NOT FOR PUBLICATION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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