FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOE PRIESTLY STUARD, 

No. 03-15300 Petitioner-Appellant,

D.C. No.

v.  CV-00-02149-EHC

TERRY L. STEWART, Deputy, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge, Presiding

Submitted September 14, 2004*

San Francisco, California

Filed March 22, 2005

Before: James L. Oakes,** Andrew J. Kleinfeld, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Kleinfeld

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable James L. Oakes, Senior Circuit Judge of the United

States Court of Appeals for the Second Circuit, sitting by designation. 

3485
COUNSEL

Donald W. MacPherson (briefed), The MacPherson Group,

Phoenix, Arizona, for the appellant. 

Vincent L. Rabago, Assistant Attorney General, Criminal

Appeals Section, Tucson, Arizona, for the appellee.

OPINION

KLEINFELD, Circuit Judge: 

This is a habeas petition in which the petitioner claims he

was unconstitutionally forced to choose between two constitutional entitlements, his right to a speedy trial and his right to

effective assistance of counsel. 

Facts

Stuard committed an astonishing number of armed robberies. His restitution order, for the robberies of which he was

STUARD v. STEWART 3487
convicted, showed a few hundred dollars each payable to Subway, Baskin Robbins, Domino’s, Dairy Queen, Kentucky

Fried Chicken, Video Doctor, Little Caesars, and Payne &

Morrison Flowers. Altogether he was convicted of ten armed

robberies and four aggravated assaults, and sentenced to 266

years. 

As Stuard approached trial, about three months after being

indicted on one of the robberies, the prosecutor moved to consolidate the case for trial with another indictment charging

him with the rest. This put considerable pressure on defense

counsel, who now had to try a much more extensive case that

involved many more witnesses. On September 19, at the pretrial conference held to set a firm trial date, the prosecutor

suggested that defense counsel might need more time to prepare than the Arizona speedy trial rule1

 would allow, and

expressed concern that the conviction she expected to win

might be subject to challenge if defense counsel was forced

to try the case without adequate preparation time. The speedy

trial rule required that trial be within eleven days, unless the

defendant waived his right to have trial that fast. The prosecutor and the court expressed willingness to accept a delayed

date if defendant wanted it. Though the prosecutor said she

did not think that defense counsel could be ready, defense

counsel was ambiguous in his assessment of whether he could

prepare in time. Defense counsel told the judge that a date

within the Arizona rule deadline would be “kind of difficult,”

but that his client did not want to waive his right to trial

within the next eleven days. 

The judge then engaged in an extended colloquy with

Stuard, explaining that his lawyer felt that another six to eight

weeks would be desirable for preparation, and that his lawyer

had not yet had sufficient time to personally question the

detectives on the case. Stuard told the judge “I am not interested in waiving any time at all,” and “I don’t know why he

1Ariz. R. Crim. P. 8. 

3488 STUARD v. STEWART
would need to talk to the detectives in the case because they

were already in the police report.” The judge patiently

explained that his lawyer might be able to generate some contradictions between what the detectives said orally and what

they said in the police report, which would help the defense,

but Stuard insisted on going to trial within the eleven days

allowed by the rule. Stuard told the judge that even though

some delay would mean he “could get a better defense,” he

did not “want to spend the rest of [his] life in jail waiting for

trial.” The judge reiterated to Stuard that it was up to him

whether he wanted to waive any claim to better preparation of

counsel. Stuard snapped back that “there is a sort of Catch22” between his right to a speedy trial and his right to have

his lawyer fully informed. Although Stuard recognized that

his lawyer was “probably overworked,” he remarked “that’s

not my problem.” 

In fact it was his problem. He could wind up spending the

rest of his life locked up after trial, as he knew from plea

negotiations. But he insisted on going to trial in the face of

what appears to have been good advice to the contrary. His

lawyer said “I can try to be ready,” and skillfully shifted to

the prosecutor the burden of making discovery immediately

available. (Of course, trial tactics often have layers upon layers. It is conceivable that the prosecutor’s generosity was

really because she needed more time, and that Stuard’s insistence on racing huckledebuck to trial was because he knew

some witnesses she had not yet found.) 

On the day set for trial, September 30, Stuard’s lawyer said

“I guess we’re announcing we’re ready.” The prosecutor, not

defense counsel, pushed for delay. She expressed concern that

she could win the case and lose the appeal if Stuard could

establish that he had been forced to trial without adequate

time for his lawyer to prepare. The judge again engaged in an

extended and careful colloquy with Stuard, to assure the court

that Stuard was acting knowingly and voluntarily in declining

to waive his right to immediate trial, even though he could get

STUARD v. STEWART 3489
more time for his lawyer to prepare if he waived. Stuard

insisted on proceeding. 

They had yet another conference before trial commenced,

this time in chambers (but transcribed). The judge obtained

Stuard’s assurances that he still wanted to proceed to trial

immediately, and also that he had been informed of and had

turned down an offer of a plea bargain with his eyes open.

Stuard told the judge that he was ready to proceed, and that

he had turned down a deal for forty years, because “I offered

— I would do 15, because I figure that’s about the number of

robberies I did.” 

After his direct appeal, Stuard sought post-conviction relief

in the Arizona courts based on a variety of claims, including

ineffective assistance of counsel. The Superior Court of Arizona held that Stuard “clearly waived any argument regarding

preparation of his attorney” and the Arizona Court of Appeals

summarily denied review. He then petitioned for a writ of

habeas corpus. The district court denied his petition, and he

appeals. The only issue certified on appeal (we decline to

expand the certification) is “whether the district court erred by

determining that Stuard, by asserting his right to a speedy

trial, waived his right to raise ineffective assistance of counsel

claims based on counsel’s lack of preparation.” 

Analysis

Though the state’s brief claims that Stuard procedurally

defaulted in state court, it presents no argument for why or

how this default came about, and merely tells us to root

around in papers it filed elsewhere and infer the argument.

For all we know, Stuard may have procedurally defaulted, but

we are not going to construct an argument for the state sua

sponte, depriving Stuard’s counsel of a fair chance to respond

3490 STUARD v. STEWART
to it. The procedural default argument is waived because it is

not briefed.2

In a federal habeas corpus petition challenging state confinement, the petitioner must demonstrate that the state court

decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court.”

3

 Thus, Stuard needs a Supreme Court decision that the Arizona court acted contrary to or unreasonably

applied. The ones he cites are Simmons v. United States4 and

United States v. Jackson.5

In Simmons, the only way the defendant could show standing to assert his Fourth Amendment rights against a search of

his luggage was to testify that it was his luggage, but compelling him to testify would violate his Fifth Amendment right

not to incriminate himself.6 In Jackson, if the defendant

claimed his Sixth Amendment right to trial by jury, then he

exposed himself to the death penalty, which he could avoid by

waiving his Fifth Amendment right not to plead guilty.7 In

both cases, the Supreme Court relieved the defendant of the

burden of these choices. 

[1] Stuard argues that he was burdened with a similar

“Catch-22.”

8

 But the cases he cites do not support him

2Trest v. Cain, 552 U.S. 87, 89 (1997). 

3

28 U.S.C. § 2254(d)(1). 

4

Simmons v. United States, 390 U.S. 377 (1968). 

5United States v. Jackson, 390 U.S. 570 (1968). 

6

Simmons, 390 U.S. at 381. 

7

Jackson, 390 U.S. at 581. 

8

In Joseph Heller’s World War II novel, Yossarian tries to avoid having

to fly any more dangerous combat missions by claiming that he is crazy.

The doctor explains to him that only a crazy person would willingly fly

combat missions after a lot of close calls, but rational concern for his own

safety proves that a person is not crazy. So, anyone who asks to be

relieved from flying more combat missions because he is crazy can’t be

relieved, since his rational request proves he isn’t crazy. “That’s some

catch, that Catch-22,” acknowledges Yossarian. Joseph Heller, Catch-22

at 46-47 (Dell ed. 1962) (1955). 

STUARD v. STEWART 3491
because he has not demonstrated a constitutional right that he

was compelled to forfeit. Stuard suggests that he was compelled to forfeit his right to the effective assistance of counsel,

but offers no argument, no evidence, and no authority to satisfy either the deficient performance prong or the prejudice

prong of Strickland v. Washington.

9

 All the record shows is

that the prosecutor, not defense counsel, thought that to preserve her record from challenge it would be desirable to give

defense counsel more time. Defense counsel said he would

have liked more time to do more interviews of detectives

whose reports he had read, and to spend more time examining

the real evidence he had looked at in the prosecutor’s office.

That is a far cry from acting “outside the wide range of professionally competent assistance.”

10 Stuard makes no attempt

to fit his attorney’s performance within the “ineffective assistance” category delineated by Strickland, and does not cite the

case as one that the state court acted contrary to or unreasonably applied. 

[2] Likewise, Stuard does not attempt to show that he could

have obtained more preparation from his busy lawyer only by

staying in jail past the time when the Sixth Amendment would

entitle him to trial. All he shows is that, to get the additional

time that the prosecutor, the judge, and his lawyer would have

liked the defense to have, he would have had to waive his

right to the speedy trial deadline provided in the Arizona court

rule.11

9

Strickland v. Washington, 466 U.S. 668 (1984). 

10Id. at 690. 

11Ariz. R. Crim. P. 8.2(b) states that: 

Every person held in custody in this state on a criminal charge

shall be tried by the court having jurisdiction of the offense

within 120 days from the date of the person’s initial appearance

before a magistrate on the complaint, indictment or information,

or within 90 days from the date of the person’s arraignment

before the trial court, whichever is the lesser. 

3492 STUARD v. STEWART
[3] Though the rule and the Sixth Amendment both contain

the right to a “speedy trial,” they mean different things. The

constitutional rule imposes a flexible limit that is far longer

than the Arizona rule in most or all cases. The Supreme Court

in Barker v. Wingo held that “we cannot definitely say how

long is too long in a system where justice is supposed to be

swift but deliberate.”

12 In United States v. Aguirre,13 we held

that “a five year delay is long enough to trigger a further

look,” but concluded that even the five-year delay in that case

did not deprive the defendant of his constitutional right to a

speedy trial when all the Barker v. Wingo factors were balanced.14

[4] Stuard was going to trial three months after the indictment, and had the power in his own hands to delay his trial

for another month or two to give his lawyer more time to prepare. The extra time would not even get his trial past the first

Barker v. Wingo factor of an “uncommonly long” delay,15 and

Stuard presents no argument for any of the factors. The constitutional right to a speedy trial was not even implicated in

this case, just a state rule with the same name. 

[5] The Supreme Court said in McGautha v. California16

12Barker v. Wingo, 407 U.S. 514, 521 (1972). 

13United States v. Aguirre, 994 F.2d 1454, 1457 (1993). 

14The factors to consider are: 

[1] whether delay before trial was uncommonly long, [2] whether

the government or the defendant is more to blame for the delay,

[3] whether, in due course, the defendant asserted his right to a

speedy trial, and [4] whether he suffered prejudice as the delay’s

result [sic]. 

Aguirre, 994 F.2d at 1455 n.1 (citing Doggett v. United States, 505 U.S.

647, 657 (1992), and Barker, 407 U.S. at 530) (brackets and numbering

in original). 

15Doggett, 505 U.S. at 651 (citing Barker, 407 U.S. at 530). 

16McGautha v. California, 402 U.S. 183 (1971), vacated on other

grounds, 408 U.S. 941 (1972). 

STUARD v. STEWART 3493
that “[t]he criminal process . . . is replete with situations

requiring the making of difficult judgments as to which

course to follow. Although a defendant may have a right, even

of constitutional dimensions, to follow whichever course he

chooses, the Constitution does not by that token always forbid

requiring him to choose.”

17 Far from showing that he was

unconstitutionally forced into foregoing one constitutional

right for another, Stuard has not shown that he gave up any

constitutional right at all, or that any constitutional right was

even at stake. He merely was faced with a choice between

giving up one advantage for another. Simmons and Jackson do

not entitle a defendant to obtain all possible advantages where

giving up one is necessary to obtaining the other. Even had

there been a serious claim to ineffective assistance of counsel,

because trial on the consolidated cases came only ten days

after the consolidation, there was no constitutional right to a

speedy trial that had to be given up to avoid ineffectiveness

of counsel. 

The Seventh Circuit decided a similar claim similarly, in

United States v. Ashimi.

18 About the only distinction is that

Ashimi called his problem a “Hobson’s Choice”

19 instead of

a Catch-22. Ashimi holds that Simmons is not violated when

a defendant is forced to choose between a statutory right and

a constitutional right.20

17Id. at 213 (internal citation and quotation omitted). Though McGautha

was later vacated in part in light of Furman v. Georgia, 408 U.S. 238

(1972), the Supreme Court and this court have continued to rely on the

quoted passage above. See Bonin v. Calderon, 59 F.3d 815, 839-40 (9th

Cir. 1995) (holding that the reasoning of McGautha was controlling in the

case before it). 

18United States v. Ashimi, 932 F.2d 643 (7th Cir. 1991). 

19Tobias Hobson supposedly rented out horses in Cambridge, and told

customers that their choice was to take the horse nearest the stable door

or take no horse at all. 3 The Oxford English Dictionary 151 (2d ed.

1989). 

20Ashimi, 932 F.3d at 647-48. 

3494 STUARD v. STEWART
[6] Not all choices are Catch-22s. A compulsion to choose

between two advantages, where the compulsion does not

force the defendant to forfeit any constitutional entitlements,

is not contrary to or an unreasonable application of Simmons

and Jackson. 

AFFIRMED.

STUARD v. STEWART 3495