                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 20 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANDREW K. KAMANA’O,                              No. 10-16041

              Petitioner - Appellant,            D.C. No. 1:09-cv-00313-JMS-
                                                 BMK
  v.

CLAYTON FRANK; et al.,                           MEMORANDUM *

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Hawaii
                   J. Michael Seabright, District Judge, Presiding

                        Argued and Submitted June 14, 2011
                                Honolulu, Hawaii

Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.

       Andrew K. Kamana’o, a Hawaii state prisoner, appeals from the district

court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. The district court granted a certificate of appealability (“COA”) on the

question “whether Bouie [v. City of Columbia, 378 U.S. 347 (1964),] applies to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule. 36-3.
retroactive sentence enhancements or sentencing schemes.” Kamana’o also

contends that the Hawaii Supreme Court’s decision denying his state petition for a

writ of habeas corpus, State v. Kamanao, 188 P.3d 724 (Haw. 2008), was “contrary

to or an unreasonable application of federal law clearly establishing that an illegal

sentence is unconstitutional.”. We decline to grant a COA as to this uncertified

issue.

                                           I

         Kamana’o contends that the Hawaii Supreme Court’s decision in Kamana’o,

188 P.3d 724, was contrary to or an unreasonable application of clearly established

federal law, as determined by the Supreme Court in Bouie v. City of Columbia, 378

U.S. 347 (1964). He also claims that this court applied Bouie to a state sentencing

statute in Oxborrow v. Eikenberry, 877 F.2d 1395, 1399-400 (9th Cir. 1989).

         Kamana’o has failed to demonstrate that Bouie’s applicability to sentencing

schemes is “clearly established.” In Holgerson v. Knowles, 309 F.3d 1200 (9th

Cir. 2002), we previously explained that “the Supreme Court has not decided

whether the due process fair warning requirement outlined in Bouie applies to

after-the-fact sentence increases.” Id. at 1203. In that matter, we stated “[w]e need

not decide whether Bouie applies” to after-the-fact increases in punishment

because that issue “has not been clearly established by the Supreme Court.” Id.


                                           2
      This court’s decision in Oxborrow is not controlling because it predates

Congress’s enactment of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. The state petitioner’s

“reliance on Ninth Circuit or other circuit authority is misplaced” in this matter

because the relevant issue in this case is whether the Hawaii Supreme Court’s

decision “was ‘contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court.’” Arredondo v.

Ortiz, 365 F.3d 778, 782 (9th Cir. 2004) (emphasis in original) (quoting 28 U.S.C.

§ 2254(a)(1)).

      Given that Kamana’o has not established that Bouie applies to the sentencing

scheme in this case, we need not reach the merits of whether the sentence

Kamana’o received upon his resentencing in 2006 was foreseeable.

                                          II

      Kamana’o also asserts that this court “may disregard the [Hawaii Supreme

Court’s] construction of state law in [Kamana’o, 188 P.3d 724,] because it is

implausible and an obvious subterfuge to evade recognizing the merit in

Kamana’o’s federal claims . . . .” Although the district court declined to certify

this issue, we consider Kamana’o’s request to broaden the COA pursuant to Circuit

Rule 22-1.


                                           3
      Under AEDPA, the issuance of a COA is a prerequisite to the right to bring

an appeal. 28 U.S.C. § 2253(c)(1). The petitioner must make “a substantial

showing of the denial of a constitutional right” for a COA to issue. § 2253(c)(2).

“The required showing for originally obtaining a COA on a claim remains the

standard by which this court reviews the broadening of a COA.” Doe v. Woodford,

508 F.3d 563, 567 (9th Cir. 2007).

      “[A] state court’s interpretation of state law . . . binds a federal court sitting

in habeas corpus” unless the state court’s decision presents a violation of the

Constitution or the laws or treaties of the United States. Bradshaw v. Richey, 546

U.S. 74, 75 (2005); see Swarthout v. Cooke, 131 S. Ct. 859 (2011) (extent of

liberty interest in parole is a question of state law, which is reviewable by a federal

court only for a violation of the Due Process Clause). “Our deference to the [state

court] is suspended only upon a finding that the court’s interpretation is untenable

or amounts to a subterfuge to avoid federal review of a constitutional violation.”

Oxborrow, 877 F.2d at 1399 (emphasis added). We decline to grant a COA in this

matter because a substantial showing has not been made that the Hawaii Supreme

Court’s decision was untenable or a subterfuge to avoid applying federal

constitutional law.

      AFFIRMED.


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