United States v. 2020-08-21 | 19-35800 | RALPH HERNANDEZ V. CHRIS LYOU | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RALPH HERNANDEZ,
Petitioner-Appellant,
v.
CHRIS LYOU, Superintendent III;
STATE OF ALASKA, DEPARTMENT
OF CORRECTIONS,
Respondents-Appellees.
No. 19-35800
D.C. No.
3:17-cv-00199-TMB-MMS
MEMORANDUM
*
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, Chief District Judge, Presiding
Submitted August 11, 2020
**
Anchorage, Alaska
Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges.
Ralph Hernandez (Hernandez) appeals the district court’s order dismissing
his habeas petition predicated on a violation of his constitutional right to a speedy
FILED
AUG 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
* *
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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 (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
(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
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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).
AFFIRMED.
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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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