                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 13 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MASAYUKI AGURO,                                  No. 08-16326

             Petitioner - Appellant,             D.C. No. 3:05-CV-05296-PJH

  v.
                                                 MEMORANDUM *
JEANNE S. WOODFORD, Director of
Corrections; et al.,

             Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                    Argued and Submitted September 14, 2009
                            San Francisco, California

Before: TROTT and BEA, Circuit Judges, and CONLON,** District Judge.

       California state prisoner Masayuki Aguro appeals the district court’s denial

of his petition for a writ of habeas corpus on two grounds. He claims: (1) his 26-

year sentence violates the doctrine of specialty because the extradition request

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
stated he would be subject to a 16-year maximum sentence; and (2) the district

court erred in denying him an evidentiary hearing on two substantive challenges to

the constitutionality of the state court proceedings that resulted in his conviction on

13 counts of lewd and lascivious conduct on a child under 14 years of age under

California Penal Code section 288(a). We hold that Aguro’s sentence does not

violate the doctrine of specialty and the district court did not abuse its discretion in

denying Aguro’s requested evidentiary hearing. Therefore, we deny the relief

Aguro requests under 28 U.S.C. § 2254.

                                           I.

      Because Aguro filed his habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), it provides the

governing standard of review. Benitez v. Garcia, 495 F.3d 640, 643 (9th Cir.

2007). Under AEDPA, we may issue a writ of habeas corpus only if the state

court’s decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States,” or if it “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). Here,

the California Court of Appeal for the Sixth Appellate District determined that

Aguro’s 26-year sentence did not violate the extradition agreement. People v.


                                           2
Aguro, 2004 WL 233313 (Cal. App. 6th Dist. 2004). This determination was not

unreasonable.

      When we interpret an extradition request, we look at the entirety of the

request and documents attached thereto; we do not pull isolated segments out of

context. See United States v. Cuevas, 847 F.2d 1417, 1427–28 (9th Cir. 1988)

(examining the entire extradition order to determine how to interpret the Swiss

Court’s condition in an attached injunction that Cuevas not be punished for the

“fiscal aspect” of his crime); United States v. Iribe, 564 F.3d 1155, 1160 (9th Cir.

2009) (holding that petitioner’s interpretation of an isolated phrase in the

extradition order “cannot survive contextual scrutiny”). If the entire extradition

document is examined, we see the request attaches the applicable statute,

California Penal Code section 288.5(a),1 recites the fact that Aguro abused two

victims, and refers to a felony complaint charging two counts, each a separate

violation of section 288.5(a). In that context, the statement upon which Aguro

relies for his claim the specialty doctrine was violated—that “under California law,

the maximum sentence that may be imposed for the above offenses is sixteen



      1
         The sentencing provision of section 288.5(a) provides that “any person
who [has committed the elements of the crime] is guilty of the offense of
continuous sexual abuse of a child and shall be punished by imprisonment in the
state prison for a term of 6, 12, or 16 years.”
                                          3
years’ imprisonment”— reasonably means 16 years per offense. This is a

maximum sentence of 32 years’ imprisonment. Thus, the conclusion of the

California Court of Appeal that the quoted statement “was not couched as a

condition of the agreement but as contextual for the offenses sought to be

prosecuted” was not unreasonable.

                                           II.

      We review “[t]he decision by a district court to grant or deny an evidentiary

hearing . . . for abuse of discretion.” Estrada v. Scribner, 512 F.3d 1227, 1235 (9th

Cir. 2008). On federal collateral review of a state court conviction, “if the [state]

record refutes the applicant’s factual allegations or otherwise precludes habeas

relief, a district court is not required to hold an evidentiary hearing.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007).

      The record refutes both of the substantive claims underlying Aguro’s request

for an evidentiary hearing, so, under Landrigan, the district court did not abuse its

discretion. See id. As to Aguro’s claim that prosecutors tampered with and failed

to produce the original audiotape of Aguro’s confession in violation of Aguro’s

Sixth Amendment rights under Brady v. Maryland, 373 U.S. 83 (1963), the state

court record plainly refutes Aguro’s Brady claim that prosecutors altered his




                                           4
confession to remove his request for an attorney.2 Two officers present when the

tape was made testified that Aguro never asked for an attorney, and the trial court

specifically found not credible Aguro’s testimony that he had asked for a lawyer.

Aguro has presented no evidence that the tape was altered.

       Aguro also claims he was entitled to a hearing on the validity of his waiver

of certain of his constitutional rights when he submitted his case to the judge

pursuant to California’s “slow plea” process under Bunnell v. Superior Court, 13

Cal. 3d 592 (Cal. 1975). The record shows Aguro’s waivers were constitutionally

valid. The state trial court painstakingly went through each of the rights Aguro

would be waiving. Therefore, the record refutes Aguro’s claim that his

interpretation of the plea colloquy (i.e., that he misunderstood what was going on

because of his limited English skills) was “at least as likely” as the interpretation of

the state court.

AFFIRMED.




       2
       Aguro claims such a request would have been exculpatory because it would
have required the exclusion of the tape under Edwards v. Arizona, 451 U.S. 477
(1981). We need not decide this issue.

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