                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                              MAR 26 2015

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

ALVARO QUEZADA,                                   No. 13-55750

              Petitioner - Appellant,             D.C. No. 2:04-cv-07532-RSWL-
                                                  MLG
  v.

ALBERT K. SCRIBNER,                               MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                 Ronald S.W. Lew, Senior District Judge, Presiding

                       Argued and Submitted March 4, 2015
                              Pasadena, California

Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.

       1.    Alvaro Quezada first appealed his Brady and Napue claims to this

court in 2008. Shortly after the parties filed their briefs in that appeal, Quezada

filed a motion to remand based on newly discovered evidence. This court granted

Quezada’s motion and remanded the case to the district court “with instructions to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
conduct an evidentiary hearing” and “to determine whether the new facts

render[ed] Quezada’s Brady claim unexhausted.” Quezada v. Scribner, 611 F.3d

1165, 1168 (9th Cir. 2010). Further, this court instructed that “[i]f the district court

concludes that the new facts render Quezada’s Brady claim unexhausted, the

district court should consider whether[, in light of the new facts,] Quezada is

procedurally barred from proceeding in state court.” Id. If the district court

concluded that, under California law, Quezada was not procedurally barred, “the

court [was to] stay and abey federal proceedings so that Quezada may exhaust his

claims in state court.” Id. Only if the district court determined that Quezada’s

claims were exhausted and clearly barred by California law was the district court to

determine whether Quezada could demonstrate cause and prejudice or manifest

injustice to permit federal review of his claims. Id.

      The magistrate judge (whose recommendations and findings the district

court adopted) provided substantial analysis concerning Quezada’s ability to

demonstrate cause and prejudice to allow federal review of his claims, but did not

address the preliminary issues of whether Quezada’s claims were exhausted or

procedurally barred in light of the newly discovered evidence.

      We are mindful that “[w]here a federal habeas petitioner presents newly

discovered evidence or other evidence not before the state courts such as to place


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the case in a significantly different and stronger evidentiary posture than it was

when the state courts considered it, the state courts must be given an opportunity to

consider the evidence.” Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988)

(quoting Dispensa v. Lynaugh, 826 F.2d 375, 377 (5th Cir. 1987)). Further, “a

federal court may deny an unexhausted petition on the merits only 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) (emphasis added). The

district court found that Quezada had shown cause for his failure to present the

newly discovered evidence to the state court, indicating that Quezada had, at a

minimum, presented a colorable claim.

      With this precedent in mind, we remand this case to the district court and

echo the instructions of our 2010 decision. On remand, we request that the district

court first determine whether the new evidence discovered during the district

court’s evidentiary hearing renders Quezada’s claims unexhausted. See Weaver v.

Thompson, 197 F.3d 359, 364 (9th Cir. 1999), Aiken, 841 F.2d at 883. If the

district court concludes that the claims are not exhausted, we then request that the

district court determine whether, under California law, Quezada’s claims are

clearly procedurally barred. See Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th

Cir. 2002). When determining whether Quezada’s claims are clearly procedurally


                                          3
barred, the district court must determine whether, in light of the new evidence, the

state court would clearly consider the claim barred under its procedural rules. See

Harris v. Reed, 489 U.S. 255, 263 & n.9 (1989). If it is not clear what the state

court would do, the district court should stay and abey federal proceedings so that

Quezada may present his claims to the state court. See Rhines v. Weber, 544 U.S.

269, 275-76 (2005).

      2.     In addition to his Brady and Napue claims, Quezada claims that the

state trial court improperly excluded a co-defendant’s out-of-court statement in

violation of Chambers v. Mississippi, 410 U.S. 284 (1973). The trial court

excluded the statement (made to the co-defendant’s cellmate) as hearsay that did

not meet the declarations against interest exception in Cal. Evid. Code § 1230. The

California Court of Appeal addressed this claim on the merits and concluded that

the district court had not abused its discretion in excluding the statement. The

Court of Appeal reasoned that “only those portions of the declarant’s statements

that are actually against his or her penal interest are admissible.” Reviewing the

California Court of Appeal’s decision under the Antiterrorism and Effective Death

Penalty Act standard in 28 U.S.C. § 2254(d), we conclude that the California Court

of Appeal’s decision was not an unreasonable application of clearly established

Federal law or an unreasonable determination of the facts. See Williamson v.


                                          4
United States, 512 U.S. 594, 600-01 (1994) (holding that the statement against

interest exception in Federal Rule of Evidence 804(b)(3) “does not allow

admission of non-self-inculpatory statements, even if they are made within a

broader narrative that is generally self-inculpatory.”).

      3.     On appeal, Quezada also raised the uncertified issue that the

cumulative effect of his alleged errors rendered his trial fundamentally unfair.

While we have the authority to expand the certificate of appealablity, Hiivala v.

Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per curiam), we decline to do so at

this time. In light of our remand of Quezada’s Brady and Napue claims, a decision

concerning Quezada’s uncertified issue is premature.

      4. We also deny Quezada’s request for judicial notice, without prejudice, as

the motion is rendered moot by this disposition.

      REMANDED.




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