                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            FEB 17 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
AARON AGUIRRE,                                   No.   15-56019

              Petitioner-Appellant,              D.C. No.
                                                 2:12-cv-00697-JGB-SP
 v.

DAVE DAVEY, Warden, Pelican Bay                  MEMORANDUM*
State Prison,

              Respondent-Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                     Jesus G. Bernal, District Judge, Presiding

                          Submitted February 14, 2017**
                              Pasadena, California

Before: D.W. NELSON, TALLMAN, and N.R. SMITH, Circuit Judges.

      Aaron Aguirre (“Aguirre”) appeals the district court’s judgment denying his

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have

jurisdiction under 28 U.S.C. § 2253, and we AFFIRM.

      *
             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).
      With respect to the only certified issue on appeal – whether the trial court’s

denial of Aguirre’s motion for a new trial violated his due process rights – we note

it does not appear this claim was fairly presented to the California Court of Appeal

or the California Supreme Court and may therefore implicate exhaustion concerns.

See 28 U.S.C. § 2254(b)(1)(A). However, under 28 U.S.C. § 2254(b)(2), we may

deny an unexhausted claim on the merits “when it is perfectly clear that the

applicant does not raise even a colorable federal claim.” Cassett v. Stewart, 406

F.3d 614, 624 (9th Cir. 2005). Aguirre has failed to demonstrate that the trial

court’s denial of his motion for a new trial violated his due process rights or

otherwise prevented him from presenting a complete defense.

      The district court did not certify Aguirre’s remaining claims and we

therefore construe them as a motion to broaden the certificate of appealability. See

9th Cir. R. 22-1(e). We deny the motion. See Hiivala v. Wood, 195 F.3d 1098,

1104 (9th Cir.1999) (per curium) (explaining that broadening a certificate of

appealability requires a “substantial showing of the denial of a constitutional

right”) (quoting 28 U.S.C. § 2253(c)(2)).


      AFFIRMED.




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