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United States Court of Appeals, Ninth Circuit.

Ralph HERNANDEZ, Petitioner-Appellant, v. Chris LYOU, Superintendent III; State of Alaska, Department of Corrections, Respondents-Appellees.

No. 19-35800

Decided: August 21, 2020

Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges. Quinlan Steiner, Steiner Law, LLC, Bend, OR, for Petitioner-Appellant Diane Wendlandt, Assistant Attorney General, AGAK - Office of the Alaska Attorney General, Special Prosecutions & Appeals Division, Anchorage, AK, for Respondents-Appellees


Ralph Hernandez (Hernandez) appeals the district court's order dismissing his habeas petition predicated on a violation of his constitutional right to a speedy trial. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, we affirm. See Wilson v. Belleque, 554 F.3d 816, 828 (9th Cir. 2009).

A certificate of appealability (COA) is required to appeal the denial of a habeas petition. See 28 U.S.C. § 2253(c)(1). We may issue a COA on appeal when “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Wilson, 554 F.3d at 826 (quoting Slack v. McDaniel, 529 U.S. 473, 479, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Reasonable jurists could debate whether Hernandez's Sixth Amendment right to a speedy trial was violated. See McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003) (noting that a three-year delay in commencing trial triggered a presumption of prejudice and application of the factors articulated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). The seven-year delay in this case easily meets the threshold for issuance of a COA. See Wilson, 554 F.3d at 826 (observing that “the standard for obtaining a COA is not a particularly exacting one”). Therefore, we issue a COA on the issue of whether Hernandez was denied his Sixth Amendment right to a speedy trial.

The district court did not err in dismissing the habeas petition for failure to exhaust the speedy trial claim. See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (“Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court by giving the state court an opportunity to correct the alleged constitutional violation․”) (citations omitted).2 Hernandez does not contend that he exhausted the remedies available under state law. Rather, he maintains without any justification that he should be excused from the exhaustion requirement. That argument is unavailing. See Smith v. Baker, 960 F.3d 522, 532 (9th Cir. 2020) (requiring a showing of cause to excuse procedural default).



2.   As Hernandez was convicted during the pendency of his petition brought under 28 U.S.C. § 2241, the petition was converted to one under 28 U.S.C. § 2254, thereby triggering the exhaustion requirement. See Dominguez v. Kernan, 906 F.3d 1127, 1137 (9th Cir. 2018).

3.   In view of our affirmance of the district court's decision on the exhaustion issue, we need not and do not address the abstention issue. See McMurtrey v. Ryan, 539 F.3d 1112, 1132 (9th Cir. 2008).

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