United States Court of Appeals,
Fifth Circuit.
No. 92-7804.
Llewyn J. COWART, Petitioner-Appellee,
v.
Edward HARGETT, Superintendent, Mississippi State Penitentiary, Respondent-Appellant.
March 18, 1994.
Appeal from the United States District Court for the Southern District of Mississippi.
Before WOOD,* SMITH, and DUHÉ, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The state of Mississippi appeals the district court's grant of
habeas corpus relief for a violation of Llewyn J. Cowart's right to
a speedy trial. We reverse.
I.
In February 1985, while on parole from a life sentence for
murder, Cowart committed an attempted armed robbery on Terrell and
Norma Jean Burrows and an aggravated assault on Mrs. Burrows.
Later that same day, Cowart committed aggravated assault against
his wife, Lena Cowart, during which he received a gunshot wound to
his leg, inflicted by his wife in self-defense. He also violated
his parole conditions by consuming alcohol. He waived his parole
revocation hearing and was returned to the state penitentiary.
In November 1985, a grand jury indicted Cowart for the assault
and armed robbery. In December, Cowart filed a pro se motion to
* Circuit Judge of the Seventh Circuit, sitting by designation. "Squash" (sic) the indictments, citing the language of MISS.CODE §
99-17-1 (directing that all indictments be tried at the first term,
unless good cause be shown for a continuance). This motion did not
allege any deprivation of Cowart's constitutional guarantee of a
speedy trial under the Sixth Amendment. The record indicates no
motions for continuance justifying delay.
Cowart remained in state custody until he was arraigned in
February 1986. The court appointed him a lawyer at that time. The
following week, Cowart's counsel moved to allow discovery, dismiss
the indictment, a motion in limine, and a demurrer to the
indictment. The motion to dismiss alleged both a state statutory
and a federal constitutional speedy trial violation.
The state court record is silent as to the disposition of the
various motions, although the state was ordered to produce
discovery. At the evidentiary hearing before the federal district
court, Cowart testified that a hearing was held on the motion to
dismiss on speedy trial grounds, which he says was denied by the
state court. Cowart was convicted on all charges and sentenced
concurrently to twelve years for attempted armed robbery and twenty
years for aggravated assault.
In November 1986, Cowart's new attorney filed a direct appeal
to the Supreme Court of Mississippi, alleging error in, among other
things, failure to provide a speedy trial. The court held that
Cowart's "assignments of error are without merit and that the
appeal raises no issue requiring discussion." Cowart v. State, 519
So.2d 896, 897 (Miss.1988). Thus, Cowart's conviction and sentence
were affirmed. Id. Cowart filed a motion for post conviction relief with the
Mississippi Supreme Court, seeking a determination that his trial
counsel was ineffective. The motion was denied. Thereafter,
Cowart filed for federal habeas relief.
After a hearing on his claim, the district court held that
Cowart's speedy trial claim was not barred by procedural default in
the state court and that under Barker v. Wingo, 407 U.S. 514, 92
S.Ct. 2182, 33 L.Ed.2d 101 (1972), his constitutional rights were
violated. We reverse.
II.
The state contends that Cowart is procedurally barred from
bringing the speedy trial issue under Coleman v. Thompson, --- U.S.
----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The state argues
that Cowart defaulted his speedy trial claim by failing to bring it
to the trial court's attention. Under Mississippi law, a movant
has the duty to pursue a motion to a hearing and is deemed to have
waived the motion if he fails to do so. Lee v. State, 357 So.2d
111, 112-13 (Miss.1978). There is nothing in the state court
record indicating that a hearing was held on the motion or that
Cowart requested one. Absent cause and prejudice or a
demonstration that a failure to consider the claim will result in
a fundamental miscarriage of justice, claims that are defaulted
pursuant to adequate and independent state law are barred from
review in a federal habeas corpus action. Coleman, --- U.S. ----,
111 S.Ct. at 2565.
If the state court's decision "fairly appears to rest
primarily on federal law, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground
is not clear from the face of the opinion," Michigan v. Long, 463
U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983),
a federal court on habeas review will presume that there is no
adequate and independent state ground for a state court decision.
Coleman, --- U.S. at ----, 111 S.Ct. at 2557. Thus, "if the
decision of the last state court to which the petitioner presented
his federal claims fairly appeared to rest primarily on resolution
of those claims, or to be interwoven with those claims, and did not
clearly and expressly rely on an independent and adequate state
ground, a federal court may address the petition." Id. (emphasis
added). Federal courts will presume that a state court's decision
rests on federal grounds only when "the decision of the last state
court to which the petitioner presented his federal claims must
fairly appear[s] to rest primarily on federal law or to be
interwoven with federal law." Id.
The Mississippi Supreme Court rejected Cowart's contentions
without comment. Since its rationale is undefined, we "look
through" its order to the last reasoned state court decision. Ylst
v. Nunnemaker, --- U.S. ----, ---- - ----, 111 S.Ct. 2590, 2594-95
(1991). If "the last reasoned opinion on the claim explicitly
imposes a procedural default, we will presume that a later decision
rejecting the claim did not silently disregard that bar and
consider the merits." Id. --- U.S. at ---- at 2594. Where the
last reasoned opinion rested on or was interwoven with federal law,
the presumption is that the subsequent unexplained order did not
invoke procedural bar. Id. In Cowart's case, there is no reasoned state court decision at
any stage dealing with his speedy trial claim. Thus, the last
reasoned opinion neither "explicitly imposes a procedural default"
nor "fairly appear[s] to rest primarily on federal law or to be
interwoven with federal law."
The district court presumed that, because "the trial went
forward," Cowart's claim must have been denied. Absent any
indication that the state court relied upon procedural bar in
denying his claim, we must assume that the state court rejected
Cowart's claim at least partially on the merits. Cowart filed a
motion to dismiss on speedy trial grounds and raised the issue on
direct appeal; thus it is at least arguable that he properly
raised his claim. As a result, if the state court rejected the
claim on procedural grounds, it must state so. Otherwise, Cowart's
claim is not barred from habeas review.
III.
The Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial...." This constitutional guarantee is applicable to
the states through the Fourteenth Amendment. Klopfer v. North
Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).
The constitutional right to a speedy trial attaches "only
when a criminal prosecution has begun and extends only to those
persons who have been "accused' in the course of that prosecution."
United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30
L.Ed.2d 468 (1971). A defendant's speedy trial rights attach only
when he is "formally charged with a crime or actually restrained in connection with that crime." Dickerson v. Guste, 932 F.2d 1142,
1144 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 214, 116
L.Ed.2d 172 (1991).
In his comprehensive, twenty-eight page recommendation, the
magistrate judge found that Coward was arrested on February 23,
1985, for the attempted armed robbery and aggravated assault
against the Burrows and for other alleged crimes. Cowart also was
charged with an unrelated aggravated assault against his wife soon
after the other charges, but she dropped the charges. Cowart
additionally was charged with violating parole by consuming
alcohol. The magistrate judge concluded that he was arrested for
both the subject crimes and parole violations. As a result, the
recommendation concluded that Cowart was actually restrained, "in
connection" with the crimes for which he was eventually convicted,
from February 1985 until his November 1985 indictment and February
1986 trial.
By holding that Cowart's speedy trial rights attached in
February 1985, the court misread Dickerson. The magistrate judge
apparently construed the phrase "in connection with that crime" as
applying to the underlying events for which Cowart was charged.
Under Dickerson, however, we examine Cowart's legal status:
whether he has been "formally charged with a crime or actually
restrained in connection with that crime." The only reasonable
reading of "in connection with," in context, is that the purpose of
the defendant's restraint is in anticipation of formal charging.
Elsewhere in the same opinion the Dickerson Court restates the
requirement of a speedy trial as attaching "only after the defendant has been formally indicted or actually restrained
accompanying arrest." Id. (emphasis added).
Cowart was not formally arrested for his crimes against the
Burrows. He was taken into custody on February 23, 1985, for
violating his parole. The crimes against the Burrows, the assault
against his wife, and the consumption of alcohol were independently
sufficient grounds for revoking his parole and returning him to
confinement. Cowart waived a parole revocation hearing and was
returned to the state penitentiary to continue serving his
previously-imposed life sentence for murder.
Cowart was not formally charged with armed robbery and assault
against the Burrows until November 18, 1985, when indictments were
returned. Cowart's constitutional right to a speedy trial did not
accrue until then, and not in February 1985, as the district court
concluded. Indeed, the magistrate judge notes that "Cowart was
arrested ... and informally charged with several offenses."
(Emphasis added.) Informal charging does not meet Dickerson 's
stiff hurdle of formal charging.
The district court's attempt to distinguish Dickerson is not
persuasive. In Dickerson, we noted that the "state detainer was
not the basis for Dickerson's federal incarceration." Id.
Similarly, Cowart was restrained for parole violations, not for the
independent crimes for which he later was charged. There is no
evidence that the state was actually restraining him based upon
having already charged him with, or in anticipation of charging him
with, the subject crimes.
IV. Once the constitutional right to a speedy trial accrues, we
determine whether the accused has been deprived of that right by
applying the balancing test of Barker v. Wingo to determine whether
there was an undue delay between charging and trial: (1) the
length of delay, (2) the reason for delay, (3) the assertion of the
speedy trial right, and (4) prejudice to the accused. Id., 407
U.S. at 530, 92 S.Ct. at 2191-92. We conclude that the
ninety-two-day period between Cowart's charging in November 1985
and his trial in February 1986 was not sufficient to establish a
violation of his right to a speedy trial. Moreover, even if we
accept the district court's holding that Cowart was arrested in
February 1985, the 349-day delay was not sufficient to establish a
violation.
A.
"The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other
factors that go into the balance." Id. The actual length of delay
necessary to warrant an application of the other factors in the
balancing test is not defined by the Constitution, but must be
considered in light of the circumstances of the particular case.
Id. at 530-31, 92 S.Ct. at 2191-92. A delay of less than one year
will rarely qualify as "presumptively prejudicial" for purposes of
triggering the Barker inquiry. See Doggett v. United States, ---
U.S. ----, ---- n. 1, 112 S.Ct. 2686, 2691 n. 1, 120 L.Ed.2d 520
(1992).
The legally relevant delay in this case was only ninety-two days, a period insufficient to presume prejudice. See United
States v. Vanella, 619 F.2d 384, 386 (5th Cir.1980) (holding that
a "relatively brief delay of less than one hundred days certainly
does not rise to the level of presumptive prejudice"). Under
Barker, we need not even consider the other factors in order to
deny Cowart's speedy trial claim.
Even if we accept the district court's measurement of 349
days, there is no presumptive prejudice. A delay of ten and
one-half months is not presumptively prejudicial, United States v.
Maizumi, 526 F.2d 848, 851 (5th Cir.1976), and in United States v.
Loud Hawk, 474 U.S. 302, 304, 106 S.Ct. 648, 650, 88 L.Ed.2d 640
(1986), the Court held that a delay of ninety months did not result
in a violation of federal constitutional speedy trial rights.
Absent extreme prejudice or a showing of willfulness by the
prosecution to delay the trial in order to hamper the defense, see
Barker, 407 U.S. at 531, 92 S.Ct. at 2192, a delay of less than one
year is not sufficient to trigger an examination of the Barker
factors.
B.
Under Barker, we also consider the reasons for the delay. A
deliberate and intentional delay by the prosecution for the purpose
of hindering the defense or otherwise gaining a tactical advantage
is weighed heavily against the state. An unintentional and
inadvertent delay, however, is weighed much less heavily. Where
the state advances valid reasons for the delay, or the delay is
attributable to acts of the defendant, this factor is weighed in
favor of the state. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. There has been no showing that the state intentionally delayed
the proceedings in this case. Unexplained or negligent delay is
weighed against the state, but not heavily. See United States v.
Avalos, 541 F.2d 1100, 1111 (5th Cir.), cert. denied, 430 U.S. 970,
97 S.Ct. 1656, 52 L.Ed.2d 363 (1976). Thus, if there is any
advantage to Cowart from this factor, it is small.
C.
The third factor to be considered is the accused's assertion
of, or the failure to assert, the speedy trial right. "[F]ailure
to assert the right will make it difficult for the defendant to
prove that he was denied a speedy trial." Barker, 407 U.S. at 532,
92 S.Ct. at 2193.
Cowart did not assert his constitutional right to a speedy
trial until four days before trial. Even then, he did not move for
a speedy trial, but only to dismiss the charges. As we indicated
in Hill v. Wainwright, 617 F.2d 375, 379 (5th Cir.1980), an
assertion that charges be dismissed for a speedy trial violation is
not a value protected under Barker. Thus, no matter how broadly
the district court would construe Cowart's pro se motion, a demand
to "squash" an indictment is not a valid demand for a speedy trial.
Thus, this factor is given "strong evidentiary weight" in favor of
the state. Barker, 407 U.S. at 531, 92 S.Ct. at 2192.
D.
Finally, we examine the degree of prejudice to the defendant
resulting from the delay. Since the first three factors do not
weigh heavily against the state, Cowart must make an affirmative
showing of actual prejudice. Hill v. Wainwright, 617 F.2d at 379 n. 4; Avalos, 541 F.2d at 1116-17. The Supreme Court has
identified three interests protected by the right to a speedy
trial: (1) preventing "oppressive pretrial incarceration," (2)
reducing the "anxiety and concern of the accused," and (3)
protecting against impairment of the defense. Id., 407 U.S. at
532, 92 S.Ct. at 2193. Any delay in this case caused no actual
prejudice to Cowart's case or to the interests protected by the
right to a speedy trial.
In Barker, the Supreme Court noted that excessive pretrial
incarceration can be detrimental both to the defendant and to his
case. Anxiety about one's reputation and private life during
pretrial delay, however, will not alone suffice to warrant a
reversal of a conviction. See United States v. Hill, 622 F.2d at
910. Incarceration on other charges or convictions pending trial
also does not constitute prejudice for Barker purposes. Jamerson
v. Estelle, 666 F.2d 241, 243-45 (5th Cir.1982); United States v.
Scallion, 533 F.2d 903, 912-13 (5th Cir.1976), cert. denied, 436
U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978); Turner v. Estelle,
515 F.2d 853, 859 (5th Cir.1975), cert. denied, 424 U.S. 955, 96
S.Ct. 1431, 47 L.Ed.2d 361 (1976). As it was proper for Cowart to
be returned to the state penitentiary for parole violations, it was
inappropriate for the magistrate judge to find prejudice to Cowart
from his confinement.
The district court also held that the delay prejudiced Cowart
because it weakened the memories of eyewitnesses who could have
testified on his behalf. This conclusion is questionable.
On direct appeal, Cowart asserted no actual prejudice as a result of the delay. In his subsequent state application for
post-conviction relief, Cowart did not assert a speedy trial
violation as a ground for relief. It was only in his federal
habeas hearing, seven years after the alleged crimes were
committed, that Cowart alleged that his defense was undermined
because the delay hindered his ability to call a witness known only
as "Peanuts."
It is difficult to give much weight to any allegation of
prejudice resulting from an inability to call this witness to
testify. It certainly does not demonstrate actual prejudice.
Moreover, such arguments are generally viewed with disfavor when,
as here, the allegation is not supported by the production of the
witness who allegedly would have altered the outcome of the trial.
See, e.g., McFadden v. Cabana, 851 F.2d 784, 787-89 (5th Cir.1988),
cert. denied, 489 U.S. 1083, 109 S.Ct. 1541, 103 L.Ed.2d 845
(1989); Hill v. Wainwright, 617 F.2d at 379.
The failure of "Peanuts" to testify could not have altered the
outcome of the trial and could not have resulted in actual
prejudice to Cowart. Cowart alleges that Peanuts could testified
that he and Cowart did not go to the victims' home with the
intention of committing a crime. Their purpose for going to the
Burrows' house, however, is immaterial to the crimes that
transpired upon arrival. To the extent that it was material, in
light of the overwhelming evidence of Cowart's guilt, it does not
constitute a probability that the outcome of Cowart's trial would
have been different had Peanuts testified. Indeed, because Peanuts
probably could have been prosecuted for the crimes, it is doubtful that he even would have testified. Thus, Cowart has not
demonstrated that he was actually prejudiced by any delay in his
trial.
The court also found that Cowart was prejudiced by the failure
to arraign and therefore appoint an attorney in a timely manner.
This conclusion is also questionable. First, this claim also was
not presented to the state court. Second, any delay complained of
could have resulted even if Cowart had been appointed counsel and
arraigned a time more proximate to the commission of the crimes at
hand. There is no evidence that appointing a lawyer at an earlier
date would have substantively altered the outcome by a more prompt
or thorough investigation. Thus, there was no showing that any
prejudice was a result of a violation of speedy trial rights.
E.
Applying the Barker test, we conclude that the district court
erred in holding that Cowart's speedy trial rights were violated.
Because he was held in connection with the subject offenses for
only ninety-two days before trial, he has not even established the
threshold test of Barker of presumed prejudice.
Alternatively, if we accept the district court's measurement
of 349 days, the district court still erred by holding that
Cowart's speedy trial rights were violated: Rarely will we presume
prejudice from a delay of less than one year, there was no evidence
that the state deliberately delayed the proceedings, Cowart did not
properly assert his speedy trial rights, and there was no actual
prejudice as a result of the delay. Unless the first three Barker
factors all weigh heavily against the government, the defendant must demonstrate actual prejudice. Under the circumstances, Cowart
has not established a violation of his right to a speedy trial.
Thus, we REVERSE the district court's judgment that the state
of Mississippi violated Cowart's speedy trial rights, and we RENDER
judgment for the state.