                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 08 2015

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



                            FOR THE NINTH CIRCUIT


JOHN JESUS ALCANTARA,                            No. 12-56698

              Petitioner - Appellant,            D.C. No. 2:11-cv-04703-ODW-
                                                 JPR
  v.

L. S. MCEWEN, Warden,                            MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                     Argued and Submitted November 21, 2014
                               Pasadena, California

Before: KLEINFELD and PAEZ, Circuit Judges, and CHRISTENSEN, Chief
District Judge.**



       Alcantara first argues in this § 2254 habeas appeal that his due process rights

were violated because of a twenty-two year delay between the murder and his

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Dana L. Christensen, Chief District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
arrest. The pertinent Supreme Court precedent is United States v. Lovasco, 431

U.S. 783 (1977). Lovasco involved an eighteen month delay between the crime

and the indictment. Id. at 784. The Supreme Court held that the government’s

delay was not so “fundamentally unfair” as to offend due process. Id. at 796.



      The Court held in Lovasco that the Sixth Amendment is irrelevant for pre-

indictment delay analysis. Id. at 788. The statute of limitations is the primary

protection against stale charges, Id. at 789, and, of course, it did not ban this

murder indictment. The Due Process Clause nevertheless “has a limited role to

play.” Id. Even actual prejudice does not necessarily establish a due process

violation. Id. at 789–90. Deferring indictment until the prosecutor has probable

cause and until the prosecutor is satisfied that he can prove guilt beyond a

reasonable doubt justifies delay. Id. at 791–92. That justifies the delay here. And

under Lovasco, the prosecutor may delay further for various necessary, subjective

reasons so long as the delay is not “solely to gain tactical advantage over the

accused.” Id. at 795 (internal quotation marks and citation omitted). The record

here supports no such inference.



      Because this is a § 2254 habeas appeal, only Supreme Court holdings can

establish a right to have the petition granted. But Ninth Circuit pre-indictment
delay precedent would also be of no help to petitioner. See, e.g., Mays v. Coltrane,

549 F.2d 670 (9th Cir. 1977).



       Here, Alcantara has not shown actual prejudice. The instances of prejudice

Alcantara points to are speculative at best. For example, it is not clear that Davis

would have testified at all, since he might well have exercised his Fifth

Amendment right to remain silent. Nor is there any indication that Davis’s

testimony would have exonerated Alcantara. Davis’s statement to the police does

not account for Alcantara’s whereabouts when he went off the morning of the

murder with Bennett, the victim. And Davis’s statement to the police was read into

the record for the jury to consider. The other instances of alleged prejudice

Alcantara cites are even more speculative. Alcantara complains that the

destruction of the blood sample from the crime scene kept him from getting to test

the blood to see if it really belonged to Bennett, but he offers no reason to doubt

that it did.



       Alcantara argues, basically, that if the government had investigated more

vigorously, they could have caught him sooner. But there is no Supreme Court

holding that failing promptly to turn over this or that rock makes pre-indictment

delay a due process violation. Nor does the record establish a factual predicate for
any contention that a weak investigation deprived Alcantara of a speedier

indictment. At the time of the murder, the government interviewed numerous

witnesses and targeted Alcantara as the prime suspect. But his guilt could not be

established beyond a reasonable doubt then. The record also indicates that at the

time of the initial investigation the government made a good faith determination

that there was insufficient evidence to charge Alcantara with the murder. The body

of Bennett, his victim, was never located and witnesses were reluctant to talk.

Only in 2004 did investigators get the break they needed, when Al Hatten told

investigators that Alcantara had told him that he had murdered Bennett.



      In addition, Alcantara argues that his due process rights were violated when

the trial court improperly admitted evidence regarding his workplace behavior that

prejudiced him. The admitted evidence was relevant because his outrageous

conduct at work explained why many of Alcantara’s co-workers were scared to

come forward. The California Court of Appeal’s ruling that admission of the

evidence was not a due process violation was not an unreasonable application of

United States Supreme Court precedent.



      Alcantara’s final argument is that the trial court improperly admitted the

preliminary hearing testimony of Al Hatten, who could not testify when the case
went to trial because of health problems. Alcantara argues that use of Hatten’s

prior testimony violated his constitutional right to confront and cross-examine his

accusers. Alcantara had an opportunity to cross-examine Hatten at the preliminary

hearing, satisfying his right to confrontation and cross-examination.



      AFFIRMED.
