                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        DEC 23 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BRADLEY DEON HOOVER,                            No.    18-15684

                Petitioner-Appellant,           D.C. No. 2:15-cv-00082-JKS

 v.
                                                MEMORANDUM*
ROSEMARY NDOH, Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                 James K. Singleton, Jr., District Judge, Presiding

                      Argued and Submitted October 4, 2019
                            San Francisco, California

Before: PAEZ and COLLINS, Circuit Judges, and CHOE-GROVES,** Judge.

      Bradley Hoover appeals the district court’s denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. Reviewing de novo, Sanders v. Cullen,

873 F.3d 778, 793 (9th Cir. 2017), we affirm.

      Following a jury trial in 2011, Hoover was convicted of kidnapping and


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
murdering Michael Agustin. The crimes took place in 1994, almost seventeen

years before he was brought to trial. Hoover was sentenced to life without the

possibility of parole. On direct appeal, he argued that the delay in his trial violated

his federal due process right to a fair trial. Finding no prejudice, the California

Court of Appeal affirmed, and the California Supreme Court denied review.

      Hoover then filed a petition for habeas corpus in state court, asserting that

the lengthy delay in his trial resulted in a constructive denial of effective assistance

of counsel. The state trial court denied the petition. The court held that, because

Hoover’s claim was based on the record on his appeal of his conviction, this claim

could and should have been raised on direct appeal. The court further held that, to

the extent that the letter from Hoover’s trial counsel submitted with the petition

constituted additional evidence, it provided no new arguments, and that Hoover’s

claim failed on the merits. Hoover renewed his habeas corpus petition in the

California Court of Appeal and in the California Supreme Court, but both courts

denied relief.

      Hoover then commenced this federal habeas proceeding. He again

challenged his conviction on the ground that the delay in his trial violated his due

process rights under United States v. Lovasco, 431 U.S. 783 (1977). He also

renewed his claim that the delay resulted in a constructive denial of effective

assistance of counsel. The district court denied the petition, and Hoover timely


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appealed.

      On appeal, Hoover argues that the extraordinary delay in bringing him to

trial violated his due process rights under Lovasco. He further argues that as a

result of the delay he was constructively denied his Sixth Amendment right to the

effective assistance of counsel. Although our review is de novo, it is governed by

the Antiterrorism and Effective Death Penalty Act of 1996. A federal court may

only grant habeas relief when the last reasoned state court decision was contrary to

or involved an unreasonable application of clearly established federal law as

determined by the United States Supreme Court, or 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)(1)–(2); Williams v. Taylor, 529 U.S. 362, 407–09

(2000); DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009).

      The basis for Hoover’s due process argument is the delay of almost

seventeen years between the 1994 murder and the 2011 trial. About three months

after the crimes, Hoover and his then-girlfriend, now-wife, Andrea Carvalho, were

charged by complaint with the murder and kidnapping of Agustin. At the

conclusion of Carvalho’s preliminary hearing,1 however, the court dismissed the

charges against her for insufficient evidence. Hoover was not then arraigned. Nor


1
 California law entitles persons accused by complaint of committing a felony to a
preliminary hearing to determine whether sufficient cause exists to hold them to
answer at trial. Cal. Penal Code § 872.

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did the prosecution seek a preliminary hearing against him.2 Instead, it filed a

detainer against him in 1995 with the state prison system, notifying him of the

murder and kidnapping charges and of his right to demand a trial. The case

languished for over sixteen years until Hoover demanded a trial in January 2011.

Shortly thereafter, Hoover was tried and convicted.

      Trial Delay.

      The contours of the Fifth Amendment’s guarantee against delay in bringing

a defendant to trial are laid out in Lovasco, 431 U.S. at 788–96. Under Lovasco,

proof of prejudice is a “necessary but not sufficient element of a due process

claim.” Id. at 790. Once that is established, the court “must consider the reasons

for the delay as well as the prejudice to the accused.” Id. A court need not address

the prosecution’s reasons for the delay unless the defendant first establishes actual

prejudice. United States v. DeGeorge, 380 F.3d 1203, 1212 (9th Cir. 2004).

      Hoover argues that the almost seventeen-year delay prejudiced him because

he no longer had access to the transcript of Carvalho’s preliminary hearing where

the charges against her were dismissed; he was unable to corroborate his alibi that

he was eating dinner at the home of Carvalho’s parents because they had since

died; and his ability to challenge the state’s evidence and to pursue leads



2
 Hoover was incarcerated for an unrelated charge arising out of a neighboring
county.

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concerning alternative perpetrators was impaired by the loss of potentially

exculpatory evidence including the police dispatch logs, Agustin’s telephone

records, and the testimony of possible witnesses who could not be located.

      In finding that Hoover did not establish actual prejudice, the California

Court of Appeal applied the correct legal standard under Lovasco. The court

concluded that Hoover failed to show how the missing police dispatch logs could

have been used to exculpate Hoover or impeach the officers’ testimony concerning

their actions. The court further reasoned that Hoover failed to show how the

missing preliminary hearing transcript would have contained impeachment

evidence that would have been useful to him at trial. The court further reasoned

that Hoover had not shown that Carvalho’s parents would have testified the way he

asserted they would. Lastly, the court held that no other evidence in the record

supported a finding of prejudice and that Hoover’s claim that he was unable to

pursue additional lines of investigation was speculative.

      Although the delay in this case is extraordinary, we are unable to conclude,

under the deferential standard of review we must apply under section 2254, that

either the court’s application of clearly established federal law or its factual

determinations were unreasonable.

      Ineffective Assistance of Counsel.

      Hoover also argues that the delay in his trial caused him constructive denial


                                           5
of the effective assistance of counsel under United States v. Cronic, 466 U.S. 648

(1984). Cronic identified three scenarios that are so prejudicial that a court need

not inquire into actual prejudice: (1) when there is complete denial of counsel

during a “critical stage”; (2) when counsel fails to subject the prosecution’s case to

“meaningful adversarial testing”; and (3) when counsel must render assistance

under circumstances where “the likelihood that any lawyer, even a fully competent

one, could provide effective assistance is so small that a presumption of prejudice

is appropriate without inquiry into the actual conduct of the trial.” Id. at 659–60;

Bell v. Cone, 535 U.S. 685, 695–96 (2002).

      Hoover argues that the first and third scenarios apply here. Although the

State contends that Hoover failed to exhaust any claim that the first scenario

applies here, the State itself argued below that Hoover’s claim in part rested on a

meritless contention that he had a “right to counsel pre-indictment,” and the district

court addressed that claim on the merits when it held that a “period of investigative

delay” is not a “‘critical stage’ of trial for which counsel is constitutionally

required.” We agree with the district court’s conclusion that, in the absence of

Supreme Court authority extending the right to counsel to pre-indictment

investigation, the state court’s rejection of Hoover’s claim cannot be set aside

under the standards of 28 U.S.C. § 2254(d). Hoover’s second argument—that no

lawyer could have effectively represented him under the circumstances—also fails


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because the United States Supreme Court has not held that a lengthy trial delay

creates circumstances in which no defendant could be effectively represented, and

the state court did not act unreasonably in concluding that Hoover’s claim was

unsubstantiated.

      AFFIRMED.




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