AARON AGUIRRE V. DAVE DAVEY, No. 15-56019 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 17 2017 MOLLY C. DWYER, CLERK AARON AGUIRRE, No. Petitioner-Appellant, 15-56019 U.S. COURT OF APPEALS D.C. No. 2:12-cv-00697-JGB-SP v. DAVE DAVEY, Warden, Pelican Bay State Prison, MEMORANDUM* 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. 2

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