### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 09-60778

ROMMEL A. AMOS Petitioner–Appellant
v. JOE THORNTON Respondent–Appellee

Appeals from the United States District Court for the Southern District of Mississippi

Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges. PER CURIAM: Rommel A. Amos, a prisoner in the custody o f t he state of Mississippi, appeals the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Amos contends that he was denied his right to a speedy trial and that his lawyer provided ineffective assistance of counsel by failing to

move for a speedy trial. The Missi s s i p p i Supreme Court determined these claims to be without merit. Because Amos cannot show that this determination was objectively unreasonable, we affirm the dismissal of his petition. I. W a lte r V a n ce w a s sh o t d e a d b y A m o s ’ s h a n d in Holmes County, Mississippi, on Halloween night 2001. That evening, Amos and his friend Aaron U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 7, 20 11 Lyle W . Cayce Clerk Case: 09-60778 Document: 00511533383 Page: 1 Date Filed: 07/07/2011No. 09-60778

Hudson had decided to walk from Hudson’s home to the home of a fri e nd who lived nearby. On their way, they enc o u n t e r e d a group of people that included Vance and Vance’s friend Christopher Claiborne. After Vance insulted Amos’s headgear, a physical altercation ensued between Vance, Claiborne, and Amos. At some point thereafter, Amos came into possession of a .22 caliber pistol. He fired five shots from it. Four of them hit Vance, causing his death. Amos fled to Chicago t h e d a y after Vance’s death. He was arrested in Chicago on December 21, 2001, under an Illinois statute that requires the arrest and extradi t i o n o f any person found in Illinois who has fled from justice after being ch a r g e d with a felony by another state. Amos demanded a speedy trial 1

on the day he was arrested and made two additional speedy-trial demands while he was in custody in Illinois, one on January 18, 2002, the other on January 29. Amos waived extradition and consented to be returned to Mis s i s sippi on February 6, 2002. Amos was not indicted in Mississippi until July 16, 2002; he

was arrested on July 26. The record is silent as to the date on which Amos was extradited to Mississippi. Nor does the record contain any explanation for t h e five-month delay between Amos’s waiver of extradition in Illinois and his arrest in Mississippi. Three days after his arrest, Amos filed a pro se motion for a speedy trial. The trial court never acted on this motion. The court initially set Amos’s case for trial on February 13, 2003, but the trial was continued and did not begin until April 29, 2003. The record contains no explanation of the reasons for this two-and-a-half-month continuance. The net result, then, was that Amos

was in custody fo r a l ittle more than sixteen months between the time he was first arrested and the time his trial began. At trial, Amos advanced a theory of self defense. According to Amos, after he responded angrily to Vance’s insulting his headgear, Vance, Claiborne, and

See 725 I L L

. C OM P

. S TAT

. 225/ 2. 1
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another person violently assaulted him, punching him, kicking him, and beating him with a liquor bottle. As the beating was going on, Hudson returned to his home, retrieved Amos’s pistol, returned to the site of t h e beating, and handed the pistol to Amos, who then fired it t o w a r d h is assailants. Alexis Noel, Hudson’s girlfriend, also testified that Hudson retrieved the gun and then passed it to Amos while Amos was being beaten. However, Hudson denied that he retrieved the gun and brought it to Amos during the beating. Rather, Hudson testified that Amos came back to Hudson’s home about five or ten minutes after the beating, retrieved the gun himself, wal ked back outside, and then shot Vance. Claiborne denied t h a t he and Vance had assaulted Amos. Claiborne testified that after Vance insulted Amos, Amos became extremely angry. Vance and Claiborne shoved Amos t o t h e g r o und but then helped him back up; no assault took place. Afterwards, Amos walked away, r e t rieved the gun from Hudson, pursued Vance and C l a i r bone, and shot Vance in the back. Katrina Venable, who was among the group of people Amos and Hudson encountered, corroborated Claiborne’s account of the events giving rise to the shooting. The jury rejected Amos’s self-defense claim and convicted him of murder. The court sentenced him to life in prison. Amos then sought relief on both direct and collateral review. Amos alleged manifold claims for relief on his state-court direct appeal, including both of the claims at issue on this appeal. The Court of Appeals of Mississippi determined that both claims were without merit. Ho w e v e r , Amos did not petition the 2 Mississippi Supreme C o u rt for a writ of certiorari, so his inclusion of these claims in his direct appeal did not exhaust them for federal ha b eas purposes. 3 Next, Amos moved for permission to see k p o s t

- c onviction relief in the Mississippi

See Am os v. State , 911 So. 2d644 , 649–50 & 657 (M iss

. Ct. Ap

. 2005)

. 2
See O’ Sull iv an v. Boe rck el , 526 U. S. 838 , 845–47 (199 9). 3
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Supreme Court. This motion, too, alleged numerous claims for relief. The court denied the motion on the grounds that Amos’s ineffective-assistance-of-counsel claims “do not pass the standard set forth in S t r i c k l a nd v. Washington ” and denied the remaining claim s , including the speedy-trial claim, on the alternative bases that they were procedurally barred and without merit. Amos then turned to federal district court, where he filed a habeas petition pressing twenty separate claims for relief ( i n cluding an ineffective-assistance claim that identified thirty-five separate instances of allegedly ineffective representation). The district court denied the petition in its entirety. We granted a certificate of appealability on Amos’s claim that he suffered a violation of his constitutional right to a s p e e dy trial, which the district court determined was procedurally barred, and on his claim that his l a w y e r ’s failure to file a motion for a speedy

4 trial violated his right to the effective assistance of couns e l, which the district court determined was without merit. II. The Sixth Amendment guarantees every criminal accused “the right to a speedy

. . . trial.” Whether a criminal defendant has been deprived of his right 5

Even thou gh the dis tri ct cour t wa s cor rec t to conc lude that Amo s pr oce dur ally 4 def aulte d his sp eed y-tr ial clai m, see Fis her v. Tex as , 169 F

. 3 d 295, 300 (5t h Cir. 1999) , it nonet heles s err ed by app lying the doc tri ne of pr oce dur al bar. The Sta te’ s res pons e to Amo s’ s pet itio n did not cont end that Amo s had pr oce dur ally def aulte d his sp eed y-tr ial clai m, and we have pr evious ly held that it is an abus e of dis c r e t i o n f o r a dis tri ct cour t to sua sp onte app ly “th e pr oce dur al bar def ens e wh en the pet itio ner has abs olut ely no no t i c e or opp ort unity to res pond ,” Pri eto v. Qu ar term an , 456 F.3d 511, 518 (5t h Cir. 2006)

. Amo s argues that we mus t vacat e the judgm ent a n d rem and this mat ter to the dis tri ct cour t so that it can revie w his clai m on the me rit s. Not so
. An err or is ground s for rever salon ly if it is no t harm les s, F E D R. C IV

. P. 61, and any err or that doe s affec t the losing par ty’s subs tant ial right s is harml es s, e. g. Uni ted States v. Gu il le rm o Bal le za , 613 F.3d 432, 434 (5t h Cir. ) (p er cur iam ), cer t. deni ed , 131 S. Ct. 680 (201 0). In light of our det erm inati on that Amos is not ent itle d to re lief on his sp eed y-tr ial clai m, s e e i nfr a Sec tio n II, the dis tri ct cour t’s err or in dis mi ss ing that clai m as pr oce dur ally barr ed wa s harm les s, and rem and is u nnece ss ary. See gener al ly Scott v. Johns on , 227 F.3d 260, 262 (5t h Cir. 2000) (“ [T] his Court may a f fir m the deni al of habeas reli ef on any gr ounds upp ort ed by t he rec ord .” ).
U .S

. C ON ST

. ame nd VI. 5
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to a speedy trial is a mixed question of law and fact. Under the Antiterrorism 6 and Effective Death Penalty Act, we review a state court’s resolution of a mixed
q u e s tion of law and fact under the deferential standard of 28 U

. S

. C

. § 2254(d)(1). Accordin g l y , A m os is entitled to relief only if the state court’s

7 rejection of his speedy-trial claim resulted in a decision that was contrary to, or involved an objectively unreasonable application of, clearly established federal law as articulated in the decisions of the Supreme Court. 8 Section 2254(d)(1) imposes a “‘highly deferential standard for evaluating state-court rulings, which demands that sta t e - c o urt decisions be given the benefit of the doubt.” It is not enough for a petitioner to show that a state 9 court’s decision was incorrect or erroneous; he must show that the decision was

o bjectively unreasonable, which is “a substantially higher threshold.” V e ry f e w 1 0 petitioners can make this showing. “As a condition for obtaining habeas corpus 1 1 from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justi f i c a t ion that there was an error well understood and comprehended in existing l a w b e yond

Uni ted States v. Vi ll ar ea l , 613 F.3d 1344, 1349 (11t h Cir. 2010) ; Uni ted States v. 6 Wan iga si nghe , 545 F.3d595 , 597 (7t h Cir

. 2008) ; U nitedState s v. Br ow n , 498 F.3d 523, 530 (6t h Cir

. 2007)

. E.g. , Ric har dson v. Q uar term an , 537 F.3d466 , 472 (5t h Cir

. 2008)

. 7
See Go odrum v
. Qu ar term an , 547 F.3d249 , 256 (5t h Cir

. 2008)

. 8
Cull en v. Pi nhol ster , 131 S. Ct . 1388, 3198 (2011) (quot ing Wood for d v. V

is cotti , 537 9 U. S. 19, 24 (200 2) (p er cur iam ))

.

Schi ro v. Landr iga n , 550 U. S. 465, 473 (200 7); see also Locky er v. Andr ade , 538 U. S. 1 0 63, 75–76 (200 3).

See Ha rri ngton v

. Ric hter , 131 S. Ct

. 770, 786 ( 2011) (“It bear s rep eati ng that even 1 1
a st rong cas e for reli ef doe s not me an the st ate cour t’s cont rar y conc lu s i o n w a s unrea so nable.

. . . If this stand ardis dif fic ult to meet , thatis becau se it was meant to be.” ).

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any possibility for fairminded disagreement.” In assessing the reasonableness 1 2 of a state court’s application of clearly e s t a b l i s h ed federal law, our review “is limited to the record that was before the state court.” 1 3 Tw o f e atures of AEDPA deference are particularly pertinent to our analysis of Amos’s speedy-t r i a l claim. First, this always-substantial deference is at an apex when we ar e r e v iewing a state court’s application of a broad, general standard whose application “to a specific case can demand a substantial element of judgment.” Determining whether a defendant’s speedy-trial right 1 4 has b e e n v i o l ated requires the application of just such a standard. As the Supreme Court explained in its seminal decisio n in Barker v. Wingo , the right to a speedy trial “is a more vague concept than other procedural rights,” and it is “impossible to determine with precision when the right has been denied. . . . [A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case.” Barker identified four factors that 1 5
structure the inquiry into whether a defendant has been deprived of his right to

a speedy trial: “(1) the length of delay, (2) the reason for the delay, (3) the d e f e n d a n t’s assertion of his right to speedy trial, and (4) prejudice to t h e defendant.” This four-factor balancing test eschews “rigid r u l e s ” and

1 6 “mechanical factor-counting” in favor of “‘a difficult and sensitive balancing

Id. at 786–87. 1 2
Pinho ls ter , 131 S. Ct

. at 1398. 1 3
Yar boro ugh v

. Al va ra do , 541 U. S. 652 , 664 (200 4). 1 4
Bark er v. Wingo , 407 U. S. 514, 521–22 (197 2); see al so Gra y v. King , 724 F.2d 1199, 1 5 1202 (5t h Cir. 1984) (“ What is acc ept able in one cas e
. . . may not be so in anot h e r ; muc h dep ends on t he com ple xity of the cas e.” ).

Go odrum , 547 F.3dat 257 ( cit ing Bark er , 407 U. S. at 530 ). 1 6
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process.’” Section 2254(d)(1) thus requires us to give the widest of latitu d e to

1 7 a state court’s conduct of its speedy-trial analysis. Second, the deference due under § 2254(d)(1) is not diminished by the fact t h a t the Mississippi Supreme Court did not explain the reasons for i t s determination that Amos’s claim is without merit. “Where a state court's decisi o n i s u n a c c o m p a n i e d b y a n e x p l a n a t ion, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state c o u r t to deny relief.” To assess whethe r a p e t itioner has made this showing, we

1 8 determine “what arguments or theories

. . . c o u l d h a ve supported[] the state court’s decision” and then ask whether fairmi n ded jurists could conclude that those arguments and theories are consistent with the Supreme Court’s relevant teachings. If there is any objectively reasonable basis on which the state court

1 9 could have denied relief, AEDPA demands that we respect its decision to do so. With these guiding principles in mind, we turn to an analysis of Barker ’s fourfactor balancing test.

“Ba rk e r’ s f

i r s t factor, length of delay, performs a dual function.” Initially, 2 0 it operates as a screening device. “Simply to trigger a speedy trial analysis, an 2 1 accused must allege that the interval between accusation and trial has crossed the threshold” that separates ordin a r y delay from “‘presumptively prejudicial’ delay.” If the accused can make this threshold showing, we next “‘consider, as

2 2

Nel son v. Ha rgett , 989 F.2d 847, 851 (5t h Cir. 1993) (quo ting Bark er , 407 U. S. at 533)

. 1 7
Ric hter , 131 S. Ct

. at 784. 1 8
Id. at 786

. 1 9
Nel son , 989 F.2dat 851

. 2 0
See Bark er , 407 U. S. at 530 ( “The length of the de lay is to so me ext ent a t rigger ing 2 1
me chani sm . Unt il ther e is so me del ay wh ich is pr es ump tivel y pr ejudi cial , ther e is no nece ss ity for in quiry into t he othe r fac tor s that go into t he balanc e.” ).

Doggett v. U

nitedState s , 505 U. S. 647 , 651–52 (199 2). 2 2
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one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.’” 2 3 As to the first of these functions, we conclude that Amos has m a d e a threshold showing of presumptively prejudicial delay. A defendant’s right to a speedy trial “attaches at the time of arrest or indictment, whichever comes first.” The delay between arrest or indictment and trial crosses the line from

2 4 “ordinary” to “presumptively prejudicial” somewhere ar o u n d the one-year mark. Here, a little more than sixteen months elapsed between Amos’s arrest

2 5 in Illinois and the b e g i n n i n g o f his trial in Mississippi. This is sufficient to trigger the full, four-step speedy-trial inquiry under Barker

. 2 6 We turn now to the second function performed by Barker ’s first factor, an inquiry into “the extent to which the delay extends beyond the b a r e m i n i mum

Nel son , 989 F.2dat 851 ( quot ing Doggett , 505 U. S. at 652 ). 2 3 Id; see al so Robi nson v . Whi tley , 2 F.3d 562, (5t h Cir. 1993) (“ The rele vant per iod of 2 4 del ay is that fol low ing acc usa tio n, eit her arr es t or indi ctm ent, wh iche ver occ urs fir st .” (c itin g Di ll ingha m v. U

nitedState s , 423 U. S. 64 (197 5))

. See Uni ted States v. Serna -V il la rre al , 352 F.3d 225, 230 (5t h Cir. 2003) (c itin g Uni ted 2 5 States v. Bergf

ie ld , 280 F.3d 486, 488 (5t h Cir. 2002) ); see al so Nel son , 989 F.2d at 851 (c itin g Doggett , 505 U. S. at 652 n. 1).

The Sta te cont ends t hat Amo s suf fer ed fr om only an eight- mo nth del ay, reas oning 2 6 that beca use “M iss iss ipp i lack ed juris dic tio n over Amo s until his extr adit ion” fr om Illinois , the
s p e e d y - t r i a l cloc k “co uld not have begun to run” until Amo s wa s indi cte d in July of 2002. Am os , 911 So. 2d at 649. Ho we ver, the fac t that an acc u s e d i s i n t h e cus tod y of anot her
so verei gn doe s not abs olve a st ate of its res p ons ibili ty unde r the Sp eed y Trial Claus e to pr os ecut e the acc use d wi th cus tom ary dis pat ch. Smi th v. Ho oey , 393 U. S. 374, 377–83 (196 9); Pri nce v. Al aba ma , 507 F.2d 69 3 , 7 0 0

– 02 (5t h Cir. 1975)

. That rule app lies wi th par tic ular for ce here , sin ce Amo s’ s arr es t in Illinois cam e at Mis sis sip pi’ s behes t, see Am os , 911 So. 2d at 649; 725 I L L

. C OM P

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. 225/ 3; sup ra note 1, and ther e is no indi cat ion that Amo s att em pt ed to fr ust rat e or del ay his extr a d i t i on, see Brad en v. Cap ps , 517 F.2d 221, 223 n.4 (5t h Cir. 1975) ; s e e al so Uni ted States v. Ma nning , 56 F.3d 1188, 1195 (9t h Cir. 1995)

. Und er thes e cir cum st ance s, Amo s’ s right to a sp eed y tri al att ache d at the tim e of his arr es t in Illinois , and the eight mo nths that laps ed betw een his arr es t ther e and his indi ctm ent in Mis sis sip pi mus t be inclu ded in the calc ulati on of the tot al pr etr ial del ay. See Smi th , 393 U. S. at 382 (c rit icizi ng a st ate cour t for “all ow ing doc tri naire co n c e p t s o f ‘po we r’ and ‘aut hori ty’ to sub me rge the pr act icald em ands of

t he cons tit utio nal right t o a s pee dy tri al”)

.

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required to trigger a Barker analysis,” which is particularly “significant to the 2 7
sp e e d y trial analysis because

. . . the presumption that pretrial delay has prejudiced the accused intensifies over time.” The bare minimum required to 2 8 trigger a Barker analysis is one year. A delay must persist for at least eighteen 2 9 months over and above that bare minimum for this factor to strongly favor the accused. The delay between Amos’s arrest and trial only exceeded the one-year

3 0 minimum by about four months. We have previously conclud e d that such a delay, “[a]lt h o u g h long enough to prompt a full Barker -analysis,” is “not long enough to weigh heavily in favor” of the accused, and we see no reason to draw 3 1 a different conclusion here. N e x t we consider the reasons for the delay. The burden is on t h e Government to “assign[] reasons to justify t h e d e l ay.” Different reasons are 3 2 entitled to different weight: At one extreme, a deliberate delay to disadvantage the de f e n s e is
w e i g h t ed heavily against the state. At the other end of t h e spectrum, delays explained by v a lid reasons or attributable to the conduct of the defendant weigh in favor of the state. Between these

Go odrum , 547 F.3dat 258

. 2 7
Doggett , 505 U. S. at 652

. 2 8
See sup ra note 18 ; s e e a l s o D og gett , 500 U. S. at 658 (id enti fying one year as the 2 9 length of

d elay that is “ genera lly s uff icie nt to tri gger judic ial revie w” ).
See Go odrum , 547 F.3d at 258; see al so Uni ted States v. Mo li na- Solo ri o , 577 F.3d 300, 3 0 305 (5t h Cir

. 2009) ( coll ect ing c ase s)

.

Uni ted States v. Frye , 372 F.3d 729, 737 (5t h Cir. 2004) (d es cri bing a pos t- indi ctm ent 3 1 del ay of “ app roxim atel y 16 mo nths ”) ; see a ls o Uni ted States v. Park er , 505 F.3d323 , 328–29 (5t h Cir. 2007) (“As for length of del ay, the se vente en- mo nth per iod

. . . doe s not we igh in [t he
acc use d’s ] favor .” ).

Bark er , 407 U. S. at 531; see al so Uni ted States v. Ingram , 446 F.3d 1332, 1337 (11t h 3 2 Cir. 2006) (“ ‘Bec aus e the pr os ecut or and th e co u rt h av e an aff irm ative cons tit utio nal obligat ion to try the def

enda nt i n a tim ely man ner
.. . the burd en is on the pr os ecut ion to expla in the
caus e of the pr e-t rial del ay.’ ” (quo ting Uni ted States v. Brow n , 169 F.3d 344, 349 (6t h Cir. 1999) )) ; Mc Nee ly v. Ba la nas , 336 F.3d822 , 827 (9t h Cir

. 2003) ( coll ect ing c ase s)

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extremes fall unexplained or negligent delays, which weigh against the state, “but not heavily.” 3 3 In this case, “[a]bsolutely no reason for the delay appears in the record; there is

no indication that either Amos or the State requested a continuance or otherwise caused the delay.” Because the delay is wholly unexplained, this factor weighs 3 4 in Amos’s favor, but the advantage that accrues to him is small. 3 5 The third Barker factor asks whether the defendant “diligentl y a s serted his sp eedy trial right.” The burden is “on the defendant to alert the 3 6 government of his grievances.” A “‘defendant’s assertion of h i s s p e edy trial 3 7 right’ receives ‘strong evidentiary weight,’ while ‘failure to assert the right will make it difficult fo r a d e f e n d a nt to prove that he was denied a speedy trial.’” 3 8 This factor can also cut against the defendant where there was a lengthy delay between his arrest or indictment and his assertion of his speedy-trial right. 3 9 H e r e , t h e record reflects that Amos timely asserted his right to a speedy trial

. He initially asserted it on the day he was arrested in Illinois, and he reasserted it to the Illinois court twice over the next five weeks. After being extradited to Mississippi, his wife filed a motion that stated,“I, LaMonica Henderson on the

Go odrum , 547 F.3d at 248 (f oot note s and inte rnal cit atio n om itt ed) (quo ting Cow ar t 3 3
v. H ar gett , 16 F. 3d 642, 647 ( 1994) ).
Am os , 911 So. 2dat 649

. 3 4
See Cow ar t , 16 F. 3d at 647. 3 5
Uni ted Sta tes v. Pa rke r , 505 F.3d323 , 329 (5t h Cir

. 2007)

. 3 6
Robi nson , 2 F. 3d at 569. 3 7
Mo li na- Solo ri o , 577 F.3dat 305 ( quot ing Bark er , 407 U. S. at 531 –32)

. 3 8
Park er , 505 F.3dat 329 –30 (“ Me re ass ert ion of the sp eed y t rial r ight is not enough 3 9 for this fac tort o w eigh in a d efe ndant ’s f avor. If he wa its too long, his pr e-a ss ert ion sil ence wi ll be we ighedagai nsthi m. ”)

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behalf of Rommel Amos would like to file a motion for a speedy trial.” She filed 4 0 this motion just three days after Amos was arrested in Mississippi and less than t w o w e e k s after he was indicted. Amos’s diligent, non-dilatory request for a speedy trial weighs strongly in his favor. The f o u r t h and final Barker factor is the prejudice suffered by the defendant due to the delay. “[O]rdinarily the burden is on the defendan t to demonstrate actual prejudice. But where the first three factors together weigh heavily in the defendant’s favor, we may c o n c l ude that they warrant a presumption of prejudice, relieving the defe n d a n t of his burden.” Here, 4 1 although Amos’s timely assertion of his right to a speedy trial weighs heavily in his f a v o r , the unexplained reason for the delay and the relatively short length of the delay both weigh in his favor only slightly. Accordingly, no presumption of prejudice is warranted. B a r k er thus must demonstrate that he suffered from 4 2 actual prejudice. “‘Actual prejudice’ is assessed in light of the three following interests of the defendant: (1) ‘to prevent oppressive pretrial incarceration’; (2) ‘to minimize anxiety and concern of the accused’; and (3) ‘to limit the possibility that the defense will be impaired.’” 4 3 Amos’s only argument as to how he was prejudiced by the delay is that his ability to put on a defense was impaired by the fact that several witnesses’ memories of the murder had faded

. Our review of the trial transcript persuades

The s ame d ay, Amo s fi leda signed ce rti fic atio n stat ing t hat he grant ed He nder so n 4 0 per mi ss ion to fil e m oti ons on hi s behalf

. Am os al so s ignedt he mo tio n i ts elf

.

Mo li na- Solo ri o , 577 F.3dat 307 ( inte rnal cit atio n o mi tte d)

. 4 1
See Go odr u m , 5 4 7 F

. 3d at 260 (d ete rm ining that no pr es ump tio n of pr ejudi ce wa s 4 2
wa rra nted wh ere tw o of the fir st thr ee Bark er fac tor s we ighe d h e a v i ly in the def enda nt’ s favor ); Char le s , 629 F.3d at 466 (“ [D ]el ays of les s than five years are ins uff icie nt, by dur atio n alone , to give ris e to a pr es ump tio n o f p r ej u d i ce and reli eve the def enda nt of sat isf

ying Bark er ’s f

ourt h p rong. ”) , Uni ted States v. Ha rri s , 566 F.3d 422, 433 (5t h Cir. 2009) , ce r t. d e n i e d , 130 S. Ct. 4 3 1687 (201 0).
11 Case: 09-60778 Document: 00511533383 Page: 11 Date Filed: 07/07/2011No. 09-60778

us that this claim is unfounded. Most of what Amos points to as instances of the

w i t n e sses’ faded memories are, in actuality, nothing more than instances of different witnesses having different recollections of what happene d. Some witnesses re m e m b e red Amos fleeing the scene in his girlfriend’s car; others testified the car was elsewhere. Amos and Noel testified that Hudson brought Amos the gun while he was on the ground being attacked; Hudson testified that Amos came to Hudson’s home and got the gun after the attack concluded. All of the witnesses had slightly different memories of the precise location where the shooti n g took place. The mere fact that various witnesses recounted slightly different versions of what happened is not ev idence that one or more of those witnesses had forgotten what happened. Such discrepancies are to be expected; the i n e v i t a b l e need to sort through them is one of the primary reasons for the jury-trial system. Amos offers neither argument nor evidence that, had the trial t a k e n p lace sooner, all of the witnesses would have testified consistently and that this testimony that would have been more favorable to him. In addition, several of what Amos identifies as instances of faded memory simply do n o t w i t h s tand close scrutiny. For example, Amos contends that Venable had forgotten whether she to l d t he investigating officers that Vance and Claiborne had attacked Amos. But Venable testified that she had a c l ear and specific recollection that Vance and Claiborne did not assault Amos, that they
pu s h e d a n d shoved him but did not exchange blows. Amos’s attorney tried to impeach Venable’s recollection based on the fact that she used the word “fight” in the statement she gave police the day after the murder, but Venable insisted that her recollection had not changed and that her statem e n t w a s consistent with her testimony. A m o s also contends that the three investigating officers could not recall who collected the shell casings from the scene. But each of the officers testified specifically as to what role they played in the policing the scene, and their testimony was consistent.

12 Case: 09-60778 Document: 00511533383 Page: 12 Date Filed: 07/07/2011No. 09-60778

The few genuine instances of faded memories that Amos has identified do not show that he was prejudiced by his delayed trial. “[ W] h i l e ‘faded memory may result in prejudice, we have he l d t h a t i n order to prejudice the defense to the extent necessary to constitute a sp e e d y t rial violation, the faded memory must substantially relate to a material fact in issue.’” Amos is correct that the 4 4 investigating officers were unable to recall precisely how many people were on the scene when they arrived. And Clairborne could not remember the exact date

on which he gave a statement to the police, exactly how many shots he heard, or how he disposed of his liquor bottle. But these collateral factual details were not material to Amos’s theory of self defense. On t h e c o re issues, none of the witnesses were unable to recall what happened or testified that their memories of the murder had faded. The record does not substantiate Amos’s claim that his ability to put on a defense was prejudiced by the pretrial delay. As a result, fairminded jurists could easily conclude that A mos did not suffer a violation of his Sixth Amendment right to a speedy trial. It follows that the Mississippi Supreme Court’s rejection of Amos’s speedy-trial c l a im was neither contrary to nor involved an unreasonable application of clearly established federal law. The district court did not err by dismissing this claim. III. Our disposition of Amos’s speedy-trial claim forecloses relief on his claim that his lawyer rendered constitutionally ineffective assistance of counsel by f a iling to file a motion for a speedy trial. Section 2254(d)(1) requires us t o uphold a state court’s denial of an ineffective-assistance-of-counsel claim so long

as that denial was not an unre a s o n a b l e application of the two-pronged

See Ja me rso n v. Estel le , 666 F.2d 241, 245 (5t h Cir. 1982) (quot ing Uni ted States v. 4 4 Edw ar ds , 577 F.2d883 , 889 (5t h Cir

. 1978) ). 13 Case: 09-60778 Document: 00511533383 Page: 13 Date Filed: 07/07/2011No. 09-60778

deficiency–prejudice standard articulated by Strickland v. Washington

. “With 4 5 respect to prejudice, a challenger must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Specifically, where prej u d i c e is alleged to arise from 4 6 counsel’s failure to file a motion, the petitioner must show there was a reasonable probability “that the trial court would have granted it, or would have reversibly erred by refusing it.” If Amos’s speedy-trial claim lacked merit, then 4 7 he cannot show that there is a reasonable probability that a motion for a speedy trial would have been granted if his attorney had filed it. We have already concluded that it was objectively reasonable for the state court to determine that Amos’s speedy-trial claim lacked merit. A fortiori , it was also objectively reasonable for that court to determine that Amos could not demonstrate that he was prejudiced by his attorney’s failure to move for a speedy trial. IV. For the reasons discussed above, the district court’s judgment dismissing Amos’s habeas petition with prejudice is AFFIRMED.

See Tenn

y v. Dr etke , 416 F.3d 404, 406 (5t h Cir. 2005) (c itin g Stri c k l a n d v
. 45 Was hington , 466 U. S. 668 , 687 (198 4))

.

Ric hter , 131 S. Ct

. at 787 (quo ting Stric kla nd , 466 U. S. at 694 ). 4 6
Ge iger v. Cai n , 540 F.3d 303, 309 (5t h Cir. 2008) ; s e e a l s o Uni ted States v. Flor es- 4 7 Oc hoa , 139 F.3d102 2, 1024 (5t h Cir

. 1998) ( det erm ining that a def enda nt canno t sho w that he wa s pr ejudi ced by his couns el’s “f ailing to mo v e f

o r a c onti nuance ” wh ere “th ere is no ev i d e n c e that the cour t wo uld have grant ed the mo tio n.” ); Uni ted States v. Gi bson , 55 F.3d 173, 179 5th Cir. 1995) ( “ C o u n s e l is not requ ired by the Sixth Ame ndm ent to fil e me rit les s mo tio ns. ”)

. 14 Case: 09-60778 Document: 00511533383 Page: 14 Date Filed: 07/07/2011