NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-55537

Plaintiff-Appellee, D.C. No. 2:15-cv-07683-SJO v. 2:10-cr-00923-SJO-42

MARQUIS TRAVELL EDWARDS, MEMORANDUM*

AKA Baby Uzi, AKA Marquis Edwards, AKA JJ, AKA Oozie, AKA Seal A, AKA Uzi,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Submitted April 10, 2019** Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,*** District Judge.

* 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). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Marquis Edwards appeals the denial of his motion for relief from his

conviction under 28 U.S.C. § 2255. We granted a certificate of appealability

(COA) as to one issue: whether Edwards’ counsel was ineffective for failing to file

a motion to dismiss the indictment due to pre-indictment delay. However, in his

opening brief, Edwards makes two additional arguments: (1) that his counsel was

ineffective for not moving to dismiss the indictment because it charged only acts

committed when he was a juvenile, and (2) that the district court abused its

discretion in failing to order discovery as to Edwards’ claim of pre-indictment

delay. While Edwards failed to properly designate these issues as uncertified, we

will treat Edwards’ inclusion of these issues as a motion to expand the COA. See

Schardt v. Payne, 414 F.3d 1025, 1032 (9th Cir. 2005).

We review de novo the district court’s denial of a section 2255 motion and

review its denial of an evidentiary hearing for abuse of discretion. United States v.

Olsen, 704 F.3d 1172, 1178 (9th Cir. 2013). We review motions to expand a COA

by the same standard as initial motions to obtain a COA: the habeas petitioner’s

assertion of the claim must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(3); Hiivala v. Wood, 195 F.3d 1098,

1104 (9th Cir. 1999). For the reasons below, we affirm the district court in full and

deny the motion to expand the COA.

I. Ineffective Assistance of Counsel

2 To establish ineffective assistance of counsel, a defendant must show that

counsel’s performance was deficient and that the deficiency prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a strong

presumption that an attorney’s conduct falls within “the wide range of reasonable

professional assistance.” Id. at 689-90.

Edwards pled guilty to one count of engaging in a racketeering conspiracy

related to his role in the Pueblo Bishops Bloods, a Los Angeles street gang, which

included as overt acts Edwards’ participation in two murders committed while he

was a minor. Edwards argues that his counsel was ineffective for failing to move to

dismiss the indictment on the ground of pre-indictment delay, which would have

required making a showing that: (1) he suffered “actual, non-speculative prejudice

from the delay” and (2) “the length of the delay, when balanced against the reason

for the delay,…offend[s]… fundamental conceptions of justice[.]” United States v.

Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992) (internal quotation marks omitted).

“[E]stablishing prejudice is a heavy burden that is rarely met.” United States v. De

Jesus Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007) (internal quotation

marks omitted).

Edwards argues that he was prejudiced by the delay because, had he been

indicted before he turned 21 years old, the Juvenile Delinquency Act (JDA), 18

U.S.C. § 5031 et. seq., would have applied and the Government would not have

3 proceeded against him as an adult. However, the JDA permits the Government to

seek certification from the Attorney General to proceed against juveniles who are

15 years old or older as adults when “the offense charged is a crime of violence

that is a felony” and the district court determines that it would be “in the interest of

justice” to do so, a determination made based on an assessment of six factors

including the age of the individual and the nature of the alleged offense. 18 U.S.C.

§ 5032; United States v. Juvenile Male, 492 F.3d 1046, 1048 (9th Cir. 2007).

Edwards was charged with crimes of violence – murder and attempted murder –

committed when he was 16 and 17 years old, close to majority, factors weighing

heavily against denying certification. While it would have been the Government’s

burden to establish that transfer to adult status was warranted under the JDA, it

would have been Edwards’ burden to show that he was actually prejudiced by the

delay and, given the likelihood of certification, Edwards appears unable to make

this showing. Moreover, beyond summary statements that the Government delayed

indictment to gain a tactical advantage, Edwards has offered nothing to suggest

that the delay in his indictment is attributable to anything beyond the time required

to investigate and establish a large-scale, wide-ranging racketeering case. Given

that Edwards does not appear to have been able to make the required showing for a

motion to dismiss due to pre-indictment delay – a motion that is very rarely

4 granted – Edwards’ counsel was not deficient in failing to file such a motion, and

this failure did not prejudice Edwards.

II. Motion to Expand the COA

Edwards fails to make a substantial showing of the denial of a constitutional

right as to either of the additional claims that he proposes for consideration in this

appeal. Edwards’ argument that his counsel was ineffective in failing to move to

dismiss the indictment on the ground that it failed to state an offense because it

charged him only with acts committed as a juvenile rests entirely on case law

interpreting the JDA. As this Court has previously held, the JDA did not apply to

Edwards as he was indicted after he turned 21, and, accordingly, there was no

applicable requirement for a post-majority ratifying act. As this argument is

meritless, counsel was not ineffective for failing to raise it.

A habeas petitioner “is not entitled to discovery as a matter of ordinary

course[,]” but only “where specific allegations before the court show reason to

believe that the petitioner may, if the facts are fully developed, be able to

demonstrate that he is . . . entitled to relief[.]” Bracy v. Gramley, 520 U.S. 899,

904, 908-09 (1997). The district court properly denied Edwards’ request for

discovery as to the cause of the Government’s pre-indictment delay as moot

because it found that Edwards could not make the requisite showing that he

suffered actual prejudice due to the delay.

5 Accordingly, the motion to expand the COA is denied.

AFFIRMED.

6