                              NOT FOR PUBLICATION                         FILED
                                                                          NOV 23 2016
                      UNITED STATES COURT OF APPEALS
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


HILDEBRANDO VARGAS,                               No.    15-15676

                Petitioner-Appellant,             D.C. No. 3:13-cv-01584-VC

    v.
                                                  MEMORANDUM*
R. M. DIAZ,

                Respondent-Appellee.


                     Appeal from the United States District Court
                        for the Northern District of California
                     Vince G. Chhabria, District Judge, Presiding

                            Submitted November 17, 2016**
                               San Francisco, California

Before: SCHROEDER, WARDLAW, and OWENS, Circuit Judges.

         Hildebrando Vargas (“Vargas”) appeals the district court’s denial of his 28

U.S.C. § 2254(d) petition for a writ of habeas corpus. Vargas contends that the


*
      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).
state court unreasonably applied clearly established federal law when it: (1) held

that the Sixth Amendment’s speedy trial provision did not attach upon the filing of

a criminal complaint, (certified issue); and (2) denied Vargas an evidentiary

hearing to show that his attorney failed to warn him of the immigration

consequences of his plea, (uncertified issue).

1.    The state court reasonably applied clearly established federal law when it

held that the Sixth Amendment’s speedy trial provision did not attach upon the

filing of a criminal complaint. The Supreme Court has held that the Sixth

Amendment’s speedy trial provision attaches upon the filing of a “formal

indictment or information” or by “arrest and holding to answer a criminal

charge[.]” United States v. Marion, 404 U.S. 307, 320 (1971) (alteration in

original). The Court has not addressed whether, like an indictment or information,

a criminal complaint also triggers the speedy trial provision. “If Supreme Court

cases give no clear answer to the question presented, . . . it cannot be said that the

state court unreasonably applied clearly established Federal law.” Hedlund v.

Ryan, 815 F.3d 1233, 1239–40 (9th Cir. 2016) (citation and internal quotation

marks omitted).

      Accordingly, because it was not clearly established that the Sixth

Amendment’s speedy trial provision attaches upon the filing of a criminal

                                           2
complaint, the state court did not unreasonably apply clearly established federal

law in holding that it did not.

2.    We deny Vargas’s motion to expand the Certificate of Appealability to

encompass the uncertified issue because he has not made a “substantial showing of

the denial of a constitutional right.” See Hiivala v. Wood, 195 F.3d 1098, 1104

(9th Cir. 1999) (per curiam) (citation and internal quotation marks omitted). The

state court’s holding that Vargas could not show prejudice from his attorney’s

allegedly deficient performance was not unreasonable. See Strickland v.

Washington, 466 U.S 668, 694 (1984).

      AFFIRMED.




                                         3
