                                                                                FILED
                            NOT FOR PUBLICATION
                                                                                AUG 21 2020
                     UNITED STATES COURT OF APPEALS                          MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RALPH HERNANDEZ,                                  No.    19-35800

              Petitioner-Appellant,               D.C. No.
                                                  3:17-cv-00199-TMB-MMS
 v.

CHRIS LYOU, Superintendent III;                   MEMORANDUM*
STATE OF ALASKA, DEPARTMENT
OF CORRECTIONS,

              Respondents-Appellees.


                   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


      *
             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


                                              2
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.3




       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).
                                             3
