* Circuit Judge of the Seventh Circuit, sitting by

designation. 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 Co urt 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 Burr ows and an aggravated assault on Mrs. Burrows.

L ater 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 p ro se motion to"Squash" (sic) the indictments, citing the language of M ISS .C ODE §

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 co nstitutional 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, al though the state was ordered to produce

discovery. At the evidentiary hearing before the federal district

court, Cowart testifi ed 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

Cowar t's "assignments of error are without merit and that the

appeal raises no issue requiring discussion." C owart 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 a nd that under B arker 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 proce durally 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. L ee v. State, 35 7 So.2d

111, 112-13 (Miss.1978). There is nothing in the state court

record indicating that a hearing was he ld 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 miscarriag e of justice, claims that are defaulted

pursuant to adequate and independent state law are barred from

review in a federal habeas corpus action. C oleman,

--- 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, andwhen 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 f ederal 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. Y lst

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." I d.

--- U.S. at ---- at 2594. Where the

last reasoned opinion rested on or was interwoven with federal law,

t he 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 tri al went

forward," Cowart's claim must have been denied. Absent a ny

indication that the state court relied upon procedur al 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 t hat "[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. K lopfer v. North

Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

The co nstitutional 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 inconnection with that crime." D ickerson 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 th at 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 t he 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 thedefendant has been formally indicted or act ually 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

confinemen t. Cowart waived a parole revocation hearing and was

returned to the state penitentiary to con tinue 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 i nformally charged with several offenses."

(Emphasis added.) Informal charging does not meet D ickerson 's

stiff hurdle of formal charging.

The district court's attempt to distinguish Dickerson is not

persuasive. In D ickerson, we noted that the "state detainer was

not the basis for Dicke rson's federal incarceration." I d.

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 actuall y 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. I d., 40 7

U.S. at 530, 92 S.Ct. a t 2191-92. We conclude that the

ninety-two-day period between Cowart's charging in No vember 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 t he delay is to some extent a triggering

mechanism. Until there is some delay which is presumptively

prejudicial, there is no necessity fo r inquiry into the other

factors that go into the balance." I d. 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

considere d 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 onl y ninety-twodays, a period insuffic ient to presume prejudice. S ee 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 i s 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 heav ily. 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 w ill make it difficult for the defendant to

prove that he was denied a speedy trial." B arker, 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 B arker. 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

w eigh heavily against the state, Cowart must make an affirmat ive

showing of actual prejudice. Hill v. Wainwright, 617 F.2d at 379n. 4; A valos, 541 F.2d at 1116-17. The Supreme Court has

i dentified three interests protected by the right to a speedy

trial: (1) preventing "oppressive pretrial incarceration," (2)

reduc ing the "anxiety and concern of the accused," and (3)

protecting against impairment of the defense. I d., 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 e xcessive 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 wa rrant 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); U nited States v.

Scallion, 533 F.2d 903, 912-13 (5th Cir.1976), cert. deni ed, 436

U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978); T urner v. Estelle,

5 15 F.2d 853, 859 (5th Cir.1975), c ert. 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 i t 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 aresult of the delay. In his subsequent state application for

post-convicti on 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 d efense 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 in ability 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 a rrival. 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 doubtfulthat 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 B arker

factors all weigh he avily against the government, the defendantmust 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.