NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRADLEY DEON HOOVER,

Petitioner

- Appellant,

v. ROSEMARY NDOH , Warden,

Respondent

- Appellee. No. 18

- 15684
D.C. No. 2:15

- cv - 00082

- JKS

MEMORANDUM *

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 aff irm. 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. 

# FILED

DEC 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

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 Su preme 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 submitt ed 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 cou rts 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 h is claim that the delay resulted in a constructive denial of effective assistance of counsel

. The district court denied the petition , and Hoover timely3

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 d enied his Sixth Amendment right to the effective assistance of counsel. Although our review is de novo, it is governed by the Ant it errorism and Effect ive 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 Sup reme 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 (9 th Cir. 2009). The basis for Hoover’s d

ue p rocess argument is the delay of almost seventeen years between the 1994 murde r and the 2011 trial

. A bout 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, t he 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 sufficien t cause exists to hold them to answer at trial. Cal. Penal Code § 872.4

did the prosecution seek a pre liminary hearing against him

. 2 Instead , it filed a detainer a gainst him in 1995 with the state prison system, notifying him of the murder and kidnapping charge s and of his right to demand a tria l. 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

– 9 6

. Under Lovasco , proof of prejudice is a “necessary but not sufficient element of a due process claim.” Id. at 7 90 . 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 n ot 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 prejudice d him because he no l onger 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.5

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 possibl e 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 dispa tch 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 t hat 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 f actual determination s were unreasonable

. Ineffective Assistance of Counsel. Hoover also argues that the delay in his trial caused him constructiv e denial6

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 co mplete 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 fi rst 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 t o 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 argu ment

— that no lawyer could have effectively represented him under the circumstances

— also fails7

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.