NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRADLEY DEON HOOVER, No. 18-15684
Petitioner-Appellant, D.C. No. 2:15-cv-00082-JKS
v. MEMORANDUM* ROSEMARY NDOH, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California James K. Singleton, Jr., District Judge, Presiding
Argued and Submitted October 4, 2019 San Francisco, California
Before: PAEZ and COLLINS, Circuit Judges, and CHOE-GROVES,** Judge.
Bradley Hoover appeals the district court’s denial of his petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Reviewing de novo, Sanders v. Cullen,
873 F.3d 778, 793 (9th Cir. 2017), we affirm.
Following a jury trial in 2011, Hoover was convicted of kidnapping and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. murdering Michael Agustin. The crimes took place in 1994, almost seventeen
years before he was brought to trial. Hoover was sentenced to life without the
possibility of parole. On direct appeal, he argued that the delay in his trial violated
his federal due process right to a fair trial. Finding no prejudice, the California
Court of Appeal affirmed, and the California Supreme Court denied review.
Hoover then filed a petition for habeas corpus in state court, asserting that
the lengthy delay in his trial resulted in a constructive denial of effective assistance
of counsel. The state trial court denied the petition. The court held that, because
Hoover’s claim was based on the record on his appeal of his conviction, this claim
could and should have been raised on direct appeal. The court further held that, to
the extent that the letter from Hoover’s trial counsel submitted with the petition
constituted additional evidence, it provided no new arguments, and that Hoover’s
claim failed on the merits. Hoover renewed his habeas corpus petition in the
California Court of Appeal and in the California Supreme Court, but both courts
denied relief.
Hoover then commenced this federal habeas proceeding. He again
challenged his conviction on the ground that the delay in his trial violated his due
process rights under United States v. Lovasco, 431 U.S. 783 (1977). He also
renewed his claim that the delay resulted in a constructive denial of effective
assistance of counsel. The district court denied the petition, and Hoover timely
2 appealed.
On appeal, Hoover argues that the extraordinary delay in bringing him to
trial violated his due process rights under Lovasco. He further argues that as a
result of the delay he was constructively denied his Sixth Amendment right to the
effective assistance of counsel. Although our review is de novo, it is governed by
the Antiterrorism and Effective Death Penalty Act of 1996. A federal court may
only grant habeas relief when the last reasoned state court decision was contrary to
or involved an unreasonable application of clearly established federal law as
determined by the United States Supreme Court, or was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d)(1)–(2); Williams v. Taylor, 529 U.S. 362, 407–09
(2000); DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009).
The basis for Hoover’s due process argument is the delay of almost
seventeen years between the 1994 murder and the 2011 trial. About three months
after the crimes, Hoover and his then-girlfriend, now-wife, Andrea Carvalho, were
charged by complaint with the murder and kidnapping of Agustin. At the
conclusion of Carvalho’s preliminary hearing,1 however, the court dismissed the
charges against her for insufficient evidence. Hoover was not then arraigned. Nor
1 California law entitles persons accused by complaint of committing a felony to a preliminary hearing to determine whether sufficient cause exists to hold them to answer at trial. Cal. Penal Code § 872.
3 did the prosecution seek a preliminary hearing against him.2 Instead, it filed a
detainer against him in 1995 with the state prison system, notifying him of the
murder and kidnapping charges and of his right to demand a trial. The case
languished for over sixteen years until Hoover demanded a trial in January 2011.
Shortly thereafter, Hoover was tried and convicted.
Trial Delay.
The contours of the Fifth Amendment’s guarantee against delay in bringing
a defendant to trial are laid out in Lovasco, 431 U.S. at 788–96. Under Lovasco,
proof of prejudice is a “necessary but not sufficient element of a due process
claim.” Id. at 790. Once that is established, the court “must consider the reasons
for the delay as well as the prejudice to the accused.” Id. A court need not address
the prosecution’s reasons for the delay unless the defendant first establishes actual
prejudice. United States v. DeGeorge, 380 F.3d 1203, 1212 (9th Cir. 2004).
Hoover argues that the almost seventeen-year delay prejudiced him because
he no longer had access to the transcript of Carvalho’s preliminary hearing where
the charges against her were dismissed; he was unable to corroborate his alibi that
he was eating dinner at the home of Carvalho’s parents because they had since
died; and his ability to challenge the state’s evidence and to pursue leads
2 Hoover was incarcerated for an unrelated charge arising out of a neighboring county.
4 concerning alternative perpetrators was impaired by the loss of potentially
exculpatory evidence including the police dispatch logs, Agustin’s telephone
records, and the testimony of possible witnesses who could not be located.
In finding that Hoover did not establish actual prejudice, the California
Court of Appeal applied the correct legal standard under Lovasco. The court
concluded that Hoover failed to show how the missing police dispatch logs could
have been used to exculpate Hoover or impeach the officers’ testimony concerning
their actions. The court further reasoned that Hoover failed to show how the
missing preliminary hearing transcript would have contained impeachment
evidence that would have been useful to him at trial. The court further reasoned
that Hoover had not shown that Carvalho’s parents would have testified the way he
asserted they would. Lastly, the court held that no other evidence in the record
supported a finding of prejudice and that Hoover’s claim that he was unable to
pursue additional lines of investigation was speculative.
Although the delay in this case is extraordinary, we are unable to conclude,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRADLEY DEON HOOVER, No. 18-15684
Petitioner-Appellant, D.C. No. 2:15-cv-00082-JKS
v. MEMORANDUM* ROSEMARY NDOH, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California James K. Singleton, Jr., District Judge, Presiding
Argued and Submitted October 4, 2019 San Francisco, California
Before: PAEZ and COLLINS, Circuit Judges, and CHOE-GROVES,** Judge.
Bradley Hoover appeals the district court’s denial of his petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Reviewing de novo, Sanders v. Cullen,
873 F.3d 778, 793 (9th Cir. 2017), we affirm.
Following a jury trial in 2011, Hoover was convicted of kidnapping and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. murdering Michael Agustin. The crimes took place in 1994, almost seventeen
years before he was brought to trial. Hoover was sentenced to life without the
possibility of parole. On direct appeal, he argued that the delay in his trial violated
his federal due process right to a fair trial. Finding no prejudice, the California
Court of Appeal affirmed, and the California Supreme Court denied review.
Hoover then filed a petition for habeas corpus in state court, asserting that
the lengthy delay in his trial resulted in a constructive denial of effective assistance
of counsel. The state trial court denied the petition. The court held that, because
Hoover’s claim was based on the record on his appeal of his conviction, this claim
could and should have been raised on direct appeal. The court further held that, to
the extent that the letter from Hoover’s trial counsel submitted with the petition
constituted additional evidence, it provided no new arguments, and that Hoover’s
claim failed on the merits. Hoover renewed his habeas corpus petition in the
California Court of Appeal and in the California Supreme Court, but both courts
denied relief.
Hoover then commenced this federal habeas proceeding. He again
challenged his conviction on the ground that the delay in his trial violated his due
process rights under United States v. Lovasco, 431 U.S. 783 (1977). He also
renewed his claim that the delay resulted in a constructive denial of effective
assistance of counsel. The district court denied the petition, and Hoover timely
2 appealed.
On appeal, Hoover argues that the extraordinary delay in bringing him to
trial violated his due process rights under Lovasco. He further argues that as a
result of the delay he was constructively denied his Sixth Amendment right to the
effective assistance of counsel. Although our review is de novo, it is governed by
the Antiterrorism and Effective Death Penalty Act of 1996. A federal court may
only grant habeas relief when the last reasoned state court decision was contrary to
or involved an unreasonable application of clearly established federal law as
determined by the United States Supreme Court, or was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d)(1)–(2); Williams v. Taylor, 529 U.S. 362, 407–09
(2000); DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009).
The basis for Hoover’s due process argument is the delay of almost
seventeen years between the 1994 murder and the 2011 trial. About three months
after the crimes, Hoover and his then-girlfriend, now-wife, Andrea Carvalho, were
charged by complaint with the murder and kidnapping of Agustin. At the
conclusion of Carvalho’s preliminary hearing,1 however, the court dismissed the
charges against her for insufficient evidence. Hoover was not then arraigned. Nor
1 California law entitles persons accused by complaint of committing a felony to a preliminary hearing to determine whether sufficient cause exists to hold them to answer at trial. Cal. Penal Code § 872.
3 did the prosecution seek a preliminary hearing against him.2 Instead, it filed a
detainer against him in 1995 with the state prison system, notifying him of the
murder and kidnapping charges and of his right to demand a trial. The case
languished for over sixteen years until Hoover demanded a trial in January 2011.
Shortly thereafter, Hoover was tried and convicted.
Trial Delay.
The contours of the Fifth Amendment’s guarantee against delay in bringing
a defendant to trial are laid out in Lovasco, 431 U.S. at 788–96. Under Lovasco,
proof of prejudice is a “necessary but not sufficient element of a due process
claim.” Id. at 790. Once that is established, the court “must consider the reasons
for the delay as well as the prejudice to the accused.” Id. A court need not address
the prosecution’s reasons for the delay unless the defendant first establishes actual
prejudice. United States v. DeGeorge, 380 F.3d 1203, 1212 (9th Cir. 2004).
Hoover argues that the almost seventeen-year delay prejudiced him because
he no longer had access to the transcript of Carvalho’s preliminary hearing where
the charges against her were dismissed; he was unable to corroborate his alibi that
he was eating dinner at the home of Carvalho’s parents because they had since
died; and his ability to challenge the state’s evidence and to pursue leads
2 Hoover was incarcerated for an unrelated charge arising out of a neighboring county.
4 concerning alternative perpetrators was impaired by the loss of potentially
exculpatory evidence including the police dispatch logs, Agustin’s telephone
records, and the testimony of possible witnesses who could not be located.
In finding that Hoover did not establish actual prejudice, the California
Court of Appeal applied the correct legal standard under Lovasco. The court
concluded that Hoover failed to show how the missing police dispatch logs could
have been used to exculpate Hoover or impeach the officers’ testimony concerning
their actions. The court further reasoned that Hoover failed to show how the
missing preliminary hearing transcript would have contained impeachment
evidence that would have been useful to him at trial. The court further reasoned
that Hoover had not shown that Carvalho’s parents would have testified the way he
asserted they would. Lastly, the court held that no other evidence in the record
supported a finding of prejudice and that Hoover’s claim that he was unable to
pursue additional lines of investigation was speculative.
Although the delay in this case is extraordinary, we are unable to conclude,
under the deferential standard of review we must apply under section 2254, that
either the court’s application of clearly established federal law or its factual
determinations were unreasonable.
Ineffective Assistance of Counsel.
Hoover also argues that the delay in his trial caused him constructive denial
5 of the effective assistance of counsel under United States v. Cronic, 466 U.S. 648
(1984). Cronic identified three scenarios that are so prejudicial that a court need
not inquire into actual prejudice: (1) when there is complete denial of counsel
during a “critical stage”; (2) when counsel fails to subject the prosecution’s case to
“meaningful adversarial testing”; and (3) when counsel must render assistance
under circumstances where “the likelihood that any lawyer, even a fully competent
one, could provide effective assistance is so small that a presumption of prejudice
is appropriate without inquiry into the actual conduct of the trial.” Id. at 659–60;
Bell v. Cone, 535 U.S. 685, 695–96 (2002).
Hoover argues that the first and third scenarios apply here. Although the
State contends that Hoover failed to exhaust any claim that the first scenario
applies here, the State itself argued below that Hoover’s claim in part rested on a
meritless contention that he had a “right to counsel pre-indictment,” and the district
court addressed that claim on the merits when it held that a “period of investigative
delay” is not a “‘critical stage’ of trial for which counsel is constitutionally
required.” We agree with the district court’s conclusion that, in the absence of
Supreme Court authority extending the right to counsel to pre-indictment
investigation, the state court’s rejection of Hoover’s claim cannot be set aside
under the standards of 28 U.S.C. § 2254(d). Hoover’s second argument—that no
lawyer could have effectively represented him under the circumstances—also fails
6 because the United States Supreme Court has not held that a lengthy trial delay
creates circumstances in which no defendant could be effectively represented, and
the state court did not act unreasonably in concluding that Hoover’s claim was
unsubstantiated.
AFFIRMED.