lodgment No. 2.) Subsequently, the California Supreme 17 Court summarily denied Petitioner’s petition for review. (Lodgment No. 4.) Therefore, 18 the California Court of Appeal’s decision on direct appeal constitutes the relevant state 19 court adjudication on the merits for purpose of the AEDPA standard of review. 20 (Lodgment No. 2.) 21 DISCUSSION 22 I. Exhaustion 23 A state prisoner must exhaust his state court remedies before petitioning for a writ 24 of habeas corpus in federal court. 28 U.S.C. §§ 2254(b) and (c); Baldwin v. Reese, 541 25 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Peterson v. 26 Lampert, 319 F.3d 1153, 1155 (9th Cir.2003) (en banc). “The exhaustion-of-state- 27 remedies doctrine, now codified at 28 U.S.C. §§ 2254(b) and (c), reflects a policy of 28 federal-state comity, an accommodation of our federal system designed to give the State 1 an initial opportunity to pass upon and correct alleged violations of its prisoners’ federal 2 rights.” Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks, citations 3 and footnote omitted). 4 The exhaustion requirement is satisfied when “the federal claim has been fairly 5 presented to the state courts.” Picard, 404 U.S. at 275; Duncan v. Henry, 513 U.S. 364, 6 365 (1995) (per curiam). The purpose of the “fair presentation” requirement is to 7 “provide the state courts with a ‘fair opportunity’ to apply controlling legal principles to 8 the facts bearing upon [petitioner’s] constitutional claim.” Anderson v. Harless, 459 U.S. 9 4, 6 (1982) (per curiam); Solis v. Garcia, 219 F.3d 922, 930 (9th Cir. 2000), cert. denied, 10 534 U.S. 839 (2001). Thus, fair presentation requires that Petitioner must present “both 11 the operative facts and the federal legal theory on which his claim is based [to] the state 12 courts [. . . and Petitioner] must have characterized the claims he raised specifically as 13 federal claims.” Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (citations and 14 internal quotation marks omitted), cert. denied, 546 U.S. 818 (2005). To do so, “the 15 petitioner must have either referenced specific provisions of the federal constitution or 16 cited to federal or state cases involving the legal standard for a federal constitutional 17 violation.” Id. 18 Here, Petitioner raises two grounds for habeas relief: 19 (1) Pre-charging delay: Petitioner alleges he was denied his “Federal Constitutional 20 right to [a] speedy trial including where there has been a substantial and/or prejudicial delay prior to accusatory pleading,” and that the delays resulted in the 21 destruction of exculpatory evidence which violated his rights to due process and 22 fundamental fairness under the Sixth and Fourteenth Amendments. (ECF No. 10 at 6; ECF No. 10-1 at 1-8.) 23 (2) Post-charging delay: Petitioner alleges he was denied his “Federal 24 Constitutional right to due process under [Sixth] Amendment and fundamental 25 fairness” by the destruction of exculpatory evidence caused by “‘unjustified’ and ‘negligent’ delays in an already ‘old case’” by the prosecution after he was 26 charged. (ECF No. 10 at 7; ECF No. 10-1 at 1-8.) 27 The Court finds Petitioner’s grounds for relief are exhausted because Petitioner 28 1 fairly presented them to the California Supreme Court on discretionary review. 2 Petitioner’s first claim filed in state court asserted “the prejudicial delays in both 3 investigating and bringing this matter to trial violated [Petitioner’s] federal and state 4 constitutional rights to due process and a speedy trial.” (Lodgment No. 1 at 23). In his 5 state brief, Petitioner argued that the prosecution’s substantial pre- and post-arraignment 6 delays prejudiced him and violated his rights to a speedy trial and due process under the 7 Sixth and Fourteenth Amendments (citing Klopfer v. North Carolina, 386 U.S. 213, 224- 8 25 (1967) and Barker v. Wingo, 407 U.S. 514, 530-33. (1972)). (See Lodgment No. 3 at 9 12-18.) Therefore, Petitioner has properly exhausted his claims by fairly presenting 10 every issue raised in his federal petition to the state’s highest court on direct appeal.2 11 II. Pre-charging Delay (Claim one) 12 Petitioner alleges in claim one that he was denied his “Federal Constitutional right 13 to [a] speedy trial including where there has been a substantial and/or prejudicial delay 14 prior to accusatory pleading.” (ECF No. 10 at 6.) He contends the pre-charging delay 15 resulted in the destruction of exculpatory evidence in violation of his rights to 16 fundamental fairness and due process under the Sixth and Fourteenth Amendments. 17 (ECF No. 10-1 at 1-7.) Additionally, Petitioner alleges that his due process rights were 18 violated when the state court failed to properly apply the state statute of limitations as to 19 count 13 (Chris Miller's charge). (Id. at 8.) Finally, under claim one, Petitioner contends 20 that the pre-charging delay resulted in violation of his right to a speedy trial. (Id. at 2-4.) 21 Respondent answers that the state court correctly found that Petitioner “fails to 22

23 2 After Petitioner filed his FAP, Respondent filed a motion to dismiss the petition, arguing that Petitioner had failed to exhaust his state court remedies as to some of the grounds raised in his FAP. (ECF No. 14- 24 1 at 3.) Respondent argued that Petitioner had raised the following unexhausted grounds: (1) the 25 prosecution failed to gather exculpatory evidence from his storage unit before the documents were destroyed, (2) the prosecution singled him out for prosecution while ignoring the crimes committed by 26 the prosecution witnesses and filed charges against him it knew were false, and (3) the prosecutor obstructed justice. In his opposition to the motion, Petitioner expressly denied raising those grounds, 27 despite the grounds being argued in his FAP. (ECF No. 16 at 4.) Subsequently, this Court found that “assuming that [Petitioner] originally intended to assert claims based on the three grounds raised in the 28 1 overcome the relitigation bar of the . . . AEDPA and is precluded from habeas relief 2 because he has failed to show that a state-court decision on the merits was (1) ‘contrary 3 to’ an already existing and clearly established Supreme Court holding; (2) involved an 4 unreasonable application of such a holding; or (3) was based on an unreasonable 5 determination of the facts in light of the evidence before the state court.” (ECF No. 19 at 6 2.) 7 A. Additional Background

8 The prosecution learned that Bovensiep may have committed a crime on 9 December 30, 2009, when George Kneeshaw filed a report with the sheriff’s department. It is unclear when the sheriff’s department referred the matter to 10 the DA. The prosecutor represented to the court that the DA received the 11 case in April 2010. However, the People’s opposition papers and a timeline prepared by Bullard indicate the DA received the matter in February 2010. 12 In May 2010, a deputy district attorney contacted George Kneeshaw about 13 the matter. Thereafter, there was about a four-month delay until the DA referred the matter to Bullard in October 2010. 14 15 (Lodgment No. 2 at 8.)

16 Bullard prepared a detailed timeline showing an active investigation of the 17 matter. After Bullard received the matter she immediately started interviewing witnesses and securing documents. In 2010, Bullard asked for 18 assistance from Steven Papet, an investigative auditor with the California 19 Department of Justice, because she knew the matter was going to be “document heavy.” In July 2011, Bullard e-mailed Papet that the DA was 20 ready to file as soon as he finished his analysis. However, the investigation 21 then led to the discovery of additional victims. In June 2012, Bullard learned that Collings and Taylor might be victims. Through that interview Bullard 22 learned that about Stevens and Allen and interviewed them in July 2012. 23 Thus, the DA was discovering additional victims six months before it filed charges against Bovensiep. 24 25 (Id. at 11.)

26 Before trial, Bovensiep sought to dismiss the case based on violation of his 27 rights to due process and speedy trial, claiming the delay resulted in the loss of bank documents [account prior to December 21, 2007,] destroyed in the 28 normal course of business and the loss of all records he kept in a storage 1 fnaocnilpiatyy m[inen St]e.p tember 2013 when a storage unit he had leased was seized for 2 3 (Id. at 5.)

4 Bovensiep argued below that the bank records and the records in the storage 5 facility would have shown he used the victim’s funds in the normal course of his real estate business, and that he told some of the victims that he took 6 their money not to lend to third parties, but to keep his businesses afloat. 7 (Id. at 8.)

8 The trial court deferred consideration of the motion until after trial, so as to 9 better assess any resulting prejudice to Bovensiep. Following trial, Bovensiep again moved to dismiss the action based on the alleged 10 constitutional violations. 11 (Id. at 5-6.)

12 The prosecutor speculated that the unavailability of an investigator caused [a 13 four-month delay until the DA referred the matter to Bullard in October 2010]. [B]ut [the prosecutor] presented no evidence on the issue. On this 14 basis alone, the trial court properly found this four-month delay unjustified. 15 The trial court concluded, however, that this unjustified delay did not cause the missing documents; thus, Bovensiep was not prejudiced by the delay. 16 Substantial evidence supports this conclusion. 17 (Id. at 8.)

18 The court noted that by the People’s own admission, the case had “sat 19 around” from April or May 2010 to October 2010. Nonetheless, it concluded this unjustified delay did not result in any prejudice as this delay did not 20 cause the missing documents. The trial court found that the great age of the 21 case was primarily attributable to how long it took the victims to discover Bovensiep’s possible criminal activities and bring him to the attention of law 22 enforcement. 23 (Id. at 6.)

24 B. Denial of Due Process 25 Petitioner claims that his due process rights were violated by pre-charging delay 26 that impaired his ability to properly defend against the charges. (ECF No. 10-1 at 1-8.) 27 Respondent answers that the state court reasonably rejected the claim that the pre- 28 1 charging delay violated Petitioner’s due process rights. (ECF No. 19-1 at 11.) 2 1. Denial of Due Process Based on Destruction of Exculpatory 3 Evidence 4 Petitioner argues that his due process rights were violated by pre-charging delay 5 that caused destruction of exculpatory documents (bank records and the records in the 6 storage facility), which would have proved his innocent. (ECF No. 10-1 at 5.) 7 Respondent answers that substantial evidence supported that Petitioner was not 8 prejudiced by the pre-charging delay and that the “delay was due to the prosecution 9 taking a reasonable amount of time to investigate and gather evidence to support a 10 complex case.” (ECF No. 19-1 at 17.) 11 i. Petitioner’s Allegations 12 Petitioner contends the state court erred in finding that the pre-charging delay, 13 which was not attributable to him, was non-prejudicial. (ECF No. 10-1 at 1-8.) He 14 claims that he would have been found not guilty but for the destruction of evidence 15 caused by pre-charging delays attributable to the prosecution. (Id.) Petitioner contends 16 that “[t]he timeline, prepared by the prosecution, shows working on the case for only 65 17 days of a [three]-year investigation. This makes the ‘delay’ [two and half] years or more.” 18 (Id. at 3.) Petitioner argues that “[t]he prosecution’s ‘significant delay’ allowed the 19 destruction of the petitioner’s documents that had been in petitioner’s business storage 20 unit” and of the Petitioner’s bank documents which are routinely destroyed every seven 21 years. (Id. at 2.) Petitioner further alleges that “the prosecution had all the information 22 and the petitioner had a reasonable assumption that the prosecution would subpoena and 23 collect all evidence. Petitioner argues that the documents, assumed collected, would 24 prove his innocence” and that the storage facility destroyed “95 boxes, 2500 pounds of 25 petitioner’s files,” which “support[s] the proof of client files located in storage ignored by 26 the prosecution.” (Id.) Petitioner alleges that he “was able to reproduce some [of the 27 destroyed documents] from other sources,” and that these “reproduced documents were 28 shown as proof of Petitioner’s innocence, and he was acquitted of those relevant 1 charges.” (Id.) 2 ii. Clearly Established Federal Law 3 A court must utilize a two-prong test for determining whether pre-charging delay 4 has risen to the level of a denial of due process. United States v. Lovasco, 431 U.S. 783, 5 789-90 (1977). Under the first prong, the defendant must prove that “actual prejudice” 6 resulted from the pre-charging delay. Id. See also United States v. Moran, 759 F.2d 777, 7 782 (9th Cir. 1985) (petitioners who allege a violation of their Fifth Amendment right to 8 due process based on pre-charging delay, have “a heavy burden to prove” that the delay 9 caused “actual,” “definite,” and “non-speculative” prejudice). 10 Subsequent to the establishment of the actual prejudice, the court must weigh the 11 length of the pre-charging delay against the reason for the delay. Lovasco, 431 U.S. at 12 790. Due process requires dismissal of the indictment if it is shown that the pre-charging 13 delay caused substantial prejudice to the defendant’s right to a fair trial and that the delay 14 was “an intentional device to gain tactical advantage over the defendant.” United States 15 v. Marion, 404 U.S. 307, 324 (1971). “Investigative delay” is fundamentally unlike delay 16 undertaken by the prosecution “solely to gain tactical advantage over the defendant.” 17 Lovasco, 431 U.S. at 795. A prosecutor is abiding by “elementary standards of fair play 18 and decency,” rather than deviating from them, “if he refuses to seek indictments until he 19 is completely satisfied that he should prosecute and will be able promptly to establish 20 guilt beyond a reasonable doubt.” Id. The Court held that “prosecutors are under no duty 21 to file charges as soon as probable cause exists but before they are satisfied they will be 22 able to establish the suspect's guilt beyond a reasonable doubt.” Id. at 791. To impose a 23 duty “to file charges as soon as probable cause exists but before [the prosecutor] is 24 satisfied [he or she] will be able to establish the suspect's guilt beyond a reasonable 25 doubt[,] . . . would have a deleterious effect both upon the rights of the accused and upon 26 the ability of society to protect itself.” Id. at 791. 27 “To prosecute a defendant following investigative delay does not deprive the 28 defendant of due process, even if his defense might have been somewhat prejudiced by 1 the lapse of time.” Id. at 796. See also New v. Uribe, 532 F. App'x 743, 744 (9th Cir. 2 2013) (state appellate court did not unreasonably apply clearly established federal law 3 when concluding that the pre-charging delay of thirty years had not violated defendant’s 4 due process rights). 5 Moreover, “the Due Process Clause does not permit courts to abort criminal 6 prosecutions simply because they disagree with a prosecutor's judgment as to when to 7 seek an indictment.” Lovasco, 431 U.S. at 790. Likewise, “[j]udges are not free, in 8 defining “due process,” to impose on law enforcement officials their “personal and 9 private notions” of fairness and to “disregard the limits that bind judges in their judicial 10 function.” Id. (quoting Rochin v. California, 342 U.S. 165, 170 (1952)). Rather, the 11 Supreme Court has explained that “our task is more circumscribed.” Lovasco, 431 U.S. 12 at 790. Federal courts “are to determine only whether the action complained of . . . 13 violates those fundamental conceptions of justice which lie at the base of our civil and 14 political institutions, and which define the community’s sense of fair play and decency.” 15 Id. (internal citations and quotation marks omitted). Such determinations require case- 16 by-case consideration. See Lovasco, 431 U.S. at 796-97; Marion, 404 U.S. at 324-25. 17 iii. The State Court’s Ruling 18 On direct appeal, the California Court of Appeal denied Petitioner’s claim that the 19 pre-charging delay violated his due process rights and the California Supreme Court 20 summarily denied Petitioner’s petition for review. (Lodgment Nos. 2, 4.) Therefore, this 21 claim was exhausted on direct appeal. Accordingly, this Court looks through to the 22 reasoned decision of the California Court of Appeal as the relevant state court 23 adjudication on the merits for purpose of the AEDPA standard of review. 24 In making its determination regarding this claim, the appellate court relied on 25 California authority, holding that a federal due process claim based on pre-charging delay 26 requires that the delay was undertaken to gain a tactical advantage over the defendant. 27 (Lodgment No. 2 at 7.) The appellate court held that “if the delay was merely negligent, 28 a greater showing of prejudice would be required to establish a due process violation.” 1 Id. Additionally, the court relied on the clearly established federal law, Lovasco, to 2 weigh the length of the pre-charging delay against the reason for the delay, and 3 concluded that “the trial court did not abuse its discretion in refusing to dismiss the 4 charges against [Petitioner] based on pre-charging delay.” (Id. at 11.) 5 iv. Analysis 6 To determine whether the pre-charging delay violated Petitioner’s due process 7 rights, the California Court of Appeal correctly relied on California authority, which had 8 relied on Lovasco, stating that prosecuting “a defendant following investigative delay 9 does not deprive the defendant of due process, even if his or her defense might have been 10 somewhat prejudiced by the lapse of time.” (Lodgment No. 2 at 6-7 (citing People v. 11 Dunn–Gonzalez, 47 Cal.App.4th 899, 915 (1996)); Lodgment No. 2 at 11 (citing 12 Lovasco, 431 U.S. at 796).) The appellate court explained: 13 The task of the reviewing court is to determine whether pre-charging delay violates 14 the fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community’s sense of fair play and 15 decency. Prosecutors are under no duty to file charges as soon as probable cause 16 exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt. 17 (Lodgment No. 2 at 6.) Relying on California authority, the appellate court employed a 18 three-part test to determine whether Petitioner’s due process right to a fair trial had been 19 violated because of pre-charging delay: “(1) the defendant must show that he has been 20 prejudiced by the delay, whereupon (2) the burden shifts to the People to justify the 21 delay, and (3) the court balances the harm against the justification.” (Id. at 7.) Further, 22 the court held “[w]hether a defendant met the initial burden of showing prejudice is a 23 factual question for the trial court.” (Id. at 7.) 24 To determine whether Petitioner was prejudiced by the pre-charging delay, the 25 court of appeal considered numerous factors, including the actual cause of the destruction 26 of the documents. (See id. at 8-11.) After reviewing all of the factors, the court found 27 that substantial evidence supported that Petitioner was not prejudiced by the delay. (See 28 1 id. at 9.) As to the cause of the destruction of the petitioner’s documents that were in 2 petitioner’s storage unit, the appellate court noted the following factors. First, the 3 elateate court noted that the records from the storage facility showed that Petitioner 4 habitually failed to timely pay the rental fee “from June 2008 until the time the storage 5 facility notified him in March 2013 that the stored property would be sold.” (Id. at 9. 6 See also CT 576-83.) This evidence counters Petitioner’s argument that the documents in 7 the storage unit were destroyed as a result of the delays in the prosecution of the action. 8 As the records from the storage facility show, since June 2008, when Petitioner rented the 9 storage unit, he continuously received lien notices and auction warnings due to his 10 habitual failure to pay the rental fee. (See CT 559-82.) 11 Second, the appellate court noted that the “documents in the storage facility went 12 to auction in August 2013, but were not actually destroyed until September 2013.” (Id. at 13 9.) Therefore, from January 2013, when Petitioner was charged, to September 2013, 14 when the documents were destroyed, Petitioner had nine months to recover the 15 documents. However, Petitioner failed to recover the documents or inform the 16 prosecution of the importance of these documents before the storage facility had them 17 destroyed. Therefore, the pre-charging delay is not the cause of the destruction of the 18 documents in the storage unit but Petitioner’s failure to recover the documents, until nine 19 months after the charges were filed against him, is the actual cause of the documents’ 20 destruction. 21 Third, the “[n]otes from the storage facility show that Bovensiep intentionally 22 allowed the contents of the unit to go to auction.” (Id. at 9. See also CT at 576.) The 23 notes indicate that on May 11, 2013, during a phone conversation between Petitioner and 24 the storage facility, Petitioner stated that “he was going to let unit go to auction.” (See 25 CT at 576.) This evidence indicates Petitioner’s deliberate failure to recover the 26 documents, and shows that Petitioner’s own intentional decision was the cause of the 27 destruction of the documents in the storage unit. 28 Fourth, since Petitioner was arrested on January 29, 2013, and interviewed the 1 following day, he “had adequate time to inform the prosecution of the importance of 2 these documents before the storage facility had them destroyed [in September 2013].” 3 (Id. at 9.) This finding is supported by the fact that Petitioner had nine months to inform 4 the prosecution but instead intentionally decided to let the storage unit go to auction. 5 Therefore, based on the above factors the appellate court properly held that “[t]he 6 trial court correctly found that any pre-charging delay did not result in the destruction of 7 the storage facility documents.” (Id. at 9 (citing People v. Cowan, supra, 50 Cal.4th at p. 8 432 (“a suspect who, knowing of police interest, fails to preserve alibi evidence in his 9 control, cannot complain that a delay in charging violated his due process rights”)).) 10 As to the destruction of bank records, the appellate court considered the fact that 11 although Petitioner hoped to rely on the bank records and the records in the storage 12 facility to establish that “he used the victim[s’] funds in the normal course of his real 13 estate business, and that he told some of the victims that he took their money not to lend 14 to third parties, but to keep his business afloat,” his confessions to the prosecutor 15 contained strong evidence to the contrary. (Lodgment No. 2 at 8, 10.) For example, the 16 court noted that (1) Petitioner “admitted to [the prosecutor] that he took about $55,000 17 from the 835 property as loans for himself or his business that he never repaid”; (2) 18 Petitioner “admitted taking money from certain victims telling them the funds would be 19 used as loans to needy third parties, but that he used these funds to keep the 20 condominiums afloat”; (3) Petitioner “stated that things started to ‘snowball( )’ as he was 21 borrowing from one individual to pay another”; (4) Petitioner “conceded that when the 22 victims confronted him about the money, he lied to them with false stories because he 23 had already spent the money to keep everything afloat.” (Id. at 10.) In his Objections to 24 the Report, Petitioner argues that “[n]ot one piece of written evidence supporting the 25 respondent theory of borrowing money under false pretense was ever submitted.” (ECF 26 No. 25 at 7.) However, Petitioner’s own statements, as mentioned above, contradict this. 27 To further examine the record regarding trial court’s finding that Petitioner did not suffer 28 actual prejudice, the appellate court noted that Petitioner’s statements to the prosecutor 1 “supported an inference that he took some of the money (1) knowing he would not be 2 able to repay it, supporting theft by embezzlement, or (2) based on false representations 3 that he would be loaning the money to needy people, supporting theft by false pretense.” 4 (Lodgment No. 2 at 10.) 5 The appellate court further found that “[e]ven assuming the loss of bank records 6 during the investigation of the case prejudiced [Petitoner], the justifiable investigative 7 delay outweighed [Petitioner]’s showing of prejudice.” (Id. at 9.) In reaching this 8 conclusion, the court cited to the investigation timeline provided by the prosecution and 9 held “[t]he evidence supports the trial court’s conclusion that once the DA assigned the 10 matter to Bullard, the time required to investigate justified any delay in charging 11 [Petitioner].” Thus, in accord with Lovasco, the appellate court carefully weighed the 12 prejudice to Petitioner against the justifications for the delay and found that, because the 13 justifications outweighed the prejudice, the pre-charging delay did not amount to a due 14 process violation. (Lodgment No. 2 at 11.) Accordingly, the appellate court concluded 15 that “the trial court did not abuse its discretion in refusing to dismiss the charges against 16 [Petitioner] based on pre-charging delay.” (Id.) 17 To determine whether pre-charging delay had risen to the level of a denial of due 18 process, the appellate court began by conducting a thorough examination of the 19 investigation timeline provided by the prosecution, and found that the prosecution “[had] 20 prepared a detailed timeline showing an active investigation of the matter.” (Lodgment 21 No. 2 at 11.) (emphasis added). The appellate court noted that “after [the prosecutor] 22 received the matter she immediately started interviewing witnesses and securing 23 documents.” (Id.) emphasis added). The appellate court further explained that because 24 the prosecutor knew that the case was going to be “document heavy,” she asked for 25 assistance from an investigative auditor with the California Department of Justice. (Id. at 26 11.) The investigation timeline shows that the prosecutor interviewed eight individuals 27 regarding the case from October 1, 2009, when the prosecutor received the case, to 28 December 1, 2010, when the prosecutor consulted the auditor. This supports the state 1 court’s finding that the timeline showed an active investigation of the matter and that the 2 prosecutor immediately started interviewing witnesses and securing documents after she 3 received the matter. The court further noted that in July 2011, the prosecutor e-mailed 4 the auditor stating that “the DA was ready to file as soon as he finished his analysis. 5 However, the investigation then led to the discovery of additional victims.” (Id. at 11.) 6 In June 2012, six months before the charges were filed against Petitioner, the prosecutor 7 discovered additional victims, learning that Collings and Taylor might be victims. (Id. at 8 11.) It should be noted that even after Petitioner was charged, the prosecutor continued 9 to interview witnesses and acquire additional evidence regarding the matter. This shows 10 that as the prosecutor testified and as the state court correctly found, the matter was 11 “document heavy,” thus it required that the prosecutor spend more time gathering all of 12 the relevant evidence. 13 Accordingly, the state court correctly held that the detailed timeline prepared by 14 the prosecutor showed an active investigation of the matter, and that the only unjustified 15 pre-charging delay, the four-month delay in referring the case to the prosecutor, was not 16 prejudicial. 17 In addition to the appellate court’s reasoning, no actual prejudice to the conduct of 18 the defense is alleged or proved, by the Petitioner, and there is no showing that the 19 Government intentionally delayed to gain some tactical advantage over Petitioner. 20 Petitioner argues that “[s]olid proof that allowing those documents destroyed in storage, 21 would lead to acquittal, and was the actual reason the prosecution ignored and avoided 22 those documents and created prejudice.” (ECF No. 10-1 at 2.) However, Petitioner’s 23 argument is speculative, and Petitioner proffers no evidence that either the prosecution or 24 law enforcement intentionally delayed in commencing prosecution for the purpose of 25 prejudice to the defense, or in spite of a known risk of prejudice to the defense. 26 As the appellate court noted, records form the storage facility show that 27 Petitioner’s non-payment of the rental fee, not the prosecution’s alleged intentional delay, 28 caused the destruction of the documents in the storage facility. From January 29, 2013, 1 when Petitioner was arrested until September 2013, when the documents in the storage 2 facility were destroyed, Petitioner had nine months to recover the documents in the 3 storage facility that would have allegedly exculpated him. Petitioner failed to pay for the 4 rental fee, recover the documents, or inform the prosecution about the existence of the 5 documents in the storage facility. 6 Further, the storage facility’s record show that Petitioner habitually failed to timely 7 pay the rental fee from June 2008 until the time the storage facility notified him in March 8 2013 that the stored property would be sold due to nonpayment. Nine months lapsed 9 after Petitioner was charged before the documents were destroyed by the storage facility. 10 Accordingly, even assuming that the pre-charging delay was unreasonable, the 11 destruction of the documents in the storage facility was not caused by the pre-charging 12 delay but it was caused by Petitioner’s continued non-payment of the rental fee before 13 and after he was charged. 14 Moreover, Petitioner alleges that “[p]rejudice [was] caused and proved, as re- 15 creation of some documents from storage proved inconsistent with relevant witness 16 testimony and petitioner was acquitted of those relevant charges based on those 17 documents.” (ECF No. 10-1 at 3.) However, Petitioner fails to carry his “heavy burden” 18 to prove that the pre-charging delay caused “actual,” “definite,” and “non-speculative” 19 prejudice. Moran, 759 F.2d 777 at 782. Petitioner cannot establish that the destruction 20 of his documents was prejudicial because, as explained above, the documents would not 21 have acquitted him of the charges on which he was convicted. 22 Additionally, Petitioner argues that “[t]he [state] [c]ourt ruled clearly that the delay 23 was caused by prosecution’s ‘unjustified’ negligence,’ and that ‘definitely’ documents 24 were ‘not available.’” (ECF No. 10-1 at 3.) However, Petitioner misinterprets the state 25 court’s finding. The state court finding of unjustified delay pertains only to the four- 26 month delay from May 2010, when the District Attorney’s office contacted George 27 Kneeshaw (the victim who filed a report with the sheriff’s department) until February 28 2010, when the matter was referred to the prosecutor. (See Lodgment No. 2 at 8.) The 1 state court found the four-month delay unjustified because the prosecutor did not present 2 evidence supporting her speculation that the unavailability of an investigator had caused 3 the delay. (Id. at 8.) The state court’s finding of unjustified delay does not pertain to the 4 entire pre-charging process. Moreover, the state court concluded that even the unjustified 5 four-month delay did not cause the missing documents; thus, Petitioner was not 6 prejudiced by the delay. (Id. at 9.) As the appellate court noted “[t]he trial court found 7 that the great age of the case was primarily attributable to how long it took the victims to 8 discover Bovensiep’s possible criminal activities and bring him to the attention of law 9 enforcement.” (Id. at 6.) 10 Finally, even if petitioner experienced pre-indictment delay, such delay did not 11 violate fundamental concepts of justice. See Lovasco, 431 U.S. at 796 (“to prosecute a 12 defendant following investigative delay does not deprive him of due process, even if his 13 defense might have been somewhat prejudiced by the lapse of time”). 14 In sum, the Court finds the appellate state court’s rejection of this claim is neither 15 contrary to, nor an unreasonable application of, clearly established federal law, nor based 16 on an unreasonable determination of the facts. Even if Petitioner could satisfy the 17 aforementioned standard, he has failed to allege facts which, if true, demonstrate a 18 violation of his federal constitutional rights. Accordingly, this Court ADOPTS the 19 Magistrate Judge’s recommendation to DENY habeas relief on the due process claim 20 based on destruction of exculpatory evidence. 21 2. Denial of Due Process Based on Violation of State’s Statute of 22 Limitations 23 Petitioner claims denial of due process based on violation of the applicable state 24 statute of limitations. The California Court of Appeal denied this claim on direct appeal 25 and the California Supreme Court summarily denied Petitioner’s petition for review. 26 (Lodgment Nos. 2, 5.) Accordingly, this Court looks through to the reasoned decision of 27 the California Court of Appeal as the relevant state court adjudication on the merits for 28 purpose of the AEDPA standard of review. 1 Petitioner claims that "Miller’s charge, count 13 was outside of the statute of 2 limitations,” because “Miller wrote a letter to probation relating to sentencing after 3 trial . . . clearly stat[ing], ‘I realized I was scammed . . . in 2007” and therefore, the 4 prosecution, which began in February 2013, was barred by the four-year statute of 5 limitations. (ECF No. 10-1 at 8.) Petitioner’s claim is that the state court failed to 6 properly apply the state statute of limitations based on the facts of his case. (Id.) 7 Petitioner argues that his due process rights were violated when the state court convicted 8 him of count 13 (Miller’s charge) that was knowingly filed by the prosecution "outside of 9 the statute of limitations.” (Id.) However, Petitioner does not cite, nor is the Court 10 aware, of any “clearly established” Supreme Court precedent that due process prohibits a 11 conviction based on conduct occurring outside a state’s statute of limitations. 12 A petitioner may not “transform a state-law issue into a federal one merely by 13 asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th 14 Cir.1996). Although the FAP references the Fifth and Fourteenth Amendments of the 15 U.S. Constitution, Petitioner’s claim pertains to the California state court’s application of 16 the statute of limitations. “[A]s a matter of constitutional law . . . statutes of limitation go 17 to matters of remedy, not to destruction of fundamental rights.” Chase Sec. Corp. v. 18 Donaldson, 325 U.S. 304, 314 (1945). Accordingly, “a state court’s failure properly to 19 apply a state statute of limitations does not violate due process or, indeed, any other 20 provision of the Constitution or a federal statute.” Loeblein v. Dormire, 229 F.3d 724, 21 726 (8th Cir. 2000). In other words, “a state’s misapplication of its own statute of 22 limitations does not violate federal due process per se.” Belvin v. Addison, 561 Fed. 23 Appx. 684, 686 (10th Cir. 2014) (unpublished decision, citing Loeblin). Numerous 24 courts have held that such a claim cannot lead to habeas relief. See, e.g., Monplaisir v. 25 Perez, 2015 WL 1792378, at *3 (C.D. Cal. Apr. 14, 2015); Gadlin v. Cate, 2014 WL 26 3734618, at *14 (C.D. Cal. July 25, 2014) (citing Loeblein); Villanueva v. Frauenheim, 27 2014 WL 4245914, at *6 (C.D. Cal. Apr. 7, 2014), report and recommendation adopted, 28 2014 WL 4244257 (C.D. Cal. Aug. 22, 2014) (same); Cumplido v. Foulk, 2014 WL 1 462842, at *5 (C.D. Cal. Feb. 4, 2014) (same); Maldonado v. McEwen, 2012 WL 2 3762484, at *5 (C.D. Cal. July 3, 2012), report and recommendation adopted, 2012 WL 3 3762477 (C.D. Cal. Aug. 24, 2012) (same). Accordingly, any allegation that a 4 prosecution was barred by a state statute of limitations is an issue of state law, and a 5 federal habeas court has no authority to re-examine a state court’s determination of state 6 law. See Estelle v. McGuire, 502 U.S. 62, 68 (1991). A federal court cannot grant 7 habeas relief “for errors of state law[. I]t is not the province of a federal habeas court to 8 reexamine state-court determinations on state-law questions.” Id. at 67. 9 The California Court of Appeal’s determination of state law is therefore binding on 10 the Court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (“[A] state 11 court’s interpretation of state law announced on direct appeal of challenged conviction 12 binds a federal court sitting in habeas corpus.”); Hicks v. Feiock, 485 U.S. 624, 629 13 (1988) (even determination of state law made by intermediate appellate court must be 14 followed). The appellate court expressly determined that the indictments were timely 15 under the applicable statute of limitations. (Lodgment No. 2 at 23.) The appellate court 16 found that “there was substantial evidence for the jury to reject [Petitioner’s] argument” 17 that the charges were not brought within the four-year statute of limitations. (Id. at 16.) 18 The appellate court rejected Petitioner’s argument that “had the victims investigated [the 19 matter], they would have discovered” facts, which would have allowed them to “know 20 that a crime had potentially occurred before February 13, 2009. (Id. at 15.) The court 21 reasoned that “[e]ven assuming, however, that each victim had done some investigation, 22 the testimony of [Petitioner’s] own expert suggested such an investigation would not 23 have led the victims to believe a crime had been committed. (Id.) After thoroughly 24 examining all of the facts pertaining to each challenged count, the appellate court found 25 that “substantial evidence supported the jury’s implied finding that the statute of 26 limitations had not expired for the challenged counts.” (Id. at 23.) 27 Under Estelle, the California Court of Appeal’s determination of state law is 28 binding and Petitioner’s claim as to the application of the statute of limitations is not 1 reviewable in this federal habeas proceeding. Additionally, Petitioner fails to show that 2 the California Court of Appeal’s decision was an objectively unreasonable application of 3 clearly established federal law. Even if Petitioner had identified clearly established 4 federal law that protects against criminal convictions after the expiration of the statute of 5 limitations, he would still fail to establish that the state court misapplied federal law or 6 committed some constitutional violation. As the state appellate court correctly pointed 7 out, due to Petitioner’s position of trust and close relationship with the victims, it was 8 harder for the victims to believe a crime had been committed, which suspends the 9 running of the statute of limitations. (Id. at 15-16.) 10 Petitioner has not adequately alleged that the state court committed any error in 11 interpreting the statute of limitations or that this has caused a prejudicial pre-charging 12 delay. Petitioner's due process argument regarding the statute of limitations does not 13 raise a federal question that this Court can reach under AEDPA. Accordingly, the Court 14 finds the state court’s adjudication of this claim is neither contrary to, nor involves an 15 unreasonable application of, clearly established federal law, and is not based on an 16 unreasonable determination of the facts. Therefore, this Court ADOPTS the Magistrate 17 Judge’s recommendation to DENY habeas relief on the statute of limitations claim. 18 3. Denial of Right to a Speedy Trial 19 Petitioner claims that his Sixth Amendment right to speedy trial was violated by 20 pre-charging delay that impaired his ability to defend against the charges. (ECF No. 10-1 21 at 1-7.) To assert that his right to a speedy trial was violated because of a pre-charging 22 delay, Petitioner cites Barker v. Wingo, 407 U.S. 514 (1972), arguing that “[t]he timeline, 23 prepared by the prosecution, shows working on the case for only 65 days of a [three]-year 24 investigation” thereby creating a delay of at least two and a half years. (Id. at 3.) 25 Additionally, Petitioner argues that “[t]he [c]ourt ruled clearly that the delay was caused 26 by prosecution’s ‘unjustified’ ‘negligence,’ and that ‘definitely’ documents were ‘not 27 available.’” (Id.) Petitioner further alleges to have asserted his right to a speedy trial, 28 and that he suffered prejudice as the delay's result. (Id.) 1 Respondent counters that “[t]he state court correctly held the federal right to a 2 speedy trial attaches only after an arrest or the filing of an indictment or information.” 3 (ECF No. 19-1 at 20.) 4 i. The Clearly Established Federal Law 5 The speedy trial provision of the Sixth Amendment does not apply to pre-charging 6 delay. United States v. Marion, 404 U.S. 307, 320-21 (1971) (holding that “it is either a 7 formal indictment or information or else the actual restraints imposed by arrest and 8 holding to answer a criminal charge that engage the particular protections of the speedy 9 trial provision of the Sixth Amendment.”). “Arrest is a public act that may seriously 10 interfere with the defendant’s liberty, whether he is free on bail or not, and that may 11 disrupt his employment, drain his financial resources, curtail his associations, subject him 12 to public obloquy, and create anxiety in him, his family and his friends.” Marion, 404 13 U.S. at 320. 14 “The right to a speedy trial is generically different from any of the other rights 15 enshrined in the Constitution for the protection of the accused.” Barker v. Wingo, 407 16 U.S. 514, 515 (1972) (emphasis added). The Supreme Court has declined to extend the 17 reach of the speedy trial provision of the Sixth Amendment to the period prior to arrest. 18 Marion, 404 U.S. at 321. The Supreme Court has held “as far as the Speedy Trial Clause 19 of the Sixth Amendment is concerned, [a lengthy preindictment] delay is wholly 20 irrelevant.” Lovasco, 431 U.S. at 787 (emphasis added). 21 ii. The State Court’s Ruling 22 This claim was exhausted on direct appeal. The California Court of Appeal denied 23 this claim on direct appeal and the California Supreme Court summarily denied 24 Petitioner’s petition for review. (Lodgment Nos. 2, 5.) Accordingly, this Court looks 25 through to the reasoned decision of the California Court of Appeal as the relevant state 26 court adjudication on the merits for purpose of the AEDPA standard of review. 27 In making its determination regarding this claim, the appellate court relied on 28 California authority, holding that “[d]elay in charging a defendant after commission of an 1 alleged crime (pre-charging delay) does not implicate speedy trial rights.” (Lodgment 2 No. 2 at 5.) Additionally, the court relied on the clearly established Federal law, Marion, 3 to conclude that “[t]he federal right to a speedy trial attaches only after an arrest or the 4 filing of an indictment or information, although California extends the right by holding 5 that it attaches after a complaint has been filed.” (Id.) Accordingly, the court did not 6 consider any facts prior to the arrest in ruling on Petitioner’s speedy trial violation due to 7 pre-charging delay. (See id.) 8 iii. Analysis 9 In this case, Petitioner was not arrested, charged, or otherwise subjected to formal 10 restraint prior to the issuance of an arrest warrant and his subsequent arrest on January 11 29, 2013. (See Lodgment No. 2 at 8.) It was this event, therefore, that transformed 12 Petitioner into an “accused” defendant subject to the speedy trial protections of the Sixth 13 Amendment. Therefore, Barker factors do not apply to a claim of violation of the right to 14 a speedy trial caused by pre-charging delays. Petitioner incorrectly applies Barker factors 15 to this claim. However, to determine whether the pre-charging delay violated Petitioner’s 16 right to a speedy trial, the California Court of Appeal correctly relied on the clearly 17 established Federal law, Marion, and properly declined to extend the reach of the speedy 18 trial provision of the Sixth Amendment to the period prior to Petitioner’s arrest. 19 Accordingly, the Court finds the state court’s adjudication of this claim is neither 20 contrary to, nor involves an unreasonable application of, clearly established federal law, 21 and is not based on an unreasonable determination of the facts. Therefore, this Court 22 ADOPTS the Magistrate Judge’s recommendation to DENY habeas relief on denial of 23 right to a speedy trial claim based on pre-charging delay. 24 III. Post-charging Delay: Denial of Right to a Speedy Trial (Claim two) 25 Petitioner claims that his Sixth Amendment right to speedy trial was violated by 26 post-charging delay that impaired his ability to defend against the charges. (ECF No. 10- 27 1 at 2.) Specifically, he alleges that he was denied his due process rights as a result of 28 “‘unjustified’ and ‘negligent’ delays in an already ‘old case’” by the prosecution after he 1 was charged. (ECF No. 10 at 7; ECF No. 10-1 at 1-8.) Respondent counters that the 2 state court reasonably rejected the claim that the post-charging delay violated Petitioner’s 3 right to speedy trial because Petitioner himself was responsible for the delays and waived 4 his speedy trial right by requesting numerous delays. (ECF No. 19-1 at 18-19.) 5 A. Clearly Established Federal Law 6 The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused 7 shall enjoy the right to a speedy . . . trial . . . .” U.S. Const. amend VI. A speedy trial is a 8 fundamental right guaranteed the accused by the Sixth Amendment and imposed by the 9 Due Process Clause of the Fourteenth Amendment on the states. Klopfer v. North 10 Carolina, 386 U.S. 213, 223 (1967). The Supreme Court has not devised a per se rule to 11 determine whether the right to a speedy trial has been violated. Instead, courts must 12 apply a flexible functional analysis, and consider and weigh the following factors in 13 evaluating a speedy trial claim: (1) “whether [the] delay before trial was uncommonly 14 long,” (2) “whether the government or the criminal defendant is more to blame for that 15 delay,” (3) “whether, in due course, the defendant asserted his right to a speedy trial,” and 16 (4) “whether he suffered prejudice as the delay’s result.” Doggett v. United States, 505 17 U.S. 647, 651 (1992); Barker v. Wingo, 407 U.S. 514, 530 (1972). As the Supreme Court 18 explained in its seminal decision in Barker, none of the four factors are either a necessary 19 or sufficient condition for finding a speedy trial deprivation. Barker, 407 U.S. at 533. 20 They are related factors and must be considered together with such other circumstances 21 as may be relevant. Id. at 533. Barker adopted a “difficult and sensitive balancing 22 process” through which “the conduct of both the prosecution and the defendant are 23 weighed.” Id. at 530, 533. 24 B. The State Court’s Ruling 25 On direct appeal, the California Court of Appeal denied Petitioner’s claim that the 26 post-charging delay violated his right to a speedy trial and the California Supreme Court 27 summarily denied Petitioner’s petition for review. (Lodgment Nos. 2, 4.) Therefore, this 28 claim was exhausted on direct appeal. Accordingly, this Court looks through to the 1 reasoned decision of the California Court of Appeal as the relevant state court 2 adjudication on the merits for purpose of the AEDPA standard of review. 3 To determine whether the post-charging delay violated Petitioner’s right to a 4 speedy trial, the California Court of Appeal relied on California authority, People v. 5 Wilson, 60 Cal. 2d 139, 146 (1963), stating that “the constitutional or statutory right to a 6 speedy trial may be waived if not asserted prior to commencement of trial.” (Lodgment 7 No. 2 at 5.) The court noted that Petitioner “never sought a dismissal based on post- 8 charging delay.” (Id.) The court further noted that “the record shows that after charges 9 were filed, [Petitioner] requested numerous continuances of the preliminary hearing and 10 three trial continuances.” (Id.) Accordingly, the court concluded that “[u]nder these 11 facts, [Petitioner] waived his right to a speedy trial.” (Id.) 12 C. Analysis 13 As noted above, AEDPA imposes a “highly deferential standard for evaluating 14 state court rulings, which demands that state court decisions be given the benefit of the 15 doubt.” Woodford, 537 U.S. at 24. Moreover, this substantial deference is at an apex 16 when we are reviewing a state court’s application of a broad, general standard because 17 judicial application of a general standard “can demand a substantial element of 18 judgment”; the more general the rule provided by the Supreme Court, the more latitude 19 the state courts have in reaching reasonable outcomes in case-by-case determinations. 20 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Therefore, the state courts’ greater 21 leeway in reasonably applying a general rule translates to a narrower range of decisions 22 that are objectively unreasonable under AEDPA. See id. Determining whether a 23 defendant’s speedy-trial right has been violated requires the application of just such a 24 standard. Barker explained that the right to a speedy trial “is a more vague concept than 25 other procedural rights,” and it is “impossible to determine with precision when the right 26 has been denied . . . . [A]ny inquiry into a speedy trial claim necessitates a functional 27 analysis of the right in the particular context of the case.” Barker, 407 U.S. at 521. 28 Therefore, under section 2254(d)(1), the Court is required to give the widest of latitude to 1 a state court’s conduct of its speedy-trial analysis. Accordingly, the Court reviews the 2 California Court of Appeal’s decision applying Barker’s general principles with 3 increased deference. 4 1. Length of Delay 5 The first factor of the Barker test—length of the delay—is a dual inquiry. First, as 6 a threshold matter, only if the delay is “presumptively prejudicial” need the Court inquire 7 into the remaining Barker factors. Barker, 407 U.S. at 530. Second, “if the accused 8 makes this showing, the court must then consider, as one factor among several, the extent 9 to which the delay stretches beyond the bare minimum needed to trigger judicial 10 examination of the claim.” Doggett, 505 U.S. at 652. In examining the first prong of the 11 delay factor, the Ninth Circuit has held that presumptive prejudice is not dispositive; 12 instead, it is simply part of the mix of relevant facts and its importance increases with the 13 length of the delay. United States v. Gregory, 322 F.3d 1157, 1162 (9th Cir. 2003). 14 Depending on the nature of the charges, lower courts have generally found post- 15 accusation delay presumptively prejudicial as it approaches one year. Doggett, 505 U.S. 16 at 652 n. 1. See also Gregory, 322 F.3d at 1162 (twenty-two-month delay between first 17 superseding indictment and trial date was presumptively prejudicial but did not weigh 18 heavily in defendant’s favor because it was not excessively long). 19 Here, the Court finds that the first Barker factor weighs in favor of Petitioner. The 20 State filled the initial charging document in February 2013. (CT at 1.) Two years later, 21 in February 2015, the case was brought to trial. (CT at 781.) The Court agrees that the 22 two-year delay is sufficient length of time to require consideration of the remaining 23 Barker factors. See Doggett, 505 U.S. at 651-52. Moreover, in considering the second 24 part of the delay inquiry, the Court finds that the two-year delay exceeds the “bare 25 minimum” for “judicial examination of the claim.” Doggett, 505 U.S. at 652. See United 26 States v. Lam, 251 F.3d 852, 856 (9th Cir. 2001) (noting the general consensus among 27 circuit courts is that eight months constitutes a threshold minimum delay triggering a 28 speedy trial right). Cf. United States v. King, 483 F.3d 969, 976 (9th Cir. 2007) (finding 1 nearly two years delay in bringing the matter to trial was not excessive). Accordingly, 2 the Court finds that this factor weighs in favor of Petitioner. The Court now looks to the 3 second, third, and fourth Barker factors. 4 2. Reasons for the Delay 5 The second prong in the Barker analysis is consideration of the reasons for delay. 6 Barker, 407 U.S. at 530. Specifically, the second Barker factor asks “whether the 7 government or the criminal defendant is more to blame for that delay.” Doggett, 505 8 U.S. at 651. Courts generally look to the reasons for the delay in commencing the trial to 9 determine whether those reasons are deliberate, neutral, or valid. Barker, 407 U.S. at 10 531. Intentional delays which obtain a strategic advantage for the prosecution are 11 weighed heavily against the government. Id. at 531. “[A] valid reason, such as a missing 12 witness, should serve to justify appropriate delay.” Id. at 531. “A more neutral reason 13 such as negligence or overcrowded courts should be weighed less heavily, but 14 nevertheless should be considered because the ultimate responsibility for such 15 circumstances must rest with the government rather than the defendant.” Id. On the 16 other hand, “[d]elay attributable to the defendant’s own acts or to tactical decisions by 17 defendant’s counsel will not bolster a defendant’s speedy trial argument.” McNeely v. 18 Blanas, 336 F.3d 822, 827 (9th Cir. 2003). “[I]f delay is attributable to the defendant, 19 then his waiver may be given effect under standard waiver doctrine.” Barker, 407 U.S. at 20 529. See also Vermont v. Brillon, 556 U.S. 81, 90 (2009) (delay caused by continuances 21 requested by the defendant did not violate defendant’s speedy trial rights since “delay 22 caused by the defense weighs against the defendant”). 23 Here, Respondent contends that Petitioner “[b]y his own conduct, [] waived any 24 claim to a violat[ion] of speedy trial.” (ECF No. 19-1 at 27.) Although a two-year delay 25 in this case is substantial, Respondent argues that the delay should be weighed against 26 Petitioner because he relinquished his right to a speedy trial by requesting numerous 27 continuances of the preliminary hearing and trial. (ECF No. 19-1 at 23-27.) Petitioner 28 does not refute that he unequivocally waived his speedy trial rights by repeatedly 1 continuing the preliminary hearing and the trial date. Petitioner does not assert that the 2 district attorney was responsible for continuing his trial, and he does not deny 3 Respondent’s contention that Petitioner was responsible for the continuances. 4 The record shows that after Petitioner was arraigned, on January 30, 2013, the case 5 was continued from time to time for the next two-years without objection. (CT at 736- 6 81.) Petitioner was arrested on January 29, 2013, when the prosecution filed an original 7 complaint. (CT at 605, 1.) Due to the prosecution’s conflict with the preliminary hearing 8 date set for February 13, 2013, charges were dismissed and, subsequently, re-filed on 9 February 14, 2013. Petitioner was arraigned on February 15, 2013, and released on bail 10 within ten days and remained free of custody on bond until the verdicts were returned. 11 (CT at 736-738, 838.) Consequently, Petitioner waived his statutory time for a 12 preliminary hearing four times by requesting continuances on February 27, 2013, May 1, 13 2013, August 22, 2013, and September 18, 2013; a preliminary hearing was finally held 14 on December 9-12, 2013. (CT at 740, 742, 746, 750-61.) At the end of the preliminary 15 hearing, Petitioner waived his statutory right to trial within sixty days, and upon defense 16 counsel’s request, a trial date was set for May 22, 2014. (CT at 759.) On March 7, 2014, 17 Petitioner again waived statutory time for trial, and trial was re-set for August 11, 2014. 18 (CT at 765.) On August 4, 2014, Petitioner again continued the trial date until August 18, 19 2014. (CT at 767.) On August 20, 2014, a status conference was set for October 31, 20 2014, and trial call set for December 2, 2014. (CT at 768-69.) However, at the October 21 31, 2014 status conference, Petitioner again waived his statutory time for trial and upon 22 Petitioner’s request, the case was continued until February 3, 2015. (CT at 770.) The 23 parties reported for jury trial on February 3, and voir dire of prospective jurors began on 24 February 10. (CT at 772-81.) Accordingly, the record shows that from 2013 to 2015, 25 numerous continuances were sought by Petitioner’s attorney with Petitioner’s consent. 26 Based on a review of the record as a whole, the Court finds that the two-year delay is 27 attributable to Petitioner because the two-year post-charging delay is a result of 28 defendant’s own acts of requesting numerous continuances. Additionally, Petitioner 1 neither asserted his right to a speedy trial nor did he object to any continuances requested 2 by his counsel. Therefore, Barker’s second factor does not support Petitioner’s claim 3 because Petitioner, rather than the state, is substantially “more to blame” for the delay. 4 3. Petitioner’s Assertion of the Right 5 A petitioner’s assertion of his speedy trial right is “entitled to strong evidentiary 6 weight in determining whether the [petitioner] [was] deprived of the right.” Barker, 407 7 U.S. at 531-32. The “failure to assert the right will make it difficult for a [petitioner] to 8 prove that he was denied a speedy trial.” Id. at 532. However, even repeated assertions 9 of a petitioner’s speedy trial right “must be viewed in the light of [Petitioner’s] other 10 conduct.” United States v. Loud Hawk, 474 U.S. 302, 314 (1986) (finding that 11 defendants’ repeated assertions of their speedy trial rights were contradicted by their 12 filings of frivolous petitions in the appellate courts and of repeated and unsuccessful 13 motions in the trial court, which contributed to the delay in their trial). See United States 14 v. Lam, 251 F.3d 852, 858 (9th Cir.), amended, 262 F.3d 1033 (9th Cir.2001) (finding 15 defendant bound by his attorney’s actions in having sought several continuances, but 16 noting that defendant can preserve his rights to a speedy trial when he expressly asserts 17 his rights and his actions contradict his counsel’s). Petitioner had ample opportunity to 18 object to any of the continuances and to assert his right to a speedy trial but the record 19 does not show that he ever objected. Nowhere did Petitioner assert his right to a speedy 20 trial because Petitioner never specifically asked for his case to go to trial. Instead of 21 asserting his right to proceed to trial promptly, the record shows that Petitioner through 22 his counsel asked for several continuances, which caused the post-charging delay. While 23 Petitioner may have been within his rights to ask for those continuances, he cannot take 24 advantage of the delay that the continuances inevitably and unavoidably caused by now 25 claiming that he was denied his rights to a speedy trial. Therefore, Barker’s third factor 26 does not support Petitioner’s claim because Petitioner’s failure to assert his right to a 27 speedy trial makes it difficult for Petitioner to prove that he was denied a speedy trial. 28 / / / 1 4. Prejudice 2 If a petitioner is responsible for the delay in his trial, then, he carries the heavy 3 burden of demonstrating actual prejudice to succeed on a speedy trial claim. United 4 States v. Aguirre, 994 F.2d 1454, 1458 (9th Cir.1993). “Doggett holds that we should 5 presume prejudice only if the [petitioner] is not responsible for the delay.” Id. at 1457. 6 “[However, even] such presumptive prejudice cannot alone carry a Sixth Amendment 7 claim without regard to the other Barker criteria.” Doggett, 505 U.S. at 655. 8 Accordingly, Petitioner bears the burden of demonstrating actual prejudice under the 9 fourth Barker factor because he is responsible for the delay in his trial. Actual prejudice 10 can be shown in three ways: (1) “oppressive pretrial incarceration”; (2) “anxiety and 11 concern of the accused”; and (3) “the possibility that the accused’s defense will be 12 impaired by dimming memories and loss of exculpatory evidence.” Doggett, 505 U.S. at 13 654. “Of these forms of prejudice, the most serious is the last, because the inability of 14 [the accused] adequately to prepare his case skews the fairness of the entire system.” Id. 15 Petitioner has failed to make out a successful speedy trial claim because he has not 16 shown precisely how he was prejudiced by the delay between his indictment and trial. 17 Petitioner does not credibly point to any specific damage to his defense stemming from 18 the post-charging delay in his trial. Petitioner cannot assert oppressive pretrial 19 incarceration because, as noted above, he was arraigned on February 15, 2013, and 20 released on bail within ten days and remained free of custody on bond until the verdicts 21 were returned. (CT at 736-738, 838.) Moreover, Petitioner does not claim that his 22 defense was impaired by dimming memories and loss of exculpatory evidence as a result 23 of post-charging delay. The only real prejudice that Petitioner may credibly claim is that 24 the delay caused him anxiety and concern. However, this factor must be balanced and 25 assessed in light of the other Barker factors, including the reasons and responsibility for 26 the delay. After a careful review of the record, the Court finds that Petitioner is 27 responsible for the delay in his trial and that he did not appropriately assert his speedy 28 trial rights. His anxiety and concern caused by the two-year, post-charging delay may 1 weigh in favor of Petitioner, but by itself, it cannot be said to outweigh these other 2 considerations especially given that the numerous continuances sought by Petitioner are 3 largely, if not wholly, to blame for this lapse of time. Therefore, in light of other Barker 4 factors, Barker’s final factor of prejudice does not support Petitioner’s claim. 5 Upon weighing each of the Barker factors, the Court concludes that although the 6 first Barker factor, the length of the delay, about two years from accusatory pleading to 7 the beginning of trial, is considerable, it is outweighed by the second, third, and fourth 8 Barker factors. Petitioner has failed to show prejudice or an excessive delay not 9 attributable to him; therefore, he has failed to prove a violation of his Sixth Amendment 10 right to a speedy trial. Accordingly, the Court finds the state court’s adjudication of this 11 claim, on the basis that Petitioner waived his right to a speedy trial by not invoking it and 12 requesting the delays, is neither contrary to, nor involves an unreasonable application of, 13 clearly established federal law, and is not based on an unreasonable determination of the 14 facts. Accordingly, this Court ADOPTS the Magistrate Judge’s recommendation to 15 DENY habeas relief as to claim two. 16 IV. CERTIFICATE OF APPEALABILITY 17 Under AEDPA, a state prisoner seeking to appeal a district court’s denial of a 18 habeas petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). 19 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 cases, “[t]he district 20 court must issue or deny a certificate of appealability when it enters a final order adverse 21 to the applicant.” A certificate of appealability should be issued only where the petition 22 presents “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 23 2253(c)(2). To obtain a certificate of appealability, a petitioner must show “that 24 reasonable jurists would find the district court’s assessment of the constitutional claims 25 debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds that 26 Petitioner has failed to demonstrate that “jurists of reason would find it debatable whether 27 the petition states a valid claim” that Petitioner was denied a constitutional right. Id. 28 Accordingly, after reviewing Petitioner’s First Amended Petition, the Court sua sponte 1 || DENIES a certificate of appealability. 2\\vV. CONCLUSION 3 For all the foregoing reasons, the Court OVERRULES Petitioner’s Objections, ADOPTS the Report and Recommendation, DENIES the Petition for Writ of Habeas 5 || Corpus, and DENIES a certificate of appealability. 6 IT IS SO ORDERED. 7 8 9 Dated: July 28, 2020 2 10 Hon. athe Ck ll United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28