                                                                              FILED
                           NOT FOR PUBLICATION                                APR 20 2012

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



                            FOR THE NINTH CIRCUIT


GERALD DEAN KEELER,                              No. 10-56426

              Petitioner - Appellant,            D.C. No. 3:09-cv-00268-WQH-
                                                 JMA
  v.

SIERRA CONSERVATION CENTER; et                   MEMORANDUM*
al.,

              Respondents - Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                       Argued and Submitted April 12, 2012
                               Pasadena, California

Before: B. FLETCHER, KLEINFELD, and M. SMITH, Circuit Judges.

       Gerald D. Keeler (“Keeler”) appeals the district court’s denial of Keeler’s

petition for writ of habeas corpus. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review de novo a district court’s decision to deny a habeas corpus

petition. Lambert v. Blodgett, 393 F.3d 943, 964–65 (9th Cir. 2004).

      Keeler argues that the state superior court’s denial of his request to continue

his probation revocation hearing violated Keeler’s right to due process.

      Keeler is not entitled to federal habeas corpus relief because he has not

shown that the denial of his continuance was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). He also has not

shown that the denial was “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” Id. § 2254(d)(2).

      First, Keeler has not shown that by denying the continuance request, the

state trial court violated his Fourteenth Amendment right to due process by

preventing him from hiring private counsel. Trial judges are afforded “broad

discretion . . . on matters of continuances; only an unreasoning and arbitrary

‘insistence upon expeditiousness in the face of a justifiable request for delay’”

violates the right to due process. Morris v. Slappy, 461 U.S. 1, 11 (1983) (quoting

Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). The Supreme Court has “recognized

a trial court’s wide latitude in balancing the right to counsel of choice against the

needs of fairness . . . and against the demands of its calendar.” United States v.


                                           2
Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (internal citation omitted). Keeler was

represented by public defenders both at his initial revocation hearing, where Keeler

received a continuance, and at the second revocation hearing several weeks later.

Keeler had already received one postponement and had almost a month’s notice

between the two hearings to retain private counsel.

      There is likewise no indication that Keeler’s right to due process was

violated by the denial of Keeler’s request for a second continuance to allow Keeler

to subpoena his drug test records. Due process requires that a defendant in a

probation revocation proceeding be afforded the opportunity to present evidence to

justify his continued probation. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).

Keeler had ample opportunity to discover and present any exculpatory evidence to

the state courts, and has not explained his failure to do so.

      We decline to take judicial notice of Keeler’s new exhibits because the

exhibits were not on the record that was before the state courts. Cullen v.

Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1400 (2011).



      AFFIRMED.




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